Report on the Chap. II. Sec. 7, 689. The Statute Law* of England, which we apprehend is the only law upon this subject which is enforced, differs from the Indian Code on the subject of Indian Penal Code. abortion, in that the former does not punish the woman who voluntarily causes herself to miscarry, whereas by the latter she is punishable. We find that it is Art. 15. now proposed that "every woman being with child, who, with intent to procure "her own miscarriage, shall maliciously administer to herself any poison, or other "noxious thing, or use any instrument or other means whatsoever," shall be liable to transportation for life, or for any term not less than seven years, or imprisonment for a term not exceeding three years. 690. The punishment proposed in the Code is imprisonment not exceeding Clause 312. three years, or fine, or both. By the Schedule of Her Majesty's Commissioners, and also by the Indian Code, a person causing, or using means to cause, the miscarriage of a woman is liable to the same punishment as is prescribed for a woman causing her own miscarriage. By the Code a person causing a woman to mis- Clause 313. carry without her consent is liable to additional punishment for any hurt that may ensue. 691. The above article in the Schedule is followed by a proviso that the Act intended to procure miscarriage was not done in good faith with the view of saving the life of the woman, which corresponds with the terms of Clause 312 of the Code. 692. The article defining "rape " in the Schedule contains, in addition to the words used in the definition given in the Digest, the words following, "or whilst "she is insensible," which correspond with the second description of "rape" in Clause 359 of the Code. 693. The Code includes under "rape" sexual intercourse with a girl, with or without her consent, when she is under nine years of age. By the present law of England, this offence is punishable as rape when the girl is under ten years of age. By the Schedule, it is proposed to be so punishable when the girl is under twelve. By the statute for India the age is eight years. Digest in 7th Re Sec. 15, Art 20. port, Chap. XV. Report, para. 446. 694. The punishment for rape by the present law of England is transportation Ibid. para. 447. for life absolutely. In the Schedule it is altered to transportation for life, or for not less than seven years. By the Statute for India it is death. By the Code the maximum punishment is imprisonment for fourteen years. 695. In the Schedule there is a new provision for the offence of administer- Chap. II. Sec. 7, ing drugs, &c., to a woman to render her insensible, or otherwise to affect her Art. 24, page 43. so as to facilitate the object of obtaining carnal knowledge of her. There is no similar provision in the Code, but it seems to be worthy of consideration whether this offence, which we apprehend is not uncommon in India, should not be included in it. The proposed punishment is imprisonment not exceeding two years. 696. By Clause 296 of the Code, it is provided that when a person intending to cause death, kills a person whom he did not intend to kill, he shall be held guilty of the same degree of homicide as if he had caused the death which he intended. There are similar provisions in the Digest of the English Law prepared Chap. XV. Sec. 2, by the late Commissioners. In the Schedule under consideration, instead of those Art. and 5. provisions limited to homicide, there are general provisions making a party liable to Chap. II. Sec. 7, punishment for any injury caused by him to a person not intended to be injured, Art. 45 and 46, by means by which he intended to injure some person, in the same manner as if the page 46. person injured had been intended to be injured. In explanation the Commissioners say, "If these rules be applicable to homicide, they seem equally to "apply to other severe personal injuries; as, for example, if Ă. were attempting "to put out B.'s eye, and by accident C. intervened, whose eye was put out by "the thrust intended for B. 697. We have lastly to remark, that the present Commissioners have abandoned the classification of crimes as "treasons,' "felonies," and "misdemeanors,' according *Note. By the old Common Law it seems that" if a woman be quick with child, and by a potion or otherwise killeth it in her womb, it is a great misprision." We ought to have noticed this at para. 347 of our Report. Report on the Indian Penal Code. Chap. IV. Of penaluies, Transportation for seven years, or imprisonment not exceed ing three years. according to the Digest of their predecessors, in which a new signification was given to the two latter terms; the term "felonies" being used to denote crimes punishable with death or transportation, also the crime of self-murder, and the term "misdemeanor" all other crimes except "treasons." The present Commissioners have avoided the use of these terms altogether in the Schedule. In the 7th Section of the Draft of the Act to which the Schedule is proposed to be annexed, it is prescribed that offences liable to the penalties of the 6th or any higher class shall be tried in the same manner and under the same procedure as if such offences were by the said Schedule declared to be felonies; and offences liable to lower penalties as misdemeanors. |