STATE OF H P Vs. SHASHI KANT DEVEDI

JUDGEMENT

(1.) RESPONDENTS were acquitted by the learned trial Court for the offences punishable under Sections 182, 187, 201, 212 471 read with Section 120-B Indian Penal Code. The State felt aggrieved, as such filed the present appeal.

(2.) IN the year 1993, respondent No. 1 was a doctor in the Health Department of the State posted at P.H.C. Chintpurni (Una), H.P. Respondent No. 2 was running a private Clinic under the name and style of "Sanjeev Clinic" at Chintpurni itself. One Kapil Dev was an accused in FIR No. 45 of 1993, registered on 1.4.1993 for the offence of rape punishable under Section 376 INdian Penal Code. On 1.5.1993, he was got medically examined by the police from respondent No. 1. It is alleged that on the basis of the false and fabricated OPD slip prepared Ext. PW16/A by respondent No. 2, respondent No. 1 introduced a false history of the accused that he was under depression and suffering from pneumonitis, undergoing treatment in the Clinic of respondent No. 2 w.e.f. 25.3.1994. Respondent No. 1 described the history of weakness and inability to sexual intercourse of Kapil Dev for the last two months. Despite the fact that he observed that his sexual organs were well developed and he deliberately gave his report wrongly that he was unable to erect his penis, due to illness and also being under treatment for depression and anxiety resulting in temporary impotency for the last about two months. Ultimately, a Medical Board was got constituted by the then Chief Medical Officer, at the behest of Superintendent Una to ascertain sexual competence of accused Kapil Dev in the rape case. The Board was comprised of Dr. Satinder Chauhan (PW3), Dr. Chiranjit Singh and Dr. S.P. Kanwar. The said Board gave its opinion that there was nothing to suggest that Kapil Dev was unable to perform sexual intercourse as such the District INspector Garib Dass, Amb forwarded the complaint for registration of the case against the respondent which culminated into FIR No. 97/1995, under the aforesaid Sections.

(3.) PROSECUTION could not prove on record the OPD slip Ext. PW6/A to be in the hand of the respondent No. 2. Both the respondents when produced before the Judicial Magistrate refused to give their specimen hand writing and signatures for its comparison. But, however, the question is whether at the relevant time, Kapil Dev was capable of performing sexual intercourse and the report of respondent No. 1 was incorrect. For that matter, statement of PW3 Dr. Satinder Chauhan, Medical Specialist, who was one of the members of the Board is important. The report is Ext. PW3/A. He testified that they had examined said Shri Kapil Dev on 28.12.1994 and the Board was of the opinion that there was nothing to suggest that he was incapable of doing sexual intercourse but further opined that it was very difficult to make a definite observation in retrospection as to whether Kapil Dev was fit or not on 30.4.1994, on the date of the alleged occurrence of rape, to perform sexual intercourse.