The prosecution must prove the circumstances mentioned in Explanation 1 of Section 299 IPC to establish culpable homicide not amounting to murder when the victim has a pre-existing medical condition.

This appeal is filed by the accused in S.C. No. 85 of 2006 on the file of the Additional sessions Judge, Adhoc- I, Kottayam challenging the conviction and sentence imposed on him for the offences under Sections 450 and 304 of IPC .

2. The prosecution case is that on 11.01.2005, at about 7 p.m., the accused trespassed into house bearing No. IV/127 of Neezhoor Panchayat, owned by the deceased and with the knowledge that the deceased is a heart patient, he hit on his nose and when the deceased fell down, the accused kicked on his chest and even though the deceased was taken to the Medical College Hospital, Kottayam at about 10 a.m., on 12.01.2005, he suffered chest pain and died due to occlusive coronary artery disease and the accused is thereby alleged to have committed the aforesaid offences.

3. After the appearance of the accused before the trial court and when he pleaded not guilty to the charge, PWs 1 to 11 were examined and Exhibits P1 to P9 and MO1 were marked from the side of the prosecution. From the side of the defence, DW1 examined.

4. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned judgment dated 16.09.2006, found the accused guilty under Sections 450 and 304 part-II IPC and sentenced to undergo rigorous imprisonment for 3 years each with a fine of Rs.5000/- each and in default of payment of fine, to undergo further imprisonment for one year each under Sections 450 and 304 Part II .

5. Heard Sri. C.S. Manu, the learned counsel for the appellant and Sri. Sanal P. Raj, the learned Public Prosecutor, and perused the records.

6. The point that arises for consideration is whether the conviction and sentence passed against the appellant/accused is legally sustainable.

7. The learned counsel for the appellant argued that there is no evidence for any house trespass to attract the offence under Section 450 IPC and the evidence of PW1, the only occurrence witness who supported the prosecution case, suffers from serious infirmities and her evidence clearly shows that she was unable to walk and bedridden due to Parkinson disease and the trial court ought to have found that the evidence of PW1 regarding the occurrence is not at all reliable and the trial court rejected the evidence of DW1 regarding the occurrence on the basis of minor discrepancies on trivial matters not touching the core of the case.

8. It is also argued that the prosecution has not adduced any evidence to show that the deceased availed any treatment for heart disease on any day prior to the occurrence or after the occurrence and therefore, the accused/appellant is entitled for the benefit of reasonable doubt.

9. The learned Public Prosecutor argued that the evidence of PW1 regarding the occurrence is supported by the evidence of PW2, the son of the deceased and further, the evidence of PW3, doctor who treated the deceased in Medical College Hospital Kottayam, and the evidence of PW4, Assistant Police Surgeon who conducted the postmortem examination, would clearly show that the injury sustained by the victim accelerated his heart disease and thereby, caused heart failure, and the evidence of PW2 would show that the accused had knowledge regarding the heart problems of the deceased and therefore, there is no valid ground to interfere with the finding in the impugned judgment.

10. PW1 is the wife of the deceased and she deposed that a sum of Rs.1,00,000/- was due from the accused to her husband and in the evening on 11.01.2005, while the accused was passing through the road in front of their house, her husband demanded back the money and then there occurred a verbal altercation between the accused and her husband and the accused trespassed into the courtyard of her house and hit on the nose of her husband and when her husband fell down in supine position, the accused kicked on his chest. According to PW1, she saw the occurrence while standing on the door o