JUDGMENT KANWALJIT SINGH AHLUWALIA, J. (ORAL) 1. Present appeal has been filed by Dal Chand alias Dali son of Soni. He was aged 53 years on the day, the impugned judgment was pronounced. The appellant was named as an accused in case FIR No.77 dated 26.04.2000 registered at Police Station Chhainsa under Sections 313 and 316 IPC. The Court of Additional Sessions Judge, Faridabad, vide its judgment dated 16th October, 2002, held the appellant guilty of offences punishable under Sections 313 and 316 IPC and vide a separate order dated 22nd October, 2002, sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/-in default of payment of fine to further undergo rigorous imprisonment for 1 ¼ years under Section 313 IPC. The appellant was further sentenced under Section 316 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/-in default of payment of fine to further undergo rigorous imprisonment for 1 ¾ years. 2. The facts of the prosecution case can be gathered from the FIR Ex.PF. Devi wife of Daya Chand, aged about 25 years got recorded report No.5 in the Daily Diary Register on 8th March, 2000. The report has been proved on record as Ex.PD. It is stated therein that on 8th March, 2000, complainant Devi appeared in the Police Station at about 10.00 a.m. and stated that she is a resident of Mohna and does labour work. On the day of occurrence, i.e. 8th March, 2000, at about 9.00 a.m. when she was cleaning the drain in front of her house, accused Dal Chand alias Dali son of Soni started abusing her and stated that she would be taught a lesson for giving beatings to the children. Saying so, he hit the complainant in her abdomen and back with the chain of motorcycle. The accused also gave blows with the motorcycle chain on her legs and hands. Complainant Devi raised an alarm of ‘Mar Diya Mar Diya’ and on hearing the noise, Pappu son of Samma and Sanjay, nephew of the complainant, were attracted to the spot. They rescued the complainant from the hands of accused, otherwise more injuries would have been caused to her. 3. The appellant was tried along with his brother Mohran and wife Lachho. The trial Court has acquitted Mohran and Lachho. 4. They rescued the complainant from the hands of accused, otherwise more injuries would have been caused to her. 3. The appellant was tried along with his brother Mohran and wife Lachho. The trial Court has acquitted Mohran and Lachho. 4. Complainant Devi appeared as PW-5 and stated that on 8th March, 2000 at about 9.00 a.m. she was cleaning the water drain in front of her house, when the accused Dal Chand alias Dali came and stated that she would have to face the consequences of beating the children. Accused gave abuses to the complainant. Then accused Mohran and Lachho also came there. Accused Lachho caught hold of the complainant and Dal Chand alias Dali gave beatings to her with the chain of motorcycle in her abdomen, head and hands. Accused Mohran had also given fist blows in the abdomen of complainant. Due to these injuries, the complainant suffered miscarriage, as she was pregnant of about two months. The complainant went to the Police Station and lodged a report Ex.PD, which was entered as report No.5 in the Daily Diary Register. 5. Sanjay, another eye-witness of the occurrence, appeared as PW-1 and corroborated the testimony of complainant Devi PW-5. 6. The complainant was medico-legally examined by Dr.Vini Rastogi PW-7 on 8th March, 2000. Following injuries were found on her person: “1. Lacerated wound 5 cm x 2 mm on scalp over right parital bone. 2. Lacerated wound 2 cm x 3 mm on the same area. X-ray was advised. 3. Abrasion 2 cm above right ulna tuberoocity. Flaxor surface. Decrease movement at wrist joint. 4. Tenderness hypogasprium on PV no abnormality detected. Uterus normal in size. There is history of lactational amenorrhea.” 7. The medical officer also advised x-ray of skull with regard to injury No.1 and x-ray of left forearm with regard to injury No.3. The complainant was further advised to undertake x-ray of her abdomen. In cross-examination, this witness stated that in medico-legal examination of the complainant, she found no evidence of pregnancy. She further stated that neither she found any evidence with regard to the miscarriage of patient Devi nor any abdominal injury. 8. Dr. S.P. Jayant PW-8 had carried the ultrasonological examination of the complainant on 18th March, 2000. He found that eight week size foetal of node was present. However, no cardiac activity was seen. 9. Dr. She further stated that neither she found any evidence with regard to the miscarriage of patient Devi nor any abdominal injury. 8. Dr. S.P. Jayant PW-8 had carried the ultrasonological examination of the complainant on 18th March, 2000. He found that eight week size foetal of node was present. However, no cardiac activity was seen. 9. Dr. Beena Sharma PW-3 on 28th March, 2000 gave an opinion about the possibility of abortion. She stated that Devi was pregnant of eight weeks and possibility of abortion cannot be ruled out. She further stated that there was pregnancy of eight weeks but cardiac activity was absent and it was not possible to state the sex of foetus at that stage. 10. Ashok Kumar Draftsman PW-2 had prepared the scaled site plan Ex.PA of the spot. ASI Kartar Singh PW-4 had proved report No.5 as Ex.PD and the request made by him for medico-legal examination of the complainant as Ex.PE. ASI Raghubir PW-6 had investigated the case. 11. Thereafter, statement of the accused appellant was recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to him. He denied the same and pleaded innocence. 12. In defence, Constable Rajbir Singh was examined as DW-1 to prove the DDR No.9 dated 09.03.2000 recorded at the instance of Lachho Devi. Dr.Anjali Kalra DW-2 proved the injuries suffered by Lachho, acquitted accused, and the present appellant. Both of them were medico legally examined on the next day of occurrence, i.e. 9th March, 2000. 13. This Court has to consider as to whether an offence punishable under Section 316 IPC is made out against the appellant or not. Section 316 IPC reads as under: “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.” 14. A perusal of the above provision reveals that Section 316 IPC is attracted only when by the act of the accused, death of a quick un-born child is caused. At which stage the child becomes quick, is required to be noticed by this Court. 15. A perusal of the above provision reveals that Section 316 IPC is attracted only when by the act of the accused, death of a quick un-born child is caused. At which stage the child becomes quick, is required to be noticed by this Court. 15. It is a common knowledge that a mother feels foetal movement of a child between 14th and 18th week of pregnancy. Therefore, it can be presumed that a child becomes quick in the womb at 18th week. Other medical opinion suggests that after 12 weeks of conception, foetus gets life and becomes quick. Therefore, to attract Section 316 IPC, the foetus must be more than 12 weeks old. 16. Modi’s Medical Jurisprudence and Toxicology (Twenty-third Edition) describes ‘quickening’ as under: “Quickening: At the first perception of ‘quickening’ or the foetal movement by the mother, she is said to be ‘quick with the child’, and occurs at any time between 18-20 weeks. The sensation of quickening may be simulated by flatulence and peristaltic movements of the intestines, especially in a nervous or hysterical woman, who is anxious to have children although she is not pregnant. This is known as pseudocyesis or phantom pregnancy, or spurious pregnancy.” 17-18. In an article on Virginity, Pregnancy, Delivery & Abortion published in ‘Medical Jurisprudence, Toxicology & Forensic Science for Class Room, Investigation & Court Room with Case Laws’, Dr.V.D. Deshpande stated that the foetus becomes quick with the life only after 18-20 weeks. The following portion from the above said article is required to be noticed: “Positive signs of pregnancy: … … … (c) The first perception of fetal movement by a pregnant mother is called ‘quickening’, and such a woman is described as being ‘quick with life’. However, when the examiner can distinctly detect fetal movement during examination’ it is a positive sign of pregnancy. Such movements can be felt after 18 to 20 weeks and occur at indeterminate intervals.” 19. In the present case, complainant in her examination in-chief has stated “I was pregnant of two months”. Dr.Vini Rastogi PW-7, who carried medico-legal examination of the complainant on the day of occurrence, stated that there was no evidence of pregnancy. She also found no evidence with regard to the miscarriage. It is only Dr. In the present case, complainant in her examination in-chief has stated “I was pregnant of two months”. Dr.Vini Rastogi PW-7, who carried medico-legal examination of the complainant on the day of occurrence, stated that there was no evidence of pregnancy. She also found no evidence with regard to the miscarriage. It is only Dr. S.P. Jayant PW-8, who had conducted ultrasonography on 18th March, 2000 and had stated that on that day, eight week size fetal node was present. This view has further been confirmed by Dr. Beena Sharma PW-3, who, on the basis of ultrasound test, opined that possibility of abortion cannot be ruled out, as Devi PW-5 was eight weeks pregnant. 20. It is to be noted that occurrence, in the present case, had taken place on 8th March, 2000 and ultrasonography was done on 18th March, 2000, i.e. ten days thereafter. Therefore, on the day of occurrence, foetus was 6/7 weeks old and thus, it cannot be said that the complainant Devi was carrying a quick un-born child, as the medical treatise, to which a reference has been made, have held that foetus becomes quick after 12 weeks. Hence, conviction of the appellant under Section 316 IPC is liable to be set aside and thus, he is acquitted of this charge. 21. The above said view formulated by me is also fortified by the observations made by a Single Bench of Delhi High Court in ‘Prakash and others v. Arun Kumar Saini and another’ 2010 (2) AICJ 515, wherein, as to when the fetus will get life, has been noticed as under: “8. To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives. An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.” 22. Having held that no offence punishable under Section 316 IPC is made out against the appellant as the pregnancy was only eight weeks old, this Court has to examine as to whether any offence punishable under Section 313 IPC is made out against the appellant or not. 23. Section 313 IPC is a punishing Section for causing miscarriage without the consent of the woman, whether that woman is quick with the child or not. Causing miscarriage has been defined under Section 312 IPC. It reads as under: “312. 23. Section 313 IPC is a punishing Section for causing miscarriage without the consent of the woman, whether that woman is quick with the child or not. Causing miscarriage has been defined under Section 312 IPC. It reads as under: “312. Causing miscarriage Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 24. Thus, the necessary ingredient for this Section is that one should have voluntarily caused miscarriage. For a person, to know as to whether a woman is pregnant or not, the first signs are discernible with enlargement of her abdomen. In the article Virginity, Pregnancy, Delivery & Abortion (supra), Dr.V.D. Deshpande states that after 12 weeks of pregnancy uterus becomes palpable and it is only thereafter one can have a visual observation regarding enlargement of the abdomen. Dr.Deshpande noticed as under: “Enlargement of Abdomen: Any enlargement of the abdomen in a woman of childbearing age is suggestive of pregnancy. By 12 weeks of pregnancy, the uterus becomes palpable just above the symphysis pubis and thereafter continues to grow. At 20 weeks the uterine fundus is at the inferior border of the umbilicus, at its upper border at 24 weeks and almost at the xifisternum at 36 weeks. After that the fundus goes down a bit with the formation of the lower uterine segment.” Regarding enlargement of abdomen, Modi stated as under: “Enlargement of the Abdomen: The abdomen begins to enlarge gradually after the 12th week. Up to the first 12 weeks, the gravid uterus remains in the cavity of the pelvis and around the 16th week rises just above the symphysis pubis and comes into contact with the abdominal wall. At the end of th week, it is midway between the symphysis and the umbilicus (navel). At the end of the 24th week, it reaches the level of the umbilicus and at the end of the 28th week, it is midway between the umbilicus and the xiphisternum. At the end of th week, it is midway between the symphysis and the umbilicus (navel). At the end of the 24th week, it reaches the level of the umbilicus and at the end of the 28th week, it is midway between the umbilicus and the xiphisternum. At the th week, it reaches the xiphisternum or epigastrium. At the th week, the uterus widens and recedes in its height from the xiphisternum to 32 week level. The enlargement of the abdomen is considered a prima facie evidence of pregnancy during the childbearing period, but may also occur in ascites, ovarian cysts, ovarian and uterine tumours, and phantom tumours.” 25. In view of the opinion of the medical Jurist, enlargement of abdomen is noticeable after 12 weeks of pregnancy. As in the present case, pregnancy was only 8 weeks old, it cannot be said that the appellant knew that Devi PW-5 was pregnant. 26. In ‘Bhagirath v. State of Haryana’ 1986(1) Recent Criminal Reports 448, it was held as under: “3. It is nobody’s case that the appellant had the knowledge that Mst. Imarti had two months old pregnancy. Otherwise also two months old pregnancy would not be visible to the naked eye. In this situation I don’t think the conviction of the appellant under Section 313 IPC can be sustained. The conviction of the appellant under Section 325 IPC would have been the proper course and on the charge the appellant has been acquitted by the trial Judge. The State has not come in appeal against the said order.” 27. In ‘Pato Devi v. State of Bihar’ 2003(1) RCR (Criminal) 470, Jharkhand High Court also held that to attribute intention to cause miscarriage, the accused must be in know of the fact that the lady was in the family way having pregnancy. 28. In the present case, it has nowhere come in the evidence that the accused appellant was aware of the fact that Devi was pregnant. Thus, conviction of the appellant under Section 313 IPC also cannot sustain. 29. However, the appellant indeed has caused simple injuries to complainant Devi PW-5 according to Dr.Vini Rastogi PW-7. These injuries were kept for opinion of the Radiologist, but no opinion is on the file regarding nature of the injuries, thus, they are to be assumed as simple in nature. 29. However, the appellant indeed has caused simple injuries to complainant Devi PW-5 according to Dr.Vini Rastogi PW-7. These injuries were kept for opinion of the Radiologist, but no opinion is on the file regarding nature of the injuries, thus, they are to be assumed as simple in nature. Therefore, the appellant is guilty of causing simple injuries with a blunt weapon to the complainant Devi PW-5. The offence will fall under Section 323 IPC. Considering the long pendency of the trial, this Court is of the opinion that ends of justice will be fully met in case the appellant is awarded one year rigorous imprisonment for an offence punishable under Section 323 IPC. 30. As a result of the discussion made above, the appellant is acquitted of the charges under Sections 313 and 316 IPC, however, he is held guilty of an offence punishable under Section 323 IPC for which sentence of one year rigorous imprisonment is awarded to the appellant. 31. With the observations made above, present appeal is disposed of. Appeal disposed of.