Order This revision arises cut of a case where a poor young woman, a divorcee, had to die ultimately in the Maternity Hospital, Trichur, where she was taker days after a criminal a bortion after being turned away from three hospitals in the local area. Kochu.. 28, the first accused, a distant relative of Saffiya. 28, the deceased in the case, was in illicitintimacy with her which resulted in her pregnancy. This was aborted without her consent by Kochupennu, the second accused 42, an unqualified native abortionist at the instance of Kochu, in furtherance of their common intention to cause criminal miscarriage by administering certain medicine in the vagina of Saffiya. Saffiya was given in marriage while she was very young and two children, Sukkur aged 14 (P.W.1) and Salim, 12, were born to her during the wedlock. While P.W.1 was about 2 or 3 years of age Saffiya was divorced by her husband. Since then she was residing in a small thatched shed consisting of a small room and a kitchen thinly partitioned by cadjan leaves, along with her children. She was king out her livelihood as an agricultural labourer. Kochu, a married man who was conducting a tea shop about half a kilometre away from the residence of Saffiya, used to make nocturnal visits to her which in due course resulted in her pregnancy. While she was five months’ pregnant, Saffiya informed Kochu of it. But he was not prepared either to marry her or accept the paternity of the child in her womb. Kochu sought the assistance of Kochupennu to terminate the pregnancy. At about 9.30 p.m. on 13th September, 1975, Kochu and Kochupennu came to the house of Saffiya and Kochu wanted Saffiya to save his honour and submit to abortion. Much against her will Saffiya was compelled to submit to the wishes of Kochu and at the instance of Kochu, Kochupennu administered some medicine into the vagina of Saffiya. Before doing this, P.W.1 and his younger brother who were sleeping with their mother on the same mat were asked to go to the kitchen. After an hour, both Kochu and Kochupennu left the house. The next day evening Saffiya developed fever and pain and became restless. As directed by Saffiya, P.W. 1 conveyed information of her plight to Kochu. Before doing this, P.W.1 and his younger brother who were sleeping with their mother on the same mat were asked to go to the kitchen. After an hour, both Kochu and Kochupennu left the house. The next day evening Saffiya developed fever and pain and became restless. As directed by Saffiya, P.W. 1 conveyed information of her plight to Kochu. In the evening Kochu came along with Kochu, pennu to the residence of Saffiya who was there after taken to the Mission Hospital at Karanchira. She was denied admission there. They took her to two other hospitals where also they could not secure admission to her. Kochu then took her back to her house and left her there without any treatment leaving her to suffer herself the excruciating pain and agony. When her condition deteriorated, she sent a chit through P.W.1 to P.W.4, the President of the local mosque seeking assistance. P.W.4 directed. P.W.5, the Secretary, to take Saffiya to the Government Hospital and P.W.5 accordingly removed her immediately in a car to Trichur where he contacted one Dr. Ibrahim who accompanied him to the Maernity Hospital, Trichur. Dr. Vija yalakshmi (P.W.9) examined Safffiya at 10.30 p.m. on 21st September, 1975 and admitted her in the hospital for treatment. On examining Saffiya P.W.9 suspected criminal abortion and gave intimation of the same (Ex.P.2) to the Town East Police station. P.W.6, Sub-Inspector of Police, on receipt of the intimation on 23rd September, 1975 visited the hospital at 6-30 p.m. and recorded Ex. P-3 statement of the deceased. The F.I.R. prepared in this regard was transferred to the Valappad Police station within the limits of which the occurrence took place. P.W.10, the Sub-Inspector of Police, Valappad, during investigation prepared a scene mahazar Ex. P. 9 and questioned. P.Ws.1 and 2 and others. While under treatment Saffiya. died in the hospital at 10.20 a.m. on 25th October, 1975. P.W.7, Head Constable, who held inquest, prepared inquest report Ex.P.1. Autopsy was conducted by Dr. Jayaprakash. who issued Ex. P. 6, post-mortem certificate. This, in short, is the prosecution case. 2. The accused denied the prosecution care and pleaded not guilty. While under treatment Saffiya. died in the hospital at 10.20 a.m. on 25th October, 1975. P.W.7, Head Constable, who held inquest, prepared inquest report Ex.P.1. Autopsy was conducted by Dr. Jayaprakash. who issued Ex. P. 6, post-mortem certificate. This, in short, is the prosecution case. 2. The accused denied the prosecution care and pleaded not guilty. 3 The Additional Assistant Sessions Judge Trichur, who tried the case, relying on the evidence of P.W.1 and Ex.P.3, the medical evidence and other circumstances in the case found both the accused guilty under section 314 , read with section 34, Indian Penal Code, and convicted them thereunder. The first accused was sentenced to suffer rigorous imprisonment for 2 years and the second accused to suffer simple imprisonment for six months. On appeal the Court of Session, Trichur, confirmed the convictions of the accused, but reduced the sentence passed on the first accused to rigorous imprisonment for 18 months while confirming the sentence passed against the second accused. 4. Strongly assailing the convictions and sentences passed against the accused, Sri V. Narayana Menon, learned advocate appearing for them, contended that it is unsafe to place any reliance on the evidence of P.W.1, that Ex.P. 3 suffers from infirmities, that Ex.P.6. post-mortem certificate, has not been properly proved, that there is no conclusive medical evidence that there was criminal abortion and that therefore the petitioners are entitled to a clear acquittal. 5. It was argued that this must have been only a natural abortion. P.W.9 has described in detail the symptoms noticed on Saffiya in Ex.P.7, the wound certificate, issued by her. She has clearly stated in chief-examination that the abortion was rot a natural one, that the abortion was incomplete, that by introducing something into the vagina this sort of abortion could take place, that generally when abortion, is caused in a crude way this sort of symptoms could be seen and that she reported the matter to the police. During cross-examination the witness stated that “the symptoms noted can be seen in normalabortion also.” It is basing on this answer that it was contended that it was a case of natural abortion. It is not known why the Public Prosecutor did not re-exemine this witness on this point. During cross-examination the witness stated that “the symptoms noted can be seen in normalabortion also.” It is basing on this answer that it was contended that it was a case of natural abortion. It is not known why the Public Prosecutor did not re-exemine this witness on this point. But on the basis of an answer like this, especially when there is other evidence in the case, it cannot be held that the abortion was a natural ore. Autopsy revealed that there were irregular abrasions present in the vagina and there was pus in the uterine cavity. There was inflamation in the vagina also. If really it was a natural abortion, there was no necessity for P.W.9 to report the matter to the police. She says that it was after questioning and examining S?ffiya that she sent Ex.P. 2 intimation to the police stating that it was a case of suspected criminal abortion. It was from inside the improvised hut of Saffiya that certain medicine was administered into her vagina to cause criminal abortion. Besides the victim and the accused, P.W.1 and his younger brother alone were present in this hut at that time. In the circumstances of the case, the evidence of P.W.1 cannot be thrown away or suspected on the mere ground that he is the son of the deceased. P.W.1 is aged 14. He has studied upto 5th standard and at the time when he was examined he was learning tailoring. It cannot be said that he is a child witness of tender age. He has sworn to the incident in necessary details and he has been subjected to lengthy and searching cross- examination. No inherent defect or striking improbability or any other circumstance sufficient to discredit his evidence has been brought out in his cross-examination. The trial Court which had the opportunity to see and hear this witness found his evidence convincing and reliable. The Appellate Court on a proper reappraisal of the evidence concurred with the trial Court. The evidence of this witness is also corroborated by the medical evidence and the other circumstances disclosed in the case. The trial Court which had the opportunity to see and hear this witness found his evidence convincing and reliable. The Appellate Court on a proper reappraisal of the evidence concurred with the trial Court. The evidence of this witness is also corroborated by the medical evidence and the other circumstances disclosed in the case. It has been clearly established from the evidence of P.W.1 that the first accused was the only person who was in illicit intimacy with Saffiya that she was pregnant at the material time, that on the date alleged both the accused came to the residence of Saffiya and there at the instance of the first accused the second accused administered certain medicine to Saffiya to terminate her pregnancy without her consent and that as a result of this Saffiya developed illness and complications and ultimately she was taken to the Maternity Hospital, Trichur, where she died. During cross-examination P.W.1 stated that the second accused is residing not far away from their house. The prosecution has clearly established that the accused in furtherance of their common intention caused criminal miscarriage to Saffiya without her consent. 6. What remains for decision is whether Saffiya died as a result of the criminal miscarriage. It was contended that the postmortem certificate Ex.P-6 has not been properly proved and therefore it cannot be said that the death of Saffiya was as a result of criminal abortion. According to the Counsel for the accused, the burden cast on the prosecution in this regard cannot be said to have been discharged by the mere examination of a medical officer who is familiar with the handwriting and signature of the doctor who issued Ex. P. 6, but the prosecution must prove the contents of the document and also elicit from the witness examined, his independent opinion as an expert on the conclusions reached by the doctor who held autopsy. It is not always necessary and the law also does not insist that in all such cases the witness should give his independent opinion on the findings in the post-mortem certificate or speak to each and every statement made therein. It is not always necessary and the law also does not insist that in all such cases the witness should give his independent opinion on the findings in the post-mortem certificate or speak to each and every statement made therein. Of course, if an expert witness who has been examined to prove the post-mortem certificate issued by a doctor who was dead or was not available for examination, in Court under the circumstances stated in section 32(1) of the Evidence Act, also gives independent evidence as an expert on the conclusions arrived at in the post-mortem certificate, it would constitute an additional piece of evidence of an expert. Section 32 of the Evidence Act speaks only of the relevancy of certain facts and admissibility of the same and does not speak or refer to the mode or manner of their proof. Relevancy and admissibility of a fact are entirely different from the proof of that particular fact. Under section 32, statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become in capable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonaable, are themselves relevant facts in cases falling under sub-sections(1) to (8). There is evidence in this case that Dr. Jayaprakash who held autopsy over the dead body was at the material time prosecuting his studies in medicine in U.K., and his attendance could not have been procured without on amount of unreasonable delay or expense. Exhibit P-6 was issued by Dr. Jayaprakash in discharge of his professional duty. A post-mortem certificate is not substaptive evidence. It is only the evidence given in Court by the doctor who held autopsy that constitutes substantive evidence. A post-mortem certificate being a document containing the previous statement of a doctor who examined the dead body, can be used only to corroborate his statement under section 157 or to contradict his statement under section 145 or to refresh his memory under section 159 of the Evidence Act. But, section 32(2) is an exception to this. A post-mortem certificate being a document containing the previous statement of a doctor who examined the dead body, can be used only to corroborate his statement under section 157 or to contradict his statement under section 145 or to refresh his memory under section 159 of the Evidence Act. But, section 32(2) is an exception to this. If the doctor who held autopsy is dead or is not available for examination under the circumstances mentioned in section 32 of the Evidence Act, the certificate issued by him is relevant and admissible under section 32(2) of the Evidence Act. The weight to be attached to such a report or its probative value depends upon the facts and circumstances of each case. The Court can come to its independent conclusion on the cause of death, if there is independent evidence on record in support of it. Then the question is whether the statements made in Ex. P-6 post-mortem certificate, containing what was observed by the doctor during autopsy and the conclusion arrived at by him therein have been property proved in accordance with law. Section 67 of the Evidence Act speaks of the mode of proof of a document. Under section 67 if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be in that person's hand-writing must be proved to be in his handwriting. In this case, as already stated, prosecution. was not able to procure the attendance of the doctor who held autopsy without unreasonable delay or expense. In such cares, a statement coming under section 32(2) of the Evidence Act has to be proved by ore of the various modes prescribed in section 47 of the same Act. Ex.P-6 has been proved and marked through P.W-8 whose evidence this respect has been accepted by the Courts below. 7. The next question is whether the prosecution has succeeded in proving the cause of death. Ex.P-6 shows that the size of the uterine was 6 weeks and uterine cavity contained pus and that there were irregular abrasions present in the vagina. The cause of death, according to Ex.P-6 was shock due to peritonitis. Ex.P-3, the statement of Saffiya, becomes admissible in evidence only when the prosecution proves that she died as a result of criminal abortion. The cause of death, according to Ex.P-6 was shock due to peritonitis. Ex.P-3, the statement of Saffiya, becomes admissible in evidence only when the prosecution proves that she died as a result of criminal abortion. The question therefore is whether the shock due to petition it is which resulted in her death was as a result of the criminal abortion. It is seen from Ex.P-6 that there was an external infected wound in the anterior abdominal wall “1 } ½” entering peritonial cavity and that pus was protruding through the opening. There is nothing in evidence to show how this wound was caused on the abdominal wall-whether it was a surgical wound or whether it was already there when the patient was admitted. There is also nothing on record to show that this injury was one caused as a result of criminal abortion. It is regrettable that neither the Public Propsecutor nor the Court did care to put any question to P.W.9 in this regard. Time and again, this Court and the Supreme Court have stressed the importance and the necessity of eliciting the necessary facts from a medical witness, particularly regarding the cause of death and the type and nature of injuries noticed. Peritonitis is inflammation caused to the serous membrane which lines the abdominal walls. In the light of these circumstances it cannot be safely held that the shock due to peritonitis which resulted in the death of the victim was as a result of the criminal abortion. In any view the benefit in this respect must be given to the accused. The result is that Ex.P-3 cannot be admitted in evidence under section 32 of the Evidence Act. Vide Moti Singh v. State of Uttar Pradesh1 When the prosecution has failed to prove that Saffiya died as a result of the criminal abortion, her statement cannot be said to be the statement as to the cause of her death of as to any of the circumstances of the transaction which resulted in her death. 8. I have already found on the basis of the evidence of P.W.1, which has been corroborated by the medical evidence, that the accused caused criminal miscarriage to Saffiya as alleged. This is an offence punishable under section 313 of the Indian Penal Code. 9. 8. I have already found on the basis of the evidence of P.W.1, which has been corroborated by the medical evidence, that the accused caused criminal miscarriage to Saffiya as alleged. This is an offence punishable under section 313 of the Indian Penal Code. 9. In the result the convictions of the accused under section 314 read with section 34 , Indian Penal Code, carrot stand and have to be altered to ore under section 313 read with section 34. Indian Penal Code. Regarding sentence, considering all the circumstances in the case and particularly the fact that now legal abortion, is permissible under Act XXXIV of 1971, I think a lenient view can be taken in the matter of sentence. The sentence of rigorous imprisonment of 18 mentis passed against the first accused is reduced to rigorous imprisonment for one year and the sentence passed against the second accused is reduced to simple imprisonment for three months. 10. This revision petition is disposed of as above. M.C.M. ----- Ordered accordingly.