MAIDEEN SAB v. STATE OF KARNATAKA — 1992 DIGILAW 257 (KAR)

M. M. MIRDHE, J. ( 1 ) THIS Criminal Appeal is filed by the appellant who was the sole accused in S. C. No. 29/87 on the file of the Sessions Judge, Karwar, U. K. , against the judgment dated 9-6-1988 passed by the learned Sessions Judge, Karwar in that case, convicting the appellant for the offence under S. 314, IPC and sentencing him to undergo R. I. for 5 years and in default to undergo R. I. for 6 months, and convicting him for the offence under S. 201, IPC and sentencing him to undergo R. I. for two years. ( 2 ) I have heard the learned counsel for the appellant and the learned Government Pleader fully and perused the records of the case. ( 3 ) THE case of the prosecution is as follows : the deceased Laxmi was a widow residing in the village Kadle and she had two sons and two daughters and her mother-in-law was also alive. PW 1-Ganapati Patagar is her son-in-law, PW 2-Krishna Patagar is her son, PW 4-Hosabayya Patagar is her elder brother. About three years prior to the date of the judgment of the learned Sessions Judge, the deceased sent words to PW 1 to meet her in her village at Kadle, as PW 1 was the resident of Varakeri village in Kumta Taluk. When PW 1 came and saw her, she told him that she was suffering from stomach pain and there was a Muslim doctor at Manki who would cure her illness and requested PW 1 to take her to that place. PW 1 informed her that he was not accompanying her as the marriage of his sister was fixed. But the deceased pressurised him and due to her pressure in the next week again he went to Kadle village and took the deceased to Manki in a truck. On the way the deceased informed him that she was pregnant and her pregnancy was 7 to 8 months old and the person at Manki to whom she was going, was doing abortions. The deceased also told him that if the abortion was not done she will be ex-communicated by the society. PW 1 took her to the house of the appellant situated in Janata House Colony at Manki. The deceased also told him that if the abortion was not done she will be ex-communicated by the society. PW 1 took her to the house of the appellant situated in Janata House Colony at Manki. The appellant and the deceased talked for some time slowly and deceased thereafter told PW 1 to go to his place and return after two days. PW 1 after giving his address went back to his village. After five or six days thereafter the appellant came to the house of PW 1 along with a boy at about 10 p. m. and informed him that the deceased died when he was doing abortion. Immediately PW 1 went along with the appellant and saw the dead body of his mother-in-law Laxmi lying in the Janata House and the dead body was rolled up in a mat. The appellant asked him to come to Honavar along with his relatives. PW 1 came to his house and then went to Alvekodi and informed the brothers of the deceased and went to Kadle and informed the mother-in-law of the deceased and her children. Then he, PW 2, and PW 3 left Kadle and came to Kumta. At Kumta PW 4 and CW 12 joined them and they went together to Honavar and met the accused in Honavar bus stand at about 4 or 4. 30 p. m. The appellant again informed them the reason for the death of the deceased and took them along with him and consequently they reached Manki. After reaching Manki, appellant informed CW 14 to bring some fuel wood to the house and took all these persons to another house where the dead body was kept. After showing the face of the dead body he tied the same in a gunny bag and removed the nose ring of the dead body before packing in the gunny bag. He went along with PW 1 carrying the dead body tied to a wooden pole at a distance of about two furlongs and there as per the instructions of PW 4 who had carried a pickaxe and a spade had dug the ground and the dead body was buried. He went along with PW 1 carrying the dead body tied to a wooden pole at a distance of about two furlongs and there as per the instructions of PW 4 who had carried a pickaxe and a spade had dug the ground and the dead body was buried. All these persons after burying the dead body returned to their respective villages and during the 12th day ceremony they disclosed this fact to the invitee and as per their advise PW 1 went to Kumta Police Station and narrated the event that occurred and his complaint was reduced into writing by PW 25 and a case came to be registered at Crime No. 82/85 and F. I. R. was prepared as per Ex. P. 31 and as the offence had taken place within the jurisdiction of Honavar Police Station, the copy of the F. I. R. was sent to Honavar Police Station and the original of F. I. R. and the complaint to J. M. F. C. , Kumta. After the receipt of the copy of the F. I. R. , PW 19 registered a case at Crime No. 104/1985 of Honavar Police Station against the accused. After the police investigated into the case and after the completion of the investigation, the police filed charge-sheet against the appellant. The case was committed by the jurisdictional Magistrate to the Court of Sessions Judge, Uttarakannada, Karwar. The learned Sessions Judge framed the charge against the appellant for the offence punishable under S. 314, IPC on the allegation that on or about 4-6-85 at about 10 p. m. he in his house with intent ion to cause the miscarriage of the deceased Laxmi, resident of Kadle village did certain act to bid (sic) the miscarriage, has caused the death of said Laxmi and for the offence under S. 201, I. P. C. on the allegation that the appellant buried the dead body in a hillock with the intention of screening from legal punishment and for the offence under S. 404, I. P. C. that the appellant dishonestly took gold nose ring of the deceased. The appellant pleaded not guilty. The prosecution was called upon to prove the guilt of the accused. The prosecution examined PWs 1 to 27 and got exhibited Exs. P. 1 to P. 27 and got marked M. Os. 1 to 17. The defence got exhibited Exs. The appellant pleaded not guilty. The prosecution was called upon to prove the guilt of the accused. The prosecution examined PWs 1 to 27 and got exhibited Exs. P. 1 to P. 27 and got marked M. Os. 1 to 17. The defence got exhibited Exs. D. 1 to D. 3. The appellant was examined under S. 313, Cr. P. C. and the accused denied the incriminating evidence led by the prosecution. He did not lead any evidence. After hearing both sides, the learned Judge acquitted the appellant for the offence under S. 404, I. P. C. , but convicted him for the offence under S. 314, I. P. C. and also S. 201, I. P. C. and sentenced him as mentioned above. Aggrieved by the judgment of the conviction and sentence passed by the learned Sessions Judge, Karwar against him, the appellant has preferred this appeal. ( 4 ) THE birds eye view of the prosecution is as follows : pw 1 who is the son-in-law of the deceased has deposed that he took her (deceased) at her instance to the house of the accused and left her there and the accused after 3 or 4 days coming and confessing before him that the deceased died while he was doing abortion and then PW 1 going and seeing the dead body. PWs 2, 3 and 4 have deposed their going to Manki and seeing the dead body. PWs 2, 3 and 4 have also deposed about the burying of the dead body. They have also deposed about the accused showing the dead body in another house and the accused packing the dead body in a gunny bag and all of them carrying the dead body and burying it in the hillock. PW 5 has deposed that he in the first instance purchased the house and left that house due to the illegal activities of the appellant like selling of liquor and doing abortions. PW 6 is the neighbour of the deceased. He has deposed as to what happened after the news of the death of the deceased was received in the family. PWs 7 and 8 have deposed about the activities of the appellant that he was selling liquor and doing abortions. PW 9 is a Panch, for panchanama - the mahazar under which the dead body of the deceased was exhumed from the grave. PWs 7 and 8 have deposed about the activities of the appellant that he was selling liquor and doing abortions. PW 9 is a Panch, for panchanama - the mahazar under which the dead body of the deceased was exhumed from the grave. PW 10 is the Panch for Exs. P. 5 and P. 6 where the skull and bones were found after the dead body was exhumed. PW 11 is the Panch for Ex. P. 7, the mahazar for seizure of the skull and bones of the dead body which was exhumed from the grave. PW 12 is the doctor who has given opinion in Ex. P. 10. PWs 13 to 18 are the police officials who have deposed that they made a search for the accused but he was absconding. PWs 13, 14 and 17 have deposed about their searching the accused but in vain. PWs 15 and 16 are the carriers of the sealed articles. PW 18 is the P. C. who kept a watch on the place where the dead body was buried. PW 19 is a S. H. O. of Honavar Police Station who registered the case at Crime No. 104/85 of Honavar Police Station on the complaint of PW 11. PWs 21 and 22 are the police officials who have deposed about their search of the accused, but in vain. PW 23 is a lady Medical Officer who has given her opinion as per Ex. P. 28. PW 24 is the Assistant Engineer who has drawn the sketch as per Ex. P. 30. PW 25 has deposed that he was working as P. S. I. , Kumta, that he registered the case at Crime No. 82/85 of Kumta Police Station as transferred to Honavar Police Station as the Honavar Police Station had the jurisdiction to investigate the case, as the offence had taken place within its jurisdiction. PW 26 is the Tahsildar who has deposed about his exhuming the dead body and the inquest proceedings under Ex. P. 34. PW 27 has deposed about the investigation done by him in this case. ( 5 ) LEARNED counsel for the appellant argued that there is no direct evidence to connect the appellant with the offence alleged against him. PW 26 is the Tahsildar who has deposed about his exhuming the dead body and the inquest proceedings under Ex. P. 34. PW 27 has deposed about the investigation done by him in this case. ( 5 ) LEARNED counsel for the appellant argued that there is no direct evidence to connect the appellant with the offence alleged against him. There is no medical evidence to prove that the deceased Laxmi died a homicidal death or that she died due to any act on the part of the appellant while doing the abortion. She also argued that the evidence of P. W. 1 is not believable because it looks highly improbable that he being the son-in-law of the deceased, the deceased would confide in him about her pregnancy and took him to the appellant for getting her pregnancy aborted. She further argued that all the circumstances alleged against the appellant are not sufficient to prove the guilt of the appellant beyond reasonable doubt. In the alternative she submitted that even in case the guilt of the appellant is held to be proved, the sentence awarded to him is harsh and excessive. ( 6 ) THERE is no direct evidence to connect the appellant with the offence alleged against him. The prosecution is relying on the circumstantial evidence. It is a well settled principle of law that an accused can be convicted even on the basis of circumstantial evidence provided that each circumstance against him is proved beyond reasonable doubt and the chain of the circumstances is so closely knit so as to exclude all the reasonable hypothesis of the innocence of the accused. The circumstances that the prosecution is relying against the accused are as follows : (1) That the deceased Laxmi went with P. W. 1 to the house of the appellant and he left her there with appellant for the purpose of aborting her pregnancy. (2) The appellant himself came to the house of P. W. 1 and made the extra-judicial confession that the deceased died while he was doing abortion. (3) The dead body of Laxmi was found in the house of the appellant and it was shown to P. Ws. 1 and 2 and others by appellant himself. (4) The appellant got a gunny bag and tied the dead body of the deceased in that gunny bag and with the help of P. Ws. (3) The dead body of Laxmi was found in the house of the appellant and it was shown to P. Ws. 1 and 2 and others by appellant himself. (4) The appellant got a gunny bag and tied the dead body of the deceased in that gunny bag and with the help of P. Ws. 1 to 4 took it to a hillock and got it buried there. (5) That the appellant was absconding after the complaint was filed. ( 7 ) SO far as the medical evidence is concerned, there is no direct evidence to show that the deceased died a homicidal death because the dead body came to be exhumed nearly after 12 days after it was buried. P. W. 23 has deposed about her exhuming the dead body from the grave as pointed by P. W. 1 and others to her. Exs. P-34 is the inquest of skull and some bones which came to be seized under Ex. P-7 which is proved by P. W. 11. P. W. 12 has given his opinion as per Ex. P-10 that the dead body recovered was that of a female. In view of these pieces of evidence the prosecution has proved beyond reasonable doubt that that a dead body of a female was exhumed from the grave, shown to the authorities by P. W. 1. Naturally when the dead body was exhumed nearly after 12 days after its burial, no post mortem examination could be conducted on that dead body and therefore there is no medical opinion that the deceased died a homicidal death. ( 8 ) THE learned author Taylor in his classic book Principles and Practice of Medical Jurisprudence in the case of R. v. Onufrejczyk, (1955) 1 QB 388 at page 16 observed as follows :"at any subsequent proceedings, the death can be proved in a legal sense even though no trace of the body has been found and the prisoner has not made any confession of guilt. "in the case of Annat Chintaman Lagu v. State of Bombay reported in AIR 1960 SC 500 : (1960 Cri LJ 682), the Supreme Court has held that :"where the medical evidence is negative, still the guilt of the accused can be proved by circumstantial evidence. "their Lordships have quoted the case of R. v. Onufrejczyk, (1955) 1 QB 388. "in the case of Annat Chintaman Lagu v. State of Bombay reported in AIR 1960 SC 500 : (1960 Cri LJ 682), the Supreme Court has held that :"where the medical evidence is negative, still the guilt of the accused can be proved by circumstantial evidence. "their Lordships have quoted the case of R. v. Onufrejczyk, (1955) 1 QB 388. This is the very case which the learned author Taylor has referred to in his Classic Book Principles and Practice of Medical Jurisprudence quoted above in this judgment. Their Lordships of the Supreme Court have quoted that case as follows :"60. In a recent case decided in England in the Court of Criminal Appeal R. v. Onufrejczyk, (1955) 1 QB 388, the body of the victim was not found at all. And, indeed, there was no evidence that he had died, much less was murdered. The accused's conduct in that case which was held decisive, was very similar to the conduct of the present appellant. He was in monetary difficulties, and the victim was his partner, whom he wished to buy out hut did not have the money to do so. One fine day, the partner disappeared, and his body was not found, and it was not known what had happened to him. The activities of the accused after the disappearance of his partner were very remarkable. To people who enquired from him about his partner, he told all manner of lies as to how a large and dark car had arrived in the night and that three men had carried off his partner at the point of a revolver. To a sheriff's officer he stated that his partner had gone to see a doctor. He also asked a lady to send him some sham registered letters and forged other documents. Lord Chief Justice Goddard stated the law to he that in a trial for murder, the fact of death could be proved by circumstantial evidence alone, provided the jury were warned that the evidence must lead to one conclusion only, and that even though there was no body or even trace of a body or any direct evidence as to the manner of the death of a victim, the corpus delicti could be held to be proved by a number of facts, which rendered the commission of the crime certain. It is pertinent to remember that Lord Goddard observed during the course of argument that there was no virtue in the words "direct evidence", and added : 'it would be going a long way, especially in these days when we know what can be done with acid, to say that there cannot be a conviction without some proof of a body. If you are right you have to admit that a successful disposal of the body could prevent a conviction. ' it is obvious that Lord Goddard had in mind the case of John George Haigh Notable Trials Series, who, as is notorious, disposed of bodies by steeping them in acid bath, destroying all traces. It is, in this context, instructive to read a case from New Zealand to which Lord Goddard also referred, where the body of the victim was never found. The King v. Horry, (1952) NZLR 111. The statement of the law as to proof of corpus delicti laid down by Gresson, (concurred in by Fair A. C. J. , Stanton, J. , and Hay, J.) was approved by Lord Goddard with one slight change. The statement of the law 1 head-note) is as follows : 'at the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found, and that the accused has made no confession of any participation in the crime. Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. ' lord Goddard did not agree with the words 'morally certain' and stated that he would have preferred to say "such circumstances as render the commission of the crime certain. "therefore; even where the medical evidence is negative the conviction can be based on other pieces of evidence if they unmistakably point only to the guilt of the accused. ( 9 ) (HENCE) The absence of post mortem report in this case cannot be a ground to disbelieve the case of the prosecution. "therefore; even where the medical evidence is negative the conviction can be based on other pieces of evidence if they unmistakably point only to the guilt of the accused. ( 9 ) (HENCE) The absence of post mortem report in this case cannot be a ground to disbelieve the case of the prosecution. ( 10 ) IT has come in the evidence of P. W. 1 that the deceased was his mother-in-law and at her instance he took her to the house of the appellant at Manki and on the way the deceased disclosed to him that she was pregnant and there was a Muslim doctor at Manki who was doing abortions and she wanted to get her pregnancy aborted to avoid excommunication in the society. The evidence further discloses that he left her in the house of the appellant after giving his address to the appellant and after some days the appellant came to his house with a boy and told him that the deceased died while he was doing abortion. No doubt the extra-judicial confession is held to be a weak type of evidence. But even extra-judicial confession can be made a basis to convict an accused without any corroboration. This proposition of law has been laid down in the case of State of U. P. v. M. K. Anthony, AIR 1985 SC 48 : (1985 Cri LJ 493); as follows (Para 15) :"there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. " ( 11 ) NOW the question is whether the learned trial Judge was wrong in relying on the evidence of P. W. 1 for convicting the appellant. P. W. 1's evidence is to the effect that the appellant himself came to his house and made extra judicial confession that the deceased died while he was doing abortion. The learned counsel for the appellant submitted that the evidence of P W. 1 is highly improbable because a woman will not disclose about her illegitimate pregnancy to her son-in-law and asked him to take her to a doctor for doing abortion. This argument cannot be accepted for the reason that the evidence discloses that in the first instance the deceased had not disclosed about her pregnancy to P. W. 1, but while going to Manki in the truck she has disclosed about it to P. W. 1. The deceased was a widow and she became pregnant due to (sic) contact with a male. Therefore, her fear that she would be excommunicated from society was not unfounded. The deceased was a widow and she became pregnant due to (sic) contact with a male. Therefore, her fear that she would be excommunicated from society was not unfounded. Being found in such a circumstance it was quite but natural to find ways and means to get rid of unwanted illegitimate pregnancy and for that purpose she needed some help and she could not have taken the assistance of her son. Therefore, she chose to have P. W. 1 to take her to the accused at Manki and on the way she had no other alternative but to disclose to P. W. 1 the purpose of their going to the appellant at Manki. Therefore, there does not appear to be anything unnatural in the deceased telling P. W. 1 about her pregnancy and about her purpose of going on to the house of the appellant at Manki. P. W. 1 and the deceased are not related to the appellant. They are not from the village of the appellant and they are not also of the same caste as that of the appellant. No such material is elicited in the evidence of P. W. 1 that he has any motive to involve the appellant falsely in a criminal case of this magnitude. The evidence of P. W. 1 is natural and believable, and it goes to show that he left the deceased in the house of the appellant and she was hale and hearty there and it is the appellant himself who came to his house after 5 or 6 days and made an extra judicial confession that the deceased died while he was doing abortion. The appellant has not only made extra judicial confession before this witness, but the evidence of P. Ws. 2 and 4 are also to the effect that when they were going along with P. W. 1 to Manki, the appellant met them at Honavar bus stand and made an extra judicial confession before them to the similar effect. The extra-judicial confession made by the appellant is natural because he was expected to give an explanation as to how the deceased who was left hale and hearty in his house died. Neither P. W. 1 nor P. W. 2 and P. W. 4 has got any motive to involve the appellant falsely in this case. The extra judicial confession proved by the evidence of P. Ws. Neither P. W. 1 nor P. W. 2 and P. W. 4 has got any motive to involve the appellant falsely in this case. The extra judicial confession proved by the evidence of P. Ws. 1, 2 and 4 by itself is enough for the conviction of the appellant in a case of this type. The Supreme Court in the ruling quoted above has held that no corroboration is necessary. But in this case the extra judicial confession made by the appellant before P. W. 1 in his house and before P. Ws. 2 and 4 at Honavar bus stand finds corroboration in its material particulars from the evidence on record. The evidence of P. Ws. 1, 2 and 4 is to the effect that appellant himself took them to his house at Manki and he showed them the dead body of the deceased and the dead body of the deceased was found in the house of the appellant. The fact that the dead body of the deceased was found in the house of the appellant at Manki which was not the place of the residence of the deceased is a strong circumstance and that the appellant himself took P. Ws. 1, 2 and 4 to his house and showed the dead body are strong circumstances which corroborate the extra-judicial confession made try the appellant before P. Ws. 1, 2 and 4, in material particulars. The deceased was not related to the appellant. She was not a resident of Manki village. But, still her dead body was found in the house of the appellant and the evidence of P. W. 1 goes to show that he had left his mother-in-law hale and hearty in that house 5 or 6 days prior for the purpose of getting the pregnancy of the deceased aborted. All these facts and circumstances of the case are consistent only with the guilt of !he accused and the chain of circumstantial evidence is so closely knit in this case and that any reasonable hypothesis of the innocence of the appellant is clearly ruled out in this case. ( 12 ) ANOTHER circumstance that is pressed by the prosecution is the absondance of the accused. P. Ws. 13, 14, 17, 20 and 21 have deposed that they searched for the accused but he was not traced for nearly six months. ( 12 ) ANOTHER circumstance that is pressed by the prosecution is the absondance of the accused. P. Ws. 13, 14, 17, 20 and 21 have deposed that they searched for the accused but he was not traced for nearly six months. The records in this case disclose that the accused has surrendered before the J. M. F. C. Court. The fact that the accused could not be traced by the police stands proved by the fact that the appellant surrendered before the J. M. F. C. Court. The place of the residence of the appellant is Manki a small village. If really the appellant was staying in his village after the registration of the offence, it would not have been difficult for the police to arrest him. The evidence of the witnesses examined by the police for prosecution to prove the abscondance of the accused cannot be brushed aside as a formal type of evidence because the evidence is corroborated by the fact that the appellant himself has surrendered to the Court and the police have not been able to arrest him till the end. The fact of this abscondance by itself may not be an incriminating circumstance because sometimes a law abiding citizen due to his fear of being arrested by the police may try to avoid them. But the fact of abscondance in the light of other facts and circumstances of the case may become incriminating. In this case the abscondance of the appellant in the light of the other facts and circumstances is certainly incriminating. This another chain in the prosecution evidence rules out the possibility of the innocence of the appellant. Therefore, the trial Judge was justified in convicting the appellant for the offence punishable under Section 314, I. P. C. , for causing the death of the deceased while doing the abortion. ( 13 ) BUT the trial Judge has also convicted the appellant for the offence under Section 201, I. P. C. , for causing the disappearance of evidence with a view to screen himself from legal punishment. I do not think that the said offence is sustainable because the evidence of P. W. 1 is to the effect that the appellant himself came and told him about the death of the deceased and that when P. Ws. I do not think that the said offence is sustainable because the evidence of P. W. 1 is to the effect that the appellant himself came and told him about the death of the deceased and that when P. Ws. 1, 2 and 4 came to Honavar, he himself took them to his house and showed them the dead body and that they as per the directions of the appellant buried the dead body of the deceased near a hillock. This evidence clearly discloses that the appellant has not tried to hide the fact of the death of the deceased at his hand. But on the other hand, he met P. Ws. 1, 2 and 4 and also he had showed them the dead body of the deceased and it is P. Ws. 1, 2 and 4 and the appellant who buried the dead body. Therefore, the appellant has not tried to cause disappearance of evidence of the death of the deceased so as to screen himself free from punishment. The learned Judge is not right in convicting the appellant under Section 201, IPC. Therefore, the judgment of the trial Judge convicting the appellant for the offence under Section 201, I. P. C. , will have to be set aside. ( 14 ) THE learned counsel for the appellant submitted that the sentence awarded to the appellant is excessive. The appellant has been sentenced to R. I. for five years and to pay a fine of Rs. 1,000/- and in default to undergo R. I. for six months. The offence proved against the appellant will fall under Section 314, I. P. C. which is punishable with imprisonment for 10 years. In this case as the deceased had given her consent for her abortion, as she was a widow who had become a victim of unfortunate circumstances resulting in her becoming pregnant. The evidence of P. W. 5 is to the effect that though he purchased the house of the appellant he left it because of his illegal activities like selling of liquors and doing abortions. P. Ws. The evidence of P. W. 5 is to the effect that though he purchased the house of the appellant he left it because of his illegal activities like selling of liquors and doing abortions. P. Ws. 7 and 8 have also deposed that the appellant has indulged in selling liquor and going abortions for his maintenance, The evidence of these witnesses discloses that the appellant though not qualified was doing the business of causing abortions, It is not known as to what injury he has caused to the lives of the persons who have come to him for abortions. Taking into consideration all these facts and circumstances of the case, I am of the opinion that sentencing him to five years for the offence that has been proved in this case is not harsh and excessive. So far as sentencing him to pay a fine is concerned, that is required to be set aside in view of the fact that he has been sentenced to a substantial sentence of rigorous imprisonment for five years. Hence, I proceed to pass the following order : the appeal is allowed in part. The conviction of the appellant for the offence under Section 201, I. P. C. , is set aside. His conviction for the offence under Section 314, I. P. C. stands confirmed. The sentence awarded to the appellant for the offence under Section 314, I. P. C. so far as the fine is concerned is set aside. But the sentence to undergo R. I. for 5 years is confirmed. Appeal partly allowed. --- *** --- .