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

- **Citation:** [1979] 1 S.C.R. 722
- **Court:** Supreme Court of India
- **Decided:** 1978-09-12
- **Case number:** Criminal Appeal No. 3 of 1977
- **Bench:** Jaswant Singh, P. s. KAILASAM, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-p-kohli-civil-surgeon-ferozepur-v-high-court-of-punjab-hary-ana-7528
- **Pages:** 13

## Headnote

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
a thick layer of yellowjsh material which smelt like smegma. They therefore
advised a thorough chemical and microscopic examination of the yellowish mat(-
rial to find out if it was a 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 scrtipping 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 a 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 a court witness.
They, therefore summoned
the appellant as a 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 a false statement with a 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.
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s. P. KOHLI v. H. c. PUNJ. &,HAR. (Jaswant Singh,!.)
723
HElD : (I) What 'the courts have to see before issuing the proe<ss against
A
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 criminal law in motion against the accused. The moment, this guiding principle is
overlooked, the prosecution degenerates itself into prosecution 'vhich often is
B
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
its

## Text

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722
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
a thick layer of yellowjsh material which smelt like smegma. They therefore
advised a thorough chemical and microscopic examination of the yellowish mat(-
rial to find out if it was a 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 scrtipping 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 a 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 a court witness.
They, therefore summoned
the appellant as a 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 a false statement with a 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.
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s. P. KOHLI v. H. c. PUNJ. &,HAR. (Jaswant Singh,!.)
723
HElD : (I) What 'the courts have to see before issuing the proe<ss against
A
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 criminal law in motion against the accused. The moment, this guiding principle is
overlooked, the prosecution degenerates itself into prosecution 'vhich often is
B
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
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not prinu1 facie saitisfied about the validity of the action that it was takine-.
[732D-FJ
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(2) Prosecution for perjury should be1 sanctioned by courts only
in those
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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 a 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 a matter of substance and the appellant does not appear to
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have mado any false statement with a malafide intention. In the circumstances,
no useful purpose will be served by subjecting the appellant to a lengthy, vexatious 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
a
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 corroborated 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 :
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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 attending 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
H
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-
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SUPREME COURT- REPORTS
[1979] 1 s.c.R.
fically set out in or form annexure to the notice i!sued to the accused so that
he is in a 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.
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Hardev Singh and R. S. Sodhi for the Respondent.
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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 a 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 a 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 a big landlord.
Later on, however, on the statement of the father of the deceased girl, a 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 examination 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 a 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
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s. P. KOHLI v. H. c. PUNJ. & HAR. (Jaswant Singh, J.)
7.25
of the accused, (2) the accused's potency to perform the sexual intercourse 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 examination, the doctors also observed the whole of the glans penis and
corona of the accused covered with a thick layer of yellowish material
which "melt like smegma. They, therefore, advised a thorough chemical
and microscopic examination of the yellowish material to !ind out if it
was a 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
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726
SUPREME COURT REPORTS
[1979] 1 s.c.R.
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from the genitals to the Chemical Examiner, Punjab for opinion. The
communication addressed by the appellant to Dr. P. K. Mittal ran as
under:-
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"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 undersigned 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.
Report per return after compliance of order.
The full
case of the accused is returned herewith.
Detail attached
(3) three only.
Received copy
Sd/-
H.C. No. 1121
dated 17-3-73
Sd/- S. P. Kohli,
Chief Medical Officer,
Ferozepur.
Seen at 6.00 P.1\1 ..
Sd/- S. P. Kohli ..
17-3-7:1."
On receipt of the aforesaid communication from
the
appellant,
Dr. Mittal carried out the instructions contained therein but not without a certain amount of resentment as appears. from the letter Exh.
CLl/3 which runs as follows :-
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s. P. KOHLI v. H. c. PUNJ. & HAR. (Jaswant Singh, J.)
727
"From
The Incharge, Nehru Memorial Hospital, Abohar.
To
The Chief Medical Officer, Ferozepur
No. 6
Dated 18-3-73
Subject : Medical Examination of Bhajan Lal accused.
Dear Sir,
Reference your No. ML-SPL-/1973 dated 17-3-1973.
The accused Shri Bhajan Lal was presented to me on
18-3-1973 at 9.50 AM and I have done the needful as per
instructio'ns given by you.
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.
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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
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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
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jointly with the accused. The murder reference and the appeal preferred by the accused against his convictions and sentences were heard
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SUPREME COURT REPORTS
[1979] l s.c.R.
by a 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
a 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 a court witness 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 a false statement with a 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 a 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
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the offending portions.
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Re. Matter No. 1 :Though it cannot be gainsaid that the appellant
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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 a false statement in that behalf with
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s. P. KOHLI v. H. c. PUNJ. & HAR. (Jaswant Singh, J.)
7 29
a 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 a 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 appellant, 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
H.C. City Abohar
accused
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 supervision of Sh. Milkhi Ram.
3. Darshan Sing SI
s.
Departure of 17-3-1973
3At6-20 A.M. Proceeded to Feroze.
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with a Lorry
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Vr. No. 126268-60
Arrival 18-3-19
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for
enquiry
by
SDM Ferozepur.
Reported back .40
P.M. after enquiry
done
by
SDM
Ferozepur.
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SUPREME COURT REPORTS
[1979] l s.c.R.
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In face of this strong documentary evidence, it is difilcult for us to
agree with the High Court that the appellant had intentionally made a
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
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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
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was jointly addressed to the appellant by Dr. P. K. Mittal and Dr.
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Mrs. L. K. Grewal. In the said letter, there is ·not the slightest indication of any disagreement or conflict of opinion between Dr. P. K.
Mittal and Dr. Mrs. L. K. Grewal. The fact that there was no disagreement 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 examination 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 appellan~ 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 appellant with some oblique motive.
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The remark in the above quoted letter dated the
17th March,
1973 addressed by the appellaμt to Dr. P. K. Mittal that the examination of smegma was unnecessary was also not without significance. It
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s. P. KOHLI v. H. c. PUNJ. & HAR. (!aswant Singh, I.)
7 31
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 connection:-
"Presence of Smegma. as N~gativing Rape. -
1. In July
1921, Mt. Ramdevi aged 15 years,. made a 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, a 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 a uniform layer of
smegma covering the glands penis, gave an opinion that he
could not have had sexual intercourse during the last twentyfour 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.
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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
G
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 aforesaid 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
H
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
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732
SUPREME COURT REPORTS
[1979] 1 s.c.R.
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 a negative approach
to the question which it was called upon to determine. Instead of tryi.ng
to find out whether there was a prima facie case justifying the issue of
notice to the appellant, it adopted a 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 process against the accused is whether there is evidence in support of the
allegations made by the complainant to justify the initiation of proceedings 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 reasonable 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 abovequoted 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
\
I
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 deliberate and consciou~ and the conviction is reasonably probable or likely.
It is also well recognised that there must be a prima facie c;ase of
deliberate falsehood on a 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.
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I
s. P. KOHLI v. H. c. PUNJ. & HAR. (Jaswant Singh,/.)
7 33
of the performance of the alleged ~exual interco11rse as shown above,
the aforesaid statement of the appellant was, in our judgment, not on
a matter of substance and the appellant does not appear to have made
any false statement with a mala fide intention. In the circumstances, we
do not think that any useful purpose will be served by subjecting the
appellant to a 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 a 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
Court on its own motion
Versus
Petitioner
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 a 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 proceedings 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.
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By order of. the High Court,
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Sd/-
Deputy Supdt. Criminal."
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734
SUPREME COURT REPORTS
[1979] l s.c.Jt.
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 a pooition
to furnish adequate and proper reply in_ regard thereto and be able to
meet the charl:".
S.R.
Appeal allowed.
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