JUDGMENT 1. - This is revision under section 397/401 Cr.P.C. against the judgment dated 2.11.95 passed by Additional Sessions Judge No.2 Sriganganagar camp at Suratgarh by which he dismissed the appeal No.46/95 filed by petitioner Ravinder Kumar against the judgment dated 13.2.95 passed by Additional Chief Judicial Magistrate, Suratgarh in case No. 407/93, State v. Ravinder Kumar by which the convicted the petitioner for offence under section 25 of Arms Act for 11/2years Rl and to pay a fine of Rs.500/- and in default to further undergo three months Rl. 2. Briefly stated the facts may be narrated as follows : On 11.1.93 Narsimharao and Ved Prakash. Who were IPS officers went to investigate Cr. Case No. 11/93 under section 279, 304-A IPC in the village of the petitioner. The Investigating Officer PW9 Om Prakash, who was the SHO of police station Suratgarh, was also with them. When they reached in ward No. 8 at the house of the petitioner, he received a secret message from a mukhbir that unauthorised arms were hidden in the house of the petitioner. The petitioner was not present. Two motbirs were called. The Investigating Officer Om Prakash alongwith motbirs went inside the house of the petitioner. Shutter of the garage was opened and search was made. A drum full of wheat was found wherein a 32 bore revolver was found hidden. A live cartridge was also loaded in the revolver. They were seized vide Ex.R/4 and were sealed. Then the same were sent to an armourer for examination who submitted report on the back of Ex.P./3 in portion E to F and put his signatures K to L. According to it the revolver was 32 bore. A live cartridge was also found. According to it the revolver was in working condition. Sanction was obtained from the District Magistrate, Ganganagar and challan was submitted before the Additional Chief Judicial Magistrate, Suratgarh Distt. Sriganganagar. The petitioner denied the charge and claimed trial. Thereupon prosecution examined as many as in witnesses. Thereafter accused petitioner was examined under section 313 Cr.RC. He did not produce any evidence in defence but his defence was that a case was registered by the police with regard to the death of his wife under section 304-A IPC in which he could not have been arrested. Thereupon prosecution examined as many as in witnesses. Thereafter accused petitioner was examined under section 313 Cr.RC. He did not produce any evidence in defence but his defence was that a case was registered by the police with regard to the death of his wife under section 304-A IPC in which he could not have been arrested. In order to arrest him, he was roped in this case with the help of the brother of his deceased wife so that he may be behind the bars. Learned Additional Chief Judicial Magistrate, Suratgarh after hearing the parties, convicted the petitioner under section 25 of Arms Act and sentenced him to 11/2years Rl with a fine of Rs.500/- and in default to further undergo SI for three months. An appeal was preferred and the learned Additional Sessions Judge No. 2 Sriganganagar camp Suratgarh vide his judgment dated 2.11.95 maintained the conviction and sentence. Hence this revision. 3. Learned counsel for the petitioner submitted that many illegalities are found in the case and that the learned lower courts have misread the evidence. The main and material illegalities pointed out by him are : (1) that there is misreading of evidence by both the courts, and (2) that no question was asked about the sanction Ex.R/3 to the accused petitioner. He has, therefore, prayed that the accused petitioner deserves acquittal. 4. On the other hand, learned public prosecutor submitted that there was no enmity between the police and the petitioner and that the revolver was recovered from the house of the petitioner and his possession was conscious. Therefore, the courts below were right in convicting the petitioner. 5. So far as the evidence is concerned, it is submitted by the learned counsel and admitted by the prosecution and proved from the record that both the IPS officers, viz., Narsimharao and Ved Prakash, who had gone to investigate the matter in Cr. Case No. 11/93, have not been produced in the witness box. They were responsible officers and non-production thereof may be fatal to the prosecution. However, it is found in the examination in chief of PW9 Om Prakash that he sent Hanuman Singh to secure two motbirs and that the information was also received by him from the mukhbir when he was present infront of the house of the petitioner. The motbirs were Hetram and Om Prakash. However, it is found in the examination in chief of PW9 Om Prakash that he sent Hanuman Singh to secure two motbirs and that the information was also received by him from the mukhbir when he was present infront of the house of the petitioner. The motbirs were Hetram and Om Prakash. Hetram, PW6 has stated that he did not go to the house of the petitioner and no recovery was made before him. However, he was declared hostile and he has admitted his signatures on Ex.R/4 but stated that he was compelled to put his signatures at the police station. PW7 Om Prakash is another motbir and he wqs aiso declared hostile. According to him he did not go with the police to the house of the petitioner. He has admitted his signatures on Ex.R/4 memo of recovery and Ex.P./8, state plan but has stated that he did so he was asked to do by the police officials. He categorically stated that no recovery was made before him. Thus, both the independent motbirs do not support the recovery. 6. The prosecution examined PW1 Bhagwanaram who obtained Ex.R/1 which was the sale-dead in favour of the petitioner regarding this house. It is admitted position that the accused petitioner was not present at his house at the time when recovery is said to have been made. PW3 Hanuman Singh is a police head constable and according to him gate of the garage of the house was open in which a tin drum full of wheat was lying and from it a 32 bore revolver was recovered alongwith a live cartridge. It was he who led Narsimharao and Ved Prakash to the house of the petitioner and according to him the main gate of the house of the petitioner was locked. He has stated that the key of the lock was obtained from one Mr. Bhatia, a neighbour of the petitioner, as the petitioner had handed over keys to Mr. Bhatia before leaving his house. Needless to say that it is not known as to who this Bhatia, is as he has not been produced in the-witness box. Therefore, there it appears to be no reason why the accused petitioner will hand over the keys to Mr. Bhatia. The police has kept the courts in darkness on this aspect of the matter by not producing Mr. Bhatia in the witness box. Therefore, there it appears to be no reason why the accused petitioner will hand over the keys to Mr. Bhatia. The police has kept the courts in darkness on this aspect of the matter by not producing Mr. Bhatia in the witness box. Instead PW9 Om Prakash has stated that the gate of the house was lying open and there was no lock on it. According to him, there was no lock on the shutter of the garage and the shutter was opened wherein a drum of tin was lying which contained the unauthorised revolver. He was specifically asked during the cross examination as to how gate was opened and he stated that the same was not locked. 7. PW10 Narpat Singh, another police officer stated that the house was found locked. He has also stated that none of the family members of the petitioner was present in the house. He has stated that latch of the main door was opened as there was no lock therein. He says that the rooms were locked but the garage was open. It is very strange that the police directly reached to the garage itself and made recovery of unauthorised arm and did not take search of any room which according to this witness were locked. Had the accused petitioner kept the unauthorised arm in the garage itself, he would have instead locking the rooms, locked the garage. It shows the innocence of the accused and the plantation of unauthorised arm by some one including the police itself. Therefore, on the one hand one police officer says that the key of the main gate was obtained from Mr. Bhatia who has not been produced and on the other hand the two police officer say that the main gate was not locked and that the garage was also not found locked. Therefore, this inconsistency leads to the only conclusion that the arm was planted, particularly so when the accused petitioner was not present at the relevant time. 8. PW5 Kodaram is a neighbour and has stated that his house is just adjacent to the house of the petitioner where the petitioner was residing for last 5 or 6 years. But he admitted in the cross examination that *he accused petitioner was living some where outside and his children were living in this house. 8. PW5 Kodaram is a neighbour and has stated that his house is just adjacent to the house of the petitioner where the petitioner was residing for last 5 or 6 years. But he admitted in the cross examination that *he accused petitioner was living some where outside and his children were living in this house. He did not remember if the accused used to visit this house or not. 9. PW4 Harchand has also been produced by the prosecution who has stated that the house of the petitioner was situated near the house of Kodaram. True the house of accused petitioner might be situated near the house of Kodaram, but the prosecution was to prove that the arm was recovered from the possession of the accused petitioner. Site plan Ex.R/8 does show the house of Kodaram adjacent to the house of petitioner on the eastern side but house of Mr. Bhatia 'who is said to be having the key of house is not shown in the site plan. This site plan Ex.R/8 was prepared by PW9 Om Prakash and according to him all the rooms of the house were found locked except the garage from where recovery was made. Again I would say that the evidence cannot be believed and it appears that the learned lower courts have not correctly appreciated the evidence on record. 10. PW8 Kumbh Singh is the armourer. He has stated that one Phool Singh had brought the arm to him alongwith Ex.R/3. But Ex.R/3 mentions the name of Dulichand. 11. PW3 Hanuman Singh has stated that after the arm was seized, the same was sealed and was brought to the police station and was kept in "Malkhana". He has further stated that on 24.3.93 it was sent through Phool Singh to the armourer but he admitted that Ex.R/3, letter, was written by him and since Duli Chand might not have been available, the arm was sent with Phool Singh to the armourer. It is clear from Ex.R/3 that it was mentioned therein that the arm was being sent through Duli Chand, Head Constable, but as I have stated it was Phool Singh with whom the arm was sent to the armourer. It may happen that one particular constable may not be available at a particular time but then the witness should have mentioned the name of Phool Singh instead Duli Chand. It may happen that one particular constable may not be available at a particular time but then the witness should have mentioned the name of Phool Singh instead Duli Chand. The letter Ex.R/3 bears the date as 21.2.93 but was sent through Phool Singh to the armourer on 24.3.93. There appears to be no reason as to why the name of Phool Singh was not mentioned in the letter. 12. PW2 Phool Singh has stated that on 24.3.93 he obtained the article from Hanuman Singh, H.M., and took it to the armourer and after its examination brought it back and then handed over to the H.M. again. It appears from Ex.R/3 that the name of Phool Singh was not mentioned therein though the arm was sent through him. It all creates suspicion in the case by the prosecution. 13. Learned counsel for the petitioner cited AIR 1972 SC 1899 , Pabitar Singh v. State of Bihar in which the facts were that the recovery of gun was made in absence of the accused from a room thereof and wherein it was held that this recovery was not sufficient to make him guilty of the offence unless the Court could come to the conclusion that there was reason to believe that he was aware of the existence of such gun in that room. Since the prosecution failed to prove that the gun was concealed in such a manner that it was not visible to the naked eyes, it could not be said that he was aware of the existence of the gun, therefore, he was entitled for benefit of doubt. 14. Learned counsel for the petitioner submitted that while examining the accused petitioner, learned Magistrate did not put sanction Ex.P./13 to him. He has, therefore, submitted that the sanction should have been put to the accused in his statement under Section 313 Cr.PC. and unless it is so done, a great prejudice is caused. I have gone through the statement of the accused petitioner recorded under Section 313 Cr.PC. I find from the record that the learned Magistrate exhibited sanction Ex.P/3 on 9.12.93 (It appears that the exhibit number was wrongly mentioned as Ex.R/3). and unless it is so done, a great prejudice is caused. I have gone through the statement of the accused petitioner recorded under Section 313 Cr.PC. I find from the record that the learned Magistrate exhibited sanction Ex.P/3 on 9.12.93 (It appears that the exhibit number was wrongly mentioned as Ex.R/3). However, the same was not put to the accused petitioner in his statement under Section 313 Cr.P.C. Needless to say that the trial court should know that in case the material incriminating evidence is not put to the accused, it causes prejudice to him. The petitioner could not have been prosecuted without the sanction given by the District Magistrate. Therefore, the sanction granted by the District Magistrate was most material incriminating evidence. The accused petitioner could have very well challenged it in his statement under Section 313 Cr.PC., therefore, non putting of any question about the sanction in his statement under Section 313 Cr.PC., has caused prejudice to him. It was Mr. Rameshwar Vyas. RJS, who examined the accused petitioner under Section 313 Cr.PC. and committed grade error. The overall effect of this error is that it has caused prejudice to the accused petitioner. 15. The result is that the revision petition is allowed and the accused petitioner is acquitted from the charge of Section 25 of the Arms Act. He has deposited the fine, which shall be refunded to him. The arm stands confiscated to the State.> Petition allowed. *******