I. P. SINGH J. ( 1 ) FAHIM Husain convict-appellant has preferred this appeal against the judgment and order of Shri J. P. Sinha, First Additional District and Sessions Judge, Farrukhabad, in S. T. No. 119 of 1916 delivered on 309. 1978 convicting and sentencing him under section 25 (1) (a) of the Indian Arms Act to one year R. I. ( 2 ) THE prosecution cases is that on 27-6-1974 at about 8. 30 A. M. Hukim Singh Gautam (P. W. 3), 5. 0. , P. S. Qaimganj, District Farrukhabad. received information that four bad characters possessing illicit arms and property looted in a dacoity were sitting at Tehti-Kone crossing for boarding a Bus for Farrukhabad. Believing this information the S. O. (P. W. 3.) made relevant entry in G. D: Ex Ka-8) and collected force consisting of a few sub-inspectors and constables including Babu Lal Sharma S. I. I. P. S. He also picked up public witnesses Phool Singh (P. W. 2) and Bar rister Singh from front of the police station. They went informed of the purpose of. taking them along. The party boarded P. A. C. Truck No. 8331 U. P. . and reached Tehti Kono three miles away, at about 9. 30 A M. As soon as the truck parked there the four persons were spotted sitting on the Tehraha. The informant, who accompanied the party, pointed out that they were the suspected persons. When the police party started getting down the said truck, these four persons tried to run away towards north east. They were chased by the police party at which the miscreants including Fahim Husain appellant opened fire at the police party which also returned fire. Fortunately, none was hurt by the fire shots. The police party succeeded in catching hold of the two miscreants who happened to be Fahim Husain appellant and his brother Sajid Husain. The other two escaped. The personal searches of the two arrested persons were taken. One English revolver bearing no. 137232 and the name of company of U. S. A. was recovered from the right hand of Fahim Husain appellant. Inside it there were five cartridges. One had been fired. So it was empty. The other four were live. The other two escaped. The personal searches of the two arrested persons were taken. One English revolver bearing no. 137232 and the name of company of U. S. A. was recovered from the right hand of Fahim Husain appellant. Inside it there were five cartridges. One had been fired. So it was empty. The other four were live. He also carried a Jhola which had been found to contain five more live cartridges, one hand grenade and the ornaments (which were said to be looted in a dacoity ). He had no licence or permit for the said revolver and ammunition, The recovery memo (Ex. Kha. 1) was prepared on the spot. Recovered articles were also sealed there. I need not refer to the recoveries said to have been made from Sajid Husain as he is not before this Court. The arrested persons and the recovered articles in sealed condition were brought to P. S. Qaimganj where cases were registered one under section 307 I. P. C. (Subject-matter of State v. Fahim Husain and another under section 25, Arms Act (Subject-matter of State v. Fahim Husain. I have mentioned the cases against Fahim Husain appellant only and not against the other co-accused. Both the Sessions Trials were consolidated tried together and disposed of by a common judgment dated 30. 9. 1978. The appellant was acquitted of the charge under section 307 I. P. C. in S. T. No. 382 of 1974 while convicted under section 25, Arms Act to one years R. I. in S. T. No. 119 of 1976. This conviction has given rise to the present appeal. ( 3 ) THE defence of the appellant was that he was never arrested as alleged by the prosecution and nothing was recovered from his possession. Rather, he was summoned from his house and falsely implicated in. this case by the police under the influence of Anwar Khan in connection with enmity touching Sabir Khan alias Sabir Ali. It was in the course of suggestion give to Babu Lal Sharma, S. I. (P. W. 1) that the above defence was further elucidated. It was suggested that Sabir Khan alias Sabir Ali was murdered in which Fahim appellant and his brother Sajid Husain were named as the accused persons. It was in the course of suggestion give to Babu Lal Sharma, S. I. (P. W. 1) that the above defence was further elucidated. It was suggested that Sabir Khan alias Sabir Ali was murdered in which Fahim appellant and his brother Sajid Husain were named as the accused persons. Anwar Khan, M. L. A. , was related to said Sabir Khan and he (Anwar Khan) falsely got the appellant implicated in the present case. However the appellant had not led any evidence in his defence. The suggestions on the above line of defence made to Babu Lal Sharma, S. I. (P. W. 1), Phool Singh, public witness (P. W. 2), Hukum Singh Gautam, S. 0. (p. W. 3) were denied by them. In this way there is nothing to substantiate the defence plea. The prosecution in order to discharge their onus have examined the above-named three witnesses. Hukum Singh Gautam, S. O. (P. W. 3) has stated that on receiving information at 8. 30 A. M. about presence of four bad characters at the crossing of Tehri Kone be collected police personnel and public witnesses and proceeded to the spot on P. A. C. truck and reached the spot, three and a half miles away, at about 9. 30 A. M. He then narrated facts in line with the prosecution case resulting in the arrest of the appellant and the recoveries of alleged articles from him. Similarly, Babu Lal Sharma, S I. (P. W. 1) deposed the same facts. The only divergence made by him is that the party had reached the spot at about 8. 45 A M. after covering the distance of three miles in the truck within IS minutes. Phool Singh (P. W. 2) who is resident of Azamganj, four miles away from P. S. Qaimgunj, has stated that he uses to go to Qaimgunj for marketing every second or third day. 45 A M. after covering the distance of three miles in the truck within IS minutes. Phool Singh (P. W. 2) who is resident of Azamganj, four miles away from P. S. Qaimgunj, has stated that he uses to go to Qaimgunj for marketing every second or third day. On that particular date he bad come to the market by 9 A. M. He was picked up by the police from front of the police station and the police party started on a truck at about 10 A. M. and reached the spot one hour which would mean by 11 A. M. The learned counsel for the appellant has, therefore, laid just stress on the discrepancies concerning the above three witness and has argued that these were material contradiction believing the hour of the alleged arrest of the appellant which incidentally would also belie the alleged recoveries. But it should be remembered that the incident had occurred on 27-7-74. while the evidence was recorded on 18th arid 19th of November, 1978, after a lapse of about 4 years. Moreover, Phool Singh who comes from country side Seems to have no accurate idea of time. For these reasons. I do not think any capital can be made out of the above discrepancies. ( 4 ) IT is pointed out by the learned counsel for the appellant that both Babu. Lal Sharma, S. I. (P. W. O and Hukum Singh Gautam, S. O (P. W. 3) have stated in their cross-examination that the two persons were arrested on a Kachcha road which, goes from the said crossing to Attaipur and that too at a distance of at 10 paces from the place where they were originally sitting. However, Phool Singh, Public witness (P. W. 2) has stated in his cross-examination that the four bad characters had run into the grove adjacent to that: road and only two of them could be arrested inside the grove after a chase. It is argued that this also introduces material contradiction regarding the distance of chase and the actual place of arrest. I But in the circumstances of the case when the Kachcha road going to village Atraipur and the said grave are adjacent to each other, then it would make a little difference whether the miscreants were arrested when they were still on the Kachcha road or had entered the grove. I But in the circumstances of the case when the Kachcha road going to village Atraipur and the said grave are adjacent to each other, then it would make a little difference whether the miscreants were arrested when they were still on the Kachcha road or had entered the grove. After all the four miscreants were running away and two of them hadt been apprehended. It might as well be one of them was overpowered who was lagging behind and was still on the road and had not stepped into the grove while the other person a little ahead of him, had been arrested inside the grove and- those two who were still ahead of them had succeeded in making good their escape. I do not think the above discrepancies in the circumstances of the Cisc can be termed or consider as material contradictions fatal to the prosecution case. ( 5 ) THE learned counsel for the appellant baa then tried to show that perhaps Phool Singh, public witness (P. W. 2) was not in the so-called-police party and for this reason no reliance could be place is on his testimony. The argument is that if the said public witness becomes unreliable, then conviction should not be based on the testimony of the police witness only. To achieve that end it is pointed out that Phool singh (P. W. 2) has stated in his cross-examination that when he was returning after marketing he was picked up at the than a to join the police party. It is further pointed out that he resiled from his above statement and subsequently stated that he had not done any marketing before accompanying the police party and that he had gone to Bazar after the event. It is, therefore, argued that when the witness is not sure as to whether he had joined the police party before or after doing the marketing then his claim that he had been picked up by the police from front of the police station on that particular day when he had come to the town for marketing does not appear to be convincing and that introduces an element of doubt. But I am not impressed with this argument. It could be quite possible that his memory on the point was failing him after lapse of 41/2 years. But I am not impressed with this argument. It could be quite possible that his memory on the point was failing him after lapse of 41/2 years. The- point to be seen is not as to whether he bad done the marketing before or after the event. He is the resident of Azamganj which is situated four miles away from P. S. Qaimgunj. It does not stand to reason that the police would make all efforts to secure this man in particular from village Azamgunj to stand as a fictitious witness to the whole affair. There is nothing on the record that he is a police pocket witness and had been helping and appearing for police of P. S. Qaimgunj in earlier cases of similar nature as a witness. There could not be any paucity of witnesses of Qaimgunj itself if any fictitious witness was to be procured by the police. His association with the event becomes evident from his signature appearing on the recovery memo which is a circumstance favorable to the police to show that he will picked up apparently from outside the police station. It therefore see no force in the contention that Phool Singh (P. W. 2) had not taken part in the said raid. It has not been the case of the appellant in so many words that the illicit arm and ammunition were planted on him. Should this assertion, as argued be read in between the witnesses when his plea is that he has been falsely implicated in this case? It is not the case of a country-made pistol which may be said to be easily available to the police for placing on a particular accused. In the present case the revolver is an English one made by a Co. of U. S. A being No. 137232. That seems to be the reason why no direct suggestion was given to the police witnesses that the said revolver and cartridges etc. were planted on the appellant. The mere fact that the appellant had been acquitted of the charge under section 307 I. P. C. will not adversely affect the merits of the charge under section 25, Arms Act, arising out of the same transaction. were planted on the appellant. The mere fact that the appellant had been acquitted of the charge under section 307 I. P. C. will not adversely affect the merits of the charge under section 25, Arms Act, arising out of the same transaction. ( 6 ) LASTLY, the learned counsel for the appellant has pointed out that in this case the prosecution have not examined the officer who investigated the case and his non-examination fatal to the prosecution. He has referred to two decisions, namely, Hirianna Shelly v. State of Mysore in which cross reference was made to earlier decision of that very Court in which it was observed: It is needless to point out that the right of bringing on record contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused. It is by showing that the witness has made improvements or given evidence which contradicts his earlier statement, the accused is able to satisfy the court that the witness is not a reliable witness. The non-examination of the Investigating Officer is a serious infirmity in the prosecution case which results in prejudice to the accused. It is clear from the above decision that the examination of the Investigating Officer is necessary in order to bring on record the contradictions in the statement of witnesses and that such a right is a valuable right of the accused. Further it is clear that non-examination of the Investigating Officer is a serious infirmity in the prosecution case insofar as it deprived the accused of the opportunity to show to the court that witnesses were not reliable witnesses by proving contradictions in the earlier statement, and Rarnam Singh and others v. State in which it was observed: When the accused persons had con-fronted the eye-witnesses with their statements recorded during investigation by the Investigating officer which did not implicate the accused in the, offences alleged, it was necessary on the part of the prosecution to have examined the Investigating Officer and its failure to do so would vitiate the trial and conviction. By not examining the Investigating Officer concerned, the prosecution had clearly prejudiced the accused in as much as they had been denied an opportunity of proving that the aforesaid statements of eye-witnesses recorded by the Investigating Officer were in fact made by them before him. By not examining the Investigating Officer concerned, the prosecution had clearly prejudiced the accused in as much as they had been denied an opportunity of proving that the aforesaid statements of eye-witnesses recorded by the Investigating Officer were in fact made by them before him. In such case, prosecution cannot refuse to examine an Investigating Officer by presuming him to be hostile simply because he filed a final report in the case on the basis of his conclusion arrived at after his investigation. Further, he also would not cease to be a necessary witness on that ground particularly when witnesses confronted with their statements recorded by the Investigating Officer denied the same. The non-production of such a witness only denies an opportunity to the accused persons to prove such statements of the witnesses made during investigation. In such a case the Investigating Officer is an essential witness and his examination is absolutely necessary to unfold the narration of facts made before him by the prosecution witnesses. It is only then the Court is placed in a position to consider the effect of his testimony on the story on which the prosecution of an accused is based. But I do not agree with the above argument. His non-examination could be fatal only if it had in any way prejudiced the defence. ( 7 ) IN the above pronouncements the hard and bare fact was that the defence had confronted the witnesses with their statements recorded by the Investigating Officer during investigation and they had denied the same. They could only be proved if the Investigating Officer concerned was produced and examined. He had not been examined. It was in this background that his nonexamination by the prosecution resulted in denial of an opportunity to the accused personal to prove those statements. That had caused prejudice to the defence. The defence have not put any question to the prosecution witnesses who have been examined in this case, that they had made any contradictory statement before the Investigating Officer during investigation. In this background the defence was not prejudiced by non-examination of the Investigating Officer inasmuch as they had not to get any statement of any witness recorded under section 161 Cr. P. C by the Investigating Officer proved. In this background the defence was not prejudiced by non-examination of the Investigating Officer inasmuch as they had not to get any statement of any witness recorded under section 161 Cr. P. C by the Investigating Officer proved. A direct question was put by this Court to the learned counsel for the appellant to enumerate the points on which, in his opinion, non-examination of the Investigating Officer had prejudiced the defence. He pointed out that the information received by the Station Officer was that bad characters were sitting at the Tehrikone to wait for a bus to proceed to Farrukhabad. It is pointed out that had the investigating Officer been examined he could be asked as to whether there was any Bus Stand at that crossing or whether buses could not be available there and his reply could have been of some help in the defence of the appellant. It is argued that the appellant has been deprived of this opportunity to elicit answer in, this regard from the Investigation Officer. I am not impressed with this stand,-allege question was put to any of the three prosecution witnesses examined on this suggested point and I wonder what information in this regard would be obtained from the Investigation Officer particularly which could not have been obtained from the witnesses already examined. I do not think any prejudice had occurred to the appellant by non-examination of the Investigating Officer. As a result of the above discussion I see no force in this appeal. The sentence awarded is also not severe. ( 8 ) THE appeal is dismissed. The conviction and sentence awarded by the learned Sessions Judge are confirmed. The appellant is on hail. He shall surrender to his bail bonds to serve out his sentence. He shall be taken into custody forthwith. Appeal dismissed .