JUDGMENT 1. - Both these revisions have been filed against the order dated 3.9.2002 passed by the learned Judicial Magistrate No. 7, Jodhpur in Cr. Regular Case Nos. 113/2000 and 1248/2001. 2. The Revision No. 855/2002 has been filed by Smt. Aamna Chhatri, hereinafter to be referred to as the 'complainant', whilst the Revision No. 135/2004 has been filed by Mohd. Ashraf, Abdul Samad, and Smt. Rajiya, hereinafter to be referred to as the 'accused'. 3. The complainant filed a First Information Report with the S.H.O. Police Station Mahila Thana, Jodhpur on 29.6.2000 with the allegation that she had been married to the accused Mohd. Ashraf on 29.11.1994. She stated in the F.I.R. that Abdul Samad is her father-in-law, Smt. Rajiya is her mother-in-law whilst Jahida is her Nanad. She alleged that soon after the marriage, the accused persons started harassing her in relation to demand of dowry. She further alleged that she was physically assaulted by the accused, she was not given proper food etc. and was made to work like a servant. She stated that she gave birth to a female child in October 1995. It was also stated in the F.I.R. that in the year 1996, When she was carrying a two months fetus in her womb, her mother-in-law, husband and sister-in-law forcibly and without her consent, got the same aborted in the dispensary of Dr. Kalpana Shukla. She also alleged that her in laws hatched a conspiracy with her husband to kill her and therefore, in June 1996 her husband took her and her daughter at Nehru Park, where she was kept hungry for whole of the day. Thereafter, her husband took her to Kaylana Lake and there he was planning to push her into the lake. At that point of time, two Muslim persons came there and on seeing them coming, her husband took her back to their under construction house at Chopasani Housing Board where she was assaulted. She further alleged that she again became pregnant in the year 1998 and on 1.6.1998 when she was carrying a child of 5V# months, her husband and her mother-in-law started assaulting her on count of demand of money for the purpose of starting a handicraft business for her husband. She further alleged that she again became pregnant in the year 1998 and on 1.6.1998 when she was carrying a child of 5V# months, her husband and her mother-in-law started assaulting her on count of demand of money for the purpose of starting a handicraft business for her husband. She alleged that she was pushed down on the ground and her mother-in-law and husband started assaulting her by fists and kicks with the objective to cause a miscarriage. She stated that due to this assault, her child died in her womb and ultimately she gave birth to a dead child on 26.8.1998. She alleged that when the assault was made, at that time, the neighbours Ramesh and his wife Shashi and other persons from the neighbourhood saved her from the accused. Thereafter, in January 1999 she was again harassed for bringing money from her father. She stated that in the year 2000 she again conceived and her husband again got her aborted by taking her at Satyam Hospital on 19.2.2000. Ultimately, the cruelty of the accused reached the extreme levels in March 2000 and she was continuously assaulted for the persisting demand of Rs. 4 lacs. On hearing her cries, the neighbours collected, on which her husband apologized and told the neighbours that the complainant would not be maltreated in future. The complainant has alleged that because of the incident, she fell ill and was admitted in Shree Hospital between 14.3.2000 to 16.3.2000 and her husband misappropriated the Kisan Vikas Patra standing in her daughter's name, the account book of her Post Office account as well as an amount of Rs. 8500/- belonging to her during the period whilst she was hospitalized. She ultimately stated that she was turned out of the matrimonial home on 8.5.2000 only with wearing clothes. She demanded her Stridhan and gold ornaments etc., but her in-laws and husband abused her and did not return the same to her and they have misappropriated the same. 4. 8500/- belonging to her during the period whilst she was hospitalized. She ultimately stated that she was turned out of the matrimonial home on 8.5.2000 only with wearing clothes. She demanded her Stridhan and gold ornaments etc., but her in-laws and husband abused her and did not return the same to her and they have misappropriated the same. 4. The typed report filed by the complainant was registered as F.I.R. No. 116/2000 for the offences under Sections 498A, 406 and 312 I.P.C. Investigation was commenced and upon conclusion of the investigation, the Investigating Officer of the Police Station Mahila Thana, Jodhpur filed a charge-sheet against the accused for the offences under Sections 498A and 406 I.P.C. So far as the offence under Section 316 I.P.C. is concerned, the matter was kept open for receiving the report of the Medical Board. 5. Upon the charge-sheet being filed as stated above, the complainant filed an application in the trial Court for taking cognizance against the accused for the offences under Sections 313, 316, 379, 201 read with Section 34 and 120B I.P.C. in addition to the offences for which the charge-sheet had been filed. 6. The learned Magistrate after hearing the arguments of both the sides on the application, by a detailed order proceeded to hold that so far as the offences under Sections 313, 379, 34 and 120B I.P.C., are concerned, there was no material to proceed against the accused for the said offences. The learned Magistrate however, held that for the incident of the birth of the dead foetus in August 1998, as a result of the assault made upon the complainant, the offence under Section 316 I.P.C. was prima facie made out against the accused and thus, cognizance was taken against them for the said offence. 7. Now these two revisions have been preferred by the respective parties viz. the complainant as well as the accused. Revision No. 855/2002 has been filed by the complainant seeking a direction for taking cognizance against the accused for the offences under Sections 313, 120B read with Section 34 and 379 I.P.C. Whilst Revision No. 135/2004 has been filed by the accused persons seeking quashing of the order dated 3.9.2002 passed by the learned Magistrate so far as it directs taking of cognizance against them for the offence under Section 316 I.P.C. 8. Shri Rajendra Choudhary learned counsel for the complainant contends that there is prima facie evidence and ample material available on the record to the effect that the complainant was twice gotten aborted by the accused without her consent. He further submits that there is a direct allegation of the complainant that the accused Ashraf committed theft of the Kisan Vikas Patra Issued in his daughter's name, cash as well as the account book of complainant's Post Office account during the period when she was hospitalized. He thus prays that the order dated 3.9.2002 passed by the learned Magistrate be set aside and the trial Court be directed to take cognizance against the accused persons for the offences under Sections 313,120B/34 and Section 379 I.P.C. 9. Per contra, Shri Haider Agha learned counsel appearing for the accused persons have vehemently opposed the arguments advanced by the learned counsel for the complainant and submits that the trial Court has conducted a detailed examination of the record and has rightly arrived at a finding that there was no material on the record to form an opinion regarding the accused having committed the offences under Sections 313, 379, 34 and 120B of the I.P.C. He submits that the Investigating Officer during the course of the investigation, has recorded the statements of Dr. Kalpana Shukla and Dr. Jyoti Meenawat, who have clearly deposed that no abortion of the complainant was performed in their clinics. Learned counsel further submits that for the alleged incident of forced abortions, which are said to have taken place in April 1996 and in February 2000 respectively, no F.I.R. was filed by the complainant for a long duration despite the fact that the complainant had ample opportunities to do so. He submits that apart from the oral testimony of the complainant and the witness Abdul Rahim, there is no evidence to corroborate the theory of the two alleged abortions having been performed on the complainant. He further submits that the relevant records of the Satyam Hospital, where Dr. Jyoti Meenawat works has been summoned by the Court, wherein it has been mentioned that the complainant got herself examined as an outdoor patient in the said hospital but there is no entry regarding any abortion or medical termination of pregnancy having been performed upon the complainant in the said hospital. Jyoti Meenawat works has been summoned by the Court, wherein it has been mentioned that the complainant got herself examined as an outdoor patient in the said hospital but there is no entry regarding any abortion or medical termination of pregnancy having been performed upon the complainant in the said hospital. Learned counsel further submits that the trial Court has given detailed reasoning regarding the offence under Section 379 I.P.C. not being made out against the accused Mohd. Ashraf. The trial Court has considered the fact that the Kisan Vikas Patra has been recovered from Mohd. Ashraf but there was not material to show that the possession of said Kisan Vikas Patra with Ashraf was not lawful. The Kisan Vikas Patra is in the name of Ashraf's daughter and thus no culpability can be inferred from the fact that it was recovered from Ashraf's possession. 10. Learned counsel further submits that the cognizance, which has been taken by the trial Court against the accused for the offence under Section 316 I.P.C. is also per se illegal. He contends that the alleged act of beating with the complainant is said to have taken place on 1.6.1998, whereas the birth of the dead child/foetus has taken place on 26.8.1998. Learned counsel submits that it is inconceivable as to how the complainant would continue to carry the dead fetus in her womb without feeling the absence of its movement for a period of tliree months. Learned counsel has drawn the attention of the Court towards the medical record particularly the prescription slip of Dr. Uma Bissa, a Gynaecologist of Dr. S.N. Medical College and Ummed Hospital, Jodhpur dated 25.8.1998, wherein it has been mentioned that the complainant started feeling loss of foetal movement before one week. Learned counsel thus submits that the allegation of the complainant that she was assaulted by the accused brutally and as a result thereof the foetus, which she was carrying in her womb expired, cannot be accepted prima facie. He, therefore, prays that the revision filed by the accused deserves to be accepted. 11. Heard learned counsel for the complainant, learned counsel for the accused and the learned Public Prosecutor. Perused the order impugned as well as the record. 12. From a perusal of the record, certain undisputed important facts come to force. They are enumerated herein. (i) The complainant was married with Mohd. 11. Heard learned counsel for the complainant, learned counsel for the accused and the learned Public Prosecutor. Perused the order impugned as well as the record. 12. From a perusal of the record, certain undisputed important facts come to force. They are enumerated herein. (i) The complainant was married with Mohd. Ashraf in the year 1994; (ii) She gave birth to a female child in 1995; (iii) It is her allegation that she was continuously harassed and humiliated by the accused on count of bringing less dowry for whole of the 6 years during which she lived at her husband's house; (iv) She has alleged that during this period, the accused got her forcibly aborted twice; (v) She has also alleged that a result of the assault made on her on 1.6.1998, her 5 months fetus in her womb died and was born dead on 26,8.1998. 13. The evidence, which has been produced by the complainant in support of above allegations of her two alleged abortions one in 1995 and the other in 2000, is basically oral in nature. Contrary to this, there is an important document available on record, which is the antenatal card of the complainant prepared at Ummed Hospital, Jodhpur in 1998. In the said antenatal card, the obstetric history of the complainant has been recorded and obviously the same could have been mentioned on the basis of the information given by the complainant herself. The obstetric history, which has been mentioned discloses that it was the second pregnancy of the complainant. Thus, obviously, the allegation of the complainant that in between the female child which she had borne in 1995 and in 1998 she became pregnant and was forcibly made to abort cannot be accepted because then that would have been the third pregnancy of the complainant. Thus, as regards the allegation of the complainant was made to abort in the year 1996 is concerned, the trial Court has rightly arrived at a conclusion that the possibility of the abortion having taken place naturally cannot be ruled out because there is no evidence on record regarding any medical termination of the pregnancy having been effected on her. Obviously, the allegation of the complainant as regards the alleged forced abortion attributed to the accused is incorrect. Obviously, the allegation of the complainant as regards the alleged forced abortion attributed to the accused is incorrect. As regards the abortion said to have been performed forcibly upon the complainant by the accused in the year 2000, the trial Court has tin order to verify the truth of the allegation, has summoned the record of the concerned hospital on the prayer of the complainant. The prescription slip of the Satyam Hospital has been filed on record by the complainant but the same does not mention that the complainant was carrying any pregnancy. Furthermore, the entries made in the registers of the said Satyam Hospital, which have been summoned by the Court also do not corroborate the allegation of the complainant that she was subjected to medical termination of the pregnancy in the said hospital. Thus, the allegation of the complainant in this regard is totally uncorroborated, bald and oral allegation and remains unsubstantiated. The trial Court has rightly refused to take cognizance against the accused for the offence under Section 312/313 of the I.P.C. on the application of the complainant. 14. Now coming to the question of offence under Section 316 I.P.C. for which cognizance has been taken by the trial Court. The said offence has been taken in relation to the alleged birth of a dead foetus to the complainant in August 1998. As the allegation has been levelled by the complainant after more than 2 years of the alleged incident, the Court has to exercise extra care and precaution in considering as to whether the accused should be tried for the said offence, which is triable by the Court of Sessions. Section 316 I.P.C. 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. 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. 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 in injured, but does not died; 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." * 15. For a proper appreciation of the allegation levelled by the complainant, the medical record of the complainant available on the file has to be considered. As per the records, the complainant got prepared her antenatal card at the Ummed Hospital, Jodhpur in August 1998 wherein her last menstrual period has been mentioned as 9.1.1998 and the estimated dated of delivery has been mentioned as 16.10.1998. The antenatal card has been prepared in August 1998 and at that time, the complainant did not mention that she had been subjected to any assault before the preparation of the antenatal card. Not only this, she has been examined by Dr. Kalpana Shukla on 25.8.1998 and there too she did not disclose that she had been assaulted thereby causing harm to her child. Her prescription slip prepared by Dr. Uma Bissa on 25.8.1998 mentions that the patient informed the doctor about loss of foetal movement for last one week. Though the inscription is slightly unclear but even if it is considered to be a month rather than a week then too, it cannot be accepted that the foetus was harmed on 1.6.1998 as alleged by the complainant. The discharge ticket of the complainant does not mention about presence of any trauma on the uterine region of the complainant. 16. So far as alleged theft of Kisan Vikas Patra, cash as well as the account book of complainant's Post Office account during the period when she was hospitalized is concerned, that allegation has also been considered and dealt with properly by the trial Court. Admittedly, the accused Mohd. Ashraf being the father, could not be said to be in the illegal possession of the Kisan Vikas Patra of his own child. 17. Admittedly, the accused Mohd. Ashraf being the father, could not be said to be in the illegal possession of the Kisan Vikas Patra of his own child. 17. Thus, this Court is of the opinion that for the oral allegations of the complainant after nearly 2 years of the alleged assault made by the accused causing alleged death of the foetus in womb, sending the accused to stand trial for a session triable offence would not be justified by any stretch of imagination. Though the allegation of the complainant that she was assaulted indiscriminately by the accused on 1.6.1998 has been corroborated and supported by the statements of the neighbours but this Court has to consider the fact that such allegations had been levelled after nearly 2 years of the occurrence and therefore, the same have to be taken with pinch of salt. Therefore, the order passed by the learned Magistrate whereby cognizance has been taken against the accused for the offence under Section 316 I.P.C. cannot be sustained. Furthermore, as discussed above, the allegations have been corroborated by medical evidence. 18. As a result of the aforesaid discussion, the Revision No. 855/2002 filed by the complainant fails and is hereby rejected. 19. The Revision No. 135/2004 filed by the accused succeeds and is allowed. The order dated 3.9.2002 passed by the learned Judicial Magistrate No. 7, Jodhpur whereby cognizance has been taken against the accused for the offence under Section 316 I.P.C. is quashed. Stay petitions are also disposed of.Record be sent back forthwith.Revision No. 855/2002 dismissed, Revision No. 135/2044 allowed. *******