Mere possession of a non-functional firearm does not qualify as a 'deadly weapon' under Section 398 of the IPC.

JUDGMENT

Vibhu Bakhru, J. - The appellant has filed the present appeal impugning a judgment dated 15.03.2016 passed by the ASJ, FTC, North-West District, Rohini Courts, Delhi, whereby the appellant was convicted of the offences punishable under Sections 393/398 of the Indian Penal Code, 1860 (IPC) and Sections 25/27 of the Arms Act, 1959 (Arms Act). The appellant further impugns an order on sentence dated 19.03.2016, whereby he was sentenced to : (i) seven years of rigorous imprisonment along with a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month for committing an offence punishable under Section 393 of the IPC read with Section 398 of the IPC; (ii) one year of rigorous imprisonment along with a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month for committing an offence punishable under Section 25 of the Arms Act; and (iii) three years of rigorous imprisonment along with a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month for committing an offence punishable under Section 27 of the Arms Act.

2. The appellant was prosecuted pursuant to registration of FIR no. 87/2015 under Sections 393/398 of the IPC and Sections 25/27 of the Arms Act, with PS Bharat Nagar. The said FIR (Ex PW1/B) was registered on 12.02.2015 at the instance of one Nageshwar Bhagat (the Complainant). The Complainant was engaged in plying an autorickshaw (TSR) at the material time. He reported that in the intervening night of 11.02.2015 and 12.02.2015 at about 12:15 am, he had parked his TSR on the Main Road, JJ Colony, Wazirpur. Thereafter, when he reached near Jai Mata Rasoi Hotel, the accused (appellant herein) appeared in front of him. He was armed with a pistol. He placed the said firearm on the Complainant''s temple and asked him to hand over whatever he had. The Complainant shouted for help and hearing the same, some persons came to his rescue. The accused fled from the spot. And, while he was fleeing from the spot, two patrolling police officials (PW-6 and PW-7) pursued and apprehended him. The said police officials snatched the pistol carried by the accused. In essence, the above is also the prosecution''s case, which has been accepted by the Trial Court.

3. The appellant has impugned his conviction on several grounds. First, he contends that he has been falsely implicated in the case and that the police officials and the Complainant have connived to implicate him. Second, he contends that the Trial Court did not appreciate the testimony of the defence witness while coming to its conclusion. Third, that the prosecution failed to examine any public witnesses, even though there were public persons who were present at the scene of the alleged crime and the same raises a doubt as to the case set up by the prosecution. Fourth, the ballistic expert (PW-9) had deposed that the country made pistol allegedly used in the commission of the offence was not in a working condition and thus, the said pistol cannot be considered to be a ''firearm'' and in any event cannot be considered as a "deadly weapon" for the purposes of Section 398 of IPC. And, fifth, that the Complainant was in an inebriated condition and had picked up a quarrel with the appellant as testified by DW-1.

4. Mr Mathur, the learned counsel appearing for the appellant also referred to the decision of a coordinate bench of this court in Rakesh v State of NCT of Delhi, (2010) 6 ILR(Del) 596 and contended that a weapon, which is not in a working condition, cannot be considered to be a deadly weapon for the purposes of Section 398 of the IPC. He stated that it could not be considered as a firearm for the same reason and therefore, the appellant''s conviction for offences punishable under Sections 25 and 27 of the Arms Act was also not sustainable.

5. Mr Nayak learned APP appearing for the State countered the submissions mad