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Saraswati Devi vs State & Anr on 5 March, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Criminal Revision No. 738 / 2017
Saraswati Devi Wife of Shiv Lal, By Caste Kumahar, Resident of
Village Nimbali, Tehsil Marwar Junction, District Pali.

—-Petitioner
Versus

1. The State of Rajasthan

2. Bhagga Ram Son of Shri Nara Ram, Kumahar, Resident of Guda
Sur Singh, Police Station Siriyari, Tehsil Marwar Junction, District
Pali.

—-Respondents
__
For Petitioner(s) : Mr. P.R. Choudhary
For Respondent No.1 : Mr. Rajesh Bhati, Public Prosecutor
For Respondent No.2 : Mr. Anand Purohit, Senior Advocate
assisted by Mr. Himanshu Purohit.

__

HON’BLE MR. JUSTICE P.K. LOHRA
Order
Reportable

05/03/2018

By the instant criminal revision petition under Section 397

read with Section 401 Cr.P.C., petitioner-complainant has assailed

order dated 17th of February, 2017, passed by Addl. Sessions

Judge, Pali District, Pali (for short, ‘learned trial Court’). By the

order impugned, learned trial Court, after hearing arguments on

charge, while resorting to Section 227 Cr.P.C., discharged the

accused-respondent for offence under Section 376 IPC but framed

charges under Section 228 Cr.P.C. for offence punishable under

Sections 451, 366, 323/34 IPC.

(2 of 13)
[CRLR-738/2017]

2. Succinctly stated, facts of the case are that petitioner-

complainant laid a complaint against accused-respondent before

Judicial Magistrate, 1st Class, Marwar Junction, District Pali, inter-

alia, alleging offence under Sections 342 366A IPC. The learned

Magistrate, thereupon, forwarded the same under sub-section (3)

of Section 156 Cr.P.C. to Police Station Siriyari, District Pali and

pursuant thereto FIR No.8/2010 was registered for aforesaid

offences. During investigation, police recorded statement of

petitioner’s daughter (prosecutrix) under Section 164 Cr.P.C. and

upon completion of investigation filed charge-sheet against

accused-respondent for offence under Section 299 Cr.P.C. The

learned Magistrate, after considering the offences slapped against

accused-respondent, passed an order under Section 209 Cr.P.C.

for committing the case to the Court of Sessions. The learned

Sessions Judge, thereafter, transferred the matter to learned trial

Court.

3. It so happened that after submission of charge-sheet against

him, at the behest of respondent, a criminal misc. petition bearing

No.422/2012 is preferred before this Court for quashing the

charge-sheet and the same is decided on 10th of February, 2012

with the following observations:

“However, looking to the contention of
learned senior counsel that the petitioner is an
impotent person, it is hereby directed that the
petitioner should surrender himself before the
trial court and on his so surrendering, the
medical examination of the petitioner shall be
conducted by a medical board, particularly for
(3 of 13)
[CRLR-738/2017]

the examination of potency of the petitioner,
and thereafter, the petitioner shall be entitled
to raise all his objections against his proposed
prosecution at the stage of consideration of
the charges and in the event of medical
board’s report being favourable to the
petitioner, the trial court shall be under an
obligation to consider the same as per law and
in reference to the period during which the
offence was committed.”

4. Later on, accused-respondent surrendered and in due course

of time in compliance of order of the Court subjected to medical

examination by the Board. Learned trial Court, thereafter, heard

arguments for framing charge against the accused-respondent and

upon consideration of the available material and the report of

Medical Board framed charges against him for offence under

Sections 376, 458, 366, 323 34 IPC by its order dated

25.09.2013.

5. Being aggrieved by the said order, accused-respondent

preferred a revision petition before this Court, which was

registered as S.B. Criminal Revision Petition No.767/2013. The

aforesaid revision petition was decided on 19th of September 2014.

The operative part of order dated 19th of September 2014, in

vernacular, reads as under:

^^mijksDr rF;ksa dks /;ku esa j[krs gq,] fo}ku
v/khuLFk U;k;ky; }kjk vkjksi fojafpr fd, tkus ds
Øe esa ikfjr vk{ksfir vkns”k iqu% vkjksi fojpu ds
Øe esa lquokbZ ds mís”; ls vikLr dj v/khuLFk
U;k;ky; dks funsZ”k fn;k tkrk gS fd fnukad 12-5-
2012 dks esMhdy T;wfjLV] ckaxM vLirky] ikyh dh
vksj ls tkjh fjiksVZ esa jk; (opinion) okys Hkkx esa
iksVsalh VsLV ds lEcU/k esa ftuftu foHkkxksa ls jk;

(4 of 13)
[CRLR-738/2017]

izkIr djus ckcr fy[kk x;k gS] bl lEcU/k esa
lEcfU/kr fu;ad vf/kdkjh (Controlling Officer) dks
fjiksVZ dh izfr Hkstdj bl lEcU/k esa vfHk;[email protected];kph
dk mldh iksVl sa h lEcU/kh vfUre jk; ckcr ifj.kke
izkIr djsa ,oa ifj.kke izkIr gksus ds i”pkr iwoZ vkns”k
ls izHkkfor gq, fcuk nksuksa i{kksa dks lqudj mDr
ifj.kke dks /;ku esa j[krs gq, iqu% fof/klEer
vkns”k ikfjr djsaA**

From a bare perusal of the above quoted order, it is crystal

clear that the Court has issued a word of caution for preparation

of medical report afresh uninfluenced by earlier report of the

competent authority/order.

6. In compliance of the order of this Court, respondent

submitted an application before learned trial Court for obtaining

final report regarding his potency. After considering the

application of accused-respondent, learned trial Court passed

order dated 5th of January 2015 and eventually the respondent

was subjected to thorough medical examination by a duly

constituted Medical Board of Mathura Das Mathur Hospital,

Jodhpur and the Medical Board opined that accused-respondent is

not potent. On the basis of that report, on behalf of respondent, a

prayer was made at the time of framing charge to discharge him

for the offence under Section 376 IPC. The learned trial Court,

then proceeded to hear arguments of the rival parties and by the

order impugned discharged the respondent for offence under

Section 376 IPC and framed charges for the aforesaid offences.

(5 of 13)
[CRLR-738/2017]

7. Learned counsel for the petitioner, Mr. P.R. Choudhary, has

vehemently argued that learned trial Court has seriously erred in

discharging the respondent for offence under Section 376 IPC.

Learned counsel has also argued that the report of Medical Board

has not been construed in right perspective by the learned trial

Court while passing the impugned order of discharge. It is also

submitted by learned counsel that learned trial Court has

committed a manifest error in relying on the report of Medical

Board without there being any specific test for potency by

Urologist, Neurologist or Endocrinologist at a higher centre. It is

also submitted by learned counsel that the order of discharge is

not passed on objective consideration of the record of case and is

patently infirm on the touchstone of requirements envisaged

under Section 227 Cr.P.C. Lastly, learned counsel would contend

that in the backdrop of materials available on record, correctness,

legality or propriety of the impugned order is required to be

examined in exercise of revisional jurisdiction for upsetting the

same.

8. Per contra, learned Public Prosecutor has defended the

impugned order and submits that no interference with the

impugned order in exercise of revisional jurisdiction is warranted.

9. Learned Senior Counsel, Mr. Anand Purohit, appearing for the

accused-respondent, submits that learned trial Court has rightly

exercised its discretion in discharging the respondent by

exercising power under Section 227 Cr.P.C. Mr. Purohit would
(6 of 13)
[CRLR-738/2017]

contend that if in a given case two views are possible and one of

them gives rise to strong suspicion against the accused persons,

then only the Court is empowered to frame charge and not

otherwise. Elaborating his submission in this behalf, learned

Senior Counsel contends that the report of Medical Board is clear

and unequivocal showing respondent’s inability to perform sexual

act due to illness has obviously given rise to lack of sufficient

ground to proceed against him. Learned Senior Counsel has,

therefore, urged that there is no infirmity much less legal infirmity

in the impugned order. Learned Senior Counsel has further

argued that learned trial Court in exercise of its discretion, upon

examining the materials available on record, has discharged the

petitioner for offence under Section 376 IPC with cogent reasons,

therefore, the said order warrants no interference in exercise of

revisional jurisdiction.

10. I have bestowed my consideration to the arguments

advanced at Bar, perused the impugned order and also scanned

the materials available on record.

11. The pivotal question which has emerged for consideration

before the Court is correctness, legality and propriety of the

impugned order of discharge. There remains no quarrel that in

appropriate cases Sessions Court may resort to Section 227

Cr.P.C. for discharging an accused person. However, in the

backdrop of alleged criminal delinquency of the petitioner, being

grave in nature, involving offence of mental depravity, it has
(7 of 13)
[CRLR-738/2017]

become imperative for the Court to thoroughly examine the

medical reports of accused-respondent. It goes without saying

that if a medical report is clear and unequivocal about an

incumbent accused being unable to perform sexual act,

proceeding against him for offence under Section 376 IPC may

result in grave injustice.

12. Upon examining the materials available on record and the

report of Medical Board of Bangur Hospital, Pali, dated 12 th of May

2012, it is amply clear that accused-respondent was unable to

perform sexual act due to his illness. The opinion of the Medical

Board is reproduced as under:

“In the opinion of medical board after history
and examination of Bhaga Ram, Pt may be unable
to perform sexual act due to present illness.
However, in the absence of specific test for
potency, Pt can take opinion from urologist,
neurologist and endocrinologist at higher centre.”

13. Subsequently, yet again respondent was subjected to

medical examination by a duly constituted Medical Board at

Mathura Das Mathur Hospital, Jodhpur. The said Medical Board

was constituted by Principal and Controller, S.N. Medical College

Group of Hospitals, Jodhpur. The Medical Board of five doctors,

which are Medical Jurist, Professor, Urology Department. Professor,

Medicine, Associate Professor Neuro-physician and Assistant

Professor Psychiatry, gave its report on 18 th of May 2016 and

opined as under:

“After going through reports and clinical
examination the board is of the opinion that (the
patient Bhaga Ram), Nothing suggestive that he is
(8 of 13)
[CRLR-738/2017]

potent, however as per Radiologist advised to rule
out various leakage cavernosometry and
cavernosography patient may be referred to higher
centre.”

14. In Medical Science, impotence is defined as physical

incapacity of accomplishing sexual act. Impotence in males is the

persistent inability to develop or maintain a penile erection

sufficient to coitus and to organism and ejaculation. In forensic

medicine, impotence or sexual incapacity connotes physical

incapacity to accomplish the sexual act. As per Halsbury’s Laws of

England, impotence can be described as a state of mental or

physical condition which makes consummation of marriage

practically impossible. As per medical jurisprudence, there are

many causes of impotence amongst males, namely, age;

malformations; local diseases or injuries; general diseases, and

psychogenic origin.

15. Local diseases or injuries like large hydrocele scrotal hernia,

elephantiasis, phimosis, paraphimosis and adherent prepuce may

cause temporary impotence by mechanic obstruction to coitus, as

these conditions can be remedied by proper surgical treatment.

However, as per Modi’s Medical Jurisprudence and Toxicology, an

authoritative book on the subject, endocrine disturbances may

produce sexual infantalism, rendering an individual impotent.

Likewise, certain general diseases, such as diabetes mellitus,

autonomic neuropathy, pulmonary tuberculosis, chronic nephritis,

the Leriche syndrome, prolonged priapism, which occasion

extreme debility, may produce impotence, temporary or
(9 of 13)
[CRLR-738/2017]

permanent. Organic pituitary, hypothalamic or testicular disease,

severe depressive illness may at times by the use of anti-

hypertensive drugs and phenothiazines result in impotency.

16. In the instant case, respondent due to two decade old

urethral injury remained under treatment of consultant Urologist

at Moit Hospitals, Chennai and also underwent internal

urethrotomy on 21st of September 2010. The treatment of the

respondent for the disease in question was in vogue at the time of

commission of alleged offence and lodging of FIR is also borne out

from the materials available on record. Therefore, in that

background, in my considered opinion, learned trial Court has

rightly placed reliance on two concurring reports of the medical

boards by relying on the prolonged ailment of the accused-

respondent in passing the impugned order.

17. The Court, on overall analysis and available material, while

exercising powers under Section 227 228 Cr.P.C., at times, may

face serious dilemma about relative scope of both these Sections.

Upon harmonious construction of both the provisions, there

remains no dichotomy inasmuch as if the Court after hearing

arguments of rival parties considers that evidence produced is not

sufficient or there is no legal ground for proceeding against the

accused order of discharge is to be passed. Conversely, if the

Court is of the opinion that there is ground for presuming that the

accused has committed offence, it may proceed to frame charge

by passing order under Section 228 Cr.P.C. At that stage, it is
(10 of 13)
[CRLR-738/2017]

expected of the Court to evaluate the material and documents on

record with a view to find out whether the facts emerging

therefrom, even if taken at their face value, disclose the

ingredients constituting the alleged offence. The Court, may, for

this limited purpose sift the evidence as it cannot be expected

even at that initial stage to accept all that the prosecution states

as Gospel truth, even if it oppose to commonsense or the broad

probabilities of the case.

18. Supreme Court, in case of Niranjan Singh Karam Singh

Panjabi Vs. Jitendra Bhimraj Bijjaya Ors. [(1990) 4 SCC 76],

while examining standard of test to be applied at the stage of

deciding matter under Section 227 228 Cr.P.C. quoted complete

text of Section 227 Cr.P.C. and held:

“227. If, upon consideration of the record of
the case and the documents submitted
therewith, and after hearing the submissions
of the accused and the prosecution in this
behalf, the Judge considers that there is not
sufficient ground for proceeding against the
accused, he shall discharge the accused and
record his reasons for so doing.

Under this section a duty is cast on the judge
to apply his mind to the material on record and if on
examination of the record he does not find sufficient
ground for proceeding against the accused, he must
discharge him. On the other hand if after such
consideration and hearing he is satisfied that a
prima facie case is made out against the accused,
he must proceed to frame a charge as required by
Section 228 of the Code. Once the charge is framed
the trial must ordinarily end in the conviction or
acquittal of the accused. This is in brief the scheme
of Sections 225 to 235 of the Code.

Section 227, introduced for the first time in
(11 of 13)
[CRLR-738/2017]

the New Code, confers a special power on the Judge
to discharge an accused at the there should if ‘upon
consideration’ of the record and documents he
considers ‘that there is not sufficient ground’ for
proceeding against the accused. In other words his
consideration of the record and document at that
stage is for the limited purpose of ascertaining
whether or not there exists sufficient grounds for
proceeding with the trial against the accused. If he
comes to the conclusion that there is sufficient
ground to proceed, he will frame a charge under
Section 228, if not he will discharge the accused. It
must be remembered that this section was
introduced in the Code to avoid waste of public time
over cases which did not disclose a prima facie case
and to save the accused from avoidable harassment
and expenditure.”

19. Thus, in the wake of two concurring reports of the medical

boards, learned trial Court has rightly taken cognizance of these

reports to record its satisfaction for discarding the prosecution

case by applying normal prudency or the broad probabilities of the

case. The prosecution case has though projected with requisite

material sufficient ground to proceed against the accused-

respondent by resorting to Section 228 Cr.P.C. but the Court by

relying on the reports of the medical boards repudiated the same

being not Gospel truth and opposed to commonsense. The

approach of the learned trial Court in this behalf clearly indicates

its prima facie satisfaction for resorting to Section 227 Cr.P.C.

which cannot be categorized as perverse or against the weight of

evidence on record.

20. I am fortified in my view by a decision of Supreme Court in

P. Vijayan Vs. State of Kerala Anr. [(2010) 2 SCC 398], wherein

the Court, after quoting Section 227 Cr.P.C., examined its scope
(12 of 13)
[CRLR-738/2017]

and held:

“If two views are possible and one of them
gives rise to suspicion only, as distinguished from
grave suspicion, the Trial Judge will be empowered
to discharge the accused and at this stage he is not
to see whether the trial will end in conviction or
acquittal. Further, the words “not sufficient ground
for proceeding against the accused” clearly show
that the Judge is not a mere Post Office to frame
the charge at the behest of the prosecution, but
has to exercise his judicial mind to the facts of the
case in order to determine whether a case for trial
has been made out by the prosecution. In
assessing this fact, it is not necessary for the Court
to enter into the pros and cons of the matter or
into a weighing and balancing of evidence and
probabilities which is really the function of the
Court, after the trial starts. At the stage of Section
227, the Judge has merely to sift the evidence in
order to find out whether or not there is sufficient
ground for proceeding against the accused.”

21. Referring to both the reports of medical boards, suffice it to

observe that undeniably first medical report dated 12 th of May

2012 was not authored by Urologist, Neurologist or Psychiatrist

but then the subsequent report dated 18 th of May 2016 is

prepared and signed by Professor Urology, Associate Professor

Neuro-physician and Assistant Professor Psychiatry. Therefore, it

is rather difficult to comprehend that both these reports are not

prepared by experts of medical science more particularly the

later report dated 18th of May 2016. Merely because any

endocrinologist was not member of later medical board, the

complete report cannot be discarded even at the stage of prima

facie examining alleged criminal delinquency of an individual. It

is also noteworthy that the second report of the medical board

was prepared by the subject experts as per directions of the
(13 of 13)
[CRLR-738/2017]

Court with same conclusions.

22. In common parlance, medical opinion cannot be

underplayed at mere whims and fancy and opinion of physicians

and surgeons deserves due credence to show physical condition

of a person, nature of a disease and effect of such disease upon

body and mind of an individual. Similarly, symptoms and

peculiarity of a disease and its probable future consequences can

be prima facie looked into by the Court for recording its

satisfaction that there is no sufficient ground for proceeding

against the accused. In totality, the learned trial Court while

recording such satisfaction has rightly exercised its power under

Section 227 Cr.P.C. to sift and weigh the evidence for the limited

purpose of finding out whether or not a prima facie case against

the accused has been made out.

In view of forgoing discussion, I am unable to find any

illegality or impropriety in the impugned order warranting

interference in exercise of revisional jurisdiction.

Resultantly, revision petition fails and the same is hereby

dismissed.

(P.K. LOHRA)J.

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