Section 90 OF BNS

Section 90 deals with a unique and serious offence in criminal law—causing the death of a “quick unborn child” through an act which would amount to cu

Section 90 – Causing Death of a Quick Unborn Child by Act Amounting to Culpable Homicide: Detailed Legal Analysis

Introduction

Section 90 deals with a unique and serious offence in criminal law—causing the death of a “quick unborn child” through an act which would amount to culpable homicide if it resulted in the death of a person. This provision extends criminal liability to situations where an act, though directed at a woman, results in the death of the viable fetus (quick child).

The section is important because it bridges the gap between offences against the human body and offences affecting unborn life, recognizing that at an advanced stage of pregnancy, the unborn child deserves legal protection. It reflects a careful legal balance between the principles of culpable homicide and protection of prenatal life.

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Bare Act Provision (Section 90)

90. 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.

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Legislative Intent and Objective

The objective of Section 90 is to:

• Protect the life of a viable unborn child (quick fetus)
• Extend criminal liability to acts that are dangerous and life-threatening
• Penalize conduct that would amount to culpable homicide if death had occurred

The provision recognizes that when a fetus reaches a certain stage of development (quickening), it attains greater legal significance, and harm to it cannot be ignored.

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Nature of the Offence

Section 90 is a:

• Result-oriented offence (death of unborn child must occur)
• Constructive liability offence (based on hypothetical culpable homicide)
• Special offence relating to advanced pregnancy

It is distinct because:

• The victim (unborn child) is not legally a “person”
• Yet the law imposes liability similar to homicide

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Meaning of “Quick Unborn Child”

The term “quick unborn child” refers to:

• A fetus at an advanced stage of pregnancy
• Where movement is felt by the mother

This stage indicates:

• Viability of the fetus
• Higher level of development

The law gives special protection at this stage because the fetus is closer to independent existence.

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Essential Ingredients of the Offence

To establish liability under Section 90, the following must be proved:

1. Act Capable of Amounting to Culpable Homicide

The accused must have done an act:

• Which, if it caused death of a person, would amount to culpable homicide

This involves:

• Intention to cause death, OR
• Knowledge that death is likely

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2. Existence of a Quick Unborn Child

The woman must be:

• Pregnant with a quick child

This is a mandatory condition.

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3. Death of the Unborn Child

The act must result in:

• Death of the fetus

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4. Causal Connection

There must be a direct link between:

• The act of the accused, and
• The death of the unborn child

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Understanding the Link with Culpable Homicide

Section 90 uses a hypothetical test:

• Ask: If the act had caused death of the woman, would it be culpable homicide?

If the answer is yes, and instead:

• The unborn child dies → Section 90 applies

This creates a legal fiction, treating the unborn child’s death with similar seriousness.

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Mens Rea (Mental Element)

The required mental element is:

• Intention, OR
• Knowledge

similar to culpable homicide.

The accused need not intend to kill the unborn child specifically. It is sufficient that:

• The act was dangerous
• The accused knew the likely consequences

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Punishment Under Section 90

The punishment prescribed is:

• Imprisonment up to 10 years, and
• Fine

This reflects the seriousness of:

• Loss of potential life
• Dangerous conduct

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Analysis of the Illustration

The illustration clarifies the application:

• The accused performs a dangerous act
• The woman survives
• The unborn child dies

Even though:

• No death of a “person” occurs

The law still imposes liability because:

• The act was of a nature that could amount to culpable homicide

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Distinction from Related Provisions

Provision	Focus
Section 86	Causing miscarriage
Section 88	Death of woman during miscarriage
Section 89	Preventing live birth
Section 90	Death of quick unborn child due to dangerous act

Section 90 is distinct because:

• It involves culpable homicide-like conduct
• Focuses on advanced pregnancy (quick child)

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Illustrative Situations

A person assaults a pregnant woman knowing it could cause serious harm, and the fetus dies. This falls under Section 90.

A reckless act is committed that endangers life, resulting in the death of the unborn child. Liability arises.

An act is done with knowledge of likely fatal consequences, but only the unborn child dies. Section 90 applies.

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Judicial Interpretation and Case Laws

Queen Empress v. Ademma (1886)

The court emphasized that intention and knowledge are crucial in offences involving unborn children.

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Emperor v. Mt. Kali (1925)

The court recognized the importance of protecting advanced stages of pregnancy and the seriousness of resulting harm.

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General Judicial Principle

Courts have consistently held that:

• The act must be such that it would amount to culpable homicide
• The stage of pregnancy (quick child) must be proved
• Causation must be clearly established

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Legal Significance of Section 90

This section plays a vital role in:

• Protecting viable fetuses
• Extending criminal liability to serious acts
• Bridging the gap between prenatal harm and homicide law

It ensures that:

• Dangerous acts do not go unpunished
• Advanced pregnancy receives legal protection

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Conclusion

Section 90 is a crucial provision that extends the principles of culpable homicide to situations involving the death of a quick unborn child. By doing so, it acknowledges the value of advanced fetal life and imposes liability on those who engage in dangerous conduct.

The provision reinforces a key legal principle:
When an act is so dangerous that it could amount to culpable homicide, the law will not ignore its consequences merely because the victim is an unborn child.