The next issue to be examined is whether the country made
pistol (katta) can be termed as a “deadly weapon” as contemplated under Section 398 of the IPC. At this stage, it would be relevant to refer to the language of Section 398 of the IPC. The said Section is set
out below:
“398. Attempt to commit robbery or dacoity when armed
with deadly weapon.—If, at the time of attempting to
commit robbery or dacoity, the offender is armed with any
deadly weapon, the imprisonment with which such
offender shall be punished shall not be less than seven
years.”
30. It is apparent from the plain language of Section 398 of the IPC 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 of the IPC.
31. In the present case, the appellant was armed with a country
made pistol while attempting to commit robbery and therefore, he has been convicted under Section 393 read with Section 398 of the IPC on the assumption that the country made pistol is a ‘deadly weapon’.
32. Thus, the key question to be addressed is whether the country
made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair and therefore, cannot be used as such without carrying out the necessary repairs. The term ‘deadly’ qualifies the term ‘weapon’. Thus, 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. In order for any object, instrument or thing to qualify as a weapon, it should be one, which is intended to be used as such. 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. The natural import of the word ‘weapon’ is clearly an object,a device, an instrument or any other thing, that is, intended to be used as a weapon and is inherently one. The term ‘deadly’ specifies the lethal quality of the weapon. 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.
33. It is necessary to bear in mind that the mere possession of a
deadly weapon while committing a robbery constitutes an offence punishable under Section 398 of the IPC. It is not necessary for the offender to have used the weapon or even threatened to use such a deadly weapon.
34. There are large number of instruments or objects, which if used in a particular manner, may result in a fatality. Even an innocuous writing instrument such as a pen, if used in a particular manner, may result in fatality. However, 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. Thus, the necessary ingredients of a ‘deadly weapon’ are: first, that it should be a weapon and capable of being used as such; and second, that it must be inherently lethal and if used in the intended manner is likely to result in death.
35. Viewed in the aforesaid perspective, a firearm, that is, incapable of being used as a weapon, cannot be construed to be a deadly weapon for the purposes of Section 398 of the IPC. Thus, even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon. This is because at the material time, it 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.
36. The question whether a firearm, which is non-functional can
qualify as a “deadly weapon” as contemplated under Section 398 of the IPC, is also squarely covered by the decision of the Coordinate Bench of this Court in Rakesh (supra). The relevant extract of the said decision is set out below: -
“17. The purpose of using a deadly weapon at the time of
committing robbery, dacoity or attempting one, is
obviously to overawe and instill a sense of fear in the
victim. However, when the so called weapon is in a non
working condition, used merely as a camouflage, whether
such weapon could fall within the definition of ‘deadly
weapon’ is a matter of debate. It can be urged that the
victim who is put in fear of life or grave injury, lest he
parts with his belongings, has no way of knowing that the
weapon being pointed at him is not in working condition or
is fake. The victim in such situation will not resist the
offence thinking that his/her life is in danger. The fear for
life/hurt created in the mind of the victim is a direct result
of the act of the accused.
18. However for the purpose of Section 398 IPC, this
argument does not merit acceptance. As noticed above
even carrying a “deadly weapon” at the time of offence
attracts Section 398 IPC and the actual use or brandishing
is not required. Section 398 IPC applies when at the
time of the attempted robbery or dacoity the accused has
caused or threatened the victim of bodily harm and injury
etc. and at that time the accused was in possession of a
deadly weapon. The word ‘deadly’ qualifies and is
descriptive of the term “weapon”. If the accused is not
carrying a “weapon” or carrying a “weapon” which is not
in a working condition and cannot cause any grievous
bodily harm or injury, it would not qualify and cannot be
regarded as a deadly weapon. The effect thereof is that the
legislative mandate of minimum punishment under Section
398 IPC is not applicable in such cases. Punishment,
howsoever, prescribed under Section 393 IPC is applicable
and also stringent enough and can extend upto 7 years.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 15.09.2020
CRL. A. 807/2017
SONU @ RAJA Vs STATE
CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
Dated: 15-9- 2020.
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