1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Gulshan Kumar vs.The State of Rajasthan S.B. Criminal Appeal No.129/1989 u/s 454 Cr.P.C. against the order dated 05.04.89 passed by the Addl.Sessions Judge, Raisingh Nagar, in Sessions Case No.38/1985. Date of Judgment : 28th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI None present for the appellant . Mr.JPS Choudhary , Public Prosecutor, for the State. BY THE COURT: This criminal appeal has been preferred against the judgment and order dated 05th of April 1989 passed by the Addl.Sessions Judge, Raisingh Nagar whereby the learned Addl.Sessions Judge has ordered to 2 confiscate a gun DBBL 12 bore, recovered and seized by the Investigating Officer vide Ex.P/2. None is present on behalf of the appellant Gulshan Kumar. Mr.JPS Choudhary , Public Prosecutor, has appeared for the State. I have heard the learned Public Prosecutor and perused the impugned judgment as also the grounds of appeal, as narrated in the memo of appeal filed by the appellant Gulshan Kumar. The appellant has filed this appeal mainly on seven grounds. It has been submitted that the order with regard to confiscating the gun, passed by the lower court, is absolutely illegal and contrary to the facts of the case. The witnesses have not identified the gun which is alleged to have been used by Pappiya @ Gulshan Kumar. The gun was sent for ballistic examination but no report as such has been filed in the court, during trial. It is also not proved that this gun was recovered by the investigating officer as a 3 weapon, which was used to commit the said offence. Even PW/2 Sampurn Singh has not supported the prosecution case, in respect of the recovery of the gun. It has been further submitted that Section 452 of Cr.P.C. empowers the court to pass any order in respect of the property which has been used for the commission of any offence, and this has not been proved in the case at hand and the confiscation order is illegal , unwarranted and deserves to be set aside. Second ground assailing the order of the lower court is that before passing an order of confiscation of the gun , no notice was issued to the appellant. Hence , the confiscation order, with regard to gun seized vide memo Ex.P/2, being bad in law, deserves to be set aside. The learned Public Prosecutor has contended that the order of the lower court is perfectly just and legal, which calls for no interference. Having perused the recovery memo Ex.P/2, the copy of 'Malkhana' register Ex.P/3a, injury reports 4 EX.P/6 , Ex.P/7 and Ex. P/9 and the impugned judgment and order of the lower court , it is found that one DBBL -12 bore gun was recovered by the investigating officer vide memo Ex.P/2, at the instance of the appellant Gulshan Kumar, who has been convicted in the offence under section 324 of IPC and section 27 of the Arms Act. The said gun was deposited by the investigating officer in the Malkhana of Police Station Raisinghnagar, which was sent for ballistic examination also. Injury reports Ex.P/6 and Ex.P/7 reveal that the fire arm was used by the accused, on account of which Anil Kumar sustained injury No.1, fire arm wound and Shri Shankar s/o Tararam sustained all five fire arm injuries. These two documents clearly prove that fire arm was used in the commission of the said offence of this case. Recovery memo Ex.P/2, has been proved by the investigating officer and this recovery has not been rebutted by any evidence of the accused appellant. The lower court has convicted the accused appellant Gulshan Kumar 5 along with Pappiya @ Ramesh Chand, in the offence under section 324 of IPC and Section 27 and 30 of Arms Act. They have been sentenced to a period of imprisonment as detailed in para 37 of the judgment. It is pertinent to note that the conviction of the appellant has not been questioned. The appellant is only found to be aggrieved with the order of confiscation with regard to the gun, which is alleged to have been recovered by the investigating officer vide memo Ex.P/2, at his instance. I do not find any force in the submission of the appellant that the lower court has not given any finding that this particular weapon was ever used for the commission of the offence. On the contrary, in para 34 of the judgment, it is categorically observed that there was no reason to disbelieve the testimony of injured Anil Kumar, Shankar and the eye witness Amar Chand. From the perusal of the impugned judgment of the lower court, it is very well found to be proved that Anil Kumar and Shankar sustained the fire arm wounds, and the gun 6 which has been recovered at the instance of Gulshan Kumar, was used to inflict these injuries. Hence, it is wrong to say that the said gun was not used in the commission of the said offence of this case. I do not find any force in the grounds of appeal as enumerated in the appeal memo by the appellant. The order of the lower court with regard to the confiscation of gun recovered vide memo Ex.P/2, is perfectly just, legal and appropriate and to my firm view, it calls for no interference. As a result of above, the criminal appeal filed by the appellant Gulshan Kumar is dismissed. (MAHESH BHAGWATI), J. l.george