D.P. Uniyal, J.
1. This is an application under Section 561-A, Cr. P. C., by Dr. (Kumari) Mercy I. B. Clive for an order expunging from the judgment of the trial Court as well as from the appellate judgment of this Court, certain remarks which tend to reflect adversely on the character of the applicant, as a public servant.
2. The facts giving rise to the application are these: One Gajadhar made a report at Police Station Gahmar, Distt. Ghazipur, alleging that his daughter Kumari Tulsi Devi aged 9/10 years had been raped by one Kawal Bas on the 13th of August 1956 between 3 and 4 p.m. After record-Ing the report the Station Officer sent the girl in the company of Constable Moinuddin for medical examination to the Dufferin Women's Hospital, Ghazipur, on the 14th of August, 1956.
The applicant was at that time the Lady Doctor in charge of Dufferin Women's Hospital. She examined the girl and handed over her report Ex. Kha-14 to the Constable. The girl was, however, not sent with the constable and was admitted as an indoor patient in the hospital. According to the report of the Lady Doctor she had found some streaks of blood on the thighs of tie girl but she was of the opinion that no rape had been committed on her.
She did not find any rupture of the hymen nor any marks of injury on the labia majora or labia minora. She also reported that there were no marks of injury, abrasions, etc., on the private parts of the girl. She had made an 'optical examination' only and had not administered anas-thesia to the girl. The girl was detained in hospital until the 16th of August when she was handed over to her relations at the intervention of certain persons.
The father of the girl was not satisfied with the examination conducted by Dr. (Kumari) Clive and he, therefore, took her to Varanasi and gother examined there by Dr. J. N. Jaiswal, Civil Surgeon, on the 19th of August, 1956. Dr. Jaiswal found, the labia majora and labia minora intact and vaginal outer orifice narrow and uncongested. He was of the opinion that nothing positive could be said about rape having been committed on the girl a week before her medical examination by him.
3. The relations of the girl were apparently dissatisfied with the medical examination of the girl by the Lady Doctor of Dufferin Hospital, Ghazipur and the Civil Surgeon of Varanasi and accordingly they got her again medically examined by three medical proctitioners of Ghazipur on the 27th of August 1956. The examination of these doctors revealed congestion of labia minora and three tears of hymen. They were definitely of the view that rape had been committed on the girl some 14 days before.
After obtaining the report of the three private practitioners the matter was taken up with the State Government and thereupon a Medical Board composed of Dr. R. C, Srivastava, Civil Surgeon of Lucknow and Medico Legal Expert of the State Government, and Dr. B. Mendonca, Medical Superintendent, Dufferin Hospital, Lucknow was constituted to examine the girl.
Accordingly on the 31st of August, 1956 they conducted her medical examination under anas-thesia and reported that the hymen of the girl was ruptured at three places. They, however, did not notice any injury on the labia majora and labia minora. According to them the rupture of hymen had taken place about 18 days before on account of the penetration of male penis.
4. The accused Kawal Bas was prosecuted under Section 376, I. P. C., and was convicted and sentenced to a term of imprisonment and to pay a fine by the learned Assistant Sessions Judge of Ghazipur. The accused then filed an appeal from his conviction and sentence to this Court and the same was dismissed on the 15th May, 1959 by an order of that date.
This Court confirmed the finding of the trial Court that rape had been committed on Tulsi Devi, a minor girl aged 9 or 10 years, by the accused, Kewal Bas. In support of the prosecution case Dr. R. C. Srivastava, Civil Surgeon, Lucknow, and Dr. Mendonca were examined by the prosecution to prove that rape had been committed on the girl.
The accused produced the applicant Dr. Mercy I. B. Clive as a defence witness to show that no rape had been committed. After considering the medical evidence adduced by the prosecution and the defence in the case this Court came to the conclusion that the medical examination conducted by the applicant was most perfunctory. It observed that the applicant had taken no steps whatsoever to ascertain whether the hymen had or had not been ruptured.
It further observed that the conduct of the applicant in detaining the girl in the hospital for two days and in not returning her to her parents was improner and suspicious. It was held that the applicant had not been able to offer any proper explanation for detaining the girl in hospital for two days. After considering the evidence in the case this Court came to the conclusion that the conduct of Dr. Clive was not above board.
5. The learned counsel appearing for the applicant argued before me that the adverse remarks made by this Court in its judgment were not justified and that the report of the applicant regarding the medical examination of the girl was correct. He laid great stress on the fact that the investigating agency did not report against the applicant to higher authorities about the detention, of the girl by her, and that the circumstances of the case indicated that no rape had been committed on the girl.
He elaborated Ms argument by urging that the girl had been examined by three private doctors on the 27th of August, 1956, thirteen days after the alleged incident. During this period there was enough opportunity for the parents of the girl to manipulate injuries on the private parts of the girl and, therefore, the medical examination conducted by the three doctors and the Medical Board at Lucknow could not be considered to be reliable.
6. The argument advanced by the learned counsel cannot be accepted for a moment. It is only in rare cases that the High Court exercises its power to expunge remarks from its judgment or the judgment of the trial Court. It will only take such action when the words objected to are not relevant to the case Or are not founded on any evidence and are made against a person who had no opportunity of meeting them.
But the findings recorded by a competent Court can only be challenged in appeal or revision and not by recourse to an application under Section 561-A, Cr. P. C. The attempt of the learned counsel to get round the finding of this Court that accused Kawal Bas was the person responsible for committing rape on Kumari Tulsi Devi cannot be allowed. In order to arrive at that finding it was necessary for the Court to weigh the evidence adduced by the prosecution and to review the conduct of the applicant who had ap- peared as a defence witness in the case.
Indeed it was the duty of the Court to adjudge the guilt or otherwise of the accused by testing the veracity of the witnesses produced in the case. There was a clear conflict in the medical evidence adduced by the prosecution and the defence and this conflict had to be resolved by finding as to which of the rival contentions was more probable and correct. The finding of the Court that the medical examination of the girl by the applicant was suspicious and hence not reliable, could not be challenged in these proceedings.
7. The only question, therefore, that remains to be considered is whether the remarks made by this Court were irrelevant and unjustified in the sense that they were not based on any evidence. In her deposition the applicant had stated that she had conducted an optical examination of the private parts of the girl and had not made a thorough probe to determine if her hymen was ruptured.
She further admitted that she could not offerany explanation for detaining the girl in hospitalfor two days, In view of the report of the applicant that the girl had not been subjected to rape she should have been allowed to leave the hospital. A medical officer has a solemn duty to perform and he or she cannot be allowed to trifle with the lives and liberties of persons coming under his or her charge.
8. The contention of the learned counsel that the injuries to the private parts of the girl might have been manipulated subsequently by her parents is not worthy of serious consideration. The father of the girl was examined as a prosecution witness in the case. It was never suggested to him in cross-examination that he had manipulated any injuries on the private parts of his daughter.
On the contrary, Dr. Srivastava, Civil Surgeon, made a categorical statement that the rupture of hymen of the girl had been caused by the penetration of male organ. Thus there was clear and cogent evidence to negative the allegation that the injuries of the girl might have been caused by some artificial means. The observations made by this Court against the applicant are supported by the evidence on the record and were, therefore, justified.
9. I may point out that this application is a belated one, it having been filed more than a year after the decision of Criminal Appeal No. 1368 of 1957. No adequate reason has been shown for this inordinate delay. In the affidavit filed by the applicant in support of the application it was averred that she could not make the application earlier as she was under suspension and her application to the State Government for permission to apply to this Court for expunction of remarks against her had not been disposed of till the 5th of March, 1960.
There does not appear to be any substance in this allegation. There 3s no rule, and none has been brought to my notice, which debars a Government servant from applying to the High Court for expunction of offending remarks from the judgment of the Court. The fact of the matter is that the applicant was dismissed from service by the State Government by its order dated the 31st of March, 1960 and it was this which appears to have prompted her to make this application.
However that may be, no good reason has been shown by the applicant for expunction of the observations made by this Court in its judgment. The applicant had appeared as a witness in the case and had full opportunity of explaining her conduct. In my opinion the observations were vital to the decision of the appeal and as such formed an integral part of the judgment.
10. The application is without any force andis dismissed.