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Hon'ble Umesh Chandra Sharma,J.

(Per : Hon'ble Umesh Chandra Sharma,J.) (1) Heard Sri Atul Verma, learned counsel for the appellant, learned Additional Government Advocate for the State and perused the record.

(2) This appeal has been preferred by the appellant against the order passed by the Sessions Judge, Lucknow dated 30.04.2019 in Sessions Trial No. 215 of 2012 (State Vs. Rahul) arising out of Case Crime No. 219 of 2011, under Sections 354, 452, 307, 302 IPC, Police Station Wazirganj, District Lucknow whereby the appellant has been convicted under Section 452 IPC, 307/34 IPC, 354 IPC, 307/34 IPC, 302/34 IPC and Section 4/25 Arms Act. The appellant has been sentenced to undergo four years imprisonment and alongwith fine of Rs.1,000/- under Section 452 IPC; one year imprisonment and alongwith payment of fine of Rs.1,000/- under Section 354 IPC, five years rigorous imprisonment alongwith fine of Rs. 2,000/- under Section 307/34 IPC and life imprisonment alongwith fine of Rs.2,000/- under Section 302/34 IPC with default stipulation. Under Sections 4/25 Arms Act he has been sentenced to undergo one year imprisonment alongwith fine of Rs.1,000/- with default stipulation. It was also directed that the period already spent under incarceration would be adjusted in the ultimate sentence and all the sentences shall run concurrently.

Ex.Ka-1 Written complaint Ex.Ka-2 Injury report of Santoshi Ex.Ka-3 Post mortem report of the dead body of the deceased Ex.Ka-4 Inquest report Ex.Ka-5 Police Form-13 Ex.Ka-6 Police Form-33 Ex.Ka-7 Photonash Ex.Ka-8 Map Ex.Ka-9 Recovery memo of blood stained and plain soil Ex.Ka-10 Recover memo of knife Ex.Ka-11A Chik FIR under Section 4/25 Arms Act Ex.Ka-12 Charge sheet under Section 4/25 Arms Act Ex.Ka-12A Kaymi GD of case under Section 4/25 Arms Act Ex.Ka-13 Charge sheet Ex.Ka-14 Chik FIR of Crime No.219 of 2011, under Sections 354, 452, 307 IPC Ex.Ka-15 Kaymi GD of case under Section 354, 452, 307 IPC Ex.Ka-16 Injury report of Smt. Savitri Devi (before her death) M.Ex.1 Truss of the blood stained and plain soil M.Ex.2 Cloth truss with regard to the knife M.Ex.3 Paper wrapped over the knife M.Ex.4 Knife M.Ex.5 Box with regard to plain soil M.Ex.6 Box with regard to blood stained soil (7) After closure of evidence, statement of accused Rahul was recorded in which he denied the charge and allegations levelled against him and stated himself to be innocent.

(63) It has also been established that the accused persons had not trespassed the house of the informant for causing hurt or assaulting Kumari Santoshi or the deceased nor it is the case of the prosecution that the accused had entered the house forcibly or in a manner so as to infer any ill motive; rather they were permitted by Santoshi (PW-2) and also by her mother as they were the usual visitors of their house. Therefore, this Court is of the view that the ingredients of Section 452 IPC are not made out against the appellant as his entry in the house was not resisted and nor he entered the house forcibly or stealthily, rather was permitted voluntarily.

(84) In this case, a charge under Section 452 IPC has been framed. If the prosecution case is that of a house trespass being committed with preparation for causing hurt or for assaulting any person for wrongfully restraining any person or for putting any person in fear of hurt or for assaulting or of wrongfully restraining such person, only then section 452 IPC would come into picture. Here since the accused persons had not entered the house with a preparation for doing such an unlawful act, Section 452 IPC would not be attracted. However, if for the sake of argument it is admitted that an offence of house trespass has been committed by the accused persons to have committed murder, a charge under Section 449 IPC would have to be framed instead of framing a charge under Section 452 IPC. Thus, this Court is of the view that the trial court had wrongly framed a charge under Section 452 IPC and has convicted the accused under this Section. In every case where an offence has been committed by entering into the house, Section 452 IPC would not attract in a routine manner.