Section 392 of the Penal Code which provides for robbery is as under:
“Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.”
As per Section 397, the sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person.
Meaning of ‘uses’
A difficulty arose in several High Courts as to the meaning of the word “uses” in Section 397. The term ‘offender’ in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon- The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment no another offender who had not used any deadly weapon.
In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of P.W. 16 “Phool Kumar had a knife in his hand”. He was therefore carrying a deadly weapon open to the view of the victims sufficient to-frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
An air gun/ air rifle/ air pistols uses the energy or force produced from compressed air or other gas for discharging of the pellet or projectile. Normally these air guns, etc. use metal projectiles and the ones which use plastic projectiles are Air (soft) Guns. General internet search on air guns reveals that these are distinguished from firearms, which burn a propellant in order to shoot the projectile but under the definition of firearms, as provided under the Act and as extracted above, it is clear that the air guns/ air rifles/ air pistols are also covered, for not only the arms which discharge projectile(s) by action of any explosive are covered under the definition, but also arms which use other forms of energy, in this case being the energy or force generated from compressed air or gas. Thus, it is safe to conclude that air guns/air rifles/air pistols are not mere toys, as against the assertion of the Respondents and they are very much subject to the provisions of the Act, being firearms.
[Source: People for Animals vs. Union of India, 2011 (180) DLT 460 Del (DB) ]
“8. Thus, what is essential to satisfy the word “Uses” for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.”
[Source: Ashfaq vs. State (Govt. of NCT of Delhi), AIR 2004 SC 1253]
Since an air gun or an air pistol uses energy and force produced from compressed air or other gas for discharging of the pellet or projectile and can cause hurt, it would fall within the definition of a “deadly weapon”.
Thus possession of a deadly weapon which impacts the state of mind of the victim so as to scare or terrorise him would be treated as use of the deadly weapon and is sufficient to attract Section 397 IPC. As noted above, the complainant deposed that Avinash kept the pistol like thing which he later came to know as airgun on his ear, thus Avinash has been rightly convicted for offence punishable under Section 397 IPC.