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2004 (2) Crimes 303
Rajasthan HIGH COURT
Sunil Kumar Garg, J.
Ramji Ram—Appellant
versus
State of Rajasthan—Respondent
S.B. Criminal Appeal No.185/1987
Dated on 20.11.2003.
Counsel for the parties:
For the Appellant :Mr. Ranjeet Joshi, Advocate.
For the Respondent: Mr. Ramesh Purohit, P.P.
Important Point
Where appellant caused miscarriage of pregnant woman by giving leg blow on her stomach but facts & circumstances showed no intention or knowledge on part of appellant to cause death of quick unborn child then offence u/s. 316 IPC would not be there but offence would be u/s. 304 A IPC.
Headnote:Indian Penal Code, 1860 — Section 316 — Miscarriage resulting in death of quick unborn child — Ingredients to be established by prosecution — One such ingredient was that circumstances under which such act was done were such as to make accused guilty of culpable homicide — P.W.1 pregnant with 5-6 months, when intervened while accused appellant was giving beating to P.W.5, was pushed & given leg blows on her stomach by appellant — Intention to cause death of quick unborn child was missing as only when P.W.1 suddenly intervened that accused gave leg blow on her stomach — Offence u/s. 316 IPC could not be said proved — Appellant was liable to be convicted u/s. 304 A IPC — Sentence of one year unimprisonment & fine Rs. 500/- awarded.
Held: Before recording the findings on ingredients No. 3 and 4 for proving the offence under Section 316 IPC, which consists of action against the mother which must be capable of causing ‘culpable homicide’, I have to examine the definition of ‘culpable homicide and determine whether’ the act’ in this case could result in a culpable homicide of the mother. Culpable homicide has been defined by section 299 IPC. It involves doing of act either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act is likely to cause death. Unless the act is done against the mother with an intention or with a knowledge which brings it within the purview of Section 299 IPC, it cannot constitute an offence under section 316 IPC merely because the death of a quick unborn child has resulted from an act against the mother. (Para 22)
In the present case, when the accused appellant was beating PW5 Devinath, PW1 Sita suddenly came there and on her intervention, the accused appellant gave leg blow on her stomach and therefore, no doubt the accused appellant pushed PW1 Sita with his leg, but in doing so, he had no intention to cause miscarriage of her quick unborn child or in other words, the accused appellant pushed PW1 Sita as she intervened, but with no intention to cause miscarriage of her quick unborn child and thus, the act of the accused appellant, under the above circum-stances, would not make him guilty of culpable homicide. (Para 23)
Therefore, since the aspect that the accused appellant gave leg blow on the stomach of PW1 Sita with an intention to cause death of her quick unborn child is missing and on the contrary, when she suddenly intervened in the matter, the accused appellant gave leg blow on her stomach, as a result of which there was miscarriage resulting in death of her quick unborn child, therefore, in these circumstances, the fact that there was intention or knowledge on the part of the accused appellant to cause miscarriage and death of quick unborn child of PW1 Sita is missing and in absence of that, ingredients No. 3 and 4 for the offence under section 316 IPC cannot be said to have been proved by the prosecution. (Para 24)
Result: Appeal allowed partly.
Judgment
Sunil Kumar Garg, J.— This appeal has been filed by the accused appellant against the judgment and order dated 4.6.1987 passed by the learned Session Judge, Merta in Sessions Case No. 41/83 by which he convicted the accused appellant for the offence under sections 316, 447 and 325 IPC in place of 307 IPC and sentenced him in the following manner:—
Name of accused Convicted Sentence awarded
appellant under Section
Ramjiram 316 IPC Four Year RI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo six months RI.
325 IPC Two Years RI and to pay a fine of Rs. 300/-, in default of payment of fine, to further undergo three months RI.
447 IPC To pay a fine of Rs. 250/- in default of payment fine, to undergo one month imprisonment.
All the substantive sentences were ordered to run concurrently.
2. It may be stated here that by the same judgment and order, the learned sessions Judge acquitted the accused appellant and two accused persons, namely, Ruparam and Tejaram for the offence under sections 457,448 and 323 IPC and also acquitted the two accused persons Ruparam and Tejaram for the offence under sections 316/34, 307/34 and 325/34 IPC, but convicted these two accused persons for the offence under section 447 IPC, but for that offence, they were sentenced with a fine of Rs.250/-, in default of payment of fine, to undergo one month imprisonment.
3. It arises in the following circumstances:-
On 31.3.1983 at about 10.00 AM, P.W.2 Harinath lodged a report Ex.P/1 before the Police Station Padukalla District Nagaur stating inter-alia that on the intervening night of 30 and 31.3.1983 when he and his brother Devinath (PW5) were sleeping in his Latha, a place used for agricultural purposes or thrashing floor, then accused appellant alongwith two accused, namely, Tejaram and Ruparam came there to commit theft, but because of the noise of barking of the dog, he and his brother PW5 Devinath woke up and seeing them., the accused persons ran away, but they were recognised by PW2 Harinath when he put torch on their faces. It was further stated in the report Ex.P/1 by PW2 Harinath that on the very early morning on 31.3.1983 the accused appellant and two other accused Tejaram and Ruparam came there and at that time, PW5 Devinath was alone in his Latha and they started abusing and beating him and on hearing hue and cry, wife of his nephew, namely, Sita (PW1) rushed towards that place from well and while she was intervening in the matter, the accused appellant gave legs and fist blows on her stomach, as a result of which, bleeding started and there was miscarriage of her 5-6 months quick unborn child. It was further stated in the report Ex.P/1 by PW2 Harinath that neighbourers PW3 Gafoor Khan, PW6 Dallaram and PW4 Ruparam also reached on the spot. Thereafter, PW1 Sita was brought to the hospital. In the above circumstances, the report Ex.P/1 was lodged by PW2 Harinath.
On this report, police registered the case and chalked out regular FIR Ex.P/2 and investigation was conducted by PW8 Gopi Krishan, who was at that time SHO Police Station Padukalla.
During investigation, PW8 Gopi Krishan prepared site description memo Ex. P/3 and site Plan Ex.P/4.
PW1 Sita was got medically examined by PW7 Dr. Ram Pratap Soni and her medical examination report is Ex. P/5.
Through fard Ex.P/6, PW8 Gopi Krishan seized the blood stained Ghagra of PW1 Sita and through fard Ex. P/8, PW8 Gopi Krishan seized unborn dead child of PW1 Sita.
The accused appellant was arrested on 3.4.1983 through arrest memo Ex.P/7.
After usual investigation, police submitted challan against the accused appellant and two accused Ruparam and Tejaram in the Court of Magistrate, from where the case was committed to the Court of Session.
On 30.9.1986, the learned Session Judge, Merta framed charges against the accused appellant and two other accused persons in the following manner:-
Name of accused Charges
1. Ramjiram
