Jyothish K vs State Of Kerala And Ors

Rape is one of the most inhuman crimes against women. An Orthopedic Surgeon attached to the Medical College Hospital, Thrissur has filed this application apprehending arrest by the respondent in Crime No. 10 of 2021 of the Medical College Police Station, Thrissur District.

The case of the prosecution is that the petitioner who is a Doctor attached to the Medical college, Thrissur is having consultation at his residence at Mulankunnathukavu. On 24.12.2020 at about 6 p.m when the victim approached the petitioner with complaints of shoulder pain he had outraged her modesty by pressing on her breast and committed rape on her by inserting his finger into her vagina and thus committed offences punishable under Section 354, 376(2)(e) and (k) of the Indian Penal Code.

The learned Senior Counsel for the petitioner has submitted that the petitioner is working as an Associate Professor in the Medical College at Thrissur from the year 2005 and he is having high reputation in the society and is well known as an efficient orthopedic surgeon. He never committed such a heinous crime that too towards his patient as alleged against him. The learned counsel for the petitioner in the statement of facts specifically mentioned and submitted as ground No.3 that as this petitioner and one Dr.Sherry Issac have difference of opinion with one Dr. Vinesh Senan on account of his business in surgical implants and other accessories and canvassing patients to use his products even when there are no requirement or necessity, he is entertaining rivalry and professional jealousy towards them. According to the learned counsel for the petitioner Dr. Vinesh Senan had even stated to a staff of the Medical college that the petitioner would be dealt in a manner where he won't able to work in the Medical college. Thus he has been trapped in this case by using a patient who visited him for treatment more than twice. It is also submitted by the learned counsel for the petitioner that there was an attempt to implicate Dr. Sherry Issac also in a false case of similar nature. The allegation was that Dr. Sherry Issac has molested a by-stander of a patient admitted in the hospital. On the complaint, the Medical College authorities initiated enquiry and it was revealed that no such patient was admitted in the hospital and no such by-stander was also there as alleged in the complaint against the said doctor. But fortunately in the inquiry it was found that the complaint against him was a false one and thus the further proceedings were dropped is the submission of the learned counsel for the petitioner. Annexure A2 is the copy of the report submitted by the doctor who was entrusted to conduct preliminary enquiry as directed by the Superintendent of Medical College Hospital. The further argument of the learned Senior Counsel for the petitioner is that just to wreak vengeance on the doctors who opposed the illegal business carried on by Dr. Vinesh Senan, this petitioner has also been falsely implicated in the case.

According to the learned Senior Counsel, the petitioner is having consultation in a room attached to his residential house where his whole family including his wife and children are residing. There is a glass door in the consulting room which is opening to the drawing room and considering the pandemic situation, the entire windows of the consulting room are kept open all the time. He had installed two CCTV cameras outside the consultation room and the cameras could capture the images of all the patients entering into the consultation room and going out of the room. On the alleged day, the defacto complainant came for consultation along with her daughter aged 19 years. On two previous occasions also she came for consultation and on the particular day she was examined by the doctor in the presence of her daughter and after consultation she came out of the room along with her daughter in a normal manner and if he had misbehaved to her, definitely she would have invited the attention of all those persons waiting in the sit out for consultation including ladies. But nothing has happened and she left the consultation room as usual, applied sanitizer kept outside the room, took her chappels and walked in a calm and cool manner along with her daughter with her prescription. It is also pointed out by the learned Senior Counsel for the petitioner that the complaint was lodged by her only on 04.01.2021, i.e., after 12 days. Her explanation that she waited for her husband who was at Surat to return and after he reached here she again waited him to complete the period of quarantine. So only after completing the quarantine period she could lodge the complaint, appears to be not at all satisfactory and believable.

The learned Senior Counsel further submits that the statement of the defacto complainant is quite incredible and she remained as a tool in the hands of a doctor of the very same department who is on inimical terms with him. Though she raised a blatantly implausible story he apprehends undeserved arrest and unnecessary torture and hence the application.

The learned Public Prosecutor has produced the CD file and submitted that truth has to be revealed in the case. The CCTV footage which captured the images outside the consultation room has also been produced by the prosecution for perusal.

Heard the learned Senior Counsel for the petitioner in detail as well the learned Public Prosecutor. I have also perused the CD file, the visuals captured by the CCTV and seized by the prosecution in connection with the investigation and all the relevant materials available before me.

The defacto complainant is a lady aged 44 years. From her statement, it could be seen that she visited the residence of the petitioner for treatment with complaints of shoulder pain on 09.11.2020 and 16.11.2020. Thereafter, on 24.12.2020 as usual she had booked the time for consultation through phone and visited the doctor at about 6 p.m. along with her daughter aged 19 years. Her statement reveals that her daughter was present with her throughout her examination by the petitioner. Her statement further shows that he had sexually abused her in the presence of her daughter, but her daughter could not see anything as she was facing the doctor while the examination was going on. From the statement of the defacto complainant as well her daughter, it prima facie appears that she never raised any hue and cry though she claims that she felt that the petitioner was misbehaving to her. Her statement is that he had stripped off her pants and undergarment from her back and then hold on her breast by putting his hands inside her churidar top and thrust his fingers inside her vagina after asking her daughter to lift her top and making her to bend towards front and thus he committed the alleged offence of rape in the presence of her daughter aged 19 years. I have carefully gone through the statement of the defacto complainant and her daughter but at this stage it does not inspire confidence and I feel that an unbelievable incident has been narrated by the prosecution. It may not be possible for a doctor to behave to a patient in such a manner in the presence of the daughter of the patient who is not a minor child unable to understand what has been done to her mother, but she is aged 19 years. She has not stated that anything unusual had happened at the time of examination by the petitioner. Most importantly the further statement of the defacto complainant is that when she realized that the doctor had misbehaved to her, she had thrown the amount of Rs.300/- kept by her as consultation fees towards the table and ran away from the room along with her daughter.

But the images in the CCTV on the other hand would show that she left the place without any reaction in a calm and quite manner. The visuals prima facie reveal that the defacto complainant came out of the room along with her daughter in a quite normal way and had taken the sanitizer and applied it on her hands and her daughter also did the same thing and in a very cool and calm manner came out of the sit out and put their chappals kept outside and walked off the courtyard. Nothing unusual was seen in their conduct when they walked out of the consultation room. The defacto complaint was not found running out of the room along with her daughter as alleged by her. But instead she came out and used the sanitizer by both of them, wore the chappals and walked off in a normal way without presenting any unusual behavior. If there was any kind of misbehavior or sexual abuse or assault from the side of the petitioner at that point of time, there might be some hue and cry or atleast an unusal behaviour from her side. She would have reacted atleast before the ladies waiting to see the doctor after the so called terrific incident. Her statement was that after the ordeal, she ran away from the consultation room. But no such thing happened as per the CCTV visuals. As referred above her daughter was present in the room throughout at the time of examination along with her as per her own statement. The daughter also claimed to be so in her statement. It is also pertinent to note that during the relevant time, four men and three ladies were waiting in the sit out of the consultation room to meet the doctor.

If anything unusual has happened inside the room, definitely she would have reacted then and there. Anyhow at this stage, I find it difficult to believe the version of the defacto complainant that the petitioner has sexually abused her in the presence of her daughter who is 19 years old, quite capable of understanding things. If there was any kind of abnormal or misbehavior from the side of a doctor towards the patient, definitely a lady aged 19 years would able to understand what is transpiring there and if something unusual had taken place she would have raised hue and cry or at least some sort of objection at that point of time itself. The visuals would show that the defacto complainant was not at all perturbed or worried when she came out of the consultation room and both of them left the place in a calm and quite manner without any disturbance, reaction or response and also without disclosing anything even to the ladies waiting in the sit out to consult the petitioner atleast to alert them. The story developed by her appears to be quite improbable in the present situation.

It is significant to note that the petitioner is having another grown up son apart from the daughter who accompanied her for consultation. The CD file reveals that on her previous visit she was accompanied by her son. So, her son was very much available in her house. It is to be noted that immediately after the incident, she did not lodge a complaint. The FIR was lodged against the petitioner only on 04.01.2021 i.e., exactly after 12 days of the alleged incident. Her explanation was that her husband was away at Surat and so she waited for him and to complete the quarantine and then registered the complaint against the petitioner. The delay in lodging the FIR was not satisfactorily explained by her at this stage. If such a sexual assault was suffered by her from a doctor, to whom she approached for treatment, definitely she would have lodged the complaint immediately or at lest informed her brother or grown up son. The CD file also reveals that her brother is residing somewhere near her house. Her case that she waited for the arrival of her husband and for completion of the quarantine period to lodge the complaint create very serious doubts regarding the credibility of her version before the investigating agency. More pertinently, here she waited for about twelve days for lodging the complaint against the petitioner/doctor.

If actually such an incident has happened in the consulting room, when patients including ladies are waiting outside, definitely the immediate reaction of a lady subjected to such sexual assault would be different. She would have given atleast a hint to the ladies waiting outside. The victim is not a minor unaware of the consequences but a mature lady of around 44 years and mother of a young lady. It is her case that after undergoing the alleged traumatic experience she left the place remained silent for days without disclosing the incident or sharing the same to any of her family members till arrival of her husband. Thereafter also she patiently waited to complete his quarantine period seems to be quite unbelievable and highly unrealistic. True the case is only at the preliminary stage and more materials have to be gathered by the prosecution. When the materials available in the CD file are taken together, I find much force in the argument advanced by the learned Senior Counsel for petitioner that he had been trapped in a case by raising spurious allegations in order to wreck vengeance upon him by someone who entertain enmity towards him. As the petitioner was dare enough to mention the name of a doctor who is on inimical terms with him just because he raised objection towards him in engaging with illegal business for the sake of money, I find that the investigating agency has to probe more meticulously to dig out the true facts involved in the case. The investigating agency has to go deep to find out the truth involved in the case. So, if the investigating agency finds that this petitioner has been trapped on false accusations at the instigation of anyone, he has to be booked for the same. On going through the materials available before me at this stage, I do not find a strong prima facie case against the petitioner and therefore I think that there is no necessity to make available the petitioner in custody to facilitate the investigating agency to proceed with the investigation. The main object of bail is to secure the presence of the accused for investigation and trial. The prosecution has no case that if the petitioner is released on bail there is the danger of absconding or fleeing from justice.

In view of the above as this Court is convinced that there is no likelihood of him absconding or tampering with the evidence, this application is allowed and anticipatory bail is granted to this petitioner. Accordingly, in the event of his arrest the investigating officer is directed to release him subject to the following conditions:

(i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum.

(ii) He shall appear for interrogation before the Investigating Officer as and when required by him in writing. He shall co-operate with the investigation of the case.

(iii) He shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer.

(iv) He shall not commit any offence while on bail.

In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law.