Section 316 IPC - Death of 'Quick Unborn Child' - Quickening of an Unborn Child takes place when the Foetus starts Movement [JUDGMENT]

Penal Code, 1860 - S.316 – Causing death of quick unborn child by act amounting to culpable homicide - An offence u/s 316 is made out when any act committed by a person causes death of a quick unborn child. The quickening of an unborn child takes place when the foetus starts movement and the mother will be in a position to feel the movements of the foetus.

In this case, there is clear evidence to prove that she was pregnant by about 22-23 weeks. It is well known that a foetus starts moving within the womb of the mother within 14 to 18 weeks of pregnancy and the mother will be in a position to feel the same. The accused in this case was well aware of the pregnancy of his wife and therefore his intention was none else but to do away with his wife as well as the unborn child. Under such circumstances, his conviction u/s 316 of I.P.C. also can be sustained. In the light of the facts detailed above, we have no hesitation to conclude that the appellant committed the death of the 'quick unborn child' of the deceased and hence rightly held liable by the trial Court under Section 316 of the IPC. The appeal lacks merit and hence dismissed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940

CRL.A.No. 546 of 2015

AGAINST THE JUDGMENT IN SC 747/2014 of ADDITIONAL SESSIONS COURT, PALAKKAD DIVISION AT OTTAPALAM DATED 01/4/2015

APPELLANT/ACCUSED:

MURUKESAN,S/O SARATHI, C.NO.270/15, CENTRAL PRISON, KANNUR.

BY ADV. ADV.ANOOP.P.N(STATE BRIEF)

RESPONDENT/COMPLAINANT:

STATE REPRESENTED BY INSPECTOR OF POLICE, RAILWAY POLICE, SHORNUR-CR.23 OF 2013

BY ADV.SMT.S.AMBIKADEVI, SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON 26.11.2018 DELIVERED THE FOLLOWING:

J U D G M E N T

Shaffique, J.

This appeal has been filed by the appellant against the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Ottappalam, in S.C. No. 747 of 2014 arising out of Crime No. 23 of 2013 of the Railway Police, Shoranur by which the appellant is sentenced to undergo imprisonment for life and to pay fine of ₹1,000/- (Rupees One Thousand only) and in default to undergo rigorous imprisonment for three months under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC'). He is further sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹1,000/- and in default to undergo rigorous imprisonment for three months under Section 316 of the IPC.

2. The prosecution case, in brief, is that the deceased Sundari was the wife of the appellant Murukesan. While she had been hospitalized at Erode in connection with some illness, the appellant sold their 8 months old son, without her knowledge. After discharge from the hospital, she enquired about the child intermittently. So, the accused developed an apprehension that his wife Sundari would inform this matter to her relatives and police. He therefore entertained an intention to kill her. He informed his wife that as there was a tumor in the abdomen of the child, he was undergoing treatment in a hospital at Guruvayoor. Sundari was pregnant for 4 months at that time. Under the pretext of taking his wife to the child, he took his wife along with him at 9 a.m., on 17/09/2012 in the coach for disabled which was attached to the back side of the train namely Dhanbad Express bound for Alappuzha. While they were travelling and by the time it reached a place called Chorottur between Ottappalam and Mannannur railway stations, at 2.30 p.m., he pushed her down from the running train. She fell down from the train and sustained serious injuries. Some local persons on hearing a noise took her to Ottappalam Taluk Headquarters Hospital and from there she was referred to Government M.C.H., Thrissur. Due to the fall, the foetus became lifeless. Subsequently, she was taken to Govt. M.C.H., Thirunelveli and while undergoing treatment there, she breathed her last on 09/10/2012.

3. Prosecution examined PWs 1 to 28 as witnesses, marked Exts.P1 to P27 and identified MO1 and MO2. On request of the learned Public Prosecutor, for a just and fair disposal of the case, the Court below allowed to examine PW29 Doctor and Ext.P28 histo-pathology report in respect of the foetus, was marked through him.

4. On request, a Tamil knowing staff was appointed as interpreter to assist the appellant to have a fair trial and to understand the evidence including questioning under Section 313 Cr.P.C.

5. In the 313 examination, the appellant denied all allegations against him and pleaded innocence. According to him, MO1 mobile phone and MO2 series SIM cards do not belong to him. His mobile phone was L.G. with touch screen. He was arrested from Aryabhavan hotel at Olavakode while he was working there. He had ATM card with PIN code No. 4858 and he had account in Karur Vysya bank. He was arrested on 13th of a month. His ATM card was seized by the police and his number was also collected by them. He had more than ₹50,000/- (Rupees Fifty Thousand only) in his account. It is his version that after the arrest, the police took him to the hotel where he had worked and made him to receive ₹18,000/- (Rupees Eighteen Thousand only) as arrears of salary from the hotel and it was also seized by the police. They informed him that his mobile phone and cash would be produced before the Court. But he does not have any information about those valuable articles. He also denied the evidence of PW29 and Ext.P28 report.

6. The learned Counsel for the appellant argued that the trial Court erred in arriving at the conclusions in the impugned judgment. The appellant is innocent. There is no eyewitness in the case. There is no proof for the alleged travelling of the appellant and the deceased together. Alleged motive is not proved by the prosecution. There is delay in lodging FIR. There is no proper investigation. Prosecution also miserably failed to prove that the death of foetus was due to the alleged fall. The foetus was not grown to be called as quick unborn child as per S.316 of IPC. The appellant is wrongly implicated in the case and hence he has to be acquitted by extending benefit of doubt.

7. On the other hand, the learned Public Prosecutor argued that the trial Court is justified in arriving at the present conclusion and hence no interference is called for. The dying declaration made by the deceased to the Doctors who treated her soon after she got injured, is credible and reliable. Deposition of PWs 11 to 13 also corroborate the evidence of the Doctors. All these evidence are corroborated by medical evidence and other circumstances. The death of the foetus as well as the mother were the direct consequence of the act done by the appellant. His acts sufficiently prove his intention also.

8. Prosecution examined PWs 11 to 13 and Exts. P7 and P8 to prove the fact that the appellant and the deceased were living together as husband and wife and a child was born in the wedlock on 07/01/2012.

9. PW5 is a denizen at a place called Chorottur. He was examined by the prosecution to prove the aspect that the deceased Sundari @ Peechiammal sustained serious injuries by falling from a running train around 3 p.m., on 17/09/2012. Hearing about the incident, he took the injured Sundari to Taluk Headquarters Hospital at Ottappalam in the autorikshaw of one Manikandan. He informed the matter to Ottappalam police. Later, he showed the place of occurrence to the Shoranur Railway Police on 04/06/2013. But no FIR was lodged.

10. PW11 is the brother and PW12 is the father of the deceased Sundari @ Peechiammal. PW13 is the neighbour of PW12. According to PW11 and PW12, while Sundari was working in Mothi Spinning Mill at Erode, she fell in love with the appellant who was running a tea shop there and subsequently they had married without their concurrence and knowledge. Appellant belonged to a higher caste and the deceased to a lower caste. The relatives of the appellant did not like this marriage and the appellant had not taken Sundari to his house. Later, the family of Sundari accepted their marriage. Hence, the couple came to their house at Thirunelveli on several occasions and in the said wedlock, according to them, a male child was born. The delivery was in the house of Sundari. Though the appellant was asked to register the marriage, he did not make himself available for the registration of marriage. Instead, he executed a marriage agreement Ext.P7. After delivery of the male child, the couple and the child had gone to Erode and they came to the house of Sundari on several occasions. PW13 also deposed that the appellant was the husband of Sundari and both of them were seen by him in the house of PW12 on several occasions. Depositions of these witnesses would prove that the appellant and the deceased were in a relationship in which they lived as husband and wife, though formal marriage had not taken place.

11. Ext.P11 is the birth certificate of Aswin. The date of registration of the birth was seen recorded as 09/01/2012. The date of birth is mentioned as 07/01/2012. Ext.P11 is a public document issued by Thirunalveli Municipal Corporation. The name of the father is mentioned as Murukesan and the name of the mother as Peechiammal. Hence, Ext.P11 when read together with the depositions of PW11 to PW13 would prove that the appellant and the deceased had a son named Aswin.

12. PW11 gave Ext.P5 FIS before Kadayam police on 09/10/2012, after the death of his sister.

13. PW1 is the Doctor who treated Sundari at Government Taluk Headquarters hospital, Ottappalam. She issued Ext.P1 accident cum wound certificate. Ext.P2 O.P. ticket is also marked. She referred Sundari to Medical College Hospital, Thrissur for expert management. PW7 is the ambulance driver who took Sundari to MCH, Thrissur.

14. PW2 is the then Assistant Professor of Gynaecology attached to Government MCH, Thrissur. She was present while Sundari was giving the dying declaration in Tamil, to PW3 Dr. Ilayaraja. PW3 explained to her what Sundari had stated in Tamil. She conducted caesarean and IUD removal on Sundari as the foetus was dead. Ext.P3 is page no.18 of the case sheet detailing the surgery and medications given to Sundari.

15. PW3 Dr.Ilayaraja is the then Senior Resident lecturer at Government MCH, Thrissur. He recorded the dying declaration of Sundari in Tamil in her own words in page nos. 10 and 11 of the case sheet and obtained her signature and they are marked as Exts.P4 and Ext.P4(a) respectively. After obtaining her consent, he conducted splenectomy on her. The patient was discharged from Gynaecology department on 23/09/2012 and from the surgery department on 29/09/2012.

16. PW4 is a Doctor attached to Orthopaedic Department, Government MCH, Thrissur. In page no. 43 of the case sheet, he noted fracture injuries and it is marked as Ext.P5. He deposed that he had examined a patient by name Sundari and noted the injuries in page 43 of the case sheet, which has been signed by him. The said page has been marked as Ext.P5. The injuries noted are comminuted fracture on 2nd/3rd/4th metatarsals of left foot and P1 and P2 fracture of big toe of (L) foot. The case sheet has been marked as Ext.P13. In the clinical data, it is mentioned that the patient had been referred to the Medical College Hospital. The patient was drowsy. She had lacerated wound on her left foot 3x2x1 cm right dorsum of foot 3x3x0.5 cm, left forearm 0.5x0.5x0.5 cm. Investigation revealed that there was a free fluid and the uterus was of 23 week size. There was no evidence of head injury and the Doctors observed that emergency USG is required for the spleen injury. The patient was shifted to the operation theatre for laproscopic surgery. Splenectomy was conducted and it was noticed that there was multiple lacerated wound in spleen. She was kept in the AICU and later transferred to the Surgical ICR.

17. PW16 is the Doctor who conducted the post-mortem of Sundari and issued Exts.P15 preliminary and P16 final reports of the post-mortem examination.

18. The following injuries were noted by PW16:-

“1) Midline healed surgical scar of length 28 cm seen in front of abdomen.

2) Multiple healed scars of varying length seen on right leg and foot.

3) Partially healed infected lacerations 2 x 1 x 1 cm over upper part of right leg. 2 x 1 x 1 cm over middle og right leg, 3 x 1 x 1 cm near right ankle. 3 x 1 x 1 cm over right foot, 4 x 1 x 1 cm over left foot, 4 x 1 x 1 cm near left toes and 3 x 1 x 1 cm over back of right forearm.

4) Healed surgical drainage wound seen in left side of abdomen.

5) Healed scars 18 in number of varying sizes seen in lower part of back and right gluttal region.

6) On dissection of Thorax & Abdomen, both plural and peritoneal cavities filled with straw coloured fluid. Spleen not found in its place.

7) Left lower limb deformed, on dissection left hip joint appears dislocated.”

19. PW8 is the then Railway Station Master of Ottappalam Railway Station. He deposed that on 17/09/2012, Dhanbad Express bound to Alappuzha passed through Ottappalam railway station at 2.58 p.m. PW9 also deposed the said fact. He deposed that disabled coach was available in the front and back of the said train ran on that day.

20. PW10 is the then locopilot of Dhanbad Express on 17/09/2012. He deposed that the train had no stop at Ottappalam and it was running at a speed of 100-110 k.m per hour.

21. PW17 is the then Superintendent of Government MCH, Thrissur. He produced case sheet of Sundari to PW28 and it is marked as Ext.P17. He stated that PW3 had recorded the statement of Sundari in the case sheet. She was admitted on 17/09/2012 and discharged on 29/09/2012.

22. Admittedly, there are no eye-witnesses in the case and the prosecution relies on circumstantial evidence to prove the case, particularly the alleged dying declaration made by the deceased to Doctors who treated her and to her near relatives and neighbour.

23. Coming to the motive of the crime, the prosecution allegation is that while the deceased Sundari was hospitalized, the appellant had sold their child Aswin, aged 8 months, to a couple for an amount of ₹50,000/- (Rupees Fifty Thousand only) with the help of PW24, the nurse attached to S.S. Hospital at Erode. To prove the said aspect, prosecution examined PW24, the nurse. She turned hostile to the prosecution.

24. The appellant was arrested from Erode on 17/10/2013, in the presence of his second wife who was examined as PW23. Based on the information given by the appellant that he sold his son to a couple through PW24 nurse, PW27, the then S.I. of Police suo-motu registered Ext.P25 FIR on 18/10/2013 u/s 370 of the IPC. Regarding the same, prosecution has no evidence other than the statement of the deceased and her relatives. In the 313 statement, appellant stated that there was ₹50,000/- in his account at the time of his arrest. But there is no evidence to link the said amount to the alleged sale of the child so as to hold it as a consideration for the said sale. Hence, in our view, the evidence adduced by the prosecution is insufficient to prove the motive of the appellant for the crime. Other available evidence assumes importance here.

25. It is brought in evidence that the woman sustained injuries by falling from a train running at a speed of 100-110 k.m./hour, in between Ottappalam and Mannannur Railway Stations at a place called Chorottur.

26. PW2 and PW3, the Doctors who treated Sundari categorically deposed that the injuries sustained by her were sufficient in the ordinary course of nature to cause death.

27. PW3 Dr. Ilayaraja recorded the statement of Sundari in Ext.P17 case sheet at 7 p.m. on 17/09/2012. It is recorded in Tamil and in her own words. PW3 obtained her signature also. It is not in the form of question and answer. PW3 deposed that Sundari was medically fit to give the statement. Appellant hails from Tamil Nadu and studied in Kerala. He knew both Tamil and Malayalam. PW2 had also heard the statement made by Sundari to PW3. Both these Doctors who are public servants deposed that the patient told them that she was pushed out of the train by her husband. As stated already, Exts.P4 and P4(a) are the relevant documents.

28. It is settled law that dying declaration can be the sole basis for convicting the accused even without any corroboration, if it inspires full confidence of the Court. The Apex Court in Mukesh v. State (NCT of Delhi), [(2017) 6 SCC 1] held at paragraphs 174, 176 and 177 as under:-

“174. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in a fit mental condition, it can be relied upon even without any corroboration. However, the court, while admitting a dying declaration, must be vigilant towards the need for “compos mentis certificate” from a doctor as well as the absence of any kind of tutoring.”

“176. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Govt. (NCT of Delhi), taking into consideration the earlier judgment of this Court in Paniben v. State of Gujarat and another judgment of this Court in Panneerselvam v. State of T.N., has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration: (Atbir case, SCC pp. 8-9, para 22)

22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”

177. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the contents of the dying declarations in the light of the various surrounding facts and circumstances”.

29. It is true that prosecution did not adduce any evidence to prove that the appellant and the deceased travelled together in the Dhanbad Express in the disabled compartment on the date of incident. But all these lapses need to be seen in the light of the dying declaration available in evidence. The appellant has no case that PWs 2 to 4 and PWs 11 to 13 or the deceased herself had any ill-will towards him. In the case at hand, as already stated, it is in evidence that the deceased Sundari @ Peechiammal gave statement to PW3 the Doctor on the date of incident itself i.e., on 17/09/2012, in the presence of another Doctor PW2. According to them, the deceased stated that while she was travelling in train, her husband pushed her out of train and she fell down and sustained injuries. It is true that the hospital authorities did not take steps to register an FIR based on such information which is a lapse on their part. But it can be seen that FIR was registered later by PW11, the brother of the deceased on 09/10/2012 at Kodayam Police Station, Tamil Nadu following the death of Sundari. Non-lodging of FIR by the hospital authorities would not affect the prosecution case. It would not make the evidence regarding dying declaration made by the deceased to the Doctors who treated the victim, inadmissible.

30. It can also be seen from the evidence of PW11 to 13 that the deceased said the very same thing which she stated to PWs 2 and 3, to them also, as the cause of her injuries. They corroborate the version of PWs 2 and 3 the Doctors. We don't find any reason to disbelieve the version of these witnesses. The dying declaration inspires our full confidence.

31. One of the contentions raised by the learned Counsel for the appellant was that the death of the victim was not due to the direct consequence of the fall but due to septicemia. Hence the Court below erred in holding the appellant responsible for the same. Learned Public Prosecutor refuted the said argument by stating that the injuries caused due to fall were fatal from the very beginning and all the complications including septicemia arose out of the said fall. Hence, the appellant is deemed to have caused the same. He placed reliance on two decisions of this Court.

(i) Devasia Yohannan v. State (1958 KLT 273). In this judgment, this Court considered a case in which Taylor’s Medical Jurisprudence (11th Edn.) under the heading, “Wounds indirectly fatal” was relied upon, which reads as under:-

“Certain kinds of injuries are not immediately followed by serious consequences; but an injured person may die after a long or shorter period, and his death may be as much a consequence of the injury as if it had taken place on the spot. An aggressor is as responsible as if the deceased had been directly killed by his violence - provided the fatal result can be traced to the probable consequences of the injury.”

(ii) In State of Kerala v. Narayanankutty (1980 KLT 908), this Court had laid down the principle as under:-

“13 . An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result. Where without the intervention of any considerable change of circumstances death is connected with the act of violence by a chain of causes and effects, death must be regarded as the proximate and not too remote a consequence of the act. The cause must not only be the causa sine qua non, but it must also be a cause reasonably proximate; but the doctrine of criminal causation has reasonable limits.

14. An injury may lead to death. Death may be instantaneous or may be delayed. The injury may lead to shock, excessive bleeding, coma, syncope etc. and cause death; in such a case injury and death have a clearly perceptible and direct nexus and there will be no difficulty in finding that death is thedirect result of injury. The decision may not be so easy in a case where death is caused not directly by the injury itself but due to a complication or development or in a case where death is not instantaneous but is delayed. Where death is delayed or due to a later complication or development, court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have caused death. If the original injury itself is of a fatal nature, it makes no difference that death is actually caused by a complication naturally flowing from the injury and not the injury itself, since causal connection is proximate.”

32. It is true that the deceased breathed her last due to complications that have arisen from septicemia. But that medical condition is the direct consequence of her sustaining injuries due to the fall from the train. Her spleen was ruptured. Her foetus was dead and aborted. According to Doctors, unless attended, the injuries sustained were sufficient in the ordinary course of nature to cause death. Medical opinion conclusively proves that her condition was so serious that they had to conduct back to back surgeries on her. The entries on 3/10/2012 and 8/10/2012 would indicate that there is free fluid in abdomen and she had acute renal issues. From the case sheet, it is further seen that sufficient treatment had been given to her at the Medical College Hospital.

33. PW14 the Assistant Professor in Department of General Medicine in the Thirunelveli Government Medical College Hospital had clearly deposed that she was admitted in the hospital on 2/10/2012 at 2.09 am. The treatment details of the patient are mentioned in Ext.P13. At the time when she was brought, she had swelling of both the feets and difficulty in breathing and tenderness over abdomen. She was shifted to ICU. The lab reports indicate that she had renal failure and subsequently she died on 9/10/2012. According to him, the cause of death is post splenectomy status, acute renal failure and acute pulmonary edema. He further reported that removal of spleen is one of the main causes for infection. He also reported that the treatment given from Medical College Hospital, Thrissur was proper. Even in cross-examination, he deposed that any organ of the body could be affected by infection and there are drugs to prevent such infection. He also deposed that a patient without spleen is always prone to infection and such patient is not to be exposed to such situation. According to him, pulmonary edema was due to renal failure.

34. As held in the judgments cited above, the question to be considered is whether the act of the accused had caused death of the victim. If it is an instance where death is the consequence of the act which is caused to the victim by the assailant and it is found that death is the proximate result of the act and it is not too remote, the assailant would become liable for commission of the crime. Even in Narayanankutty (supra), this Court held that the injury may lead to shock, excessive bleeding, coma etc. Further the injury and death should have a clearly perceptible and direct nexus.

35. In the case on hand, what we find from the evidence is that apart from the fractures she has suffered as evident from Ext.P5, she had to undergo splenectomy immediately and her uterus along with the dead foetus had to be removed. She remained in Thrissur Medical College Hospital until 29/9/2012. Thereafter, her relatives have taken her to Thirunelveli and she was admitted to the Medical College Hospital at Thirunelveli on 2/10/2012 as her condition worsened. Therefore, despite the fact that she was given sufficient treatment at the Medical College Hospital, Thrissur and subsequently at Medical College Hospital, Thirunelveli, Doctors could not do anything else as she suffered from the after effects of the fall as well as the surgery. Therefore, we have no hesitation to hold that the act of the accused/appellant in pushing down the victim from the train and her suffering of injuries due to the same are the direct cause of her death.

36. The intention of the appellant is evident from his acts. He knew very well that his wife was pregnant. Evidence of PW13 reveals that he had taken her to hospital for check-up earlier. Evidence of PW10, the loco pilot shows that the train was running at a speed of 100-110 k.m./hour at the relevant time, between the relevant stations. He pushed her and the foetus to death. The very act of pushing a person from a train travelling at a speed of 100-110 k.m. itself is enough to arrive at a conclusion that the intention of the assailant is to cause murder. Ordinary prudence only compels us to infer the intention and knowledge of the appellant to murder his wife. Under these circumstances, we are of the considered view that the Court below is justified in holding the appellant guilty under Section 302 of the I.P.C.

37. The next question to be considered is whether the foetus in the womb was a 'quick unborn child' within the meaning of S.316 of the I.P.C. The learned counsel for the appellant argued that the foetus cannot be considered as a 'quick unborn child' as there is no evidence to show the age of the foetus.

38. Section 316 of the I.P.C. reads:

“316. Causing death of quick unborn child by act amounting to culpable homicide.—Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

39. We have already seen that soon after the incident, Sundari was admitted in MCH, Thrissur. PW2 and PW3 deposed that she was pregnant and the foetus was dead. PW2 conducted caesarean operation on her and removed the dead foetus. It is her version that the mother can feel the movements of the child within a period of 16 to 18 weeks in case of second pregnancy. According to her, the age of the foetus taken out of the victim was 22 to 23 weeks which she detailed in Ext.P17 case sheet. It is her evidence that the foetus was not dead due to lack of blood and oxygen. She added that the death of foetus is possible by fall of the mother from the running train. No external injuries were noted in the uterus and placenta.

40. PW29 was the Professor of Pathology in Government MCH, Thrissur at the relevant time. According to him, he examined the placenta and foetus of Sundari, the patient referred in Ext.P17 case sheet. It was a female dead foetus. He issued Ext.P28 certificate. There was no evidence of intra-uterine infection of the foetus. It is his version that the death of foetus was not traumatic but it could be due to the injuries of the mother. It is already found that the appellant pushed Sundari out of the fast-moving train. Hence, we agree with the finding of the trial Court that Ext.P28 histo-pathology report issued by PW29 confirms the opinion rendered by PW2, the Gynecologist that the foetus in the womb died due to fall of Sundari from the running train which was done by the appellant.

41. In Re, Kumara Thevar, [1971 Mad LW (Cr) 240], the Madras High Court on the point held:-

“Section 316 of IPC postulates a situation where the accused must do an act (or omission) that if the accused had caused death, he would have been guilty of culpable homicide and secondly his act has entitled the death of a quick unborn child. Mother feels foetal movements of child between 14 to 18 weeks of pregnancy. So she must be deemed to have a quick child in her womb at 18th week. If the act of the accused directed to the mother be such that had the mother died, he would have been held guilty of culpable homicide, and the act of accused resulted in abortion of the baby at 18th to 20th week of pregnancy, the accused would answer Section 316 IPC.”

42. An offence u/s 316 is made out when any act committed by a person causes death of a quick unborn child. The quickening of an unborn child takes place when the foetus starts movement and the mother will be in a position to feel the movements of the foetus. In this case, there is clear evidence to prove that she was pregnant by about 22-23 weeks. It is well known that a foetus starts moving within the womb of the mother within 14 to 18 weeks of pregnancy and the mother will be in a position to feel the same. The accused in this case was well aware of the pregnancy of his wife and therefore his intention was none else but to do away with his wife as well as the unborn child. Under such circumstances, his conviction u/s 316 of I.P.C. also can be sustained.

43. In the light of the facts detailed above, we have no hesitation to conclude that the appellant committed the death of the 'quick unborn child' of the deceased and hence rightly held liable by the trial Court under Section 316 of the IPC.

The appeal lacks merit and hence dismissed.