S. P. KOHLI, CIVIL SURGEON, FEROZEPUR versus HIGH COURT OF PUNJAB & HARY ANA

S. P. KOHLI, CIVIL SURGEON, FEROZEPUR v.

HIGH COURT OF PUNJAB & HARY ANA

September 12, 1978

[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.J

Offences against Public Justice-False evidence, Section 193 of the Penal Code -Process, issue of, Section 204 Crl. P.C., explained.

In connection with the offences under Sections 302 and 376, medicnl opinion was sought by the Police as to ( 1) the nature of injuries on the person of the accused. (2) the accused's potency to perform the sexual intercourse and (3) Whether the accused had performed sexual intercourse during the la.5t 24·48 hours, from one Dr. P. K. Mittal, Medical Officer, Nehru Municipal H08J>ital, Abohar. As according to the Government instructions in force at the relevant time, medico-legal cases were to be examined by two doctors, Dr. P. K. Mittal examined the accused in the presence of Dr. Mrs. L. K. Grewal attached to the !;ame hospital. On examination of the private parts of the accused, the doctor~ observed tbC. whole of the glans penis and corona of the accused covered with thick layer of yellowjsh material which smelt like smegma. They therefore advised thorough chemical and microscopic examination of the yellowish mat(-rial to find out if it was layer of smegma or not -to enable them to answ(r third query of the police and referred to the accused to the appellant who \Va~ posted as Chief Medical Officer, Ferozepur. The doctors in their fOrwarding letter stated that they had not at all disturbed the layer so that the appelJant "\vould examine the case in its original condition and order the sample of smegma to be· taken and sent for chemical examination if he felt like doing so''. The accused could be taken to Ferozepur by the police only two day~ later. ()n going through the letter, the appe11ant wrote back saying that no ~pecial opinion by him was necessary and that Dr. Mittal himself could take the scrtip-ping of the yellowish material and send the san1e to the chemical examiner Punjab for opinion. The chemical examiner Punjab, as well as the Pr-ofes~or of Pathology, Medical College, PatiaJa, whose opinion was sought expres·sed their inability to carry out any test for smegma as they had no arrangement for the same. The accused was convicted and sentenced to death under s. 302 l.P.C. subject to confirmation of the High Court and to imprisomµent for life under s. 376 LP.C. The accused in his appeal claimed benefit of doubt con· tending that the appellant as well as the other two doctors failed to examine the glans penis of the accused with View to find out whether there were any injuries thereon or not. On this argument being raise<l, the leiiri1ed Judges constituting the Division Bench felt that it was necessary in the interest of justice to examine the appellant as court witness. They, therefore summoned the appellant as court witness and recorded his statement. At the concln~ sion of the examination of the appellant, tho learned Judges felt that the appel· Jant had intentionally made false statement with view to shield his own guilt and to he1p the accused. They accordingly ordered the prosecution c·f the appellant under s. 193 l.P.C.

Allowing the appeal by special leave the Court.

HElD : (I) What 'the courts have to see before issuing the proe<ss against the accuaed i!I whether there is evidence in support" of the allegation& made by the complainant to justify tho initiation of proceedings against the accused and not whether the evidenco is sufficient to warrant his conviction, but this ~°"" not mean that the Courts should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of crimi-nal law in motion against the accused. The moment, this guiding principle is overlooked, the prosecution degenerates itself into prosecution 'vhich often is fraught with evil consequences. In the instant case, the language in which the obset"vations of the High Court about the exercise of pressure by the appellant on Dr. Mn. L. K. Grewal are couched. shows that the High Court was itself not prinu1 facie saitisfied about the validity of the action that it was takine-. [732D-FJ

(2) Prosecution for perjury should be1 sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasooably probable or likely. There must be prima facie case of deliberate falsehood on matter of substance and the court should be satisfied that there is reasonable foundation for the charge. [732G·H]

In the pre!Cllt case, as the examination of smegma lost all importance after the lapse of the performance ·of the alleged i!C'XUal intercourse, the appellant'• statement was not matter of substance and the appellant does not appear to have mado any false statement with malafide intention. In the circumstances, no useful purpose will be served by subjecting the appellant to lengthy, vexa-tious and expelM!ive trial which is not likely to end in his conviction. [732H, 733A-B]

Clrajoo Rani v. Radhey Shyam &: Anr. [1971} 1 SCC p. 744 referred to.

( 3 J In the instance case (a) tho appellant had not intentional! y made false statement. Tho words used by the appellant in answer to the qucation put to him by tho High Court taken as whole make it manifest that what the appellant meant to convey was that the accused was never physically produced before him which fact is amply proved by the strong documentary evidence viz. the allidavit of Harjit Singh Head Constable dt. 27th August, 1975 cor-roborated by the entries in Roznamacha of the Police Station, city Abhor ot dt. 17th March, 1973. (b) The question of disagreement between that two doctors and of refusal on the part of Dr. Mrs. L. K. Grewal to give opinion about smegma_ were purposely introduced subsequently by someone other than the appellant \vith some oblique motive and (c} It is well known iri the medical world that the examination of smegma loses all importance after 24 hourn ot. the perf('lrmance of the sexual intercourse. Non-invitation of this fact to the notice of the learned Judges of the High Court has led to the error, regardin1 the examination of smegma after two or three da.ys after the occurrence. [728H, 729A-D, 730G, 731A, E-F] .

Ob,~etvation :

The show cause notice besides being not happily worded is laconic. It does not satisfy the essential requirements of law. Nor ctoes it specify the attend-ing portion. in the appellant's lengthy statements which in the opinion of the High Court were false. In cases of this nature, it is highly desirable and indeC!I Very nece,.ary that the portions of the witneas'• statement in reprd to · which he has, in the opinion of the Court, perjured himself, should be 1peoi-

fically set out in or form annexure to the notice i!sued to the accused so that he is in position to furnish an adequate and proper reply in regard thereto and able to meet the charge. [734A·B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 of 1977.

Appeal by Special Leave from the Judgment and Order dated 29-9-75 of the Punjab and Haryana High Court in Criminal Misc. Petition No. 1755-M of 1975.

R. L. Kohli and Mrs. Urmila Sirur for the Appellant.

Hardev Singh and R. S. Sodhi for the Respondent.

The Judgment of the Court was delivered by

JASWANT SINGH, J.-This appeal by special leave is directed against an order dated the 29th September, 1975 of the Punjab and Haryana High Court at Chandigarh directing prooecution of the appellant for an offence under section 193 of the Indian Penal Code and asking the Registrar of the Court to lodge complaint in respect of the aforesaid offence in the conrt of competent jurisdiction.

The circumstances giving rise to this appeal are : On the basis of recovery of the dead body of minor girl of fourteen or fifteen years of age named Kaushalaya Devi from the residential house of oue Bhajan Lal aged 35 years, resident of Abohar (hereinafter referred to as 'the accused') on the night between the 14th and 15th of March, 1973 when his wife and children were away, the accused was tried for the murder and rape of the said girl. To start with, the police did not effect the arrest of the accused who from the evidence recorded in the case appeared to be big landlord. Later on, however, on the state-ment of the father of the deceased girl, case was registered against the accused and he was taken into custody at 1.00 P.M. on the 15th March, 1973. Dr. C. D. Ohri who conducted the post mortem exami-nation of the dead body of Kaushalaya Devi, deceased opined ou the basis of the observations made by him that the death of the deceased had occurred as result of asphyxiJl due to constriction of the neck which was ante mortem and sufficient in the ordinary course of nature to cause death The doctor further opined that the deceased had been raped and the person committing the rape ou her was bound to receive some scratches on glans penis. Accordingly at about 5.50 P.M. on the 15th of March, 1973, the police produced the accused before Dr. P. K. Mittal, Medical Officer, Nehru Municipal Hospital, Abohar, and requested him to opine as to (1) the nature of injuries on the person

of the accused, (2) the accused's potency to perform the sexual inter-course and (3) whether the accused had performed sexual intercourse during the last 24-48 hours. As according to the Govt. instructions in force at the relevant time, the medicolegal cases were to be examined by two doctors Dr. P. K. Mittal examined the accused in the presence of Dr. Mrs. L. K. Grewal who was also attached to his hospital and found the following injuries on his person :-

"!. Circular bruise 2t cm in diameter present on the back of right arm 3 cm lateral to the axillary fold and 14 cm below the top of right shoulder joint, the circle being of upper lower arches with healthy central area. In each arch there are separate specs of reddish violet bruises suggestive of teeth marks.

2. 2 cm. in diameter rounded bluish red bruise which is comparatively much fainter, present laterally to bruise No. 1. It is uniform in appearance all over."

In the opinion of both the doctors, injury No. 1 was the result of teeth bite but as regards injury No. 2, the doctors expressed their inability to give any definite opinion. On examination of the private parts of the accused, the doctors foond that he was potent and capable of performing sexual intercourse. During the counse of the said exami-nation, the doctors also observed the whole of the glans penis and corona of the accused covered with thick layer of yellowish material which "melt like smegma. They, therefore, advised thorough chemical and microscopic examination of the yellowish material to !ind out if it was layer of smegma or not to enable them to answer the third query made by the police and vide their letter No. 426 dated the i5th March, 1973 referred the accused to the appellant who was posted as Chief Medical Officer, Ferozepnr. In their afo;esaid forwarding letter, the doctors stated that they had not at all disturbed the layer of smegma and had tried to take no sample so that the Chief Medical Officer "would examine the case in its original condition and order the sample of smegma to be taken and sent for chemical examination if he felt like doing so." The police, was not however able to take the accused to Ferozepur before the morning of the 17th of March, 1973. Even on that day, it was only at six in the evening that the police c<l\Jld contact the appellant as he was stated to be away on an official errand. On the aforesaid docket and the connected papers being put up before him, the appellant wrote back to Dr. P. K. Mittal saying that no special opinion by him was necessary and that he (Dr. Mittal) might send without any further delay the scrapping of the yellowish material mentioned by him

from the genitals to the Chemical Examiner, Punjab for opinion. The communication addressed by the appellant to Dr. P. K. Mittal ran as under:-

"From Dr. S. P. Kohli, Chief Medical Officer, Ferozepur. / To Dr. P. K. Mittal PCMs-II, Medical Officer Incharge, Nehru Memorial Hospital, Abohar. Memo. No. NL/Special-I Dated 17-3-73 Subject : Medical legal examination of Bhajan Lal accused in rape and murder case. Reference your letter No. 426 dated 15-3-73 on the subject noted above.

Regarding point No. 3 no special opinion by the under-signed is necessary. You may send the scrapping of the yellowish material from the genitals mentioned by you to the Chemical Examiner, Punjab for opinion.

You have already been telephonically instructed through the S.H.O. Police Station Abohar City on 15-3-73 at 6.00 P.M. to do the needful. Further delay in the case must be avoided.

I had referred the case to your goodself for final opinion as the Lady Doctor refused to give any opinion on the plea that she was not familiar with the appearance and smell of smegma and as for Govt. instructions where two Doctors are unable to agree on one point the case is to be referred to Chief Medical Officer of the Distt. for final opinion. Your goodself verified the same on phone from the Lady Doctor. I did not remember any instructions for taking the smear through the SHO Police and neither your goodself remember the same on your visit to this Hospital on 16-3-1973 and 17-3-1973 in connection with the ~ame case.

Today again Lady Doctor is on leave a'nd I am alone in the Hospital but still I am doing the needful under your iru;tructions and to avoid any delay on my part.' This is for your information please.

P. K. Mittal, 18-3-1973."

The Chemical Examiner, Punjab as well as the Professor of Pathology, Medical Collei:e, Patiala whose opinion was sought by Dr. P. K. Mittal expressed their inability to carry out any test for smegma as they had no arrangement for the same. The Additional Sessions Judge, Ferozepur who tried the accused sentenced him to death under section 302 of the Indian Penal Code for the murder of Kaushalaya Devi ~ubject to confirmation by the High Court and to imprisonment for life und•" section 376 of th~ Indian Penal Code for committing rape on her but acquitted the other four persons who stood their trial jointly with the accused. The murder reference and the appeal prefer-red by the accused against his convictions and sentences were heard

by Division Bench of the High Court. During the arguments before the High Court, counsel appearing for the accused vehemently cone tended that the appellant had failed to examine the glans penis of th" accused regarding the pre<;ence or otherwise of smegma and also if both the doctors failed to examine the glans penis of the accused with view to find out whether there were any injuries thereon or not, the accused was entitled to the benefit of donbt. On this argument being raised, the learned Judges constituting the Division Bench felt that it was necessary in the interest of justice to examine the appellant who was working as Civil Surgeon, Ferozepur as in their view, the presem:e or absence of smegma on the glans penis of the accused was quite vital from the view point of the defence as w~ll as from that of the prosecntion. They, therefore, summoned the appellant as court wit-ness and recorded his statement. At the conclusion of the examination of the appellant, the learned Judges constituting the Bench folt that the appellant had intentionally made false statement with view to shield his own guilt and to help the accused. They accordingly ordered lhe prosecution of the appellant under section 193 of the Indian Penal Code as stated above.

Upo'n hearing counsel on both sides and examining the record as well as the law bearing on the question in issue, we are satisfied that the impugned order cannot b~ sustained. The only three matters regarding which the High Court appears to have thought that the appellant made false statement are as follows :-

" ( 1) that the accused was never p~ferred to or produced before him;

(2) that he did not pressurise Dr. Mrs. L. K. Grewal 'to make the endorsement "I agree" on the copy of tho medico-legal report Exhibit C.W.1 /1 '; and

(3) that Dr. P. K. Mittal did not tell him on telephone on the 15th March, 1973 that Dr. Mrs. L. K. Grewal had shown her inability to give her opinion regarding the presence of the smegma on the glans penis of the accused."

We shall deal seriatim with each one of the aforesaid portions of the appellant's statement which in the opinion of the High Court are the offending portions.

Re. Matter No. 1 :Though it cannot be gainsaid that the appellant was not quite accurate in stating before the High Court that the case of the accused was not referred to him, it cannot be said that. he intentionally or deliberately made false statement in that behalf with

view to shield his own guilt or to help the accused as obs~rved by the. High Court. The words used by the appellant in answer to the quei;tion put to him by the High Court taken as whole make it manifest that what the appellant meant to convey was that the accused was never physically produced before him. We are fortified in this view by the material on the record which unmistakably reveals that the police never caused the appearance of the accused before the appellant at Ferozepur. In his affidavit dated the 27th August,1975, Harjit Singh, Head Constable, has categorically stated that it was he who along with Milkhi Ram and Bahadur Singh, Constables, took the accused on the morning of the 17th March, 1973 frqm Abohar to Ferozepur as he had been p~ferred to the appellant by Dr. P. K. Mittal. He has further affirmed that on reaching Ferozepur at about 10.00 AM,, he learnt that the appellant was away on tour; that he waited for the app:!llant and it was on his return from tour that he met him in his office at 6.00 P.M. with the afor~aid letter of reference given to him by Dr. P. K.. Mittal; that at the time of his meeting the appel-lant, the accused was in the custody of the' aforesaid two constables in the compound and he' did not take him inside the office of the appellant and the S.H.O. Darshan Singh was not with him at the aforesaid time of his interview with the appellant. The statement of Harjit Singh, Head Constable is fully corroborated by the following entries in the Roznamcha of the Police Station, City Abohar :-

"20. Sh. Harjit Singh

Arrival/Departure 17-3-73 accused

H.C. City Abohar

H.C. himself C. Bahadur Singh 589, Milkhi Ram 378 from P.S. City Abohar proceeded at 7.30 AM. for Medical Examination by C.M.O. Ferozepur of Sh. Bhajan Lal accused u/s 302/376 IPC Case No. 49 /73 under the super-vision of Sh. Milkhi Ram.

3. Darshan Sing SI

---. ----- .

In face of this strong documentary evidence, it is difilcult for us to agree with the High Court that the appellant had intentionally made false statement.

Re : Matter No. 2 : There is also no material worth the name to justify the observatio'ns made by the High Court that the appellant had pressuri&;!d Dr. Mrs. L. K. Grewal 'to add the words "I agree" in the copy of Medico-legal Report Exhibit C.W. 1/1 after the issue of notice to him.' There was, in our opinion, absolutely no reason for the appellant to feel apprehensive so as to impel him to pressurise Dr. Mrs. L. K. Grewal to make any addition in Exhibit C.W. 1/1 in face of the aforesaid communication No. 426 dated the 15th March, 1973 which was jointly addressed to the appellant by Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal. In the said letter, there is ·not the slightest indica-tion of any disagreement or conflict of opinion between Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal. The fact that there was no dis-agreement between the two doctors is further borne out from the absence of the words "I agree" (purporting to have been added by Dr. Mrs. L. K. Grewal) in Exhibit C.W. 1/2 as also from the absence of the following words i'n Exhibits C.W. 1/2 and C.W.1/1 which are copies of Exhibit C.W. 1 /5 :-

"Since I have no experience of conducting the examina-tion of males in rape cases, I am not familiar either with the appearance or the smell of smegma. Therefore. I cannot give any opinion whether the layer present on the glans pe'nis i'· smegma or not.

Sd/-L. K. Grewal

15-3-1973.''

In view of the foregoing, it is not understandable how th•o question of disagreement between Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal or of refusal on the part of Dr. Mrs. L. K. Grewal to give any opinio'n about smegma cropped up subsequently when there was not . the ilightest whisper about it either in the aforesaid letter dated the 15th March, 1973 jointly addressed by the said two doctors to the appel-lan~ or in Exhibits C.W. 1/1 and C.W. 1/2. It seems that the question of disagreement between the aforesaid two doctors and of refusal on the part of Dr. Mrs. L. K. Grewal to give opinion about smegma were purposely introduced subsequently by some one other than the appel-lant with some oblique motive.

The remark in the above quoted letter dated the 17th March, 1973 addressed by the appellaµt to Dr. P. K. Mittal that the examina-tion of smegma was unnecessary was also not without significance. It

is well known in the medical world that the examination of smeama loses all importance after 24 hours of the performance of the sexual intercourse. The following passage occuning at page 341 in Modi's Medical Jurisprudence and Toxicology is apposite in this connec-tion:-

1. In July

"Presence of Smegma. as N~gativing Rape. -1. In July 1921, Mt. Ramdevi aged 15 years,. made report that three young men, viz. Panchu, Dabi and Jodha had committed rape on her. They were arrested and sent immediately to Modi for examination. None of them had any mark of injury on their genital& or anywhere else on their bodies. The first two had smegma on the glans penis covered by the foreskin; this proved that they could not have had sexual intercourse at least during the last twenty-four hours. The girl was also e.xamined and found to have been used to sexual intercourse, inasmuch as her hymen had old lacerations. She had no mark of injury to her private parl\'i or to any other part of her body. The men were released.

2. On the 23rd February 1923, man complained at the police-station that one Dhani had committed rape on his daughter. He was immediately arrested and sent to Modi for modical examination. He found uniform layer of smegma covering the glands penis, gave an opinion that he could not have had sexual intercourse during the last twenty-four hours. The man was released."

It seems that the attention of the learned judges of the High Court wai; not drawn to the above quoted passage' for if it had been so, they would have been spared of trouble of dwelling on the matter relating to examinatio'n of smegma after two or three days of the occurrence.

Re. Matter No. 3 : The observations made and the conclusions arrived at by the High Court in regard to this matter are also not warranted by the material on the record. As already shown, there was no question of inability on the part of Dr. Mrs. L. K. Grewal to give her opinion regarding the presence or absence of smegma on the glans penis of the accused on the 15th March, 1973 when the afore-said letter ~f the even date was written by her to the appellant jointly with Dr. P. K. Mittal. Accordingly there was hardly anyi occasion for Dr. P. K. Mittal to tell the appellant on telephone on the 15th March, 1973 that Dr. Mrs. L. K. Grewal had shown her inability to give her opinion regarding the presence of smegma on the glans penis

of the accused, or for the appellant to verify the matter from Dr. Mrs. L. K. Grewal on telephone as suggested by Dr. p. K. Mittal in his above quoted letter dated the 18th March, 1973. As observed earlier, the so called refusal on the part of Dr. Mn;. L. K. Grewal has been introduced by some interested party with an ulterior motive.

The High Court was also in error in adopting negative approach to the question which it was called upon to determine. Instead of tryi.ng to find out whether there was prima facie case justifying the issue of notice to the appellant, it adopted negative approach and tried t0 find out whether there was no prima facie case against the appellant. This would be clear from the following observations made by the ·High Court at page 40 of the Paper Book :-

"At this stago, from the material which has been referred to above, it is difficult to hold that there is no prima facie case for coming to the conclusion that Dr. Kohli pressurised Dr. Mrs. Grewal to make the endorsement "I agree" on the copy of the medico-legal report Exhi.bit C.D. 1/1."

It is true that what the courts have to see before issuing the pro-cess against the accused is whether there is evidence in support of the allegations made by the complainant to justify the initiation of pro-ceedings against the accused and not whether, the evidence is sutllcient to warrant his conviction, but this does not mean that the courts should not prima facie be of the opinion that there are sufficient and reason-able grounds for setting the machinery of criminal law in motion against the accused. The moment this guiding principle is overlooked, the prosecution degenerates itself into persecution which often is fraught with evil consequences. The language in which the above-quoted ohservations of the High Court about the exercise of pressure [1 ]by the appellant on Dr. Mrs. L. K. Grewal arfl couched shows that the High Court was itself not prima facie satisfied about the validity of the action that it was taking.

All this apart, the impugned order cannot be sustained for another reason. It is now well settled that prosecution for perjury should be sanctioned by courts only in those cases where it appears to be delibe-rate and consciou~ and the conviction is reasonably probable or likely. It is also well recognised that there must be prima facie c;ase of deliberate falsehood on matter of substance and the Court should be satisfied that there is reasonable foundation for the chari:e. (See Chajoo Ram v. Radhey Shyam & Anr.(') In the present case, as the examination of smegma lost all importance after the lapse of 24 ·hours

(I) [1971) l s. c. c. 774.

of the performance of the alleged ~exual interco11rse as shown above, the aforesaid statement of the appellant was, in our judgment, not on matter of substance and the appellant does not appear to have made any false statement with mala fide intention. In the circumstances, we do not think that any useful purpose will be served by subjecting the appellant to lengthy vexatious and expensive trial which is not likely to end in his conviction.

For the foregoing reasons, we allow the appeal and set aside the . aforesaid order of the High Court. Before. parting with the case, we would like to make few observations with regard to the show cause notice issued to the appellant. The said notice runs as follows:-"IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

Court on its own motion CriminaI Misc. No. 1755-M of 1975

Petitioner

Court on its own motion

Versus

Dr. S. P. Kohli, Civil Surgeon,

Ferozepur

. . Respondent

Proceedings to show cause notice taken up by the Court on its own motion, vide order dated 30-4-1975, passed by Hon'ble Mr. Justice B. S. Dhillon and Hon'ble Mr. Justice R. N. Mittal in Criminal Appeal No. 911of1974/M. Ref. No. 46 of 1974.

Notice to : Dr. S. P. Kohli, Civil Surgeon, Ferozepur.

WHILE disposing Criminal Appeal No, 911/74 and M. Ref. No. 46 of 1974, the above proceedings have been taken up by this Court on its own motion agaimt you for making false statement in this Court. NOTICE is hereby given to you that the case will be laid before this Court on 4-7-1975 (Actual date).

You are hereby directed to take the necessary steps to show cause in person or through counsel as to why proceed-ings under section 193 I.P.C. shall not be initiated against you:

GIVEN under my hand and the seal of the Court, this 16th day of May, 1975.

By order of. the High Court,

Deputy Supdt. Criminal."

The notice besides being not happily worded is laconic. It does not sati~fy the essential requirements of law. Nor does it specify the offending portions in the appellant's lengthy statement which in the opinion of the High Court were false. In cai;es of this nature, it is highly desirable and indeed very necessary that the portions of the wit:ness's statement in regard to which he has, in the opinion of tlle Court, perjured himself, should be specifically set out i'n or form all-· nexure to the notice issued to the accused so that he is in pooition to furnish adequate and proper reply in_ regard thereto and be able to meet the charl:".

Appeal allowed.