Case law on Sec.316 of IPC

Good evening,

Yes, Section 316 of IPC will be applicable for the death of a two month old unborn child, provided that the death was a cause of intended harm on the mother, by any person. 

Section 316 of the Indian Penal Code talks about: "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 descripttion for a term which may extend to ten years, and shall also be liable to fine."

-This means that if any person commits any action with the intention to harm and kill the mother, or the pregnant woman, and such an action thereby causes the death of the unborn child, it will be punishable, as described, for a period of ten years. They will also be liable to pay a fine as described. This section is applicable to any and all unborn children. Knowledge or Intention to harm, is an important element in determining the liability of the person. 

In the case of Jabbar v. State[viii], it was held that an act comes under the purview of Section 316 only when the act was done with intention or knowledge to commit an act of culpable homicide against the mother. Only on the basis that acts were directed towards the mother and death of a quick unborn child has taken place, a person cannot be held liable under the present section. It was further observed that if the act would have been done with knowledge or intention to commit the act of culpable homicide against the mother, and even the mother would have survived but the child in the womb died, then it would constitute an offence under the present provision. 

In this case, as mentioned above, intention to harm is necessary, just the happening of the act won't be constituted as an offence under this section. 

Hope this helped!

Regards,

Nandini.