Criminal Appeal (SJ) No.106 of 1998 Against the judgment and order of conviction dated 28. 02. 1998 and order of sentence dated 03.03. 1998 passed by Sri Om Prakash Sinha, District & Sessions Judge, Gopalganj, in Sessions Trial No. 271 of 1993. 1. Manager Yadav. 2. Lal Bahadur Yadav. 3. Bairister Yadav @ Balister Yadav. Sons of Sukhlal Yadav, deceased. Resident of Village- Bucheyan, Police Station- Sidhwalia (Barauli) District- Gopalganj. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Nand Bansh Nr. Singh, Advocate. For the informant : Mr. Dhananjay Kumar, Advocate. Mr. Shunil Prasad, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants have been convicted under Section 316 I.P.C. and sentenced to undergo rigorous imprisonment for five years and further convicted under Section 323 I.P.C. and have been sentenced to undergo rigorous imprisonment for one year. 3. Prosecution case as alleged that all the accused persons assaulted Mira Devi (informant) for protesting the setting up a Nad in open land in front of the house of the informant. The assault caused injury on informant leading to miscarriage of 12 weeks old pregnancy. 4. On the basis of the Fardbeyan, F.I.R. was lodged. 2 Cognizance taken and case committed to Court of Sessions and after commitment, charge framed and trial proceeded. Witnesses examined. The trial court on considering the evidence of P.W. 5, the informant, Mira Kumari that the accused persons assaulted her causing miscarriage of four months old pregnancy and evidence of Doctor that 12 weeks of pregnancy terminated and held that prosecution has been able to prove the charges under Section 316 I.P.C. 5. The learned counsel for the appellants submits that the appellants had no knowledge about the pregnancy and there is no evidence that the appellants had the knowledge and it is not a case of quick unborn child as the foetus was only 12 weeks and hence conviction under Section 316 I.P.C. is not maintainable. 6. The Learned counsel for the State and the informant however submits that there is allegation of assault and injury has found on the person. Moreover, injury no. 3 has found to be grievous and hence order of conviction and sentence recorded by the lower court is sustained in law. 7. However, the prosecution case as alleged in the Fardbeyan by the informant, Mira Devi that the accused persons set up a Nad in the open land in front of the house and when the informant protested then she was assaulted. 8. However, eight witnesses were examined in this case. P.W. 1 Swami Nath Tiwary, P.W. 2, Sona Devi, P.W.3 Brahma Pandey, P.W. 4, Sheo Nath Ram, P.W. 5, Mira Devi, P.W. 6, Dr. Rajendra Thakur, P.W. 7, Kameshwar Prasad Singh and P.W. 8 Samsuddin Ansari, Officer-in-Charge. However, witnesses have 3 supported the prosecution case about assault. 9. P.W. 5, Mira Devi in her statement stated three accused persons came and set up a Nad and when she protested they were assaulted by slaps and fists causing injury and her pregnancy was terminated. However, there is no mentioned in her evidence that appellants had knowledge about her pregnancy. 10. P.W. 6, Dr. Rajendra Thakur, in his evidence stated he examined Mira Devi and found the following injuries. i. A bruise with echymosis on interior abdominal wall at its supra pubic region 2.5”x 2”. ii. Abrasion on right hip 2”x 2”. iii. Bleeding per vagina profusely with uterus bulky and “O.S” is opened with product of conception of approximately of 12 weeks gestation aborted and is finding from cervics. Injury nos. 1 and 2 are simple in nature caused by hard and blunt substance. Injury No. 3 is grievous in nature and caused by hard and blunt substance (trauma) due to injury no. 1. 11. However, in his cross-examination he has stated that he had not found any external injury on the location of Injury No. 3 that he assessed the age of the injury on the basis of injury nos. 1 and 2. Though, the informant in her Fardbeyan has stated that her pregnancy was about four months. However, Doctor in his report has opined that pregnancy of 12 weeks which is less than three months. 12. In order to prove conviction under Section 316 I.P.C. it must be proved that the act caused the death of quick unborn child. However, the evidence on record to suggest that pregnancy was 12 4 weeks old. The stage of quelling is more advance stage of pregnancy and a woman quick with child when she felt movement in foetus. Doctor P.W.6 has stated in her evidence that foetal movement is felt by mother after 18 weeks and onward from the time of gestation but foetal movement felt by mother after 20 weeks and since the pregnancy is of 12 weeks the movement of foetal in mother womb ruled out and hence the death of quick unborn child is ruled out and hence conviction under Section 316 I.P.C. is not maintainable. However since the pregnancy was of 12 weeks it may attract 314 I.P.C. 13. Hence, having regard to the facts and circumstances, conviction under Section 316 I.P.C. is not made out and hence order of conviction under Section 316 I.P.C. is set aside and substituted by 314 I.P.C. 14. However, there is allegation of assault and injury, though, injury was found to be simple and hence, order of conviction under Section 323 I.P.C. is sustained. 15. However, the appellants have already remained in jail after conviction till they were granted bail by Hon’ble Court and further during investigation and trial and hence to end of justice shall meet under by sentencing the appellants for period already undergone, the appeal is allowed in part. Patna High Court, The 2nd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)