Kochi: The Kerala High Court set aside a POCSO case against an octogenarian paediatrician who was alleged to have committed aggravated sexual assault on a class 10 student during a medical examination. The doctor had approached the High Court to quash further proceedings in the case, saying that whatever he had done was within the parameters of clinical examination. He had said that the examination was done in the presence of the child's mother and later her sister.

The victim had given a statement to the Magistrate that she felt the move of the petitioner was a 'bad touch'. However, the High Court observed that it cannot conclude sexual intention from that casual remark alone.

“It is true that the statement given by the victim to the Magistrate under Section 164 CrPC contained a casual indication that she felt the move on the part of the petitioner as a bad touch. But, it would be highly unsafe and improper to act upon the above isolated casual remark of the victim, to come to a conclusion that the petitioner had acted with sexual intention. The chances of that adolescent girl getting misunderstood about the act of the petitioner, cannot be ignored.”

Justice G Girish observed that for offences of sexual assault under IPC and POCSO, it was important to show that the act was committed with sexual intention. The court said that it was hard to believe that the petitioner made sexual advances to the victim in the presence of her mother or sister. The court also noted that the victim had approached the hospital with complaints of chest pain and abdominal pain, and only after checking with the stethoscope, the doctor proceeded to press her breasts.

The court further pointed to Section 41 of the POCSO Act, which gives immunity to medical examination or medical treatment from being criminalised under POCSO when it is done with the consent of the parent or guardian.

On these observations, further proceedings against the petitioner were quashed.
(With LiveLaw inputs)