In the absence of knowledge regarding the victim's pre-existing medical conditions, the accused cannot be convicted of murder; charges may only transition to lesser offenses under Section 323 IPC.

JUDGMENT :

Rakesh Kainthla,J.

1. The present appeal is directed against the judgment dated 16.12.2010, passed by the learned Sessions Judge Hamirpur, District Hamirpur, H.P.,(learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 302 of INDIAN PENAL CODE (IPC). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 302 of IPC. It was asserted that the deceased-Sandesh Kumar was the brother of the accused. He, accused, his brothers and parents were residing in the same house in different rooms. On 17.07.2010, the deceased, his parents, his wife and children were present in the house. At about 8:00 p.m. accused-Rakesh Kumar started generating smoke in the courtyard. His father Birbal Ram (PW-3) had breathing problems. Deceased-Sandesh went to the courtyard and asked the accused not to generate the smoke. The accused got infuriated and attacked the deceased. The accused pushed the deceased to the ground and sat on his stomach. The accused tried to strangulate the deceased. Informant Anita Kumari (PW-1) and Birbal Ram (PW-3) went to the courtyard and rescued the deceased from the accused. The deceased went inside the room and fell. He died on the spot. The accused ran away from the spot. The matter was reported to the police. An entry (Ext.PW-7/A) was recorded in the Police Station. Inspector Baldev Singh (PW-11) went to the spot to verify the correctness of the information. He recorded the statement of informant Anita Kumari (Ext.PW-1/A)and sent it to the Police Station, where F.I.R.(Ext. PW-10/A) was recorded. He took the photographs of the spot (Ext. PW- 11/A-1 to Ex. PW-11/A-9). He prepared the site plan (Ext.PW- 11/B). He filled the inquest papers (Ext.PW-1/D and Ext.PW- 1/E) and filed an application (Ext.PW-4/A), for conducting the post-mortem examination of the body of the deceased. Dr Rakesh Dhiman (PW-4), conducted the post-mortem examination and found that the deceased had suffered ante- mortem injuries. Both coronaries showed atherosclerosis changes. The left coronary was 60% blocked and the right coronary was 95% blocked at their commencement. He preserved the viscera and handed it over to the Police Officer accompanying the dead body. He issued his report (Ext.PW- 4/B) but reserved the final opinion till the receipt of the report of the Chemical Examiner.

3. Inspector/SHO Baldev Singh (PW-11), collected the burnt ash(Ext.P1) from the spot, sealed it in a parcel and seized it vide memo (Ext.PW-1/B). He also picked up one button (Ext.P-2) and seized it vide memo (Ext.PW-1/C),. Seal impressions (Ext.PW-11/C and Ext.PW-11/D) were obtained on separate pieces of cloth.

4. ASI Karan Singh (PW-12) conducted further investigation. He arrested the accused on 20.07.2010. The accused made disclosure statements (Ext.PW-5/A and Ext.PW-5/B) that he could show the place where the smoke was generated and the deceased was pushed. The accused showed the place. ASI Karan Singh (PW-12), prepared the site plan (Ext.PW-12/A). He also seized the clothes of the deceased (Ext.P-5 and Ext.P-6), vide memo (Ext.PW-5/C).The clothes were identified by Anita Kumari (PW-1) and her signatures were also obtained on the memo. The result of the analysis (Ext.PW-4/C) was issued stating that the viscera did not contain any alcohol/poison.