HARI PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) C. A. Rahim, J. This Revision has been directed against the judgment and order passed by the III Additional Sessions Judge, Jaunpur on 7-7-1984 in Criminal Ap peal No. 14 of 1981. By that judgment he dismissed the appeal of the accused, who was convicted under Section 25, Arms Act and sentenced to six months' R. I. by the Additional Munsif in Case No. 16 of 1981.

(2.) 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 not licence for keeping those fire arms. After due investigation a charge sheet under Section 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 proved to the hilt and he convicted and sentenced the accused-ap plicant in the aforesaid manner. An appeal was preferred but the same was dismissed. A Learned counsel for the applicant Sri R 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 was also sub mitted 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. 4. THE learned counsel has submitted that the said country made pistol cannot be called an "arm" within the meaning of Sec tion 4 of the Arms Act. He has referred the case of State v. Mohammad All, 1955 Crlj 1555, wherein it has been held that: "in judgment 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 ceased to be a fire arm. " 5. 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 matter 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 ever gave an opportunity to the State prosecutor to satisfy him, yet this opportunity was not availed of by the State prosecutor. " 6. 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 observa tion, was different. 7. In the case of State of UP v. Dhanwan, AIR 1965 All 260 (DB), it was held that: "the term "arms" has been defined in Sec tion 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 terms 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 fire-arm even though unserviceable but can be used after repairs is still a fire arm. 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 im port 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 lost its character when by adding spring only it can be made serviceable. So I do not con sider that the learned counsel has ap proached property into the question. Moreover, besides the pistol two live cartridges were recovered from the posses sion 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 merit in this Revision. 8. THE learned counsel has then sub mitted that the sentence is too harsh. Con sidering 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 under Section 360, Cr. P. C. would meet the ends of justice. 9. THE Revision is, therefore, allowed in part. THE conviction under Section 25, Arms Act is hereby affirmed but the sen tence 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 under Section 360, Cr. P. C. for a period of one year. It is also directed that if there is any breach of the bond, the accused-ap plicant shall be apprehended and put to prison to suffer the period of sentence im posed by the courts below. 10. With the above observations, the Revision is disposed of. Revision partly allowed. .