Present: Maartensz A.J.

REX v. FERNANDO.

 3-D.C.(Crim.) Colombo, 7,402.

    Abetment-Causing a woman to miscarry-Act abetted physically impossible-Penal Code, ss. 102 and 303.

A person may be convicted of the abetment of an offence under section 303 of the Penal Code, viz., causing a woman to miscarry, even where there is no evidence that woman was pregnant, provided that the accused believed she was in that condition.

APPEAL by the 2nd accused from a conviction by the District- Judge of Colombo. The facts are fully set out in the judgment.

Soertsz (with him Tisseveerasinghe and Weerasinghe), for 2nd accused appellant.

Obeyesekere, CO., for Crown, respondent.

April 2, 1925. MAARTENSZ A. J.-

The two accused in this case were indicted on the following charges:-

(1) The 1st accused, Rose Millicent Fox, with voluntarily causing herself to miscarry, an offence punishable under section 303 of the Penal Code.

(2) The 2nd accused, B. H. Fernando, with aiding and abetting be commission of the aforesaid offence, which was committed in consequence of such abetment, thereby committing an offence punishable under sections 303 and 102 of the Penal Code.

(3) The 2nd accused with causing the said Rose Millicent Fox to miscarry, thereby committing an offence punishable under 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 of the 2nd accused, and the two accused appear to have been en

terms of intimacy. First accused's mother, Mrs. Blok, objected TO THE 2nd accused's visits to her house, and moved with her daughter to Dehiwala.

At Dehiwala the letters C 1, C 2, C 3, and C 4 written by the 2nd accused to 1st accused and letter D written by 1st accused to 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 to miscarry, 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 the 1st accused, and acquitted the 1st accused holding that the prosecution had failed "Lo prove either that she was pregnant or that she had taken drugs to cause herself to miscarry.

As against the 2nd accused the learned District Judge held that the letters C 1, C 2, C 3, and C 4 proved that 1st accused was pregnant, that 2nd accused was aware of her condition, and had procured drugs for her to cause her to miscarry. He also held on the authority of the case of The Queen v. Kabul Pattur and Jhumpa,1[15 Weekly Rep. (Crim. Rulings) p. 4.] that it is sufficient to prove against the 2nd accused that he believed 1st accused to be pregnant, even if she was not in that condition.

In the case relied on by the learned District Judge the woman Jhumpa was convicted under section 312 (the corresponding section of the Indian Penal Code) of causing herself to miscarry, and the 2nd accused Kabul Pattur was convicted of aiding and abetting Jhumpa to commit the offence of causing herself to miscarry. In appeal Kemp and Glover JJ., acquitted Jhumpa holding that the offence defined by section 312 can only be committed when the woman is in fact pregnant, and that as it was admitted that Jhumpa was not pregnant she could not be convicted. The conviction and sentence of the accused, Kabul Pattur, were confirmed. It was held that " to constitute the act of abetment it is not necessary that the act abetted should be committed." The woman failed involuntarily in causing abortion, but the prisoner, Kabul Pattur, instigated her to commit the offence believing her to be pregnant.

The arguments are not reported, and counsel for Fernando, the 2nd accused, contended that the judges who decided the case had possibly not considered the case of Rex v. James Scudder,2[2 3 C.& P