RAKESH BABU ALIAS RAMESHversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 7970 of 2010

Rakesh Babu Alias Ramesh
                                                               .....Appellant(s)
                                    Versus
State of U.P.
                                                             .....Respondent(s)

Counsel for Appellant(s)                       :   Ram Babu Sharma
Counsel for Respondent(s)                      :   Govt. Advocate

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. Heard Sri Ram Babu Sharma, learned counsel for the appellant, Sri Rahul
Asthana, learned A.G.A. for the State and perused the material available on
record.

2. This is an appeal under Section 454 of the Code of Criminal Procedure by
the appellant, Rakesh Babu Alias Ramesh, who was an accused in Sessions
Trial No.581 of 2003.

3. The facts of the case in brief are that the appellant claims to be a bonafide
purchaser of the gun in question. It is stated that the first information report
has been lodged against the appellant in Case Crime No.48 of 2000, under
Sections 147, 148, 307/149, 326/149, 120-B I.P.C. Police Station Ramghat,
District Bulandshahar alongwith other co-accused persons. According to
prosecution case the first information report was lodged by Sri anek Pal
Singh S/o Ram Chandra Singh in which it is alleged that the appellant
alongwith co-accused persons namely Kunwar Pal, Ram Avtar, Ajai Pal and
Rameshwar fired shot on his son Jitendra whereby Jitendra sustained
injuries. It is further stated that the informant was examined by the trial
Court as P.W.-1 and injured Jitendra Singh has been examined as P.W.-2
and this injured Jitendra Singh has deposed in his evidence before the trial
Court that the appellant namely Rakesh Babu Alias Ramesh was not present
alongwith co-accused persons. The learned trial after considering the
evidence has passed the judgement and order dated 9.3.2010 in Session Trial
No.581 of 2003, whereby accused persons namely Kunwar Pal, Ram Avtar,
Ajai Pal and Rameshwar have been convicted under Sections 307, 326 I.P.C.
while the appellant has been acquitted by the learned trial and his
involvement in the offence was not found by the learned trial Court. It is
further stated that soon after the incident the license gun of the appellant was
taken into custody by the learned trial Court and it was treated as case
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property by the learned trial Court. Now after passing the judgement and
order by the learned trial Court the appellant has been acquitted whereas, co-
accused persons have been convicted. Thereafter, after conclusion of the
trial, the appellant applied for release of his weapon by way of an application
filed under Section 452 Cr.P.C. The said application has been rejected by the
learned trial court only on the ground that original file of Sessions Trial
No.581 of 2003 (State vs. Ramesh and Others), under Section 307 I.P.C. has
been summoned by the Hon'ble High Court for disposal of the appeal and
other accused persons have been convicted by learned trial Court and appeal
before Hon'ble High Court is pending. Therefore, in view of this observation
in the final judgment, it was not open to it to release the weapon as appeals
had already been filed against the said judgment by the accused. In these
circumstances, the order dated 12.10.2010 rejecting the application of the
appellant under Section 452 Cr.P.C. has been filed.

4. The contention of the appellant's counsel is that no doubt the gun
purchased by the appellant is a material exhibit in respect to Sessions Trial
No.581 of 2003, against which, Criminal Appeal Nos.154 of 2010 and 4862
of 2011 are pending before this Court, but, the fact of the matter is that the
appellant was an accused and was acquitted by learned trial Court and no
appeal challenging his acquittal has been filed before this Court. The trial
has already concluded, though appeals are pending before this Court.

5. His further submission is that there is no impediment in releasing the
licensee gun in favour of the appellant and he is ready to give an undertaking
or the Court may impose a condition that he would not make any changes to
the weapon during pendency of these appeals nor sell or alienate the same in
any manner.

6. Learned counsel for the appellant has placed before us a judgment of
Hon'ble the Supreme Court in Sunderbhai Ambalal Desai vs. State of
Gujarat. Relevant extracts of which are being quoted herein below:-

     "12. For this purpose, if material on record indicates that such articles
     belong to the complainant at whose house theft, robbery or dacoity has
     taken place, then seized articles be handed over to the complainant after:

     (1) preparing detailed proper panchnama of such articles;

     (2) taking photographs of such articles and a bond that such articles
     would be produced if required at the time of trial; and

     (3) after taking proper security.

     13. For this purpose, the court may follow the procedure of recording
     such evidence, as it thinks necessary, as provided under Section 451
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                                 3

     CrPC. The bond and security should be taken so as to prevent the
     evidence being lost, altered or destroyed. The court should see that
     photographs of such articles are attested or countersigned by the
     complainant, accused as well as by the person to whom the custody is
     handed over. Still however, it would be the function of the court under
     Section 451 CrPC to impose any other appropriate condition."

7. Learned counsel for the appellant says that the aforesaid decision
pertained to release of property under Section 451 Cr.P.C.

8. Sri Rahul Asthana, learned A.G.A. has opposed the appeal on the ground
that the weapon is a material exhibit though the appellant Rakesh Babu Alias
Ramesh has been acquitted, but the weapon may be required during the
appellate proceedings, if the court so desires. Therefore, this aspect may be
kept in mind.

9. Having considered the matter from all respective angles and having heard
learned counsel for the parties after taking into consideration the judgment
referred hereinabove, I am of the view that the appellant was an accused in
the trial and was acquitted and appeal challenging his accquital has been
filed, secondly, on being asked, learned A.G.A., Sri Rahul Asthana fairly
submitted that there is no such order under any provision of law requiring
the weapon to be confiscated for any reason and as the trial court has
rejected the application of the appellant under Section 452 Cr.P.C. only for
the reason that in the final judgment dated 9.3.2010 rendered in Sessions
Trial No.581 of 2003, it had already mentioned that the recovered items
would be disposed of in terms thereof and as appeals had been filed,
therefore, it was handicapped and did not have jurisdiction to consider the
application, I am of the view that there is no impediment in releasing the
weapon in favour of the appellant. There is no order on record for
confiscation of the gun-in-question under any law/ statute. No other reason
has been putforth by learned A.G.A. for not releasing the weapon except that
it being a material exhibit, may be required to be seen by the court in
appellate proceedings, which are pending before this Court. The appeals may
take time to be decided. Trial has already concluded, subject to result of
appeals I see no reason to decline release of the weapon to the appellant
subject to certain conditions.

10. The weapon shall be released in favour of the appellant subject to the
following conditions:-

(i) Proper panchnama of the licensee gun in question shall be prepared
before its release.

(ii) Coloured photographs of the gun shall be taken from all possible angles.
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                                    (iii) The appellant shall not make any changes to the weapon including any
                                    part/component of the gun in question nor sell or alienate it in any manner
                                    without the permission of this Court by filing an application in the pending
                                    appeals of the accused.

                                    (iv) A bond shall be submitted by the appellant that the weapon shall be
                                    produced at any time during the hearing of the appeals, if so required by the
                                    Court.

                                    (v) The appellant shall furnish proper security in the form of two sureties of
                                    the like amount to the satisfaction of the court concerned, to secure the
                                    aforesaid release and production, if required.

                                    (vi) The coloured photographs of the gun in question would be attested and
                                    countersigned by the appellant herein.

                                    (vii) Photocopy of the documents prepared in this regard shall be sent to this
                                    Court by the learned trial court for being kept on the records of the pending
                                    appeals.

                                    11. In view of the above, the present criminal appeal is allowed.
                                    Consequently, the order dated 12.10.2010 passed by the learned Additional
                                    District & Sessions Judge, Anoopshahar in rejecting the application 3-B
                                    filed Sessions Case No.581 of 2003 (State vs. Ramesh and others) is hereby
                                    set aside.

                                    12. A copy of this order shall be kept on the records each of the pending
                                    connected appeals.

                                    February 12, 2026
                                    Dev
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad