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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 1.00 P.M. 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 5.50 P.M. 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 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:-

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 from the genitals to the Chemical Examiner, Punjab for opinion. The communication addressed by the appellant to Dr. P. K. Mittal ran as under:-

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 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.

Re. 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. Mrs.L.K. 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 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.