Hari Prasad alias Khuti Pandey vs State of U.P.

C.A. Rahim, J.—This Revision has been directed against the judgment and order passed by the IIIrd Additional Sessions Judge, Jaunpur on 7.7.1984 in Criminal Appeal No. 14 of 1981. By that judgment he dismissed the appeal of the accused who was convicted u/s 25 Arms Act and sentenced to six months'' R.I. by the Additional Munsif in case No. 16 of 1981.

The prosecution case is that on 10.10.1977 at 9.30 a.m. a country-made pistol and two live cartridges were recovered from the possession of the accused-applicant who had no licence for keeping those firearms. After due investigation a charge-sheet u/s 25 Arms Act was submitted and a charge was framed. At the conclusion of the trial the learned Munsif found that the prosecution case was provided to the hilt and he convicted and sentenced the accused-applicant in the aforesaid manner. An appeal was preferred but the same was dismissed.

Learned Counsel for the applicant Sri P.N. Tripathi has submitted that the applicant never committed any offence as the arm which was alleged to be recovered was not in working order. He has also submitted that P.W. 4 Chhotey Lal, Constable, has admitted that the aforesaid country-made pistol was not in working order. The said point has been discussed by the learned lower appellate court in paragraph 6 of the judgment where it was argued that the said pistol was not in working order as it had no spring. He has held that for those reasons, it cannot be held that the recovered pistol is not an arm.

The learned Counsel has submitted that the said country-made pistol cannot be called an ''arm'' within the meaning of Section 4 of the Arms Act. He has referred the case of State v. Mohammad Ali 1995 Cri LJ 1555, wherein it has been held that:

In judging whether a particular weapon is a fire-arm or not, the test is not whether that particular weapon is serviceable at the time, but whether it has lost its specific character and caused to be a fire-arm.

In that case a pistol was recovered from the possession of the Respondent. The trial court felt a doubt whether this pistol could be used as a fire-arm and thereupon asked the State prosecutor to satisfy him that it could be used as a fire-arm. The State prosecutor said to have not satisfied the trial court and stated that there is no provision in law which empowers an accused asking for taking such (sic) into consideration. The Division Bench of this Court has observed that:

It is true that a weapon does not cease to be a fire-arm if it has not lost its specific character, but because of proving that a weapon has not lost its specific character is upon the prosecution. Where doubts are entertained about it. it is necessary for the prosecution to satisfy the court that the weapon still possesses its specific character. In this case the trial court felt a doubt and even gave an opportunity to the State prosecutor to satisfy him, yet this opportunity was not availed of by the State prosecutor.

After the said finding the Division Bench dismissed the appeal preferred by the State. In that case, the point which was raised, as it appears from the above observation, was different.

In the case of State of U.P. Vs. Dhanwan, . it was held that:

The term ''arms'' has been defined in Section 4 of the Arms Act to include fire-arms, bayonets, swords, daggers, spears, spear-heads and bows and arrows and also cannons, parts of arms and machinery for manufacturing arm. The definition is not exhaustive but is illustrative and consequently the term can be given a wider meaning to include all kinds of weapons which can be used for the purpose of offence or defence. It is the purpose for which the fire-arm is primarily meant or can be used which determines whether it does or does not fall within the definition of ''arms''. It is a settled law that a firearm even though unserviceable but can be used after repairs is still a firearm. Further parts of a fire-arm are by themselves ''arms'' as defined in Section 4. The barrel of a gun or pistol, or a trigger thereof, is also an ''arm'' which cannot be possessed by any one without a licence.

The Division Bench has spelt true import of the definition of fire-arm. In the instant case an improvised pistol was without spring. It was unserviceable at that time when it was recovered but it does not lose its character when by adding spring only it can be made serviceable. So I do not consider that the learned Counsel has approached properly into the question. Moreover, besides the pistol two live cartridges were recovered from the possession of the accused-applicant. No argument has been forwarded if the conviction rests solely on the recovery of the two live cartridges why the judgments of the courts below should be interfered. The applicant is silent on that point. Therefore, I do not find any marit in this revision.

The learned Counsel has then submitted that the sentence is too harsh. Considering age of the revisionist, who is 80 years and the fact that much delay has been caused in disposing of this Revision and that the applicant is an old and infirm along with the fact that it was his first offence and no further act of criminality has been brought to notice of the Court, I feel if the accused-applicant is released on furnishing a bond as provided u/s 360, Code of Criminal Procedure would meet the ends of justice.

The Revision is therefore, allowed in part. The conviction u/s 25 Arms Act is hereby affirmed but the sentence of imprisonment is kept in abeyance. The accused-applicant is to furnish a bond with two sureties to the satisfaction of the trial court for keeping good behaviour u/s 360, Code of Criminal Procedure for a period of one year. It is also directed that if there is any breach of the bond, the accused-applicant shall be apprehended and put to prison to suffer the period of sentence imposed by the courts below.

With the above observations, the Revision is disposed of.