Unqualified practitioners causing death during an abortion procedure, lack of requisite qualification and training to conduct medical termination of pregnancy, application of Section 34 of the IPC to establish common intention in causing the woman's death.

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. 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 rep