Holding

The conviction under IPC sections 312 and 314 is upheld; probation is denied, the fine is enhanced to Rs 1 lakh, and the imprisonment is reduced to time already served.

Issues considered

Whether the testimony of PW‑1 is sufficient to sustain conviction despite hostile witnesses.
Whether the Medical Termination of Pregnancy Act, 1971 provides any exception covering the appellant’s act.
Whether the appellant is entitled to probation under the Probation of Offenders Act, 1958.
Appropriate quantum of fine under Section 357 of the CrPC and the period of imprisonment.

Legislation cited

Code of Criminal Procedure, 1973s. 357
Indian Penal Code, 1860s. 312, s. 314
Medical Termination of Pregnancy Act, 1971s. 3
Probation of Offenders Act, 1958s. 12

Subjects

illegal abortionmiscarriageMedical Termination of Pregnancy ActIPC section 314probationfine enhancementmedical negligencehomeopathy

Judgment

A DR. JACOB GEORGE
v.
STATE OF KERALA

APRIL 13, 1994

B [R.M. SAHA! AND B.L. HANSARIA, JJ.]

Criminal Law-Indian Penal Code-Sections 312, 314, 357, Medical
Practitioner--Homeopatlt-Without proper training-Causing miscarriage of
woman resulting in death-Held guilt;-lmprisonment for four months-
C Upheld-Fine of Rs. 5000 enhanced to Rs. one laklt-Sentence reduced to
one already undergone.

Medical Tennination of Pregnancy Act, 1971-Section 3-Exceptions
Held : Not covered.

D Probation of Offenders Act-Section 12---Benefit of-Denied.

Penolo~Theories ofpunishmen~tposes discussed.
'
The appellant-homeopath was charged under various provisions of
I.P.C. Including section 314 for causing miscarriage to a woman, which
E resulted in her death. The case of the prosecution, based on the version of
PW-1 was that the deceased was taken to the appellant's hospital on
15.1.1987 for an abortion and she was operated upon around 10 P.M. the
same day. The appellant declared that the operation was successful. How-
ever at around 5 A.M. on 16.1.1987 she was found dead. The prosecution
witness PWs. 3 and 4 who were nurses of the appellant's hospital turned
F hostile.

The case of the appellant was that it was PW-1 who sought to abort
the pregnancy by crude method resulting in some emergent treatment.

G The trial court bald that the 'charges had not been established
beyond reasonable doubt and therefore acquitted the appellant.

The High Court, taking suo motu cognizance fo the matter and in
the appeal by the State, held that the appellant was guilty, relying on the
evidence of PW-1 and disbelieving the version of the appellant. The High
H Court sentenced him to undergo 4 months imprisonment in addition to
486
DR. GEORGE v. STATEOFK.ERALA[HANSARlA,J.] 487

which a fine of Rs. 5000 was also imposed. The High Court also refused to A
give the benefit of Probation of Offenders Act to the appellant.

In appeals to the Court the Appellant contended : (l) that the
evidence of PW-I was not to be believed, since it stood uncorroborated, as
PWs. 3 and 4 had turned hostile; (2) that the granting of probation would
have removed the disqualification attached to conviction;. and (3) that the B
substantive period of imprisonment may be reduced to one already under-
gone by him.

Disposing of the appeals, this Court

HELD : I. There is no reason to disagree with the High Court in
c
having placed reliance on evidence of PW-1 as be bad played a vital role
in the entire episode. (491-G-H]

2. The failure of the appellant to inform the police when the deceased
got admitted speaks volumes against the veracity of the defence case. D
[492-B]
3. The evidence or PW-1 is corroborated by the post-mortem report
which shows that the appellant bad absolntely no training to handle the
gadgets nsed in termination of pregnancy. [492-E]
E
4. The conviction or the appellant as awarded by the High Conrt is
upheld as the case is apparently not covered by any exceptions in the
Medical Termination of Pregnancy Act of 1971. [492·G]

5. The benefit of Probation of Offenders Act is rightly denied to the
appellant keeping in view the nature of the offence and manner in which F
the appellant performed the operation. [493-C)

V Manickam Pillai v. State, (1972) Cr. LJ. 1488, distinguished.

6. In the facts and circumstances of the case, the fine is enhanced G ,1
from Rs. 5000 to a sum of Rs. one lakb. [495·D]

Harikrishnan v. Sukhbir Singh, AIR (1988) S.C. ll27, referred to.

7. The substantive period of imprisonment is reduced to the one
already undergone which is of about two months. (495-H] H
488 SUPREME COURT REPORTS [1994] 3 S.C.R.

A [The Court observed that this Judgment may not be understood to
have expressed any opinion on the right of the deceased or for that matter,
any woman of this country to go in for abortion, as this question has not
arisen directly in this case. The Court further observed that it is not
expressing any opinion whether such a right can be read in Article 21 of
the Constitution, and if, so to what extent.] [495-G]
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
638-39 of 1990.

From the Judgment and Order dated 16/19.10.1990 of the Kerala
High Court in Cr!. A.No. 415/89 in Cr!. R.C. No. 44 of 1989.
c
R.K. Jain, Ashish Malhotra, G.Prakash and R. Sasiprabhu for the
Appellant.

M.T. George for the Respondent.
D The Judgment of the Court was delivered by

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
forceful at that, by many religious denominations that human beings cannot
E 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 miscarriage would be opposed with greater force by these
persons.

2. Mahatma Gandhi, Father of the Nation, urged long back in
F 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. Buddhists too preach Ahinsa.

3. Our Reg Veda II recites·:

G "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. 11

Atharva Veda I contains the following :

H "May we be enabled to see the sun for a long time".
___'.Ir DR. GEORGE v. STATEOFKERALA[HANSARIA,J.J 489

The aforesaid shows that life is beyond price and it is not only a legal A
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 foetus life. This
is what is known as abortion or miscarriage. To dispel any doubt as to
whether tk foetus has a life, what has been stated by Taylor in his B
~
'Principle and Practice of Medical Jurisprudence' may be noted where lhc
learned author has opined at page 332 (13th Edn.) that legally both
abortion and miscarriage are synonymous because the foetus being
regarded as a "human life ....................... from the moment of fertilisation".
It may, however, be stated that some times the word 11 miscarriage 11 is used c
for 11 spontaneous abortion11 and 11 abortion" for 1'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 D
~ and while doing so causes the death of such woman. It is under this section
/
that the appellant has been found guilty by the High Court of Kerala 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 E
motu cognizance against the order of acquittal and it is because ofthis that
alone 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, whkh is relatable to its own action. So, two aforesaid appeals have
~
been preferred by the appellant. 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 F
of the deceased towards compensation for loss of their mother, in case of
realisation of fine.

6. Our law makers had faced some difficulty when pur Penal Code
was being enacted. The authors of the Code observed as below while
G
enacting section 312 :

~ "With respect to the law on 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 H
490 SUPREME COURT REPORTS [1994]3 S.C.R. ....__ -,

A where it is not substatiated often leaves a stain on the honour of
families. The power of bringing a false accusation of this descrip-
tion is therefore a formidable engine in the hands of unprincipled
men. This part of the Jaw will, unless great care be taken, produce
few convictions but must misery and large harvest of profit to the
vilest pests of society. We trust that it may be in our power in the
B
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 suffer abort!on, where the mother is a party to the offence, to
remain wholly unpunished, than to repress it by provisions which
c would occasion more suffering to the innocent than to the guilty."

So what finds place in the aforesaid section is the result of very
mature and hard thinking and we have to give full effect to it.

7. After the enactment of the Medical Termination of Pregnancy Act,
D 1971, the provisions of the Penal Code relating to miscarriage have become -,
subservient to this Act because of the non-obstante clause in section 3,
which pennits abortion/miscarriage by a registered practitioner under cer- " \

tain circumstances. This permission can be granted on three grounds :

(i) Health - When there is danger to the life or risk to the
E physical or mental health of the woman ;

(ii) humanitarian - such as, when pregnancy arises from a sex
crime like rape or intercourse with a lunatic woman;

(iii) eugenic - where there is substantial risk that the child, if
F born, would suffer from deformities and diseases. '·
(See Statement of Objects and Reasons)

8. The above shows that concern for even un-born child was evinced
G by the legislature, not to speak of hazard to the life of the concerned
woman.

9. The allegations which led the High Court to find the appellant
gnilty under section 314 were these Deceased Thankamani was. married to
one Sathyan. After the marriage they lived as husband and wife for about
-
H . one and half yars and a son was born out of the wed lock. About six months
y
'
DR. GEORGE v. STATE OF KERALA [HANSARIA, J.] 491

thereafter, Sathyan reportedly deserted Thankamani but then there was A
reconciliation three months prior to the death of Thankamani who became
pregnant again. For reason not quite known, Thankamani told her mother
that she would desire to go for abortion since she did not want another
child. The mother, who was examined as PW2 in the trial, sent for PWl
her brother-in-law and told him about the predicament of Thankamani.
B
PWl happened to know the clinic (hospital) being run by the appellant in
Nilambur where abortions were being done.

·~ 10. Prosecution case is that on 14.1.87, PWl and Thankamani went
to the clinic and the matter was discussed with the appellant. Thereafter,
she was admitted and the appellant agree to abort her on payment of Rs. C
600, of which Rs. 500 was paid immediately undertaking to pay the balance
afterwards, which amount was paid on 15.1.87. On that day Thankamani
was taken to operation theatre at about 10 P.M. and at mid night the
appellant told that the operation was successful PWl however found
Thankamani unconscious. She regained consciousness at about 5 A.M. of D
16th and asked for some water. PWl instead brought a cup of tea which
Thankamani could drink with difficulty and started shivering. On informa-
tion given to appellant he came with a nurse and on examination found
Thankamani in sinking condition. Forth came out from her mouth and life
./ ebbed out of her. What happened thereafter is not material, except that
after some time police was informed which set it into motion resulting in E
chargesheeting of the appellant under various sections including section
314. In the trial which commenced, 16 witnesses were examined, apart from
bringing many documents on record. The learned trial court, however, held
that charges had not established beyond reasonable doubt and therefore
acquitted the appellant.
F
11. On appeal being preferred by the State and suo moto cognizance
being taken by the High ·court, the acquittal order has been set aside and
the appellant has been convicted and setenced as aforesaid, after refusing
to given benefit of Probation of Offenders Act as prayed for. Hence these
appeals under Article 136 of the Constitution. G

12. A perusal of the impugned judgment of the High Court shows
that it has placed reliance principally on the evidence of PWl, who is the
cousin of Thankamani. As he had played a vital role in the entire episode
and is a near relation of Thankamani we find no reason to disagree with H
492 SUPREME COURT REPORTS [1994] 3 S.C.R.

A the High Court in having placed reliance on his evidence. The defence case
that it was PW1 who sought to abort the pregnancy by crude method i.e.
insertion of stick and rod into the uterus was rightly disbelieved by the High
Court as if the condition of Thankamani became serious because of such
a crude method and Thankamani was brought to hospital for some emer-
gent treatment, as is the defence case, appellant, being the head of the
B clinic, must have informed police in view of the medico-legal significance,
as pointed out by the High Court. The failure of the appellant to do so
definitely speaks volumes against the veracity of tbe defence suggestion, as
pointed out by the High Court.

C 13. The submission of Sh. Jain that evidence of PW1 is the only
evidence to find the appellant guilty inasmuch as PWs 3 and 4 had turned
hostile, and so there was virtually nothing to corroborate the evidence of
PW1, is not quite correct. As to PWs 3 and 4 turning hostile it was an
expected somersault because they were the nurses of the clinic and discre-
D tion must have been taken by them to the better part of valour. But then,
PW5, who too was an employee in the clinic did admit that Thankamani
had been admitted in tbe clinic on 14th and not on 15th night as was the
defence case. The postmortem examination conducted by PWll, according
to whom the death should have taken place at about 36 hours prior to his
examination which was at about 3.00 p.m. of 17th, would also corroborate
E the evidence of PW1 as to the date and time of the death of Thanakamani.
What was found in autopsy would clearly show that the uterus got per-
forated because of employing scientific gadgets by the appellant a
homeopath, which shows that he had absolutely no training to handle the
gadgets. The High Court has rightly described the exercise of the appellant
in this regard as "daring, crude and criminal". We therefore, agree with the
F
High Court that an innocent life was sacrificed at the alter of a quack.

14. We would, therefore, uphold the conviction as awarded by the \
High Court, as the case is apparently not covered by any exception men-
tioned in the aforenoted Pregnancy Termination Act. It may be pointed
G out that the High Court did not accept the case of the prosecution insofar
as the offence under section 201 of the Indian Penal Code, or for that
matter, under section 342, is concerned.

15. This takes us to the question of sentence. The High Court has
H awarded sentence of 4 years and a fine of Rs. 5000, of which a sum of Rs.
y
I
DR. GEORGE v. STATE OF KERALA[HANSARIA, J.] 493

4,000 was made payable to the children of the deceased towards compen- A
sation for the loss of their mother. Shri Jain has urged that the appellant
f Or
has undergone imprisonment for about two months, and the sentence may
be reduced to the period already undergone. Indeed the learned counsel
has further prayed in this regard to grant the benefit of Probation of
Offenders Act referred us to a decision of Madras High Court in V.
B
Manickam Pillai v. State, (1972) 1 Cr!. Law Journal 14S8, where the High
Court had granted such a benefit. We are, however, of the opinion that
keeping in view the nature of the offedce and character of the appellant,

Y' - he does not deserve the benefit of probation. If a homeopath takes to .his
head to operate a pregnant lady and perforate her uterus by trying to abort,
he does not deserve the benefit of probation. It would have been a different c
matter if a trained surgeon while carrying out the operation in question
with the consent of the lady, as in the present case, would have committed
some mistake of judgment resulting in death of the patient. The present
case is poles apart.
D
16. We, therefore, refuse to give benefit of the aforesaid Act to the
appellant. We may, however, put on record that Shri Jain advanced this
submission as granting of probation would have removed the disqualifica-
tion attached to conviction because of what has been stated in section 12
/
of the aforesaid Act. We do not, however think that if the appellant is
required to be given this protection and if his practice were to suffer E
because of the unwanted act undertaken by him, let it suffer, as it is
required to suffer.

17. Let us now deal with Shri Jain's submission that the substantive
period of imprisonment may be reduced to the one already undergone F
which is of about 2 months. To decide whether this contention merits
acceptance, we have to inforlD: ourselves as to why a punishment is required
$
' to be given for an offence of criminal nature. The purpose which punish-
ment achieves or is required to achieve are four in number. First, retribuw
tion : i.e. taking of eye for eye or tooth for tooth. The object behind this is
to protect the society from the depradations of dangerous persons; and so, G
if somebody takes an eye of another, his eye is taken in vengueance. This
form of protection may not receive general approval of the society in our
present state of education and understanding of human psychology. In any
case, so far as the matter at hand is concerned, retribution cannot have full
·--.. pay, because the sentence provided by 314 is imprisonment of either H
'
494 SUPREME COURT REPORTS [1994] 3 S.C.R.
""""I
A description for a term which may extent to ten years where the miscarriage
has been caused with the consent of the woman as is the case at hand. So ........
death penalty is not provided. The retributive part of sentencing object is
adequately taken care of by the adverse effect which the conviction would
have on the practice of the appellant.

B 18. The other purpose of sentence is preventive. We are sure that the
sentence of imprisonment already undergone would be an eye opener to
the appellant and he would definitely not repeat the illegal act of the type
at hand.
"'" '
c achieve.19.Incarceration
Deterrence is another object which punishment is required to
of about two months undergone by the appellant and
upholding of his conviction by us which is likely to affect the practice
adversely, would or should deter others to desist them from indulging in
an illegal act like the one at hand.

D 20. Reformation is also an expected outcome of undergoing sen-
tecnce. We do think that two months sojourn of the appellant behind the
iron bars and stone walls must have brought home to him the need of his
changing the type of practice he had been doing as a homeopath. The
reformative aspect of punishment has achieved its purpose, according to
'
E
us, by keeping the appellant inside the prison boundaries for about two
months having enabled him to kown during this period the trauma which
"
one sufferes in jail, and so the appellant is expected to take care to see
that in future he does not indulge in such an act which would find him in
prison.

F 21. Section 314 has not visualised the sentence of imprisonment only,
but permits imposition of fine also. The High Court has imposed a fine of
Rs. 5,000. According to us, however, the fine is required to be enhanced
•
considerably. We have taken this view inter alia, 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 Harkishan
G v. Sukhbir Singh, AIR (1988) SC 2127, 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
r
H
crime as well as reconciling the victim with the offender. It is to some extent
a contructive approach to crimes and a step forward in a criminal justice
- •
I
y
I

DR. GEORGE v. STATE OFKERALA[HANSARIA,J.] 495

" -"' system. It is because of this that it was recommended that all criminal A
courts should exercise this power liberally so as to meet the ends of justice,
be cautioning that the amount of compensation to be awarded must be
reasonable.

22. What is reasonable has to depend upon the facts and circumstan-
ces of each case. Let us see what should be the quantum of fine to be B
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 became 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 alia, from the photographs c
of his clinic put on record. The building is an RCC one and is three-
storeyed and presents a good look.

23. 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 D
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
nationalised bank in the name of the son of the deceased after ascertaning E
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 becoming major, it would be for him
to decide as how to use the money and the bank would therefore act in
accordance with the decision taken by the son.
F
, 24. Before closing, we may state that tbs judgment of ours may not
be understood to have expresed any opinion on the right of Thankamani
or for that matter of any woman of this country to go for abortion, as this
question has not arisen directly in this case. We are not txpressing any
opinion whether such a right can be read in Article 21 of the Constitution;
G
and if so, to what extent.

25. The result is that the appeals are disposed of by upholding the
,. conviction of the appellant. The sentence awarded by the High Court is
modified by reducing the substantive sentence <'f imprisonment to the one
already undergone and by enhancing the fine to a sum of Rs. one lakh to H
496 SUPREME COURT REPORTS (1994] 3 S.C.R.

A be deposited and dealt with as stated above. If the fine as enhanced by us
would not be paid withio six months from today, the sentence as awarded
by the High Court would get revived and the appellant would undergo the
remaining part of imprisonment. To enable the High Court to monitor the
matter, the appellaot would inform the High Court also abont the fact of
his depositing the sum of Rs. One lakh if and when he would do so. The
B
High Court would wait for a period of six months from today to see
whether the aforesaid amount has been deposited. In case it would be
noted that it has not been done so, it would take necessary steps for
execution of the sentence as awarded by it.

V.M. Appeal disposed of.

\.

\