ORDER : N. Anil Kumar, J. 1. This revision is filed against the judgment of the learned Additional Sessions Judge (Adhoc II), Kasaragod in Crl. Appeal No. 98 of 2000, confirming the conviction and sentence imposed against the revision petitioners for the offence punishable under Section 314 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC'). The revision petitioners were the accused 1 and 2 respectively in S.C. No. 160 of 1998 on the file of the Assistant Sessions Court, Kasaragod. 2. The brief facts necessary for the disposal of this revision are as follows: One Smt. Geetha, wife of Krishna, aged 35 years, a village woman living in the midst of poverty, had given birth to seven children. Though a series of pregnancies without interval led to her ill-health, she felt helpless because she had no choice regarding pregnancy. When her eighth pregnancy was of two months, she along with her husband Krishna decided to terminate the pregnancy by removal or expulsion of the foetus. For this purpose, the couple met accused 1 and 2, who were then conducting a maternity hospital, under the name and style 'Mahalakshmi Maternity Nursing Home' at Kukkar, Mangalpady Village. Accordingly, Geetha was admitted to the nursing home on the evening of 27.12.1994. However, she died around 11 a.m. on the very next morning in the labour room attached to the hospital due to air embolism resulting from the abortion conducted by the accused in furtherance of their common intention. On the above said facts, an offence under Section 314 read with Section 34 of the IPC was registered and investigated. Final report was filed against two Ayurvedic Unani practitioners. 3. On receipt of the final report before the trial court, the learned Magistrate in compliance of Section 209 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.) committed the case to the Court of Session by order dated 29.06.1998 after complying with all the statutory formalities. The learned Sessions Judge, in turn, made over the case to the Assistant Sessions Judge, Kasaragod for trial. 4. Both the accused entered appearance before the trial court on receipt of the summons. They pleaded not guilty when the charge framed for the offence under Section 314 read with Section 34 of the IPC, was read over and explained to them. 5. During the trial, prosecution examined PWs. 4. Both the accused entered appearance before the trial court on receipt of the summons. They pleaded not guilty when the charge framed for the offence under Section 314 read with Section 34 of the IPC, was read over and explained to them. 5. During the trial, prosecution examined PWs. 1 to 12 and marked Exhibits P1 to P21 and MO1 and MO2 series on prosecution side. When the accused was questioned under Section 313(1)(b) of the Cr.P.C., they denied all the incriminating circumstances appearing in the evidence adduced against them. Thereafter, the trial court called upon the accused 1 and 2 to enter on their defence. The accused adduced no evidence on their side. However, Exhibit Dl was marked through PW 10. 6. PW 11, the Sub Inspector of Police, Kumbala, recorded Exhibit P1 statement of PW 1 at 15.30 hours on 28.12.1994 and registered Crime No. 226 of 1994 as per Exhibit P21 FTR. The crime was registered for unnatural death. Exhibit P1 was forwarded to the Sub Divisional Magistrate Court at Kanhagad. PW 10, the DYSP, Kasaragod, took over the investigation of the case on 20.03.1995 as per Exhibit P18 letter issued by the Superintendent of Police, Kasaragod, granting permission to investigate the case as per Exhibit Dl Circular dated 20.9.1993 issued by the Government of Kerala. Thereafter, PW 10 filed a report dated 2.7.1995 before the Judicial First Class Magistrate Court, Kasaragod informing that Section 314 read with Section 34 of the IPC had been added to the case and that accused 1 and 2 had been arrayed as the accused. Later, he arrested the accused on 7.7.1995 at 11.30 a.m. at the Mahalakshmi Maternity Nursing Home in Kukkar. The medical registration certificate of A1 was seized from her as per Exhibit P20. MO1 sign board of the nursing home was seized as per Exhibit P6 seizure mahazar. PW 12, the then Circle Inspector of Police, Kumbala, filed final report before the court as per the written instruction given by the ASP, Kasaragod on 22.10.1996. 7. Heard Sri. M. Ramesh Chander, the learned counsel for the revision petitioners and Sri. M.S. Breez, the learned Senior Public Prosecutor for the respondent-State. 8. The learned counsel for the revision petitioners contended that the deceased Geetha was already suffering from serious bleeding when she was taken to the hospital. 7. Heard Sri. M. Ramesh Chander, the learned counsel for the revision petitioners and Sri. M.S. Breez, the learned Senior Public Prosecutor for the respondent-State. 8. The learned counsel for the revision petitioners contended that the deceased Geetha was already suffering from serious bleeding when she was taken to the hospital. The revision petitioners never portrait that they were qualified doctors who performed surgeries. On the board outside the hospital, the medical degrees were shown correctly. There are material contradictions in the deposition of PW 9. It is pointed out that PW 9, in her testimony, has stated that the deceased was taken to the hospital with profuse bleeding from her uterus. Thus, it is contended that the revision petitioners cannot be convicted of the offence. Therefore, it is contended that the impugned judgment is perverse, illegal and contrary to the facts on record. 9. Per contra, the learned Senior Public Prosecutor for the State contended that there are sufficient materials adduced by the prosecution to prove the guilt of accused 1 and 2. PW 1, who is the husband of the victim, has testified that he had brought the deceased for abortion to the clinic since he could not afford to have another child due to his poverty. The wife of PW 1 died inside the clinic. The revision petitioners were not qualified doctors to perform the abortion in accordance with Medical Termination of Pregnancy Act, 1971 and the Rules framed thereunder. The learned Public Prosecutor further submits that the factum of performance of an abortion stands proved from Exhibit P8 post-mortem certificate issued by PW 8. Furthermore, PW 8 has clearly opined the cause of death due to air embolism as a result of medical termination of pregnancy. 10. I have considered the respective submissions. Normally, this Court is reluctant to interfere with the concurrent findings of the facts by two courts in exercise of the powers in revision. However, this does not preclude the Court in appropriate cases to reappraise the evidence in the interest of justice, if it entertains any doubt about the nature of evidence and its appreciation or non-appreciation. There can be no hard and fast rule in this regard and it will depend on the concept of justice coupled with the nature of the evidence on record. 11. There can be no hard and fast rule in this regard and it will depend on the concept of justice coupled with the nature of the evidence on record. 11. PW 1, the husband of the deceased Geetha, testified that his wife had delivered seven children before her death. The last child was only 1 years old at the time of her death. However, Geetha became pregnant for the eighth time and when the pregnancy was about 1 months, the couple decided to abort the baby after having realised that they could not afford to have one more baby in their family, which was already sinking below the poverty line. He would depose that, together they went to Mahalakshmi Maternity Nursing Home run by both the accused on the evening of 27.12.1994 along with one of their neighbours by name Baby. The second accused Dr. Mahabhala Bhat examined Geetha in her consulting room while PW 1 waited outside. Soon a nurse came out of the room and told him that Geetha had to be admitted to the hospital. As advised by the second accused, Geetha was admitted to the hospital. PW 1 left the hospital thereafter leaving his wife in the hospital along with his neighbour, who was the bystander on that date. According to him, he hurried back home because he was observing 'vratham' (Pious observance) in connection with his pilgrimage to Sabarimala. 12. PW 1 went to the hospital on the next day morning around 9.30 a.m. and discussed with Geetha regarding the treatment given to her. According to him, Geetha told him that although she had been administered abortion pills, abortion did not take place. She also told him that since the abortion pills to terminate the pregnancy did not react as wanted, she had been told that she would be given an injection. Thereafter, PW 1 again returned home. About 1 hours later PW 9 Baby, who was attending Geetha as the bystander, and one nurse, namely, Devaki came to his house in an autorickshaw and told him that the doctor would like to see him immediately. PW 1 rushed to the hospital along with them in the same autorickshaw and met the second accused at the hospital. He told PW 1 that his wife had died around 11 a.m. after developing adverse reaction to an injection given to her. PW 1 rushed to the hospital along with them in the same autorickshaw and met the second accused at the hospital. He told PW 1 that his wife had died around 11 a.m. after developing adverse reaction to an injection given to her. He was asked by the accused to sign in some papers, which he politely refused. He also stated that he was permitted to see the dead body of his wife, which was lying almost naked on the operation table. 13. PW 6 is a practicing doctor having a degree in Master of Surgery and is attached to the KNH Hospital at Uppala. The distance between the KNH Hospital and the hospital of the accused is about 3 kms. According to PW 6, the accused occasionally sought his assistance at their hospital in connection with some urgent matters. At one time, about five years ago, he was called to the hospital of the accused over phone. Immediately, he went to the hospital of the accused and met them. They led him to the labour room saying that there was a case of bleeding. The patient was a woman, aged 30 - 40 years. He attempted resuscitation by giving glucose drip, adrenalin injection and oxygen. Her health did not improve though he tried his best to revive her for about ten minutes. She died even before he left the hospital. 14. PW 9 is one of the neighbours of the deceased Geetha and a relative of her husband. PW 9 went along with PW 1 to attend the deceased at the hospital and stay overnight as a bystander. PW 9 stated that she found the first accused examining the deceased Geetha around 11 a.m. on 27.12.1994. She further stated that both the accused were doctors of the hospital where Geetha breathed her last. She admitted that she had signed in the case sheet of Geetha. She identified her signature in Exhibit P11 case sheet. According to her, Geetha died because she was subjected to abortion. Exhibits P12 to P16 are the case diary contradictions of PW 9. At this stage, the witness was treated as hostile to the prosecution and cross examined with the permission of the court. Her case before the investigating officer was that Geetha was pregnant for 1 months and that she wanted to terminate her pregnancy since she did not want any more children. At this stage, the witness was treated as hostile to the prosecution and cross examined with the permission of the court. Her case before the investigating officer was that Geetha was pregnant for 1 months and that she wanted to terminate her pregnancy since she did not want any more children. However, she had stealthily introduced a new case that Geetha was suffering from bleeding from the uterus. 15. PWs. 2 and 3 were nurses of the nursing home of the accused on the date of occurrence. Both of them turned hostile to the prosecution. PW 4 is the witness, who attested Exhibit-P4 seizure mahazar, as per which PW 11 seized the case sheet of Geetha and the medical registration certificate of the second accused on 29.12.1994, at 10 a.m. PW 4 turned hostile to the prosecution stating that he had not seen the second accused surrendering the case sheet before PW 10 though he had attested Exhibit-P4. PW 5 is an attestor to Exhibit P6 seizure mahazar, as per which PW 10 seized MO 1 sign board of the hospital in which Geetha succumbed to the injuries. He also turned hostile to the prosecution. According to him, he attested Exhibit P6 mahazar at his hotel and not at the hospital itself. 16. PW 7 is an attestor to Exhibit P8 inquest report. According to PW 7, Exhibit P7 inquest report was prepared by the Circle Inspector of Police, Uppala. He further stated that Exhibit P7 was prepared from the hospital. 17. PW 8 was the Lecturer in Forensic Medicine, Medical College Hospital, Calicut during the year 1994. He had conducted post-mortem examination on the body of the deceased and issued Exhibit P8 post-mortem certificate. Considering Exhibit P9, PW 8 opined that "the deceased died due to air embolism." PW 8 testified that in air embolism, air gets into the veins and reaches heart. Then, the heart stops and the patient dies. The right chambers of the heart of the deceased were totally empty. It means large quantity of air had entered the right chambers of the heart. The death was, therefore, immediate. In the case of the deceased, PW 8 opined that air embolism was the result of termination of pregnancy. PW 8 noticed a depressed abrasion measuring 0.3 x 0.3 cm. on the front aspect of cervix. It means large quantity of air had entered the right chambers of the heart. The death was, therefore, immediate. In the case of the deceased, PW 8 opined that air embolism was the result of termination of pregnancy. PW 8 noticed a depressed abrasion measuring 0.3 x 0.3 cm. on the front aspect of cervix. He further stated that the uterus of the deceased was seen enlarged and flabby indicating the signs of pregnancy. 18. Based on the evidence on record, the learned counsel for the revision petitioners has placed reliance on the decision of the Apex Court in Jacob Mathew v. State of Punjab: [2005 KHC 1045 : ( AIR 2005 SC 3180 )] and contended that so long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. 19. In the case on hand, PW 10, the DYSP, Kasaragod took over the investigation of the case on 20.3.1995 and on the same day, he addressed the Director, Health Services, Kerala as to whether the accused were medically qualified to perform the medical termination of pregnancy. Exhibit P17 is the reply from the Director in this regard. It shows that the certificate issued to the accused by the Karnataka Ayurverdic and Unani Practitioners Board, Bangalore were genuine and that the holders of those certificates were not authorised to conduct MTP operations. The MTP is usually performed in secrecy behind the closed doors of an operation theatre of the hospital owned by the accused. The circumstances available in the case to fix the responsibility of conducting MTP on the deceased are as follows: (a) PW 1 deposed that both the accused were present in the consulting room of the hospital on the evening of 27.12.94 though he did not actually see them examining Geetha. (b) The names of the accused - doctors are alone seen on the MO1 sign board recovered from the hospital. (c) Both the accused were arrested from the nursing home where Geetha was subjected to MTP. (d) The defence proceeded on the line that the accused jointly ran the hospital. (e) Ext. (b) The names of the accused - doctors are alone seen on the MO1 sign board recovered from the hospital. (c) Both the accused were arrested from the nursing home where Geetha was subjected to MTP. (d) The defence proceeded on the line that the accused jointly ran the hospital. (e) Ext. P11 case sheet was submitted by the second accused before PW 11, the Sub Inspector. (f) PWs 5, 6, 7 and 9 deposed basing on their direct knowledge that the hospital was run by the accused. (g) PW 6 Dr. Holla deposed that the accused used to call him for medical assistance to their hospital. (h) When PW 6 arrived at the hospital, no other doctors except the accused were present. They gave him the case history of the deceased and told him what happened to her when D and C was being performed. 20. Section 314 of the IPC provides for the case where death occurs causing miscarriage. The act of the accused must have been done with an intention to cause miscarriage of a pregnant woman. Section 314 of the IPC is in two parts. If the miscarriage entailing death of the woman concerned is caused with her consent, the offence falls under the first part of Section 314 of the IPC where punishment is less. When the miscarriage entailing death of the woman concerned has been caused without her consent, it attracts the second part and the punishment then is severe. In this case, PW 1, who is the husband of the deceased Geetha, testified that he and Geetha jointly decided to terminate the pregnancy. They had very substantial reasons for it. Geetha had already given birth to seven children. The last child was only 1 years old. Being poor, they could not afford to have one more child. 21. After the coming into force of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the MTP Act'), provisions of the IPC relating to miscarriage became subservient to that Act because of non obstante clause in Section 3 of the Act, which reads as follows: "3. Being poor, they could not afford to have one more child. 21. After the coming into force of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the MTP Act'), provisions of the IPC relating to miscarriage became subservient to that Act because of non obstante clause in Section 3 of the Act, which reads as follows: "3. When pregnancies may be terminated by registered medical practitioners.-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or ' (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. xxx xxx xxx" 22. The term 'registered medical practitioner' is defined under Section 2(d) of the MTP Act, which is as below: "2(d). "registered medical practitioner" means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act." 23. Rule 4 of the Medical Termination of Pregnancy Rules, 2003 (hereinafter referred to as 'the MTP Rules') also contains additional prescription in respect of the term 'Medical Practitioner' as defined under Section 2(d) of the MTP Act. The said Rule, therefore, will have to be read along with Section 2(d) of the MTP Act and is consequently extracted as shown below: "4. The said Rule, therefore, will have to be read along with Section 2(d) of the MTP Act and is consequently extracted as shown below: "4. Experience and training under clause (d) of Section 2- For the purpose of clause (d) of Section (2), a registered medical practitioner shall have one or more of the following experience or training in gynaecology and obstetrics, namely:- (a) in the case of a medical practitioner, who was registered in a State Medical Register immediately before the commencement of the Act, experience in the practice of gynaecology and obstetrics for a period of not less than three years; (b) in the case of a medical practitioner, who is registered in a State Medical Register:- (i) if he has completed six months of house surgency in gynaecology and obstetrics; or (ii) unless the following facilities are provided therein, if he had experience at any hospital for a period of not less than one year in the practice of obstetrics and gynaecology; or (c) if he has assisted a registered medical practitioner in the performance of twenty-five cases of medical termination of pregnancy of which at least five have been performed independently, in a hospital established or maintained, or a training institute approved for this purpose by the Government. (i) This training would enable the Registered Medical Practitioner (RMP) to do only 1st Trimester terminations (up to 12 weeks of gestation). (ii) For terminations up to twenty weeks the experience or training as prescribed under sub-rules (a), (b) and (d) shall apply. (d) in case of a medical practitioner who has been registered in a State Medical Register and who holds a post-graduate degree or diploma in gynaecology and obstetrics, the experience or training gained during the course of such degree or diploma." 24. Under Section 4 of the MTP Act, termination of pregnancies has been in accordance with the Act and at a hospital established or maintained by the Government or a place approved by the Government for the purpose of this Act. Rule 5(1) of the MTP Rules, 2003 framed under the Act provides as to how a place under clause (b) of Section 4 could be approved. Rule 5(1) of the MTP Rules, 2003 is extracted as under:- "5. Rule 5(1) of the MTP Rules, 2003 framed under the Act provides as to how a place under clause (b) of Section 4 could be approved. Rule 5(1) of the MTP Rules, 2003 is extracted as under:- "5. Approval of a place.-(1) No place shall be approved under clause (b) of Section 4,- (i) unless the Government is satisfied that termination of pregnancies may be done therein under safe and hygienic conditions; and (ii) unless the following facilities are provided therein, namely:- in case of first trimester, that is, up to 12 weeks of pregnancy:- a gynaecology examination/labour table, resuscitation and sterilization equipment, drugs and parental fluid, back up facilities for treatment of shock and facilities for transportation; and in case of second trimester, that is up to 20 weeks of pregnancy:- (a) an operation table and instruments for performing abdominal or gynecological surgery; (b) anesthetic equipment, resuscitation equipment and sterilization equipment; (c) drugs and parental fluids for emergency use, notified by Government of India from time to time." 25. In the present case, the accused 1 and 2 are unani ayurvedic medical practitioners, who were consulted by the victim for abortion. But, the death was caused following crude method of MTP. The autopsy of the deceased showed that her uterus was manipulated with some hard instruments and broken pieces with no signs of decomposition were found in the uterus. Since no decomposition had settled, PW 8 doctor who conducted post-mortem examination was sure that foetus suffered injury immediately before the death of the mother. The accused 1 and 2 were not competent to terminate the pregnancy of Geetha nor their clinic had the approval of the Government. Even basic facilities for abortion were not available in their clinic. PW 1 took Geetha to the clinic of the accused with an intention to cause her miscarriage and then, her death was caused by accused 1 and 2 during the procedure of abortion. It was certainly done by the accused 1 and 2 in furtherance of their common intention. 26. In the present case, the charge is not under Section 304-A of the IPC. There is no charge of negligence against the petitioners while performing the operation. The accused 1 and 2 are not even qualified medical practitioners to do medical termination of pregnancy. 26. In the present case, the charge is not under Section 304-A of the IPC. There is no charge of negligence against the petitioners while performing the operation. The accused 1 and 2 are not even qualified medical practitioners to do medical termination of pregnancy. The accused possesses qualification by virtue of Exhibits P4, P17 and P20 issued by the Karnataka Ayurvedic and Unani Practitioners Board constituted by the Government of Karnataka. It is not a qualification in accordance with the MTP Act and Rules framed thereunder. None of the parameters provided under MTP Act or the Rules framed thereunder are satisfied in this case. The accused had not produced details of any registration in the State Medical Register or experience of training in gynaecology and obstetrics (see Dr Jacob George v. State of Kerala (1994) 3 SCC 430 : (1994 AIR SCW 2282)] and Surendra Chauhan v. State of M.P. (2000) 4 SCC 110 ]: ( AIR 2000 SC 1436 ). Exhibit P17 reply from the Director of Health Services, Kerala would show that the holders of certificate issued by the Karnataka Ayurvedic and Unani Practitioners Board, Bangalore were not authorised to conduct MTP operations. Thus, the accused had no authority under law to perform MTP operations. Hence, the dictum laid down in Jacob Mathew's case (supra) is not applicable in this case. 27. There is a concurrent finding that the accused 1 and 2 with intent to cause the miscarriage of Geetha with child in her womb caused her death and the aforesaid act was done in furtherance of their common intention. To apply Section 34 of the Indian Penal Code, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. However, it has to be inferred from the facts and circumstances of each case. In every case, it is not possible to have direct evidence of a common intention. However, it has to be inferred from the facts and circumstances of each case. In this case, the evidence adduced by the prosecution is sufficient to infer that accused 1 and 2 were doctors in indigenous medicine and they were instrumental in destroying a life in the womb along with the mother. 28. The revision petitioners being the owners of the clinic ought to have informed the police in view of the medico legal significance involved in this case. The failure of the revision petitioners to do so definitely points fingers at them. When any fact is especially within their knowledge, the burden of proving that fact is upon them. They did not offer any explanation for the unnatural death of the victim at their hospital. The fact was found in Exhibit P8 post-mortem report which would clearly show that endometrium of the uterus had ragged appearance and broken pieces of foetus with no signs of decomposition were found in the uterus. Further, since no decomposition had set in, PW 8 was sure that the foetus suffered injury immediately before the death of the mother. PW 8 further noticed depressed abrasion on the frontal aspect of the cervix as a result of holding that part with a hard instrument like forceps. This would show that the accused lacked requisite qualification and training to conduct medical termination of pregnancy in accordance with the MTP Act and the Rules framed thereunder. Accordingly, the criminal revision petition is dismissed upholding the conviction of the revision petitioners/accused. The question then arises of the sentence awarded to the revision petitioners/accused. The trial court sentenced the accused 1 and 2 to undergo simple imprisonment till the rising of the court and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, each accused shall undergo rigorous imprisonment for a period of two years. If the amount of fine is realised, the said amount shall be paid as compensation to the seven children of the deceased equally as provided under Section 357 (1)(b) of Cr.P.C. On going through the sentence portion, this Court is of the view that the sentence awarded is reasonable. The trial court is directed to take necessary steps for execution of the sentence as awarded by it.