'Classic Case Of Negligence': Karnataka High Court Orders Sensitization Of Medical Officers Examining Minor Victims Of Sexual Assault

A single judge bench of Justice H P Sandesh also directed the Principal Secretary to take action against a doctor working in the Taluk Government Hospital, Jagalur, Davanagere District, who conducted medical examination of the victim in this case and issued a Sexual Assault certificate in this case, without giving any opinion.

"No report is given regarding physical examination i.e., genital examination of the victim. The very purpose of subjecting the victim girl for medical examination is defeated since the doctor has not given the report. But he issues the Sexual Assault Certificate and no opinion is given... classic case of negligence on the part of the doctor," the Bench remarked.

The erring doctor had examined the victim regarding history of sexual assault and upon her physical examination, he had said that no injuries were noted in external genetalia. However, the Court noted that no finding was given by the doctor in the certificate whether hymen was intact or not, whether she was subjected to sexual act or not. Further, when the Court enquired from the doctor as to what is meant by Sexual Assault Certificate, which he had issued, he kept quiet.

"This is one more classic case of negligence on the part of the doctor, who conducted the examination of the victim and not giving report and in a callous manner issuing Sexual Assault Certificate without any opinion and hence it is a fit case to direct the Principal Secretary, Health Department, to initiate the appropriate proceedings against the doctor, who had issued Sexual Assault Certificate," the Court said.

It also directed its Registry to send a copy of this order to the Health Secretary for issuing an appropriate circular and direction to the Medical Officers working in the entire State, regarding their duties and responsibilities when the child victim is produced before them.

Case Background:

The accused Thippeswamy @ Thipeshi had approached the court seeking bail in a case registered against him for the offence punishable under Sections 363 and 376(2)(n) of IPC, Section 6 of the Protection of Children from Sexual Offences Act ('POCSO Act' for short) and Sections 9 and 11 of the Prohibition of the Child Marriage Act.

In his complaint to the police, the father of the victim girl lodged a complaint stating that his 16–year old daughter was missing from June 14, 2021. Thereafter, during the course of investigation, the police secured the petitioner as well as the victim girl. On enquiry, the victim girl disclosed that both of them fell in love. The accused came to the house and persuaded her that he would marry her and with the assistance of her friends took her in a bus to Ilkal and kept her in a house and subjected her for sexual act.

The victim also disclosed that on 26.06.2021, he took her to the house of one Manjula and there also he has committed forcible sexual intercourse from 27.06.2021 to 18.07.2021. The victim was subjected to medical examination and a 164 statement of the victim was also recorded by the learned Magistrate.

Petitioners submissions:

It was submitted that police have already investigated the matter and filed the charge-sheet. The incriminating material has already been recovered from the petitioner and hence this petitioner is no more required for further investigation. Co-accused have been granted bail by this Court, and hence this petitioner is also entitled for bail on the ground of parity.

Prosecution opposed the plea:

It was submitted that it is not in dispute that the victim girl is aged about 16 years. In her 164 statement, she categorically says that both of them led life like husband and wife. The medical evidence is also clear that she is subjected to sexual act.

Court findings:

The bench on going through the records said it is not in dispute that the victim is aged about 16 years and in her 164 statement, she has categorically stated that the petitioner kept her in a room for a period of ten days and both of them led life like husband and wife and thereafter this petitioner took her to Andhra Pradesh and made her to stay in his friend's sister's house for a period of one month.

Further the bench said, "The very victim girl categorically stated in 164 statement that this petitioner took her to different places and kept her in a room as well as friend's sister's house and both of them led life like a husband and wife and hence it is a clear case of subjecting her for sexual act and there is a prima facie material against the petitioner herein."

It added, "The filing of the charge-sheet itself is not enough to enlarge him on bail when the petitioner subjected the minor girl for sexual act and he took the minor girl from the custody of her parents and made her to stay in a room and also at Andhra Pradesh and both of them were secured by the police from Andhra Pradesh. When such being the factual aspects of the case, the very contention of the learned counsel for the petitioner that already recoveries are made and no need of the petitioner for further trial cannot be accepted having considered the heinous offence committed by the petitioner and hence it is not a fit case to exercise the discretion in favour of the petitioner."

Accordingly, it rejected the petition.

Case Title: Thippeswamy @ Thipeshi v. State By Jagalur P.S

Case No: Criminal Petition No.9980/2021

Citation: 2022 Livelaw (Kar) 67

Date Of Order: 5th Day Of March, 2022

Appearance: Advocate V.Lakshmi Kanth Rao For Petitioner

Advocate Vinayaka V.S For Respondents.