[POCSO Act] Can't Conclude Sexual Intention Of Doctor During Medical Exam Based On Victim Labelling It As 'Bad Touch': Kerala High Court

The child had gone to the hospital with issues of chest pain, abdominal pain, pain upon her collarbone and growth deficiency. She was advised to come and see the petitioner doctor with the scan reports.

She was accompanied by her mother when she came to see the doctor. As per the statement of the child, the petitioner pressed her breasts with the stethoscope and later inserted his hands inside her innerwear and pressed her breasts and naval portion. A few days before the second visit to the doctor, the victim told her elder sister about the objectionable touches from the doctor.

The elder sister dismissed the concerns as a misunderstanding. The victim was accompanied by her elder sister for her next visit to the doctor. The doctor followed the same procedure as the last time in the presence of the elder sister.

However, the elder sister saw the victim shivering. After that, she raised her voice and ultimately, a complaint was filed with the police. The doctor is booked under Section 354A(1)(i) (sexual harassment) of IPC and Sections 9 and 10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act (POCSO).

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 Cr.PC contained 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. In this case, the Court held that the examination was held with the consent of the mother or elder sister.

On these observations, further proceedings against the petitioner were quashed.

Counsel for the Petitioners: Advocates Nirmal S., Veena Hari, Keerthy Johnson, Mintu Jose, Gini George, Aishwarya Shivakumar

Counsel for the Respondents: Adv. Pushpalatha M. K. (Sr. PP)

Case No: Crl.MC 3538 of 2025

Case Title: Dr. C. M. Aboobacker v State of Kerala and Another

Citation: 2025 LiveLaw (Ker) 350

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