032-NLR-NLR-V-27-REX-v.-FERNANDO.pdf
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Present: Maartensz A.J.
REX v. FERNANDO.
3—D. C. (Crim.) Colombo, 7,402.
Abetment—Causing a woman to miscarry—Act abetted physicallyimpossible—Penal Code, ss. 202 and 303.
A person may be convicted of the abetment of an offence undersection 303 of the Penal Code, viz., causing a woman to miscarry,even where there is no evidence that woman was pregnant, pro-vided that the accused believed she was in that condition. '
A
PPEAL by the 2nd accused from a conviction by the DistrictJudge of Colombo. The facts are fully set out in the
judgment.
Soertsz (with him Tisseveerasinghe and Weerasinghe), for 2ndaccused appellant.
Obeyesekere, (7.(7., for Crown, respondent.
April 2, 1925. Maabtensz A. J.—
The two accused in this case were indicted on tbe followingcharges:— 1
(1)The 1st accused, Rose Millicent Fox, with voluntarily causing
herself to miscarry, an offence punishable under section303 of the Penal Code.
The 2nd accused, B. H. Fernando, with aiding and abet-
ting tbe commission of the aforesaid offence, which wascommitted in consequence of such abetment, therebycommitting an offence punishable under sections 303 and102 of the Penal Code.
The 2nd accused with causing the said Rose Millicent Fox
to miscarry, thereby committing an offence punishableunder section 303 of the Penal Code.
The facts are as follows :—
The 1st accused is the widow of 2nd accused’s wife’s brother.She was living in Grandpass with her mother near the house ofthe 2nd accused, and the two accused appear to have been cn
1925,
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1925.
Maartensz
A.J.
Rex v.Fernando
terms of intimacy. First accused’s mother, Mrs. Blok, objectedto the 2nd accused’s visits to her house, and moved with her daughterto Dehiwala.
At Dehiwala the letters C 1, C 2, C 3, and C 4 written by the2nd accused to 1st accused and letter D written by 1st. accusedto 2nd accused were intercepted by Mrs. Blok. She suspected-from these letters that 1st accused was or had been pregnant,and that 2nd accused had procured drugs for her to cause her tomiscarry, and informed the Police.
The learned District Judge admitted the letters C 1, C 2, C 3,and C 4 in evidence against the 2nd accused, but not against the1st accused, and acquitted the 1st accused holding that the prose-cution had failed to prove either that she was pregnant or thatshe had taken drugs to cause herself to miscarry.
As against the 2nd accused the learned District Judge heldthat the letters C 1, C 2, C 3, and C 4 proved that 1st accused waspregnant, that 2nd accused was aware of her condition, and hadprocured drugs for her to cause her to miscarry. He also heldon the authority of the case of The Queen v. Kabul Pattur andJhumpa} that it is sufficient to prove against the 2nd accusedthat he believed 1st accused to be pregnant, even if she was not inthat condition.
In the case relied on by the learned District Judge the womanJhumpa was convicted under section 312 (the correspondingsection of the Indian Penal Code) of causing herself to miscarry,and the 2nd accused Kabul Pattur was convicted of aiding andabetting Jhumpa to commit the offence of causing herself tomiscarry. In appeal Kemp and Glover JJ., acquitted Jhumpaholding that the offence defined by section 312 can only be com-mitted when the woman is in fact pregnant, and that as it wasadmitted that Jhumpa was not pregnant' she could not beconvicted. The conviction and sentence of the accused, KabulPattur, were confirmed. It was held that “ to constitute the actof abetment it is not necessary that the act abetted should becommitted.” The woman failed involuntarily in causing abortion,but the prisoner, Kabul Pattur, instigated her to commit the offencebelieving her to be pregnant.
The arguments are not reported, and counsel for Fernando,the 2nd accused, contended that the judges who decided the casehad possibly not considered the case of Bex v. James Scudder,2where a bench of twelve judges held on an indictment for ad-ministering a drug to a woman to procure abortion, she not beingquick with child, that if it appears that the woman was not quick
x15 Weekly Rep. (Crim. Rulings) p. 4.
4 3 C. & P. 605.
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with child at all, the prisoner must be acquitted, although it appearsthat the prisoner thought that she was quick with child, and gaveher the drug with the intent to destroy such child.
This case was decided in 1871 and must have been consideredby the judges who delivered the judgment in the case of The Queenv. Kabul Patiur and Jhumpa {supra). But whether the casewas considered or not, 1 am of opinion that the provisions of.the Penal Code with regard to abetment are wide enough torender the 2nd accused liable, although the woman was notpregnant.
Mayne in his commentary on section 312 writes as follows
“ The offence created by section 312 is actually causing a womanto miscarry. If she is pregnant, and the- means useddo not succeed, the accused could only be convictedunder section 511 of an attempt. A more difficult questionwould arise if the attempt failed because the womanwas never pregnant. In England a woman was indictedunder section 58 of 24 & 25 Viet., c. 100, for doing certainacts with intent to procure her own miscarriage. Thesection only applies to a “ woman being, with child.” Itturned out that she had never been pregnant, and it washeld that she could not be convicted under the section, butmight be convicted of conspiring with those who assisted herto procure her own miscarriage. (See Beg. v, Whitchurch,1)There, however, the same section made such acts punish-able in others, whether the woman was with child or not.She was, therefore, conspiring with them to do an actwhich in them was illegal. Thisy under the Code, wouldbe abetment of their act under section 107 ” (the italics aremine). Continuing he says : “ But an unsuccessful attemptto procure a miscarriage is not punishable except as anattempt. Can it be punishable under section 511 when it isan attempt to do that which is physically and legallyimpossible ? It was at one time held in England thata man could not be convicted of an attempt to pick anempty pocket. This decision after, being much dis-credited has at last been over-ruled. It may fairly beargued that a man who intends to do a criminal actand tries his best to do it cannot be held not to have. attempted it because a circumstance of which hewas ignorant made it impossible to succeed.” SeeMayne’s Criminal Law of India (3rd Edit.), pp. 685 etseq.
1925.
Maabteksz
A.J.
Rex v.Fernando
1 L. R. 24 Q, B. D. 420.
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1886.
Maabtbnsz
A.J.,
Bex v.Fernando
According to the proposition of the law thus laid down by Mayne,the 2nd accused-appellant would be clearly guilty of an attemptto procure a miscarriage, if there was no evidence against him thatthe 1st accused was pregnant. The learned District Judge hasfound on the evidence admissible against the 2nd accused thatdie was pregnant, and convicted the 2nd accused of the offence ofabetting the 1st accused to cause herself to miscarry.
I see no reason to disagree with the inference drawn by the learnedJudge from the statements contained in the letters C 1, C 2, C 3,and C 4, and his conduct in trying to procure drugs from thevedaralas. The mere fact that 1st accused was able to concealher condition from her mother and sisters does not nullify theeffect of that evidence.
The accused has been sentenced to three months* rigorousimprisonment, and I am not prepared to say that the sentenceis too severe.
I accordingly affirm the conviction and sentence and dismiss. the appeal.
Appeal dismissed.
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