SURESH CHANDER Vs. STATE

JUDGEMENT

(1.) Heard. Holding him guilty for causing the death of quick unborn child of Santosh Kumari, the trial court convicted the appellants under S. 316/34, R.P.C. and sentenced them to undergo 5 years rigorous imprisonment besides paying a fine of Rs. 1,000/ -. In default of payment of fine the appellants were directed to undergo further 3 months' R.I. The question for determination in this appeal is as to whether the appellants or any one of them was responsible for the death of the quick unborn child of Santosh Kumari?

(2.) Neither the 'child' nor 'quick unborn child' has been defined under the Penal Code. However, on the basis of medical opinion and the authorities it has been held that a woman is considered to be with child as soon as she becomes pregnant. It is enough if the pregnancy and the intentional expulsion of immature contents of the uterus are established for the purposes of holding that the woman was "with child". Quickening is the name applied to peculiar sensations which are experienced by a woman after being pregnant about 4th month of pregnancy. The symptoms are ascribed to the first perception of the movements of the foetus which occur or womb begins to rise out of pelvis. These movements are perceptible to the mother before they are made evident by an external examination. It is acknowledged that the woman starts feeling such movements of foetus between 14 to 18 weeks of pregnancy. In Modi's Medical Jurisprudence, the late author dealt with abortion, miscarriage and premature labour and stated :

(3.) In the instant case, the complainant Santosh Kumari had stated that she was pregnant from the last 3 /4 months when she was injured in consequence of which abortion took place resulting in the death of unborn child. The medical evidence produced in the case shows that the foetus was not more than of 3 months at the time of abortion. Dr. (Mrs.) Kishori Zadu, in her statement had stated that Santosh Kumari had hardly 3 months foetus. The complainant Santosh Kumari in her statement had stated that she had a child of 3/ 4 months in her womb. No other evidence in this behalf was produced by the prosecution nor the woman did state about the sensations which are likely to be felt in case of a quick unborn child as discussed hereinabove. It is, therefore, held that the prosecution failed to prove that Santosh Kumari, when injured, was pregnants with a quick unborn child. Mere coception or pregnancy could not be equated with the 'quick unborn child, as has been done in the instant case. The court below, therefore, was not justified in convicting and sentencing the appellants under S. 316 / 34, R.P.C.