2022/KER/48695 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1^ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 CRL.A NO. 372 OF 2007 SC 2054/2004 OF ADDITIONAL SESSIONS COURT (FAST TRACK) III, THIRUVANANTHAPURAM APPELLANTS/ACCUSED 1 SHINE JUSTUS S/O.JUSTUS,THANKAM NIVAS, THATTANVILA LANE,, MUDAVANMUGAL, THIRUMALA.

2 SIVA PRAKASH S/O.VENU, GIRIJA BHAVAN,, VATTAPARA.

BY ADVS.

SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT STATE OF KERALA DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF, KERALA, ERNAKULAM.

PP-SR.GP-SRI.DENNY DEVASSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.BADHARUDEEN. J.

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Crl.A.372 of 2007 -----------------------

Dated : 1^st September, 2022 JUDGMENT

1.Accused Nos.1 and 2 in S.C.No.2054/2004 on the file of Additional Sessions Court, Thiruvananthapuram impugn the conviction and sentence imposed on them by the Additional Sessions Judge, as per judgment dated 30.1.2007 on the finding that they have committed offences under Sections 324, 427 and 452 r/w 34 IPC. Respondent herein is State represented by the learned Public Prosecutor.

2.The prosecution case is that on 13.5.2003 at about

6.30 pm accused herein trespassed upon the shop room bearing No.T.C.49/1530 owned and possessed by the de facto complainant and assaulted the de facto complainant, with intention to do away him or with such knowledge that the acts would cause death of the defacto complainant. The specific allegation is that the 1^st accused slashed the de facto complainant with a chopper on the right leg below the knee and second accused slashed on the neck of PW3 and when the same was warded off, same caused injuries on his left and right hand. Further, the accused destroyed glasses to the tune of Rs.3,000/-. Accordingly, crime was registered alleging commission of offence under Sections 452, 308 and 427 r/w 34 IPC. After completing the investigation, charge laid against the accused before the Jurisdictional Magistrate.

3.Thereafter, the case was committed to the Sessions Court for trial and disposal and when the case was made over to the Additional Sessions Judge, the Additional Sessions Judge tried the case after complying the pre-trial formalities.

4.During trial, PWs 1 to 10 were examined, Exts.P1 to P7 marked and MO1 to MO4 series were marked, on the side of the prosecution. During examination of the prosecution witnesses Exts.D1 to D5 contradictions marked on the part of the defence, apart from examining DW1, on the part of the defence. The Sessions Court adduced defence evidence after questioning the accused under Section 313 (1)(b) of Cr.P.C.

5.Thereafter on hearing both sides, the Sessions Court found that the accused herein committed offence under Sections 324, 427 and 452 read with Section 34 IPC.

6.The learned counsel for the appellants though not raised serious challenge as to the conviction imposed under Section 427 IPC, he has raised serious challenge as regards the finding of the Sessions Court that the accused/appellants committed offences under Sections 324 and 452 IPC.

7.It is argued by the learned counsel for the appellants that in order to attract Section 452 IPC, 'house trespass' as contemplated under Section 442 of IPC should be established and the definition of house trespass applies only when trespass upon a dwelling house is made, and a place outside a shop or building, where public as a whole are having access, is not a 'house' to attract offence under Section 452 IPC.

8.He also argued that, since the evidence does not suggest injuries to the defacto complainant by the use of weapons involved in this case marked as MOs

1 and 2, offence under Section 324 IPC also could not attract and therefore, the accused/appellants are entitled to get acquittal insofar as offences under Sections 324 and 452 IPC are concerned.

9.The learned Public Prosecutor would urge that, going by the evidence of PW3 to PW5 and ot