J. N. DUBEY, J, J. This appeal is directed against the judgment and order dated 12th May, 1988 of Sri Muhi-Ul-Islam, VIII Additional Sessions Judge, Moradabad passed in Sessions Trial No. 281 of 1984 convicting and sentencing the appellants under Section 392, I. P. C. for three years R. I. and under Section 411, I. P. C. for two years R. I. Both the sentences were directed to run concurrently. 2. The case of the prosecution is that on 19th May, 1993 Girish Kumar, PW 3 alongwith his driver Jagdish Prasad PW 4 and servant Dinesh Kumar were going from Delhi to Bareilly in an Ambassador Car. When they reached Kashipur Tirha on Moradabad-Rampur road at about 6. 00 p. m. three persons -one sub- Inspector of Police, one Police Constable and one civilian stopped their Car. The Sub-Instector of Police told Girish Kumar that he had received information that they were indulging in smuggling and therefore he wanted to search their vehicle. Girish Kumar readily agreed to give search of the vehicle. The Sub- Inspector of Police took them to a lonely place where he searched the Car and robbed them of Rs. 1,00,000 which were lying in the desk-board. The Sub-Inspector of Police was short statured with small pox marks on his-face. He was wearing police dress without name plate and was armed with pistol. The Police Constable was tall, slim with black complexion. He was also wearing police dress without name plate and was armed with twelve bore gun. The third person was tall, with fair complexion and was wearing ordinary dress. 3. The F. I. R. of the incident was lodged by Jagdish Prasad, PW 4 at Police Station Katghar, district Moradabad on 20th May, 1993 at 12. 15 p. m. The Inspector of Police Jia Nand Sharma, PW 7 took over the investigation of the case on 20th May, 1983. He recorded the statements of the prosecution witnesses, visited the place of occurrence and prepared the site-plan on the same day. 15 p. m. The Inspector of Police Jia Nand Sharma, PW 7 took over the investigation of the case on 20th May, 1983. He recorded the statements of the prosecution witnesses, visited the place of occurrence and prepared the site-plan on the same day. After returning from the place of occurrence, he alongwith Jagdish Prasad, PW 4 and Dinesh Kumar started search of the appellants who were found standing before their houses in Lajpat Nagar at about 6 p. m. On seeing the appellants Jagdish Prasad, PW 4 and Dinesh Kumar identified the appellants and stated that they alongwith one another person had robbed them on 19th May, 1992 Jia Nand Sharma recorded the statements of the appellants who while confessing their guilt stated that their share of booty was kept by them in their houses. They took the police party to their houses where on their pointing out Rs. 25,000 were recovered from the house of appel lant Virendra Singh and Rs, 11,000 from the house of appellant Banwari Lal, Jia Nand Sharma prepared the recovery memo and site plan showing the place of recovery and thereafter took the appellants to the Police Station ba-parda alongwith the amount recorded on their pointing out. They were subsequently produced before the Magistrate and sent to jail. 4. On 9th June, 1993 the appellants were put for identification in District Jail, Moradabad, in presence of Sri M. A Khan, Special Executive Magistrate, PW 4. Both the appellants were correctly identified by Girish Kumar, PW 5. 5. On 26th June, 1983 Inspector T. C. Tyagi, PW 13 took over the investigation for the case, on the same day he learnt that accused Brij Mohan Kaushik had been arrested by the Police Station Kotwali, Bareilly. He went to Bareilly where he found accused Brij Mohan Kaushik in police lock up. Thereafter he alongwith other police personnels took Brij Mohan Kaushik to his house where a sum of Rs. 8,600 was recovered on his pointing out from an Almirah. T. C. Tyagi prepared the recovery memo and site plan showing the place of recovery. Accused Brij Mohan Kaushik was also made ba-parda. 6. On 27th June, 1982 accused Brij Mohan Kaushik assisted T. C. Tyagi, PW 13 in getting the accused Dev Dutt Sharma arrested near the crossing of Police Lines, M. T. Gate alongwith a country-made pistol and four live, cartridges. Accused Brij Mohan Kaushik was also made ba-parda. 6. On 27th June, 1982 accused Brij Mohan Kaushik assisted T. C. Tyagi, PW 13 in getting the accused Dev Dutt Sharma arrested near the crossing of Police Lines, M. T. Gate alongwith a country-made pistol and four live, cartridges. On 28th June, 1982 T. C. Tyagi PW 13 recorded the statement of Bhoop Singh, S. H. O. of Police Station Kotwali, Bareiily. In the mean time he learnt that Smt. Omwati, wife of accused Brij Mohan Kaushik had an account in Central Bank of India at Bareilly in which she had deposited a sum of Rs. 10,000 on 20th May, 1983. 7. Accused Dev Dutt Sharma was taken on police remand. l3uring interrogation he confessed that he had received Rs. 10,000 as his share of booty, out of which he had already spent a sum of Rs. 9,000 and the remaining amount of Rs. 1,000 was kept by him in the house of appellant Virendra Singh. He was accordingly taken to the house of Virendra Singh where he took out a key from beneath a box open its box and took out Rs. 1,000 thereform. T. C. Tyagi prepared the recovery memo and site-plan showing the place of recovery, on 2-9-1983 accused Brij Mohan Kaushik was put up for test identification in District Jail, Moradabad in presence of Sri, M. A. Khan, Special Executive Magistrate, PW 14. He was correctly identified by Girish Kumar, PW 5 as the third robber alongwith the appellants in plain dress. After completing the investigation T. C. Tyagi, PW 13 submitted charge-sheet against all the four accused. 8. Accused pleaded not guilty and denied the incident of robbery. They also denied the recovery of various amount in the manner suggested by the prosecution. While appellant Virendra Singh stated that a sum of Rs. 25,000 recovered from him belong to his mother-in-law Smt. Tulsa, appellant Banwari Lal stated that a sum of Rs. 25,000 recovered from him belong to his uncle Shanker Lal. Accused Brij Mohan Kaushik denying the recovery stated that a sum of Rs. 8,600 belong to him and was not related to the robbery in question, on the other hand accused Dev Dutt Sharma stated that he was arrested from his house in village Purnia, district Pilibhit by the Police and was falsely im-implicated in a case under Section 25 of Arms Act. 8,600 belong to him and was not related to the robbery in question, on the other hand accused Dev Dutt Sharma stated that he was arrested from his house in village Purnia, district Pilibhit by the Police and was falsely im-implicated in a case under Section 25 of Arms Act. He denied the recovery in the manner suggested by the prosecution and claimed that the amount recovered from him belongs to him and did not belong to the robbery in ques tion. The appellants claimed that they were known to the prosecution witnesses since before the incident in question and that their photographs were also taken at the Police Station Katghar and shown to the witnesses before the test identification parade. They disputed the claim of the prosecution that they were kept ba-parda from the time of their arrest till their being admitted to the jail. Appellant Virendra Singh further stated that he was severely beaten by the police as a result of which he sustained several injuries on his person. It was further claimed that he was taken to Bareilly during police remand and shown to the witnesses there and that his photograph were also taken. 9. The prosecution examined fifteen witnesses in support of its case but most of the independent witnesses of fact did not support the prosecution story and were declared hostile. It also filed affidavits of constables Jai Singh, Kripal Singh, Shiv Kumar Singh and Shree Chand Yadav to the effect that accused Brij Mohan Kaushik and Dev Dutt Sharma were kept ba-parda in the police lock up and were not allowed to be seen by anybody. On the other hand, four witnesses were declared hostile. It also filed affidavits of Constable Jai Singh, Kripal Singh, Shiv Kumar Singh and Shree Chand Yadav to the effect accused Brij Mohan Kaushik and Dev Dutt Sharma were kept ba-parda in the police lock up and were not allowed to be seen by anybody. On the hand, four witnesses were examined on behalf of the defence. 10. The trial Court after considering the entire evidence on record while acquitting accused Brij Mohan Kaushik and Dev Dutt Sharma convicted and sentenced the appellant as above. The trial Court has rejected the test identifi cation evidence but has relied upon the evidence of recovery to hold the appellants guilty of the charges levelled against them. 10. The trial Court after considering the entire evidence on record while acquitting accused Brij Mohan Kaushik and Dev Dutt Sharma convicted and sentenced the appellant as above. The trial Court has rejected the test identifi cation evidence but has relied upon the evidence of recovery to hold the appellants guilty of the charges levelled against them. Since the trial court has assigned cogent reasons for disbelieving the test identification evidence instead of recording my own finding on this point I am quoting below with approval the finding of the trial Court. "pw 5 Girish Kumar is the star witness of the prosecution regarding test identification evidence against accused Virendra Singh, Banwari Dal and Brij Mohan Kaushik. The prosecuting evidence of Jagdish Prasad, PW 4 indicated that he happended to be the driver of PW 5 Girish Kumar, Dinesh Kumar third witness cited in the F. I. R. (Ext. Ka-4) was not produced by the prosecution presumably because he would not have been willing to support the prosecution story. Admittedly, Girish Kumar, PW 5 and Jagdish Prasad, PW 4 were residents of the city of Bareilly. It is estab lished by the defence evidence that accused Brij Mohan Kaushik was also the resident of Bareilly. It is also implied that the pro secution witnesses must be knowing accused Brij Mohan Kaushik since long before the incident of the robbery in question. Simi larly, there is ample defence evidence on record to show that PW 5 Girish Kumar must have had fair opportunity of having known accused Virendra Singh by virtue of his posting as a Police official at Qasba Faridnagar and later at PW Zilla in the city of Bareilly. Girish Kumar, PW 5 denied his prior acquintance with accused Virendra Singh Kifayat Hussain (ASIM) was produced by the accused as DW 2, who stated that he was posted at the office of S. S. P. , Bareilly. He produced the Order Book maintained by the office of S. S. P. , Bareilly, which inter alia, recited an entry to the effect that on 10-8- 1976 accused Virendra Singh had been transferred from P. S. Faridnagar to P. S. Qila Virendra Singh, AS1 (M) was produced as PW 3 who stated that accused Virendra Singh was transferred to Moradabad for P. T. on 8-10-1980. He also produced the annual entry book in this behalf. He also produced the annual entry book in this behalf. The evidence of D. W. 2 and DW 3 established beyond any shadow of doubt that accused Virendra Singh remained at Bareilly till October, 1980 and in that connection as a Sub-Inspector of Police the prosecution witness Girish Kumar PW 5 must have had a fair opportunity of knowing accused Virendra Singh. In this context it was suggested to PW 3 Girish Kumar that at several occasions during the posting of accused Virendra Singh at Bareilly, the Income-tax Authorities raided the promises of Girish Kumar PW 5 and in the connection accused Virendra Singh had also appeared at the scene of raids. PW 5 Girish Kumar also conceded that the customs, officials also inspected his premises. However, Girish Kumar PW 5 denied that there was any raid. According to him, the I. T. O. , Bareilly had conducted survey of his premises. Taking all these facts and circumstances into consideration, it appears that the defence contention of accused Virendra Singh in this context that Girish Kumar PW 5 had been known to him since long before the incident of highway robbery in question is not without any basis. At least a reasonable doubt is created in favour of the accused to the effect that PW 5 Girish Kumar had been known to accused Virendra Singh. " 11. The defence contention, that accused Banwari Lal and Virendra Singh and Brij Mohan Kaushik were shown to the witness PW 5 and also their photographs were taken before their test identification, also has considerable force. The record shows that after the arrest of accused Virendra Singh and Banwari Lal on 20-5-1983 their photographs were certainly taken. It is also clear from the evidence of Inspector of Police Jia Nand Sharma, PW 7 that the two accused (Virendra Singh and Banwari Lai) were taken to Bareilly twice. PW 7 Jai Nand Sharma clearly admitted in his cross-examination t lat after the police remand he took the accused to Bareilly for several times. It has not been explained by the Inspector Jai Nand Sharma, PW 7 as to what was the occasion of taking the accused to Bareilly. The contention of the accused that their photographs were taken, found sufficient support by the documentary evidence furnished by the accused. It has not been explained by the Inspector Jai Nand Sharma, PW 7 as to what was the occasion of taking the accused to Bareilly. The contention of the accused that their photographs were taken, found sufficient support by the documentary evidence furnished by the accused. The first police remand order granted initially from 21-5-1983 to 24-5-1983 also carried a direction that accused Virendra Singh had injuries on his body and the same should be got examined by a Medical Officer. The Police of P. S. Katghar retaining the accused Virendra Singh in its custody did not carry out this order of the Court for reasons not known. The entry in the G. D. (Ext. Ka-8) suggested that the accused had no injury on his body. Even the remand Magistrate called for an explanation of the police as to why his direction for medical examination of accused Virendra Singh was not carried on. On behalf of accused Virendra Singh a telegram (Ext. Ka-15) was also received by the Addl. C. J. M. , Moradabad on 25-5-1983 to the effect that the Police of P. S. Katghar was not taking accused Virendra Singh to jail despite orders of the Addl. C. J. M. , Moradabad. The non-examination of the injuries on the body of Virendra Singh, accused and non-compliance with courts jail remand order warranted an inference that the accused Virendra Singh and Banwari Lal was detained at P. S. Katghar. Moreover, DW 4 J. N,. Steers, a Pharmacist at the District Jail Moradabad also filed the injury report of accused Virendra Singh (Ext. Kha-12) which indicated that he had injuries on his body which were 2 to 3 days old. This evidence in defence lent considerable support to the contention of the Virendra Singh that the police of P. S. Katghar did not in fact to its duty in the normal course. Above, all, there are three important documents on record, namely, the newspaper, Bijnore Times dated 2-6-1983 (Ext. Kha-2) and Amar Ujala dated 2-6-1982 (Ext. Kha-3) and a monthly magazine which depicted the photograph of the three accused. Above, all, there are three important documents on record, namely, the newspaper, Bijnore Times dated 2-6-1983 (Ext. Kha-2) and Amar Ujala dated 2-6-1982 (Ext. Kha-3) and a monthly magazine which depicted the photograph of the three accused. The identification proceedings took place of accused Banwari Lal and Virendra Singh on 9-6-1983, whereas the said docu mentary evidence in defence established that the photographs had been published in the Newspapers long before it on 1-6-1983 and 2-6-1983, It does not stand to reason as to how the photographs of the accused could have been published in the Newspapers long before it on 1-6-1983 and 2-6-1983. It does not stand to reason as to how the photographs of the accused could have been published in the Newspapers as also the Magazine (Ext. Kha-2 to Kha-4 ). The only reason comprehensible by good sence is that the photographs of the accused were certainly taken much before their test identification. The explanation of Girish Kumar PW 5 that he had not seen the photographs of the accused even in Amar Ujala-a daily Newspaper of Bareilly-his home town in unworthy of belief. His explanation does not reconcile with the defence evidence. As regards the formal and other link evidence of PW 7, Jia Nand Sharma as well as police constables Kripal Singh, PW 17 and Shree Chand Yadav, PW 19 that they kept accused Brij Mohan Kaushik ba-parda during their duty house. It may be said that they are of no avail to the prosecution. These witnesses gave evidence only with respect to 26-6-1983 when accused Brij Mohan Kaushik was kept ba-parda in the police lock up. They do not rule out the possibility that accused Brij Mohan Kaushik had been known to Girish Kumar, PW 5 from before or that he had seen this accused even else where after his arrest. 12. The above discussion of the incriminating test identification evidence in the face of the defence evidence does not appear to be worthy of belief. The defence inspires confidence to the effect that the accused had been known to the prosecution witness Gireah Kumar (PW 5) since before the incident of highway robbery in question by accused Virendra Singh, Banwari Lal and Brij Mohan Kaushik. The defence inspires confidence to the effect that the accused had been known to the prosecution witness Gireah Kumar (PW 5) since before the incident of highway robbery in question by accused Virendra Singh, Banwari Lal and Brij Mohan Kaushik. The aforesaid infirmities in the identification evidence also lead to the conclusion that the three accused were shown to the prosecution witnesses after their arrest, but before their test identification parades in the District Jail Moradabad on 9-6-1993 and 2-8-1983. The test identification parade of accused Brij Mohan Kaushik was held by Sri M. A. Khan. PW 14 on 2-8-1983. The incident in questions took place on 19-5-1983 at about 6 p. m. Thus there was a time gap of more than 74 days of identification. Under these circumstances, it was physically impossible for Girish Kumar, PW 5 to have retained his memory fresh about the facial description of the accused Brij Mohan Kaushik was not dependable even on this ground as well as. 13. After hearing the learned counsel for the parties and going through the entire evidence on record. I am of the opinion that the trial Court has rightly come to the conclusion that appellant Virendra Singh was known to Grish Kumar, PW 5 since before while both the appellants were shown to the prosecution witnesses after their arrest and before the test identification parade and that their photographs were also taken to facilitates their identi fication and therefore the appellants cannot be convicted on the basis of evidence of test identification. 14. Now it has to be seen whether the conviction of the appellant can be legally sustained on the basis of other materials on record. 15. The F. I. R. of the incident was lodged after an inordinate delay of more than eighteen hours. 14. Now it has to be seen whether the conviction of the appellant can be legally sustained on the basis of other materials on record. 15. The F. I. R. of the incident was lodged after an inordinate delay of more than eighteen hours. The explanation for not lodging the F. I. R. promptly is that Girish Kumar, PW 5 become nervous after the incident and therefore he went to Bareilly where he fell ill and therefore could not lodge the F. I. R. on the following morning he sent Jagdish Prasad, PW 4 along-with his brother Pradeep Kumar to lodge the F. I. R. This explanation is wholly unsatisfactory considering the fact that Girish Kumar, PW 5 was accompanied by two more persons who could have lodged the report at P. S. Katghar immediately after the incident, even if it is accepted that Girish Kumar became nervous due to the incident. Considering the amount involved in the incident the anxiety of Girish Kumar PW 5 should have been to make all possible efforts to recover the money robbed in the incident which could be done only by lodging the F. I. R. promptly, therefore, in the normal course the complainant party should have rushed to the concerned Police Station, namely, Katghar for lodging the report so that the steps could be taken to arrest the culprits and recover the money but that was not done. Even assuming that Girish Kumar, PW 5 could not go to lodge F. I. R. at P. S. Katghar due to nervousness it does not stand to reason why he did not lodge report at Police Station Moodha Pandey, Kotwali Rampur, Meerganj and Qila etc. through which he passed for him to lodge F. I. R. in the for reaching Bareilly. There was absolutely no difficulty for him to lodge F. I. R. in the Police Stations which fell in his way to Bareilly. Moreover, he could have lodged report in some Police Station at Bareilly and could have also informed the higher Police Officers either personally or through some other person or even on telephone but nothing of the sort was done which speaks a volume against the prosecution. The prosecution story is highly improbable. Moreover, he could have lodged report in some Police Station at Bareilly and could have also informed the higher Police Officers either personally or through some other person or even on telephone but nothing of the sort was done which speaks a volume against the prosecution. The prosecution story is highly improbable. It is very difficult to believe that the appellants would have indulged in high way robbery within their own police circle at such a place and time in public view. It is (sic) bodys ease that the appellants had prior knowledge of the fact that Girish Kumar, PW 5 was returning from Delhi with such a huge amount so as to prompt them to wait at Katghar crossing at that hour of evening and therefore it is still more difficult to believe that the appellants would have waited at that place after removing their name plates from their uniform and concealing the number of the motor cycle by pasting a piece of paper on it. This conduct of the appellants would have itself created suspicion in the mind of the persons living at or passing through that place and would have also given a clue to Girish Kumar that they were not real police officials and therefore he could have easily refused to give search of his vehicle and accompany them to a lonely place but from the evidence on record, it is clear that the complainant party did not put forward any resistance. Not only they readily agreed to give search of the vehicle to the appellants who could be impostures in the police uniform but they also accompanied them to a lonely place. The subsequent conduct of Girish Kumar, PW 5 is still more strange. As stated above, instead of making any effort to get the culprits arrested and re cover the money by lodging the F. I. R. he want to Bareilly. He neither lodged report at the concerned Police Station nor did he do so at several other Police Stations which fell in his way to Bareilly. He also did not bother to lodge F. I. R. at any Police Stations in Bareilly. He did not even contact higher police officers on telephone. He neither lodged report at the concerned Police Station nor did he do so at several other Police Stations which fell in his way to Bareilly. He also did not bother to lodge F. I. R. at any Police Stations in Bareilly. He did not even contact higher police officers on telephone. The only inference which can be drawn from this conduct of Girish Kumar, PW 5 is that either the incident did not take place at all or took place in some other manner. It will be relevant to point out here that none of the independent witnesses of the fact have supported the prosecution story and they have been declared hostile. The fact the witnesses have been declared hostile does not necessarily meant that they have been wrongly cited as witnesses but they would have ultimately refused to give false evidence in the case. A stated above, although the accused Virendra Singh and Brij Mohan Kaushik were known to Girish Kumar PW 5 since before yet they were not named in the F. I. R. There is yet another strange coincidence that all the four accused confessed their guilt and led for recovery of the looted property. Dinesh Kumar, a servant of Girish Kumar, PW 5 who was according to the prosecution travelling along-with him in the Car and was witnesses of the entire incident including the alleged recovery under Section 27 of the Indian Evidence Act has been with held for the reasons best known to the prosecution. This is yet another circumstances which goes against the prosecution. 16. From the materials on record. I find that the investigation of this case has also not been fair. The appellants were not named either in the F. I. R. or the statement of witnesses under Section 161, Cr. P. C. yet the Investigation Officer Jia Nand Sharma, PW 7 proceeded to arrest them immediately in the company of Jagdish Prasad, PW 4 and Dinesh Kumar merely on the basis of description of the accused. The appellants were not named either in the F. I. R. or the statement of witnesses under Section 161, Cr. P. C. yet the Investigation Officer Jia Nand Sharma, PW 7 proceeded to arrest them immediately in the company of Jagdish Prasad, PW 4 and Dinesh Kumar merely on the basis of description of the accused. The description of accused at the most would have given a clue to Jia Nand Sharma, PW 7 for investigating the matter but it was not sufficient for arriving at the conclusion of involvement of the appellants in the crime so as to go to arrest them in the company of Jagdish Prasad, PW 4 and Dinesh Kumar and get them identified on the spot. Moreover, he also did not bother to check the duty chart of the date of incident which could have easily given the whereabouts of the appellants at the time of incident. It has come in the evidence that both the appellants were on duty on 20th May, 1983 and therefore they should have been found at the Police Station at the time of lodging the F. I. R. and should have been easily identified by Jagdish Prasad, PW 4 and Dinesh Kumar who were travelling in the car at the time of the incident. It is not clear as to how the appellants were found standing in front of their houses in Lajpat Nagar at the time when they were y supposed to be on duty at the Police Station that too in plain dress. The manner in which the Investigation Officer, Jia Nand Sharma, PW 7 conducted himself in the matter shows that most likely everything was pre-planned. It has come in the evidence that appellant Virendra Singh was beaten in the police lock up as a result of which he sustained several injuries. The Investi gation Officer Jia Nand Sharma PW 7 neither got the appellant Virendra Singh medically examined inspite of the order of the A. C. J. M. nor took him to jail immediately on expiry of the initial period of police remand which further shows that he was not acting impartially. 17. The investigation officer, Jia Nand Sharma, PW 7 has stated that the appellants were arrested from in front of their houses at 4. 00 p. m. yet the recovery from them was made at 6. 17. The investigation officer, Jia Nand Sharma, PW 7 has stated that the appellants were arrested from in front of their houses at 4. 00 p. m. yet the recovery from them was made at 6. 30 p. m. No explanation has been offered for this delay of more than two hours in making the recovery after the arrest. Similarly the Investigation Officer, T. C. Tyagi PW 13 has submitted in his statement that the statement of star prosecution witness Girish Kumar, PW 5 under Section 161, Cr. P. C. was recorded on 20th August, 1983 and that there was no record of his said statement in the case diary prior to 25th August, 1983. This inordinate delay of more than three months in recording the statement of Girish Kumar, PW 5 under Section 161, Cr. P. C. has also not been explained though it has come in the evidence that the Investigation Officer, T. C. Tyagi, PW 13 had met him several times after taking over the investigation. 18. According to the prosecution appellants were arrested from out side their houses by the Inspector Jia Nand Sharma PW 7 in presence of Subhash Chandra, PW 3 Jagdish Prasad PW 4, Girish Kumar, PW 5 and servant Dinesh Kumar who have not been examined. Jagdish Prasad PW 4 has stated that he identified both the appellants because they alongwith co-accused Brij Mohan Kaushik had looted his master Girish Kumar, PW 5 on 19th May, 1983 as stated above, Inspector Jia Nand Sharma PW 7 went out in search of the appellants with Jagdish Prasad PW 4 and Dinesh Kumar and therefore no importance can be attached to the fact that the appellants were identified by Jagdish Prasad PW 4 on their being found standing in front of their houses. 19. Now, it has to be seen whether in a case where the F. I. R. has been lodged after an inordinate delay, prosecution story and the conduct of the complainant is highly improbable and unnatural, the investigation has not been fair, none of the independent witnesses of fact have supported the prosecution story the test identification evidence has been rejected and two accused namely Brij Mohan Kaushik and Deo Dutt Sharma have been acquitted on the basis of same evidence, the conviction of the appellants can be legally sustained on the basis of the evidence of recovery. 20. 20. From the materials on record, I find that the prosecution has not succeeded in provision that Girish Kumar PW 5 was having the currency notes worth Rs. 1,10,000 in his possession at the relevant time. Firstly, the prosecu tion did not produce any documentary evidence to show that Girish Kumar, PW 5 was possessed of such a huge amount and had taken the same to Delhi for purchasing silver, Secondly, it is very strange that such a huge amount of currency notes was lying in the desk board which is against the normal human conduct. Girish Kumar, PW 5 could have produced the account books and ledger to show that he was possessing such a huge amount of currency notes which he had taken to Delhi for purchasing silver but that was not done for the reasons best known to him. The mere fact that he was a business man and income tax payee was not sufficient to prove that he was having Rs. 1,10,000 in his possession at the relevant time. In the absence of account books and ledger etc. even if it is accepted that Girish Kumar, PW 5 had a sound financial status, it cannot be presumed that he was travelling with such a huge amount at the relevant time. 21- The evidence of recovery is otherwise also not of much evidenciary value in the facts of the present case. Firsty, because the recovery was made by Inspector Jia Nand Sharma, PW 7 whose conduct was not above board. Secondly, the recovery was of currency notes which cannot be ordinarily identi fied. The currency notes can be found in possession of any person and unless there is some strong circumstance to show that the currency notes were the same which were looted from Girish Kumar, PW 5, the evidence of recovery has to be rejected. In this particular case neither the FIR contains the numbers of currency notes nor any other mark of identification for which the same could have been identified by Girish Kumar, PW 5. The entire-amount of Rs. 1,10,000 was also not recovered from one person or place, therefore also it cannot be claimed that the currency notes were the same which were allegedly looted from Girish Kumar PW 5, Girish Kumar PW 5 claims that he identified the currency. The entire-amount of Rs. 1,10,000 was also not recovered from one person or place, therefore also it cannot be claimed that the currency notes were the same which were allegedly looted from Girish Kumar PW 5, Girish Kumar PW 5 claims that he identified the currency. Notes with the help of a ribbon, whereby he tied his currency notes at the time of placing them in the desk board of his car. The fact that the ribbon has not been mentioned either in the F. I. R. or the statement of witnesses under Section 161, Cr. P. C. itself is sufficient to reject this claim of Girish Kumar PW 5 that he succeeded in identifying the currency notes with the help of the ribbon. Moreover the ribbon itself is an item of common use and there fore, even assuming that the notes were tied with the ribbon no significance can be attached to it unless the description of the ribbon or some other mark of identification thereof was mentioned in the F. I. R. and the statement of witnesses under Section 161, Cr. P. C. 22. The claim of the appellants that the money recovered from them was kept with them by their relatives can also not easily be brushed aside. The appellant Virendra Singh filed a deed of agreement to sale to prove that sum of Rs. 25,000 belong to his mother-in-law Smt. Tulsa. It is true that he did not produce Smt, Tulsa. But that cannot be ground for disbelieving his claim that the amount in question belongs to her. Similarly, appellant Banwari Lal, produced Shanker Lal, DW 1 who stated that the marriage of his daughter Kumari Tarawati was fixed on 26th May, 1983. He also filed an invitation card in support of his claim that the marriage of his daughter was fixed for 26th May, 1983. According to this witness he has given a sum of Rs. 11,500 to the appellant Banwari Lal for buying electric fan etc. to be given in the marriage of Kumari Tarawati. Thus, it is clear from the statement of this witness that the marriage of his daughter was fixed for 26th May, 1983. I do not find any ground for disbelieving his claim that he gave Rs. 11,500 to appellant Banwari Lal for purchasing the electric appliances. 23. to be given in the marriage of Kumari Tarawati. Thus, it is clear from the statement of this witness that the marriage of his daughter was fixed for 26th May, 1983. I do not find any ground for disbelieving his claim that he gave Rs. 11,500 to appellant Banwari Lal for purchasing the electric appliances. 23. Even assuming for the sake of argument that the appellants have failed to prove that the amount recovered from them belongs to their rela tives, they cannot be legally convicted on the basis of evidence of recovery for the reason that the prosecution has failed to prove that the currency notes recovered from them were the same which were looted from Girish Kumar, PW 5 in the incident in question. 24. The prosecution has failed to prove the case against the appellants beyond reasonable doubt and therefore they are entitled for acquittal. 25. In the result, the appeal is allowed. The judgment and order dated 12th May, 1988 of the VIII Additional Sessions Judge, Moradabad is set aside and the appellants are acquitted of all the charges levelled against them. They are on bail. The need not surrender. Their bail bonds are discharged. The money recovered them shall be returned. Appeal allowed. .