N 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
Hardev Singh and R section Sodhi for the Respondent
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 prosecution 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 court 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 one 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 100 PM on the 15th March 1973
Dr C D Ohri who conducted the post mortem examination of the dead body of Kaushalaya Devi deceased opined on the basis of the observations made by him that the death of the deceased had occurred as a result of asphyxia 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 on her was bound to receive some scratches on glans penis
Accordingly at about 550 PM 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 725 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 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 who was also attached to his hospital and found the following injuries on his person 1
Circular bruise 2 12 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
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 found that he was potent and capable of performing sexual intercourse
During the course 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 smelt like smegma
They therefore advised a thorough chemical and microscopic examination of the yellowish material to find 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 15th March 1973 referred the accused to the appellant who was posted as Chief Medical Officer Ferozepur
In their aforesaid forwarding letter the doctors stated that they had not at all disturbed the layer of sample 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 could 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 726 from the genitals to the Chemical Examiner Punjab for opinion
The communication addressed by the appellant to Dr P K Mittal ran as under From Dr section P Kohli Chief Medical Officer Ferozepur
To Dr P K Mittal PCMs II Medical Officer Incharge Nehru Memorial Hospital Abohar
No NLSpecial 1 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 under signed 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 SHO Police Station Abohar City on 15 3 73 at 600 PM 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
Sd section P Kohli Detail attached Chief Medical Officer 3 three only
Ferozepur
Received copy Sd Seen at 600 PM
HC No 1121 Sd section P Kohli dated 17 3 73 17 3 73
 On receipt of the aforesaid communication from the appellant Dr Mittal carried out the instructions contained therein but not with out a certain amount of resentment as appears from the letter Exh
CL13 which runs as follows 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 950 AM and I have done the needful as per instructions 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 same case
Today again Lady Doctor is on leave and I am alone in the Hospital but still I am doing the needful under your instructions and to avoid any delay on my part
This is for your information please
Sd P K Mittal 18 3 1973 The Chemical Examiner Punjab as well as the Professor of Pathology Medical College Patiala whose opinion was sought by Dr P K Mittal expressed their inability to carry out any test for smegma 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 subject to confirmation by the High Court and to imprisonment for life under section 376 of the Indian Penal Code for committing rape on her but acquitted the other four persons who stood their trial jointly with the accused
The murder reference and the appeal preferred by the accused against his convictions and sentences were heard 728 by a Division Bench of the High Court
During the arguments before the High Court counsel appearing for the accused vehemently contended that the appellant had failed to examine the glans penis of the accused regarding the presence 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 doubt
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 presence or absence of smegma on the glans penis of the accused was quite vital from the view point of the defence as well as from that of the prosecution
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 felt 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 the prosecution of the appellant under section 193 of the Indian Penal Code as stated above
Upon 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 be 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 referred 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 the medico legal report Exhibit CW11  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 the offending portions
Matter No 1 Though it cannot be gainsaid that the appellant 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 729 a view to shield his own guilt or to help the accused as observed by the High Court
The words used by the appellant in answer to the question 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 from Abohar to Ferozepur as he had been referred to the appellant by Dr P K Mittal
He has further affirmed that on reaching Ferozepur at about 1000 AM he learnt that the appellant was away on tour that he waited for the appellant and it was on his return from tour that he met him in his office at 600 PM with the aforesaid 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 SHO 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
Harjit Singh ArrivalDepar 17 3 73 HC City Abohar ture accused HC himself C Bahadur Singh 589 Milkhi Ram 378 from PS City Abohar proceeded at 730 AM for Medical Examination by CMO Ferozepur of Sh
Bhajan Lal accused us 302376 IPC Case No 4973 under the super vision of Sh
Milkhi Ram
Darshan Sing SI Departure of 3At6 20 AM Pro section 17 3 1973 ceeded to Feroze pur with a Lorry Vr
No 126268 60 for enquiry by SDM Ferozepur
Arrival Reported back 40 18 3 19 PM after enquiry done by SDM Ferozepur
730 In face of this strong documentary evidence it is difficult 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 observations made by the High Court that the appellant had pressurised Dr Mrs L K Grewal to add the words I agree in the copy of Medico legal Report Exhibit CW 11 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 CW 11 in face of the aforesaid communication No 426 dated the 15th March 1973 which was jointly addressed to the appellant by Dr P K Mittal and Dr 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 CW 12 as also from the absence of the following words in Exhibits CW 12 and CW11 which are copies of Exhibit CW 15 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 penis is smegma or not
Sd L K Grewal 15 3 1973
 In view of the foregoing it is not understandable how the 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 opinion about smegma cropped up subsequently when there was not the slightest whisper about it either in the aforesaid letter dated the 15th March 1973 jointly addressed by the said two doctors to the appellant or in Exhibits CW 11 and CW 12
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
The remark in the above quoted letter dated the 17th March 1973 addressed by the appellant to Dr P K Mittal that the examination of smegma was unnecessary was also not without significance
It 731 is well known in the medical world that the examination of smegma loses all importance after 24 hours of the performance of the sexual intercourse
The following passage occurring at page 341 in Modi s Medical Jurisprudence and Toxicology is apposite in this connection Presence of Smegma as Negativing 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 genitals 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 examined and found to have been used to sexual intercourse at inasmuch as her hymen had old lacerations
She had no mark of injury to her private parts or to any other part of her body
The men were released
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 medical 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 twenty four hours
The man was released
 It seems that the attention of the learned judges of the High Court was 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 examination of smegma after two or three days of the occurrence
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 no question of inability on the part of Dr MrsLK 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 of the even date was written by her to the appellant jointly with Dr P K Mittal
Accordingly there was hardly any occasion for Dr P K Mittal to tell the appellant 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 smegma on the glans penis 732 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 Mrs 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 trying to find out whether there was no prima facie case justifying the issue of notice to the appellant it adopted a negative approach and tried to 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 stage 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 Exhibit CD 11
 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 sufficient 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 above quoted observations of the High Court about the exercise of pressure by the appellant on Dr Mrs L K Grewal are couched shows that the 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 conscious and the conviction is reasonably probable or likely
It is also well recognised that there must be a 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
See Chajoo Ram vs Radhey Shyam  Anr
In the present case as the examination of smegma lost all importance after the lapse of 24 hours 733 of the performance of the alleged sexual intercourse 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 Criminal Misc
No 1755 M of 1975 Court on its own motion 
Petitioner Versus Dr section 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 section Dhillon and Hon ble Mr Justice R N Mittal in Criminal Appeal No 911 of 1974M Ref
No 46 of 1974
Notice to  Dr section P Kohli Civil Surgeon Ferozepur
WHILE disposing Criminal Appeal No 91174 and M Ref
No 46 of 1974 the above proceedings have been taken up by this Court on its own motion against 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 IPC shall not be initiated against you GIVEN under my hand and the seal of the Court this 16th day of May 1975
By order of the High Court Sd Deputy Supdt
Criminal
 734 The notice besides being not happily worded is laconic
It does not satisfy 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 cases of this nature it is highly desirable and indeed very necessary that the portions of the witness s statement in regard to which he has in the opinion of the Court perjured himself should be specifically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish adequate and proper reply in regard thereto and be able to meet the charge SR Appeal allowed


Summary:
In connection with the offences under Sections 302 and 376 medical opinion was sought by the Police as to 1 the nature of injuries on the person of the accused
2 the accused potency to perform the sexual intercourse and 3 Whether the accused had performed sexual intercourse during the last 24 28 hours from one Dr P K Mittal Medical Officer Nehru Municipal Hospital 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 same hospital
On examination of the private parts of the accused the doctors observed the whole of the glans penis and corona of the accused covered with a thick layer of yellowish material which smelt like stigma
They therefore advised a thorough chemical and microscopic examination of the yellowish material to find out if it was a layer of smegma or not to enable them to answer third query of the police and referred to the accused to the appellant who was 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 appellant 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 accused could be taken to Ferozepur by the police only two days later
On going through the letter the appellant wrote back saying that no special opinion by him was necessary and that Dr Mittal himself could take the scrapping of the yellowish material and send the same to the chemical examiner Punjab for opinion
The chemical examiner Punjab as well as the Professor of Pathology Medical College Patiala whose opinion was sought expressed 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 section 302 IPC subject to confirmation of the High Court and to imprisonment for life under section 376 IPC The accused in his appeal claimed benefit of doubt contending 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 raised the learned 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 conclusion of the examination of the appellant the learned Judges felt 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 the prosecution of the appellant under section 193 IPC
Allowing the appeal by special leave the Court
723  HELD 1 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 sufficient 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 prosecution which often is fought with evil consequences
In the instant case the language in which the observations of the High Court about the exercise of pressure by the appellant on Dr Mrs L K Grewal are couched shows that the High Court was itself not prima facie satisfied about the validity of the action that it was taking
732D F 2 Prosecution for perjury should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably 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 present case as the examination of smegma lost all importance after the lapse of the performance of the alleged sexual intercourse the appellant s statement was not a matter of substance and the appellant does not appear to have made 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 expensive trial which is not likely to end in his conviction
732H 733A B Chajoo Ram vs Radhey Shyam  Anr
1971 1 SCC p 744 referred to
3 In the instance case a the appellant had not intentionally made a false statement
The words used by the appellant in answer to the question put to him by the 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 affidavit of Harjit Singh Head Constable dt
27th August 1975 corroborated by the entries in Roznamacha of the Police Station city Abhor of 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 with some oblique motive and c It is well known in the medical world that the examination of smegma loses all importance after 24 hours of the performance 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 regarding the examination of smegma after two or three days after the occurrence
728H 729A D 730G 731A E F Observation The show cause notice besides being not happily worded is laconic
It does not satisfy the essential requirements of law
Nor does it specify the offending portions 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 indeed very necessary that the portions of the witness s statement in regard to which he has in the opinion of the Court perjured himself should be speci 724 fically set out in or form annexure to the notice issued 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