Arms Act - Prosecution failed to establish length & width of Sword - Offence not made out [Case Law]
Penal Code, 1860 - S. 324 - Arms Act, 1959 - S. 4 & 25 (1B) (b) - Offence is not made out, when prosecution has failed to establish length and width of the sword to bring it within a prohibited Arm, in view of the notification of the State Government dated 22.11.1974.
S.B. : Hon'ble Mr. Justice Prashant Kumar Mishra
Judgment On Board 23/3/2018
CRR No. 458 of 2006
· Budheshwar, S/o Atma Ram Dhobi, Age about 45 years, R/o Village Sarva,
PS Kasdol, District Raipur (CG) ----
Petitioner Versus · State Of Chhattisgarh, Through District Magistrate, Raipur (CG) ---- Respondent For Applicant
Mr. YC Sharma, Advocate For Respondent /State Mr. Bhaskar Pyasi, Panel Lawyer
1. Heard.
2. The applicant's conviction
under Section 324 of IPC and Section 25 of the Arms Act, 1959 (in short “the
Act, 1959”) and sentence of RI for one year for each of the offence and fine of
Rs.1000/- & Rs.200/- respectively, for causing injuries by means of sword
to injured Kannilal, as rendered by the trial Magistrate, has been affirmed by
the Appellate Court.
3. The short legal question,
arising in this criminal revision for consideration, is “whether conviction
under Section 25 of the Act, 1959 is sustainable in absence of any evidence
that the sword carried by the applicant was in the category of 'prohibited
arms' as has been specified in the Notification issued by the State Government
under Section 4 read with Section 25(1B) (b) of the Act, 1959?”
4. Bare minimum
facts necessary to dwell on the above issue is that on 17.6.1994, at about 7:30
p.m., injured Kannilal had gone towards the village pond and was in
conversation with Chhatrapal and Samaylal. At that point of time, the accused persons
reached there, raised altercation and Buddheshwar inflicted repeated blows on
the person of Kannilal by means of sword, which he was carrying from the
beginning. The other accused persons also assaulted Shatrughan and Bharat.
Since the Appellate Court has acquitted accused Rangeela for the offence under
Section 323/34 of IPC and has modified the jail sentence of accused Harshram
for the offence under Section 323 of IPC from RI for 4 months to fine of
Rs.1000/-, this revision application has been preferred by accused/applicant Buddheshwar
only.
5. Applicant Buddheshwar has been
convicted for carrying sword, a prohibited arm, and causing injuries to
Kannilal. However, at the same time, the applicant has been acquitted of the
charge under Section 27 of the Act, 1959 on the ground that there is no mention
of the ingredients for attracting offence under Section 27 of the Act, 1989,
therefore, the applicant is entitled to be acquitted for the said offence.
6. Reverting back to the legal
issue, it may be apt to notice the basic difference between a firearm and an
arm in the scheme of the Act, 1959. A firearm of any description cannot be
acquired, possessed or carried, except under a license, as provided under Section
3 of the Act. However, there is no such complete embargo in respect of arms,
for which, Section 4 of the Act, 1959 provides that “if the Central Government
is of opinion that having regard to the circumstances prevailing in any area,
it is necessary or expedient in the public interest that the acquisition,
possession or carrying of arms other than firearms should also be regulated, it
may, by notification in the Official Gazette, direct that this section shall
apply to the area specified in the notification and thereupon no person shall
acquire, have in possession or carry in that area arms of such class or description
as may be specified in that notification unless he holds in this behalf a
license issued in accordance with the provisions of this Act and the rules made
thereunder”.
7. It is evident that a firearm
has necessarily to be an arm but an arm is not necessarily a firearm. An arm
designed or adapted to discharge a projectile or projectiles of any kind by the
action of explosive or other forms of energy, is a firearm vide clause (e) of Section
2 of the Act, 1959. The contravention of Section 3 in respect of firearm and of
Section 4 in respect of arm, both have been made punishable under Section
25(1B) of the Act, 1959.
Both the
provisions are reproduced hereunder :
“25...---(1B) whoever-
(a) acquires, has
in his possession or carries any firearm or ammunition in contravention of
section 3; or
(b) acquires, has in his possession or carries in any place specified
by notification under Section 4 any arms of such class or description as has
been specified in that notification in contravention of that section; or............
shall be
punishable with imprisonment for a term which shall not be less than one year
but which may extend to three years and shall also be liable to fine:
Provided
that the Court may for any adequate and special reasons to be recorded in the
judgment impose a sentence of imprisonment for a term of less than one year.”
8.
Section 43 of the Act, 1959 confers power to the Central Government to direct
by notification in the Official Gazette that any power or function exercisable
or performable by it under the Act other than the power under Section 41 (power
to exempt) or power under Section 44 (power to make rules) may be exercised or
performed by the State Government. It was under this delegate power, the State
Government has issued Notification No.6312-6552-II-B(i) dated 22.11.1974, which
is set out under :
“Where as the State Government is of the opinion that having
regard to the prevailing conditions in the State of Madhya Pradesh, it is
necessary and expedient in the public interest that the acquisition possession
and carrying of sharp edged weapons with a blade more than 6 inches long 2
inches wide and spring actuated knives with a blade of any size in public
places should also be regulated.
Now therefore
in exercise of the powers conferred by section 4 of the Arms Act, 1959 (No.54
of 1959) read with the Government of India, Ministry of Home Affairs,
Notification No. G.S.R. 1309, dated the 1st October, 1962, the State Government hereby directs that the said
section shall apply with effect from the date of publication of this
Notification in the “Madhya Pradesh Gazette” to the whole of the State of
Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged
weapons with a blade more than 6 inches long or 2 inches wide and spring actuated
knives with a blade of any size in public places only.”
9. In view of the
Notification, in order to attract conviction for the offence under Section
25(1B) (b) of the Act, 1959, it is prerequisite for the prosecution to submit
evidence and prove the same that the person charged for the offence was
carrying a sharp edged weapon of the same measurement or above, as is mentioned
in the Notification issued by the State Government. However, the
seizure of sword allegedly used by applicant Buddheshwar made from injured
Shatrughan Verma vide Ex.P/3. would describe
the article as 'old sword stained with blood cow-dung, having wooden grip'.
There is no separate document drawing the figure with length and width of the
weapon. The IO has sent this weapon to the Assistant Surgeon vide Ex.P/9A raising
a query as to whether the injuries sustained by Kannilal can be caused by the
seized sword. However, once again, in this document also, the length and width
of the weapon has not been mentioned. Thus, the entire record does not contain
any document or even oral statement of any of the witnesses that the sword
allegedly carried and used by the applicant was more than 6 inches long or 2
inches wide, which is the measurement specified in the Notification dated
12.11.1974.
10. In absence of any evidence or
proof that the applicant had in his possession or was carrying arms of such
class or description, as has been specified in the Notification issued by the
State Government, the facts and requisites constituting an offence under
Section 25(1B) (b) of the Act, 1959, has not been established to be committed
by the applicant.
11. In
taking the aforesaid view, I am fortified by the judgment rendered by the
Madhya Pradesh High Court in the matter of Gudda @ Sameer Ahmed Vs. State of M.P. , 1997 (2) MPLJ 117.
12. In view of the above, the
conviction of the applicant under Section 25 of the Act, 1959, is set-aside.
13. In so far as the applicant's
conviction under Section 324 of IPC is concerned, the trial Court and the
Appellate Court have recorded concurrent finding based on the ocular version of
the injured witnesses that the applicant has caused the injuries. Therefore, the
said finding of fact cannot be disturbed while exercising revisional
jurisdiction under Section 397 read with Section 401 of Cr.PC.
14. Learned counsel for the
applicant has tried to demonstrate that the finding is perverse, however, after
meticulous examination of the evidence, I am not persuaded to hold that the
finding in respect of the applicant's guilt under Section 324 of IPC suffers from
any perversity.
15. It is also argued by learned counsel for the applicant that
once conviction under Section 25 of the Act, 1959, has been set-aside, the
applicant cannot be held guilty for offence under Section 324 of IPC, because
the injuries were allegedly caused by a sword, for which, the conviction under
Section 25 has already been set-aside.
16. The
applicant's conviction under Section 25 of the Act, 1959 has been set-aside on
technical grounds and not with a finding that the applicant was not carrying
any sharp edged weapon. Even if the sword was measuring less than the length
and width specified in the Notification, it can still cause injury, therefore, the
acquittal under Section 25 of the Act, 1959, on technical grounds, would not
affect the conviction under Section 324 of IPC.
17. Learned counsel for the
applicant would now submit that the incident having occurred about 24 years
back and the applicant having already suffered about 4 months of jail sentence,
the period of jail sentence served by him may be reduced to the period already
undergone.
18. It is true that the incident
had occurred about 24 years back. At that point of time, the applicant was aged
about 45 years, therefore, his present age would be about 70 years. At this stage,
sending the applicant to jail once again after 24 years may not be appropriate.
Therefore, since the applicant has already suffered 4 months of jail sentence,
ends of justice would be served if the sentence awarded for offence under
Section 324 of IPC is reduced to the period already undergone.
19. Accordingly,
the criminal revision is allowed in part. The applicant's conviction under
Section 25 of the Act, 1959 is setaside. His conviction
under Section 324 of IPC is maintained, however, the sentence of RI for one
year is reduced to the sentence already undergone. The sentence of fine is not disturbed.