G.K.SHARMA,J. - (1.) THIS appeal is directed against judgment and order dated 4th October, 1989, by which, the trial court has confiscated the gun, which was recovered from the possession of appellant Nathhi.
(2.) THE Police submitted a challan against appellant Nathhi and 5 others, for offences under Sections 147 and 302/149, IPC. In that dispute, Kanhaiya Lal was shot dead. During that quarrel, Bheema, father of the appellant, Nathhi, on behalf of the accused persons, also died. The Police registered two cases -one, on the complaint of Nathhi and other, on that of Ram Singh, whose brother Kanhaiya Lal expired. After the trial, the trial court acquitted all the accused persons in both the cross -cases. In Sessions Case No. 19/89, in which, the impugned order has been passed the trial court observed that from the investigation of the Police, it has been found that the gun which as recovered vide memo (Ex. P 4), from the possession of Nathhi appellant, had been used as a weapon for committing the offence, and, therefore, the trial court ordered that though the case has not been proved against the appellant, but as the weapon had been used for committing the offence, it was confiscated to the State Government. Against that judgment and order, the present appeal has been preferred.
(3.) HEARD both the learned Counsel. Appellant Nathhi and others were prosecuted for offence under Section 302, IPC, and were acquitted by the trial court. The gun which was recovered from the possession of Nathhi, was of his father Bheema. The licence of this gun was in the name of Bheema. Bheema has expired in this incident. But, the gun which was recovered after the death of Bheema, from the possession of Kanhaiya Lal is a licenced gun. It is not the case of the prosecution that the gun which was used in this incident, was an unlicensed gun. So, the licence of the recovered gun, was in the name of Bheema, who expired in the incident. Nathhi is the son of deceased Bheema and after the death of Bheema, the Police recovered and seized the gun from the possession of Kanhaiya Lal. A case for acquittal is found and the reasoning given by the trial court to confiscate the gun, is not a correct order and cannot be maintained. If the accused has been found not guilty and has been released, the gun which was seized from his possession should be returned to him. Therefore, the impugned order dated 4 -10 -1989, cannot be sustained.;