Gauhati High Court
Dr. Anup Kumar Baruah vs The State Of Assam on 13 July, 2026
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GAHC010007422014
2026:GAU-AS:9497
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./112/2014
DR. ANUP KUMAR BARUAH
S/O LT. PUNYA KR. BARUAH R/O HOUSE NO.5, BYE LANE - 11, R G
BARUAH ROAD, GHY-24, P.S. GEETANAGAR, DIST. KAMRUP, ASSAM.
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.T J MAHANTA, MR.A BHATTACHARYA,MR.B BORA,MR.P
P DUTTA
Advocate for the Respondent : , PP, ASSAM,,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the petitioner : Mr.T.J.Mahanta, Sr.Advocate
Advocate for the respondent : Mr. R.J.Baruah, Addl.P.P
Date on which judgment is reserved : 19.05.2026
Date of pronouncement of judgment : 13.07.2026
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Whether the pronouncement is of
the operative part of the judgment : Full judgment.
Whether the full judgment has been
pronounced : Yes
JUDGEMENT AND ORDER (ORAL)
The instant criminal revision petition is preferred by Dr. Anup Kumar Baruah
(herein after referred to as the petitioner), challenging the judgment and order
dated 17.08.2013 passed by the learned Chief Judicial Magistrate, Morigaon in
GR Case No.929/2009, convicting the petitioner under Section 354 of the Indian
Penal Code (‘IPC‘ for short) and sentencing him to undergo simple imprisonment
for two years and to pay a fine of Rs. 10,000/- with default stipulation. The
petitioner has also challenged the judgment and order dated 03.03.2014 passed
in Criminal Appeal No.33/2013 by the learned Sessions Judge Morigaon,
dismissing the appeal preferred by the petitioner and upholding the Judgment
and order passed by the Chief Judicial Magistrate, Morigaon.
2. The genesis of the case was that on 05.09.2009, at about 1 pm, the victim
‘X’ went to Lily Medical Hall from her school to consult a doctor for her irregular
menstrual periods. She was accompanied by two friends to the pharmacy and
the petitioner was attending patients in his chamber in the pharmacy. The
petitioner took the victim to his chamber for check-up and he unbuttoned the
victim’s blouse and started to grope her breasts. The victim protested, but the
petitioner, a doctor tried to reassure her that such contact was not
inappropriate. Thereafter, the petitioner removed the victim’s panties and
attempted to sexually assault her. The victim raised alarm and her friends
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entered into the doctor’s chamber and brought her out. She narrated about the
incident to her elder brother ‘Y’ (name withheld) who lodged the FIR on the
same day. The Morigaon PS case No.155/ 2009 was registered and investigation
commenced. On finding prima facie materials against the petitioner, charge
sheet was laid against the petitioner under section 354 of the IPC.
3. Heard learned Senior counsel Mr.T.J.Mahanta assisted by learned counsel
Mr. T. Gogoi for the petitioner and learned Additional Public Prosecutor Mr.
R.J.Baruah for the State of Assam.
4. Now, as this petition is under Section 397/ 407 of the Code of Criminal
Procedure (CrPC for short), this Court is not required to delve into the nitty
gritties of the evidence. The propriety and legality of the judgment is to be
assessed by this Court. However, the learned Senior Counsel for the petitioner
laid stress in his argument that an important medical officer was not examined
and nor was the I.O. examined. The learned counsel delved into the intricacies
of the evidence. The petitioner is prejudiced at present as argued. The contents
of the FIR and the statement of the victim under Section 161 as well as 164
CrPC, and the depositions of the victim are contradictory. The conviction was
based solely on the victim’s statement. The victim’s brother ‘Y’ testified as PW1
that his sister informed him about the incident after she reached home, whereas
his sister ‘X’ deposed as PW2 that after the incident, she came out of the
pharmacy and informed Ujjal Nath about the incident and Ujjal Nath called her
brother (PW-1) over phone and when her brother had arrived, she informed her
brother about the incident. It is further submitted that while submitting charge
sheet, 12 witnesses were enlisted in the charge sheet, but the prosecution
examined only 7 witnesses, and thus the truth could not be properly unearthed
by the prosecution. Two medical officers were examined by the prosecution, but
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one medical officer was not produced as a witness. It is submitted that the trial
court had overlooked the admission of the petitioner. Trial court has ignored the
admission of the petitioner who admitted that he had touched the victim’s
breasts as a part of the medical test, according to medical jurisprudence. It is
further submitted that the trial court as well as the appellate court ignored the
contradictory evidence of the two friends of the victim. A woman police
constable who had accompanied the victim to the court for recording her
statement under Section 164 CrPC was an important witness, but this witness
was not examined. Her statement has projected a different version of the
victim’s story. The senior medical officer and gynecologist, Dr. Dhirendra Ch.
Nath was also not examined, but his evidence was vital to this case.
5. The learned Addl. P.P. laid stress in his argument that in a revision petition,
the scope is limited. The Court is to decide only on the legality and propriety of
the judgment. Concurrent findings of two courts are not to be interfered with
on the basis of minor contradictions. The argument of the learned senior
counsel that the petitioner as a doctor can touch the breast of a victim suffering
from gynecological problem can be safely brushed aside. It is apparent that in
this case, the victim was not suffering from any gynecological problem but she
was suffering from some menstrual problems. The medical officer Dr.Dhirendra
Ch. Nath could not be examined as the medical officer did not appear despite
receipt of summons.
6. The learned Addl.P.P. also emphasized through his argument that although
the learned Senior Counsel for the petitioner has given weightage to the
evidence of PW5 and PW7, these witnesses have turned hostile at the later
stage of the trial and PW7 was also declared a hostile witness. It, thus cannot
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be presumed that as submitted by the learned Senior Counsel for the petitioner,
that as the victim did not inform her friends about the incident, her conduct
appears to be doubtful. It is further argued by the learned Addl.P.P. that the
victim’s statement under 164 CrPC is consistent with the contents of the FIR
Exhibit -1. The petitioner allegedly kissed the victim and bit her lips, which is not
a routine test of pregnancy or menstrual problem. Thus, the concurrent findings
of the trial court as well as the appellate court does not suffer from any
impropriety or illegality. It is apparent that the employees of the doctor’s
chamber PW3 and PW4 will not implicate the doctor i.e. the petitioner. The
learned Addl.P.P. has prayed to dismiss the revision petition as this petition is
bereft of merits.
7. I have given my thoughtful consideration to the submissions at the bar.
8. In trial, to substantiate its stance, the prosecution adduced the evidence of
7 witnesses who were cross-examined by the defence. After analyzing the
evidence carefully, the petitioner was held guilty of offence under Section 354
IPC. It was held by the learned trial court that from the evidence of the victim,
it could be deciphered that the victim went to the doctor’s chamber for medical
check-up. The petitioner laid her on the bed in this chamber and placed his
hands on her abdomen and asked her to unbutton her blouse. The victim
unhooked her blouse and then the petitioner squeezed her breasts and the
victim experienced pain. However, the petitioner continued to grope her
inappropriately and he bit her lips and forced his hands inside her underwear.
This evidence of the victim has been corroborated by the evidence of her
brother PW-1. He also testified that at about 1 pm, his sister informed him
about the incident. It was observed by the learned trial court that a doctor can
touch the body of a patient while examining the patient clinically but the doctor
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cannot outrage the modesty of woman during medical check-up. In this case at
hand, the petitioner, a doctor, continued groping the victim’s breasts despite
protests from the victim and he went to the extent of touching her private parts
and bit her lips. He inserted his hand into her mekhala (lower skirt) and groped
her inappropriately. These acts of the petitioner suggest inappropriate sexual
harassment with ill motive. The testimony of the victim is consistent to her
statement under Section 164 CrPC. It has been observed by the learned trial
court that the modesty of an adult female is writ large on her body. Young or
old, intelligent or imbecile, awake or asleep, the woman possesses modesty
capable of being outraged. Whoever using criminal force with intent to outrage
her modesty, commits an offence under Section 354 IPC. The culpable intention
of the accused is the crux of the matter. The evidence of biting the victim’s lips
remained intact in spite of cross-examination. No mens rea for false implication
could be deciphered. The evidence regarding the overt act of the petitioner was
a definite pointer towards the guilt of the petitioner. The evidence of PW3, Md.
Jamadul Haque and PW4, Junmoni Das proves the presence of the petitioner
and the victim at the relevant point of time in the pharmacy. It was held that
this offence was committed in the privacy of the petitioner’s chamber and
evidence of eyewitnesses is not forthcoming.
9. It was also held by the learned trial court that although the victim did not
inform her friends Konaklata Bordolai and Subhamoni Das about the incident
after she emerged from the chamber of the petitioner, her reaction should be
examined in the light of the fact situation of the case.
10. The learned trial court however compared the earlier statement of the
witness PW7 Smti Konaklata Bordoloi with the testimony of the victim. This
witness was declared to be a hostile witness and the cross-examination of the
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PW7 by the prosecution relating to her statement under Section 161 CrPC was
held to be corroborating evidence. Certain contradictions were dismissed as
minor contradictions. The argument of the defence that PW2 testified that
immediately after the incident she called her elder brother PW1 to Morigaon
town, while PW-1 testified in his evidence that the victim informed him about
the incident at home was held to be irrelevant. It was also observed by the
learned trial court that the petitioner during his examination under Section 313
CrPC admitted that he squeezed the breasts of the victim.
11. I concur with the findings of the learned trial court. Some minor
contradictions does not indeed thwart the evidence of a sterling witness.
12. Aggrieved by this judgment of the learned trial court, the petitioner
preferred an appeal which was registered as Criminal Appeal No.33/2013.
13. It has been held by the learned appellate court that the trial court did not
commit any error or illegality in holding the petitioner guilty of offence under
Section 354 IPC warranting any scope for interference. The learned appellate
court had re-appreciated the entire evidence, elaborately discussed by the trial
court. The appellate court had reiterated the discussions of the trial court.
14. For the sake of brevity, the analysis of evidence is not repeated. It was
also held that the evidence of PW3 and PW4 was not found reliable as they
were employees of Lilly Pharmacy and they were interested witnesses. It was
also observed that the victim’s friends PW5 and PW7 turned hostile and they did
not support the victim’s evidence.
15. It is apt to mention that both the trial court and the appellate court had
analyzed the statement of PW 5 and PW7 under Section 161 CrPC as evidence.
This view of the trial court as well as the appellate court is erroneous. The
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learned trial Court has relied on the statements of PW5 and PW7 under Section
161 CrPC and the appellate court went further ahead and relied on the
statements of PW5 and PW7 under Section 161 CrPC. Despite the error in
appreciating evidence by discussing the statements under Section 161 CrPC, the
entire judgment and order of the learned trial court and the appellate court
cannot be set aside on this ground alone. The remaining part of the analysis of
evidence by both the trial court as well as the appellate court cannot be held to
be erroneous as only the testimonies of the witnesses have been taken into
consideration without considering the earlier statements of the witnesses under
section 161 CrPC, except for contradictions and corroborations. The statement
of the victim is sufficient to hold an accused guilty of any offence relating to her
modesty or any offence relating to sexual assault. It is true that eyewitnesses in
such cases are not forthcoming. The appellant has been convicted under section
354 of the IPC and in such cases, the evidence of the prosecturix, if found to
be consistent can be relied on. Outraging the modesty of a woman is an
abstract term. The victim is the person who can justify if her modesty has been
outraged.
16. In this case, when the evidence is scrutinized carefully, it is apparent that
no contradictions as per Section 145 of the Indian Evidence Act 1872 ( the
Evidence Act for short) qua Section 162 of the CrPC could be elicited and thus
the I.O’s evidence was not necessary. Thus, it has been correctly held by both
the trial court and the appellate court that the petitioner has not been
prejudiced due to non-examination of the I.O. or the medical officer. It has been
correctly held by the trial court and the appellate court that the victim has
consistently stated that the petitioner inappropriately touched her private parts,
groped her breasts and bit her lips. This conduct of the petitioner cannot be
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considered to be a routine examination of a gynecologist to cure irregular
menstrual period. It has been correctly observed by the learned appellate court
that the victim was not required to unhook her blouse as she was suffering from
irregular periods which is an internal problem. Thus, the plea of the petitioner
that on a routine examination of gynecological problem, he had touched her
tummy and groped and pressed her breasts, appears to be absurd. He has also
admitted in his statement under section 313 CrPC that it was a routine
examination for a pregnancy test and he had touched her tummy and pressed
her breasts. Even for pregnancy test, groping the breasts inappropriately
appears to be absurd. A doctor may touch the tummy or the abdomen, but he is
not required to squeeze the breasts for any pregnancy test. It has to be borne
in mind that the doctor’s plea appears to be absurd in the sense that the victim
has categorically stated that she went for examination as she was suffering from
menstrual problems, whereas the medical officer/ appellant has taken the plea
of inappropriately touching the victim while conducting pregnancy tests, which
is not so in this case. Rather, the statement of the petitioner under section 313
CrPC is self implicating and corroborates the consistent evidence of the
prosecutrix.
17. Now at this stage, the appellant has taken a new plea which the
appellant had not taken before the Trial Court as well as before the Appellate
Court of first instance.
18. The learned Senior Counsel for the petitioner laid stress in his
argument that an important Medical Officer was not examined and an important
witness who accompanied the victim to the Magistrate for recording her
statement under Section 164 of the Cr.PC was not examined. The learned Senior
Counsel for the petitioner has also drawn the attention of this Court towards the
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medical jurisprudence by emphasizing that a doctor had opined that on
gynecological tests, breasts of a patient has to be examined. This doctor was
not examined as a witness.
19. This Court is however not inclined to delve into the medical
jurisprudence as this case is under Section 354 of the IPC. Ingredient to be
proved in this case is whether the victim’s modesty has been outraged. It has
already been held in the foregoing discussions that there is sufficient evidence
that the victim’s modesty has been outraged. Victim’s presence in the clinic has
not been disputed. Even the witnesses who were employees of the clinic had
affirmed the presence of the victim in the clinic. The employees of the Lilly
Pharmacy, PW3 and PW4 have categorically stated that the victim was present
at the time of incident in the clinic. Definitely during a gynecological
examination or examination relating to menstrual problems, the patient will be
examined in the privacy of the clinic and not in presence of witnesses. This is
when the alleged incident took place.
20. It has been correctly held by both the Trial Court as well as the
Appellate Court that no mens rea is discernible to falsely implicate the doctor. In
this case, the victim has not sustained any physical injury as a consequence of
the offence committed by the petitioner, but this conduct of the petitioner has
affected the psyche of the victim. The victim is the best person to describe her
mental state in cases of assault of this nature. The non-examination of two
medical officers, Dr. Dishan Bordolai as well as Dr. Dhirendra Ch. Nath has not
caused a dent in the evidence. Although it is not required to delve into the
intricacies of the evidence, yet, as the learned counsel for the petitioner has
emphasized on the minor contradictions, this Court has also scrutinized the
evidence.
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21. It can also be held that no prejudice could be attributed for non-
examination of another witness, ABC-Sewali Deka. Scrutiny of the evidence
reveals that no contradictions as per Section 145 of the Evidence Act vis-Ã -vis
Section 162 of the Cr.PC could be elicited through the cross-examination of the
witnesses. Witnesses were cross-examined elaborately, but no contradictions
could be elicited. There are a few minor contradictions relating to the place and
time when the victim informed her brother about the incident, but apart from
these minor contradictions, the victim’s and her brother’s statements were
found sufficient to bring home the charges leveled against the petitioner.
22. Another witness, Ujjal Kumar Nath, also deposed as PW6 that on
05.09.2009 at about 1 p.m., the victim informed him that the accused while
examining her, groped her breasts after removing her inner garment. She also
informed him that the accused/petitioner bit her lips and touched her private
parts. This evidence of PW6 also supports and corroborates the evidence of
PW1 and PW2. His cross-examination revealed that he got the appointment of
the victim for examination by the petitioner. The argument on behalf of the
petitioner that PW7 is the victim’s boyfriend and that he is an interested witness
holds no water, more so, when no contradictions could be elicited through a
vigorous cross-examination of PW7. The cross-examination of PW7 depicts that
a partition with glass cover between the pharmacy and the doctor’s chamber is
covered by a curtain. This clearly depicts the possibility of covert act in the
privacy of the chamber, which is covered by a curtain.
23. The argument on behalf of the petitioner that the evidence of
Mohammed Jamadul Haque, PW3 and the evidence of Junmoni Das, PW4
depicts that the doctor’s chamber is visible through the partition, can be safely
brushed aside. It has to be borne in mind that both PW3 and PW4 were
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employees in the Lilly Pharmacy. The evidence of PW1 and PW7 clearly reveals
that the incident occurred on 05.09.2009 at about 12.30 to 1 pm.
24. I have scrutinized the cross-examination of PW1, PW2 and PW6. They
were vigorously cross-examined by the defence, but no contradictions could be
elicited as per Section 145 of the Evidence Act qua Section 165 of the Cr.PC.
The only contradiction between the evidence of PW1 and PW2 is the place of
informing PW1 about the incident by PW2. This contradiction is not relevant.
Some minor discrepancies are required to be brushed aside as an incident is
recalled in a different manner by different individuals and perceived in a
different manner by different individuals. Different individuals visualize an
incident in their own perspective. A Photostat memory is not required. The
incident occurred on 05.09.2009 and the witnesses deposed in the Court after
10 months. Human beings are prone to forget certain details and certain
incidents. Surprisingly, not a single cross-examination was made relating to the
FIR and the statement of the victim under Section 164 of the Cr.PC as the
deposition of the victim is consistent to the FIR as well as her statement under
Section 164 of the Cr.PC and so is the deposition of PW1. His statement is
consistent to his FIR.
25. On the ground of submission of the learned Senior Counsel for the
petitioner relating to non-examination of the medical officers, it would be
pertinent to mention that the Appellate Court and the Trial Court have correctly
held that the examination of the medical officers is not required in an offence
under Section 354 of the IPC. No injuries on account of sexual assault is
expected in such offences. It is true that in such cases, when a victim goes for
opinion on irregular menstrual periods, the doctor may touch the abdomen or
he may feel it necessary to touch the private parts, but a diligent person will
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understand that he is not required to squeeze the breasts or grope the breasts
inappropriately as alleged. It is the victim who feels that her modesty has been
outraged by such an act. A doctor’s opinion is not required to prove that a
victim’s modesty has been outraged, nor is a doctor’s opinion sine qua non to
prove that a victim’s modesty has been outraged.
26. The other issue raised by the learned Senior Counsel on behalf of the
petitioner is that both the victim’s friends have not supported the evidence. This
cannot be an issue. In many cases, we have seen witnesses turning hostile after
a certain point of time. Both the victim’s friends, Smt. Subhamoni Das and Smt.
Kanaklata Bordolai deposed as PW5 and PW7 in 2011 and 2012 respectively.
PW3 and PW4 being employees in the pharmacy are inimical witnesses
whereas, PW5 and PW7 are hostile witnesses, despite the fact that the witness
PW5 was not declared to be a hostile witness by the Court.
27. In view of the foregoing discussions, it is thereby held that no illegality
or impropriety is discernible in the decisions of the Trial Court as well as the
Appellate Court. The intricacies of the evidence are not required to be dealt
with, as this Court has delved into the evidence and the cross-examination of
the witnesses. Thereby, it is held that no contradictions could be elicited through
the cross-examination of PW1, PW2, PW3, PW4 and PW6.
28. In the wake of the foregoing discussions, this Court upholds the
conviction of petitioner under Section 354 of the IPC, but the sentence is scaled
down and modified. This incident occurred before the amendment of 2013. The
petitioner is thus sentenced accordingly. The petitioner is at present 71 years
old as submitted by the learned Senior Counsel. Much water has flowed under
the bridge.
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29. I have also considered the age of the petitioner. The conviction under
Section 354 of the IPC vide Judgment and Order dated 17.08.2013 in
connection with GR Case No. 929/2009 is upheld, but the sentence is reduced
to fine only. The petitioner is convicted under Section 354 of the IPC and
sentenced to pay a fine of Rs 5000/- in default to undergo rigorous
imprisonment for 2 (two) months. The fine so paid will be deposited in the Trial
court and this fine shall be transferred to the DLSA, Morigaon to form a part of
the compensation in the victim’s compensation scheme.
30. In terms of the above observation, this petition stands disposed of.
31. Send back the Trial Court Records as well as the Appellate Court
Records.
32. No order as to costs.
JUDGE
Comparing Assistant
