Allahabad High Court
Nseeruddin vs The State Of U.P. on 25 September, 2012
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- BAIL No. - 5148 of 2012
Petitioner :- Nseeruddin
Respondent :- The State Of U.P.
Petitioner Counsel :- B.P.Nigam
Respondent Counsel :- Govt.Advocate
Hon'ble Shabihul Hasnain,J.
In compliance of Court's orders, Director General, Medical and Health, Dr. Vibha Lal is present before the Court. This Court had sought her appearance for the purpose of assistance. It has been observed by this Court that in cases where there is allegation of rape, after the medical examination, doctors write, "no definite opinion about rape can be given". The Court was intrigued by the fact that why and how a medically trained doctor can interpret a legal term. Rape has been defined in Indian Penal Code under Section 375 of I.P.C. and is being quoted as under:-
?375. Rape-A man is said to commit ?rape? who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-With her consent, when the man nows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With our without her consent, when she is under sixteen years of age.?
As is obvious, there are so many factors which the doctors can not determine. When doctors write that no definite opinion about rape can be given, these words create an impression as if the medical evidence is against the incidence of rape. It is forcefully argued by counsel for the accused that the prosecution story is belied and not corroborated by the medical evidence. Dr. Lal has very clearly mentioned that what doctors mean to say is that they are not giving any opinion about rape. However, in common parlance it is understood as an opinion that no rape has been committed. This leads to a wrong impression and sometimes lawyers are able to create a confusion in the minds of the courts whether Section 375 and 376 of IPC will be attracted or not.
Dr. Lal has invited the attention of this Court towards a letter purportedly written by the Investigating Officer, Police Station-Aliganj, Lucknow in which the officer has sought definite opinion from the doctor as to whether rape has been committed or not. This is totally uncalled for. The investigating officer can not insist that medical doctors should give legal opinion. It is made clear that rape is a legal term, whatever equivalent or appropriate word may be available in the medical dictionary should be used by the concerned doctors. They should not give opinion in such terms which is misleading or confusing.
At this stage, learned Advocate General, who is present before the Court, has shown the views of Hon'ble Supreme Court before the Court passed in Wahid Khan Vs. State of Madhya Pradesh, Criminal Appeal No.1798 of 2008, decided on November 01, 2009.
Director General, Medical and Health has assured this Court that she will correct this practice by issuing circulars, guidelines to subordinate doctors for making proper and correct evaluation and reporting in medical terms.
Learned A.G.A. will also issue notice to the investigating agencies not to insist for specific legal opinion from the doctors.
Heard Sri B. P. Nigam, learned counsel for the applicant and learned Additional Government Advocate for the State. Perused the F.I.R. and other relevant papers filed in support of the bail application.
The accused-applicant has prayed for bail in Case Crime No.158 of 2012, under Sections-363, 366, 376, 504 and 506 of IPC, P.S.-Behta Gokul, District-Hardoi.
The applicant-accused is in jail since 19th May, 2012. He says that the prosecutrix has been living for two and half months with the accused. Although the statements are against him but living together for about two and half months without raising any alarm entitles the applicant for being released on bail. Learned A.G.A. has, however, opposed the bail.
Considering the facts and circumstances and without expressing any opinion on merits of the case, let the applicant Naseeruddin be released on bail in aforesaid case crime on his filing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned/remand Magistrate.
Order Date :- 25.9.2012
RKM.
