Raigarh, Chhattisgarh v. Surendra Kumar Jangde S
Case Details
1 2025:CGHC:37900 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 544 of 2019 State Of Chhattisgarh Through The Incharge, Police Station- Kosir, District- Raigarh, Chhattisgarh ... Appellant(s) versus Surendra Kumar Jangde S/o Jay Jangde, Aged About 32 Years, R/o Village- Mudwabhanta, Police Station- Kosir, District- Raigarh, Chhattisgarh ... Respondent(s) For Appellant/State : Mr. Vivek Sharma, Additional Advocate General For Respondent : Ms. Prachi Singh, Advocate on behalf of
Legal Reasoning
Mr. Raghvendra Pradhan, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 01/08/2025 1. This Acquittal Appeal is directed against the judgment dated 29.09.2018, passed by the Additional Sessions Judge, SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 2 Sarangarh, District Raigarh (C.G.), in Sessions Trial No. 17/2017, whereby the respondent/accused was acquitted of the charges under Sections 294 and 316 of the IPC, but was convicted for the offences under Sections 506 (Part II) and 323 of the IPC. 2. Prosecution case, in brief, is that complainant- S. Kumari (PW-7A), is the wife of the respondent/accused. She has alleged that the respondent/accused has an illicit relationship with a girl named "L," who used to call him on the mobile. On the date of the incident i.e., 01.09.2017, at about 10:00 AM, a call was received by her husband. When she inquired about the said call, he became annoyed and started quarrelling with her. He abused her in filthy language and assaulted her with hands, fists, a club and a tile. At the relevant time, she was pregnant, and as a result of the incident, an abortion was got carried out. Based on the information provided by the wife on 02.09.2017, the incident was recorded in the Daily Diary of Police Station Sarangarh vide Entry No. 30 (Ex. P/13). The complainant was medically examined by Dr. M.K. Manhar (PW-4) vide Ex. P/1. He found four injuries: (i) contusion on the left leg and abrasion measuring 1 cm × 1 cm, (ii) abrasion on the right elbow measuring 1 cm × 1 cm, (iii) abrasion on the thorax region measuring 1 cm × 1 cm, and 3 (iv) pain in the neck and abdomen, for which he advised an X- ray. The X-ray was conducted vide Ex. P/4. The complainant was also medically examined by Dr. Usha Rani, Gynecologist (PW-5), who found that the complainant was approximately two months pregnant. After examining the sonography report, she advised for abortion, as recorded in Ex. P/5. Thereafter, Dr. T.K. Sahu, Assistant Professor (PW-7), Government Medical College, Raigarh, performed D & C (dilation & curettage) vide Ex.P/6. After receiving the medico-legal report and bed head ticket, the FIR (Ex. P/11) was registered on 23.09.2017 at Police Station Kosir. Crime Detail Form was prepared vide Ex.P/7. Statements of the witnesses were recorded and after completion of the investigation, the charge sheet has been filed. The case was committed by the jurisdictional Magistrate to the Court of Sessions for trial. During the trial, the respondent/accused abjured his guilt and claimed to be tried. 3. In order to prove its case, the prosecution has examined as many as 14 witnesses and exhibited 16 documents vide Ex.P/1 to Ex.P/16. 4. In the statement recorded under Section 313 of the Cr.P.C., the respondent/accused stated that he has been falsely implicated. He further stated that the wife had previously also 4 aborted the fetus 3–4 times and at present, she was about two months pregnant. According to him, the wife did not wish to have a second child, and when he protested, she took some medicine from a quack and subsequently lodged a false case against him. 5. Learned trial Court after evaluating the evidence, by the impugned judgment, convicted the respondent under Section 506 (Part II) of the IPC and sentenced him to the period already undergone, along with a fine of Rs. 2,000/-, in default of payment of fine, to further undergo 2 months’ simple imprisonment. Additionally, under Section 323 of the IPC, he was sentenced to undergo 6 months RI and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month’s simple imprisonment. Both sentences were directed to run concurrently. The respondent was acquitted of the charges under Sections 294 and 316 of the IPC. 6. Learned counsel for the State would submit that although there is ample evidence with regard to Sections 294 and 316 of the IPC also, the finding recorded by the trial Court in this regard is perverse. Therefore, he prays that the appeal be allowed. 7. On the other hand, learned counsel for the respondent/accused would submit that the quarrel was 5 between the husband and wife, and nothing specific has been stated in the FIR (Ex.P/11) or in the statement of the wife (PW-7A), as the wife was doubting the character of the husband when he was talking with a girl. She would further submit that to attract the offence under Section 316 of the IPC, it is necessary that the accused causes the death of a quick unborn child. She would submit that the mother generally feels fetal movements between 14th and 18th weeks of pregnancy and in the present case, Dr. Usha Rani (P.W.-5) reported only six weeks of pregnancy vide Ex. P/5; therefore, the necessary ingredients to satisfy the aforesaid charge are missing. She would submit that the doctor did not find any external or internal injury on any part of the abdomen of the complainant (PW-7A) and no opinion was given attributing any specific cause to the abortion that was carried out. Learned counsel for the respondent submits that the acquittal granted by the trial Court is just and proper and thus, prays to dismiss the appeal. 8. Heard learned counsel for the parties and also perused the record with utmost circumspection. 9. The prosecution, being aggrieved by the acquittal recorded by the trial Court under Sections 294 & 316 of the IPC, has preferred this appeal. 6 10. In this connection, this Court deems it appropriate to refer and reproduce the provisions of Section 316 of the IPC: 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. Illustration A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section. 11. On a reading of the aforesaid provision, it is explicit that Section 316 of the IPC can only apply if the action resulting in a death was capable of amounting to culpable homicide. This section does not specifically state that the action must be directed against the mother and not the quick unborn child. From the illustration of the section, which is intended to clarify the meaning of the “act”, it appears that the act must be of such a nature that the offence committed against the mother herself would be culpable homicide if the mother had died as 7 a result of it. If the act is intended only to cause miscarriage without the consent of the mother, it could fall under Sections 312 and 313 of the IPC or under Section 314 of the IPC. If the act is intended to cause the death of the child before its birth or to cause it to die after its birth it is an offence punishable under Section 315 of the IPC. Hence, an offence under Section 316 of the IPC must be deemed to refer to acts directed against the mother. And these acts have to be of such a character that the offender would have been guilty of culpable homicide if she had died. The resulting injury to the child carried in the womb of the mother may be quite unintended and vet an offence under Section 316 of the IPC would be made out. The action must be such that it results in the death of a “quick unborn child” instead of the death of the mother which could have been caused by the action. 12. In order to establish an offence under Section 316 of the IPC, it must be shown that the circumstances surrounding the commission of the act are such that the accused would have been guilty of culpable homicide had the mother died. Culpable homicide has been defined by Section 299 of the IPC, which involves the doing of an 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 8 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 of the IPC, it cannot constitute an offence under Section 316 of the IPC merely because the death of a quick unborn child has resulted from an act against the mother. 13. From the attending facts and circumstances of the case, it appears that the wife (PW-7A)- S. Kumari, was assaulted by her husband (respondent/accused) after she objected to him talking on the mobile, suspecting that he was speaking with another woman. During the ensuing quarrel, the accused assaulted his wife using his hands and legs. The nature of the injuries i.e. abrasions on the left leg, right elbow and chest found on the body of the victim (PW-7A) vide the report- Ex.P/1 and proved by Dr. M.K. Manhar (PW-4), were simple in nature. The X-Ray report (ExP/4) was also found normal. Dr. Usha Rani (PW-5), Gynecologist who examined the complainant, stated in her report (Ex.P/5) that the complainant had informed her of having suffered two previous miscarriages. She did not find any internal injury and has also not given a clear opinion as to whether the abortion was caused due to the assault made by the accused or not. From the circumstances, it cannot be said that the accused had any 9 intention or knowledge that by his act, the death of his wife was likely to be caused. Furthermore, the embryo was only six weeks old, as per the report (Ex.P/5). Normally, fetal movements are felt by the pregnant woman between 14th and 18th weeks of pregnancy, and a fetus is generally considered a 'quick child' by the 18th week. Therefore, in the present case, this essential ingredient to prove the said charge is missing. 14. For the foregoing, this Court is of the opinion that the prosecution has not able to prove the necessary ingredients of the offence under Section 316 of the IPC. Accordingly, the trial Court has rightly acquitted the accused of the said charge and the finding is hereby affirmed. 15. During the quarrel between the husband and wife, the wife neither recited or uttered any specific word in her initial report registered in the Daily Diary (Ex.P/13) nor stated the same in her Court evidence, therefore, the acquittal recorded by the trial Court under Section 294 of the IPC is just and proper and the same is also hereby affirmed. 16. In consequence, the Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Shyna