JUDGMENT N.N. Sharma, J. 1. There are two appellants in this appeal. Both the appellants are residents of village Kunda, Police Station Maldaur, District Bijnor. Both the appellants were convicted under Sec. 392 of IPC and sentenced to three years R.I. each. Shera appellant was further convicted under Sec. 411, IPC and sentenced to one year's RI. Both the sentences were ordered to run concurrently on 20-8-77 by Sri M.N. Kulshrestha, learned V Addl. Sessions Judge, Bijnor. 2. Prosecution story briefly stated is that on 5th October, 73 informant Vijendra PW 2 and Kesho PW 3, his co-villagers went returning to their village from Nagina town after shoping. It was at about 7 P.M. when they reached the road infront of grove of one Kundan Singh that the appellants along with their associate a stranger emerged from the grove; two of them were armed with lathis; one of them possessed a pistol also; they blocked the passage of victims sand asked the victims to handover their articles. Appellants were recognised in light of torches flashed by the bandits. A sum of Rs. 269/- and an umbrella Ext. 1 were robbed from possession of Vijendra. A sum of Rs. 10/- was robbed from Budhco and a sum of Rs. 15/- was robbed from Kesho. After the robbery robbers went towards the grove. Informant narrated this incident to his uncle and father; Sukharam Singh PW 4 uncle of informant scribed report Ext. Ka 1; the two appellants were named in this report; along with this report informant, Gulsher Singh, Budhoo Singh, Sukhram and Genda went to Police Station Haldaur which is at a distance of three miles from scene of occurrence; the aforesaid report was made over there at 9.15 P.M.; on the basis of this report first information report Ext. Ka 9 was drawn by head constable Laxman Singh who registered the case in General Diary vide Ext. Ka 6. Writing of Sri Laxman Singh was proved by investigator Sri D.L. Sagar PW 14 who happened to be present at Police Station when first information report was drawn, and who was acquainted with the writing of head constable Laxman Singh. He took up investigation forthwith. Vijendra, Budhoo etc, were interrogated along with constables, Sukhram PW 4 and Gandha Singh and Gulsher. House of Shera was raided in the same night at 0.30 A.M. by investigator. Shera was found asleep. He took up investigation forthwith. Vijendra, Budhoo etc, were interrogated along with constables, Sukhram PW 4 and Gandha Singh and Gulsher. House of Shera was raided in the same night at 0.30 A.M. by investigator. Shera was found asleep. He was apprehended; currency note of denomination of Rs. 100/- Ext. 2 was recovered from the pocket of his shirt. Umbrella Ext. 1 was found on his cot; both these articles agreed with the description of the robbed property as detailed in written report Ext. Ka 1. Recovery memo Ext Ka 2 was drawn by investigator; Jagan was also arrested in the same night; the recovered property was sent to Police Station by investigator through constables, investigator inspected the scene of occurrence and prepared site plan Ext. Ka 3 on 6-10-73; another site plan Ext. Ka 4 about the place of recovery was also prepared by him; on completion of investigation charge-sheet Ext. Ka 5 was submitted against the appellants. Both the appellants in their statements denied their participation in the occurrence; Shera also denied the recovery of Exts. 1 and 1 from his possession. He alleged his implication to ill-will with informant; he further stated that he had gone to Police Station to lodge a report in connection with a dispute against Vijendra etc. His report was not taken down by Police; local police was amendable to the influence of Genda Singh, father of Vijendra who happened to be Sarpanch so he was falsely involved in this case. A similar statement was made by Jagan. In defence appellants examined Ranjit DW 1 and Nathoo Singh DW 2 who testified about a dispute amongst Vijendra and appellants in connection with the plucking of guavas from the grove; the appellants also went to lodge report on Police station in connection with that quarrel. However, their report was not taken down by Police as they learnt from Chunnu and Sarabjit. Appellants were falsely involved in the case. 3. In support of their case prosecution examined five witnesses. I have already referred to the testimony of investigator Sri D.L. Sagar who also claimed to have been present at the time of recovery of Exts. 1 and 2 from possession of Shera and prepared recovery memo Ext. Ka 2 on 6-10-73 at 0.30 A.M. at the house of Shera in village Kunda in presence of Shukhram Singh P.W. 4 and Gulsher Singh. 1 and 2 from possession of Shera and prepared recovery memo Ext. Ka 2 on 6-10-73 at 0.30 A.M. at the house of Shera in village Kunda in presence of Shukhram Singh P.W. 4 and Gulsher Singh. Shukhram Singh PW 4 is the uncle of informant and scribe of the written report Ext. Ka 1. 4. About the factum of robbery there are statements of Vijendra PW 1, Budhoo PW 2 and Kesho PW 3. Out of these witnesses Budhoo Singh and Kesho refused to support the prosecution version about the recognition of appellants during the commission of robbery; they were declared hostile. Vijendra PW 1 supported the prosecution version as laid in written report. He also identified Exts. 1 and 2 in court as the robbed property. Learned trial Judge believed the aforesaid evidence and recorded the conviction and sentences as given above. 5. I have heard learned counsel for the parties and perused the record. 6. On behalf of appellants it was successfully argued before me that the evidence of nomination as adduced by prosecution in this case is simply flimsy. The occurrence is alleged to have taken place on 5-10-73 at 7 P.M. when visibility was very poor and recognition of robbers could not have been possible except in torch light. Vijendra PW 1 stated that three miscreants emerged from the grove; he saw the faces of the miscreants in the light of torches flashed by them. He could not specify the name of the robber who held the pistol; he did not allege that he- held any torch with him; he did not sustain any injury during the occurrence. He conceded that none of the victims possessed torches; it does not appeal to common sense that the robbers flashed torches to facilitate their own recognition by the witnesses to their own prejudice. Budhoo PW 2 is a co-villager of informant and had no reason to espouse the cause of appellants testified that the robbers had covered their faces with garbs and therefore they could not recognise anyone; Kesho PW 3 who is also alleged to have been looted in this robbery testified that he was indisposed and could not recognise the robbers as they had covered their faces with garbs. He gave number of robbers as 6 or 7. He was also declared hostile. He gave number of robbers as 6 or 7. He was also declared hostile. Thus it is obvious that Out of three victims two refused to support the informant. It is improbable that the appellants who were well known to the victims would have robbed the informant and his co-villagers without covering their faces with any device like garb etc. as such course was fraught with grave risks. Informant alleged that scene of occurrence lay on road running north south while in site plan Exts. Ka 3 it has been shown on a way running east west and even factum of robbery is doubtful. Thus the nomination evidence as adduced by prosecution in this case is not trustworthy. I take up the evidence about recovery of Ex. 1 and 2 from the possession of Shera on the night in between 5th and 6th October 76 at 0.30 A.M. in village Kunda. 7. On the point of recovery there are statements of investigator and Sukhram Singh PW 4. Both these witnesses testified that from Police Station they proceeded straight to the house of Shera; they reached the house of Shera who was found asleep; Sukhram Singh faltered about topography. He testified that the house of Shera opens towards east; he did not know about other houses in that locality towards south. He did not know the residents of that locality. According to site plan the main entrance of the house of Shera opens towards south. Shera is alleged to have been found under thatch at the cot shown by digit. The inner court yard is towards east; there is another door in the same courtyard which is common to Fattan and Shera and which opens towards north. Sukhram testified that on account of night he did not know that locality which was known to his brother Genda Singh; residents of the locality arrived after search but Sub-Inspector did not pick them up. 8. Sri D.S. Sagar PW 5 who is the (investigator aswell as the material witness about this recovery testified that he did not pick up any resident of Kunda as they arrived subsequently. He could not give any reason as to why the residents of the locality were not picked up eariler by him to witness the search. 8. Sri D.S. Sagar PW 5 who is the (investigator aswell as the material witness about this recovery testified that he did not pick up any resident of Kunda as they arrived subsequently. He could not give any reason as to why the residents of the locality were not picked up eariler by him to witness the search. There was no dearth of witness of the locality when the place where search was being conducted lay in a populated locality. Investigator could not give any reason as to why Exhs. 1 and 2 were not got identified in the test identification proceedings by informant etc. 9. As regards the umbrella Ext. 1 its description as laid in written report was "Asia 72 with plastic handle having its end of green colour: it had eight ribs". Obviously umbrella had not the name of informant on it. 10. As regards the currency note of denomination of Rs. 100 Ext. 2 its No. AA 807922 was not laid in written report Ext. Ka 1. It was mentioned in the report that there was some spot of oil on it. However without any test identification proceedings it could not be possible on the part of prosecution to establish the connection of Exts. 1 and 2 with robbed property. The mere assertion in court by informant that Exts. 1 and 2 were the robbed property could not have suffered unless such statement was corroborated by test identification proceedings held earlier vide principle laid down in Kanau v. State of Kerala 1979 CrLJ 919 and Hasib v. State of Bihar, AIR 1972 SC 284. Investigator did not explain as to why the very salutary provisions of Sec. 100 Cr PC were departed from in this case. 11. Similarly total absence of residents of locality of Kunda is again a circumstance which renders the evidence of recovery seriously doubtful. The prosecution evidence has to be tested on the anvil of objective circumstances. Had Shera participated in this robbery and knew fall well that his face had been recognised by informant and others who would be quick to lodge the report he could not have slept soundly at his house just after (occurrence with the incriminating evidence on him. Such conduct of Shera is relevant under Sec. 8 of Indian Evidence Act Such conduct of Shera by placing robbed umbrella Ext. Such conduct of Shera is relevant under Sec. 8 of Indian Evidence Act Such conduct of Shera by placing robbed umbrella Ext. 1 on his cot knowing that Police was on his heels is repugnant to common sense. 12. The investigator who was material witness in the case should not have conducted the investigation himself. He was interested in the fruition of his efforts and so in the due course the investigation should have been entrusted to some one else. Such investigation by him has to be looked with suspicion vide Bhagwan Dayal v. Pyare Lal, AIR 1968 Alld. 290 where it was observed: "The practice of investigation being conducted by the same officer who happens to be an ocular witness is looked with disfavour. When the same officer who claims to have witnessed the incident investigates then his evidence has got to be looked with great caution." It is further significant to note that the witnesses of recovery were the same who along with informant had reached the Police Station to lodge the report against appellants. Sri. Dori Lal Sagar did not care to pick up any other witness except the witnesses who were hostile to appellants. 13. Informant was present but he was not taken to the place of recovery. Only Sukhram PW 4 uncle of informant and Guisher Singh evidenced this recovery. It has been shown above that Sukhram Singh was badly shaken in crosse examination. Thus the evidence of recovery as adduced by prosecution in this case was simply fishy. The suggestion put forward in defence by PWs 1 and 2 that appellants were involved on account of influence of father of informant who happened to be Sarpanch in the locality cannot be regarded as devoid of force. So the evidence of recovery as adduced by prosecution in this case against Shera is safely discardable. 14. In the result appeal is allowed. The conviction and sentences of Shera under Secs. 392/411 IPC and of Jagan under Sec. 392, IPC are set aside and appellants are acquitted of the aforesaid charges. Both these appellants are on bail. They need not surrender to their bail bonds which are discharged. Appeal allowed.