In Re: Kumaru Thever

K.N. Mudaliyar, J.—The two petitioners are the husband and wife who question the propriety of their convictions for an offence under Ss.

316 end 354 I.P.C. (A-1 only) and 354, I.P.C. (A-2) only.

Both the courts below have accepted the testimony of P.W. as corroborated by the testimony of P. Ws. 3, 4 and 5. The testimony of P.W. 1 is

further corroborated by the medical testimony of P.W. 2.

I am inclined to uphold the convictions solely on the acceptance of the testimony of P.W. 1 alone corroborated by the testimony of the doctor,

P.W. 2, P.W. 1 states in her evidence that A.2 is the wife of A. 1 (Inasmuch as A.3 was acquitted it is unnecessary to deal with the case as

spoken to by this witness against A.3). About three months back on a Tuesday at about 3 or 3-30 p.m. P.W. 1, Kallammai, was cooking food.

Her son Ganesan aged 7 years came weeping. She enquired why he was weeping. The boy told the mother that A.1''s son Rajendran had beaten

him. P.W. 1 came out and questioned Rajendran why he beat her son. A.2 came out of her house, and asked P.W. 1. She told A.2 that she did

not threaten him and she only questioned him. A.2 beat P.W. 1 and pulled her tuft, A. 1, the husband of A.2, came and beat her en the nape of her

neck and pulled her tuft behind. She fell down on her back. A.1 pulled out her saree completely. A.1 and A.2 beat her and kicked her on her

chest, abdomen and private parts. She was then five months pregnant. She raised alarm. Witnesses Papathi, Lakshmi and Gnanasundar came and

separated, but could not. Witness Kasi Thevar come and shouted. P.W. 1 became unconscious. She regained consciousness only in the hospital at

Srivilliputtur. She gave a complaint Ex. P.1 at the hospital recorded by the police. Because of this beating and kickings she had severe pain and

there was abortion. She was kept in the hospital even after that.

P.W. 2 is the Civil Assistant Surgeon attached to Government Hospital at Srivilliputtur. She examined P.W. 1 on 20th May, 1969 at 11 p.m. for

the injuries said to have been caused on the same day at 3.30 p.m. due to assault by the petitioners. She was unconscious at that time. After

inhalation of spirit of ammonia, P.W. 1, became conscious. She complained of pain over lower abdomen and chest. P.W. 2 found her pregnant of

four months. On examination, she found the uterus 16 weeks, size. She also found pain in the lower abdomen present. Per vaginal examination

slight bleeding present. P.W. 1 was admitted in the maternity ward. She had continuous pain in the lower abdomen and alight bleeding. On 25th

May 1969 P.W. 1 passed the products of conception at 11 p.m. Vaginal examination was done and uterus was found empty, but bleeding

continued. The quickening of the child and the bleeding were due to beating and kicking on the lower abdomen. Kicking and beating with bare foot

on the abdomen need not cause any internal injury. She speaks to the contents of Ex. P-2, wound certificate.

The learned counsel for the two petitioners argued that the first accused cannot be stated to have caused an injury which he knew that his act is

likely to cause death of P.W. 1. In support of this proposition, the learned counsel for the petitioner relied on paragraphs 9, 10, 11 and 12 of the

ruling found in Jabbar v. State (1960) MWN 826. On the proved facts of the Allahabad case it may be stated that all that is stated in the F.I. R. is

that Jabbar ""started kicking"" her after having pushed her. It does not specifically state that he kicked her on the stomach. In fact, the finding of the

learned Judge is that Jabbar did push Smt. Pangali who was in an advanced and visible stage of pregnancy and that he even tried to kick her after

that, so that the child she was carrying was either born dead or died immediately after its birth. The learned counsel argued that the combined

kicking and beating by A-1 and A-2 might not be such that A-1 could have known that his acts are likely to cause death. In meeting this argument

one has to remember the testimony of P.W. 2 when she stated that the injury was a grievous injury, referring to the continuous plain in the lower

abdomen and slight bleeding. There is no challenge of this evidence of P.W. 2 by the defence. When once the evidence of P.W. 2 is accepted, it

emerges clearly that P.W. 1 was suffering from a grievous injury inflicted on her as a result of A-1 and A-2 beating and kicking P.W. 1 until she

became unconscious. The learned Public Prosecutor cited the ruling in Palani alias Natesa Mudaliar case (2) of this Court where the learned

Judges held in a case of kicking which resulted in death as follows:

There can be no doubt in this case that the appellant caused the injuries and intended to cause these injuries and he must have known that they are

likely to cause the death of the persons concerned. If a woman is kicked in the manner in which she has been kicked in this case, certainly intention

to cause injuries with the knowledge that it is likely to cause death can be attributed to offender and that will fall under the second clause of S. 300

I.P.C.

In another case of kicking Somasundaram, J. in In re. Thimmaraya Chetti (1) held as follows:

But, where the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to case such bodily injury

as in likely 10 cause death. It would fall under the second part. The first part of the section applies where there is a guilty intention, and the second

part would apply where there is no such intention, but there is knowledge.

On this material, I am prepared to hold that the first accused had the knowledge that his acts of beating and kicking are likely to cause death and

therefore the acts of the first accused could be safely brought within the ambit and scope of S. 316 of the I.P.C. I derive considerable support for

this, view from the rationale found in the judgment of the Division Bench of this Court in Marimuthu In re. (4).

Mayne states as follows (in Crl. Law of India-1896 Edition Page 632 S. 444):

If, however, without any special location to injure the child, he injures the mother in such a way that she died, he would be guilty of culpable

homicide; then if this act causes the death of her quick unborn child, he commits an offence under S. 316. A man who assaults a pregnant woman

with such violence that her death is a likely result, or sets fire to a house in which she happens to be, would be punishable under this section, if the

mother survived, but gave birth to a dead child in consequence of her injuries or of the fright.

In view of the legal position just now adumbrated, I cannot but held that the first accused is undoubtedly guilty of the offence under S. 316 and S.

354 I.P.C.

The second argument of the learned counsel for the petitioners is that P.W. 1 did not give any evidence that she was ''quick with child''; in other

words, his argument is that P.W. 1 did not give any evidence that the experienced any peculiar sensations about the fourth or fifth month of her

pregnancy about the foetal movements. But in the Law of Crimes by Retinal and Dhirajlal the following comment is found:

But quickening is not a constant, uniform, and well-marked distinction of the pregnant. ''Quick with child'' is having conceived; ''with quick child'' is

when the child was quickened.

I consider that this argument has no substance, in view of the testimony of P.W. 1 who stated that she was having five months old pregnancy. But

that fact has not been challenged in cross-examination. It is true that the testimony of the doctor, P.W. 2. is that she is 16 weeks pregnant.

According to the authority of Modi which has been cited by the learned counsel for the petitioners, it is between 14 weeks to 18 weeks that a

mother feels the foetal movements of the child; In other words, she would be ''quick with child'' during that period. Certainly, even according to the

medical testimony she was 16 weeks pregnant and that does not negative the reasonable inference about P.W. 1 being ""quick with child"" even

according to the ingredients of S. 316, I.P.C.. I am unable to accept this argument. I find no other ground of law which vitiates the order of the two

courts below. The criminal revision case is dismissed.