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SUPREME COURT OF INDIA
R.M. Sahai and B.L. Hansaria, JJ.
Dr. Jacob George - Appellant
Versus
State of Kerala - Respondent
Criminal Appeal Nos. 638-39 of 1990
(Arising out of SLP (Crl.) Nos. 2019-20 of 1990)
Decided on 13.4.1994
Held Section 314 has not visualized the sentence of imprisonment only, but permits imposition of fine also. The High Court has imposed a fine of Rs. 5000/-. According to us, however, the fine is required to be enhanced considerably. We have taken this view, inter alias, because of what has been provided in section 357 of the Code of Criminal Procedure, which has a message of its own in this regard. It was spelt out by this Court in Hari Kishan v. Sukhbir Singh1, in which Shetty, J. speaking for a two-judge Bench stated that the power of imposing fine is intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is to some extent a constructive approach to crimes and a step forward in a criminal justice system. It is because of this that it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable what is reasonable has to depend upon the facts and circumstances of each case. Let us see what should be the quantum of fine to be imposed in the present case. We are concerned here with the death of a woman deserted by a husband who wanted to abort. We understand that she had a son born to her earlier and that son must have become a destitute with no one to look after. The appellant, on the other hand seems to have had a roaring practice as would appear, inter alias from the photographs of his clinic put on record. The building is an RCC one and is three-storied and presents a good look If a child has to be nursed in these days and nursed reasonably, a sum of Rs. 1,000/- per month would definitely be necessary. We, therefore, think that the fine to be imposed should be of Rs. one lakh, and so, we enhance the fine from Rs. 5,000/- as awarded by the High Court to a sum of Rs. one lakh. We grant six months time to the appellant for depositing this amount, as prayed by Shri Jain. On this amount being deposited with the Registry of this Court, steps would be taken to deposit the same in a nationalized bank in the name of the son of the deceased after ascertaining the same from appropriate authority. The bank would allow the guardian of the aforesaid son to withdraw the interest on the aforesaid amount till the son becomes major. On the son beaconing major, it would be for him to decide to, as how to use the money and the bank would therefore act in accordance with the decision taken by the son. (Paras 21 to 23)
(ii) Sentencing - The purpose which punishment achieves or is required to achieve. (Paras 17 to 20)
Result: Appeal dismissed with modification in sentence.
JUDGMENT
B.L. Hansaria, J. - Life is said to be the most sublime creation of God. It is this belief and conception, which lies at the root of the arguments, and force at that, by many religious denominations that human beings cannot take away life, as they cannot give life. This idea is so intense with some religious leaders that they would even oppose any measure of birth control Abortion or these persons would oppose miscarriage with greater force.
2. Mahatama Gandhi, Father of the Nation, urged long back in Harijan that God alone can take life because he alone gives it. For the Jains taking away of even animal life is a sin, as, according to them, animals are as much part of God as human beings Budhists too preach Ahinsa.
3. Our Reg Veda II recites:
"Grant us a hundred autumns that we may see the manifold world. May we attain the long lives, which have been ordained as from yore?
Atharva Veda I contains the following:
“May we be enabled to see the sun for a long time."
The aforesaid shows that life is beyond price and it is not only a legal wrong, but a moral sin as well, to take away life illegally.
4. In the present appeals we are not concerned with taking away of life before its birth. We are concerned with destruction of fetus life. This is what is known as abortion or miscarriage. To dispel any doubt as to whether the fetus has a life, what has been stated by Taylor in his Principle and Practice of Medical Jurisprudence may be noted where the learned author has opined at page 332 (13th Edn.) that legally both abortion and miscarriage are synonymous because the fetus being regarded as a "human life from the moment of fertilization". It may, however, be stated that some times the word "miscarriage" is used for "spontaneous abortion" and "abortion" for "miscarriage produced by unlawful means"
5. This distinction is, however, not material for our purpose because section 312 of the Penal Code speaks about causing of miscarriage and section 314 punishes the person who has intent to miscarriage of a woman and while doing so causes the death of such woman. It is under this section that the High Court of Kerala has found the appellant guilty after setting aside the acquittal order of the learned Assistant Sessions Judge. For the offence under section 314, the appellant has been sentenced for RI four years and a fine of Rs. 5,000/-. The High Court had also taken suo motu cognizance against the order of acquittal and it is because of this that along with the criminal appeal filed by the State which was registered as Criminal Appeal No. 415/89, the High Court disposed of Cr. R.C. No. 44/89, which is relatable to its own action. So, the appellant has preferred two aforesaid appeals. It may be stated that out of fine of Rs. 5,000/- as awarded, a sum of Rs. 4,000/- was directed to be paid to the children of the deceased towards compensation for loss of their mother, in case of realization of fine.
6. Our lawmakers had faced some difficulty when our Penal Code was being enacted. The authors of the Code observed as below while enacting section 312
"With respect to the law art the subject of abortion, we think it necessary to say that we entertain strong apprehension that this or any other law on that subject may, in this country, be abused to the vilest purposes. The charge of abortion is one which, even where it is not substantiated often leaves a stain on the honor of families. The power of bringing a false accusation of this description is therefore a formidable engine in the hands of unprincipled men. This part of the law will, unless great care be taken, produce few convictions but much misery and terror to respectable families, and a large harvest of profit to the vilest pests of society. We trust that it may be in our power in the Code of Procedure to lay down rules, which may prevent such an abuse. Should we not be able to do so, we are inclined to think that it would be our duty to advise his Lordship in Council rather to suf
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