Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,
“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”
Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.
The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.
It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.
While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.
Analysis and Decision
Police Officials Testimony
Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.
Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732 was referred in the above context, wherein following was the Court’s proposition:
“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”
Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.
Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?
The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.
Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.
Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.
Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?
Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.
Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?
Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.
There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.
Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.
Two necessary ingredients of a ‘deadly weapon’:
first, that it should be a weapon and capable of being used as such
second, that it must be inherently lethal and if used in the intended manner is likely to result in death.
Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.
In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.
Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, Crl. A. 807 of 2017, decided on 15-09-2020]