Judgment S.K. Agarwal, J. (1) This appeal arises out of an order of conviction under Section 395, I.P.C. and they were consequently sentenced to undergo R.I. for seven years by learned Sessions Judge on 16.2.1989 vide his judgment in S.T. No. 7 of 1982. (2) The brief facts of the case are that on the night intervening 24/25.9.1981 in village Maholipurwa, a hamlet of village Miraghasi, Sant Lal P.W. 3 and his son Shatroghan Lal P.W. 1 were sleeping. A dacoity was committed by these three appellants along with some 14-15 unknown miscreants in his house. Dacoits were armed to the teeth with shapedged weapons and firearms. It is further alleged by the first informant Shatroghan Lal in Ext. Ka-1 that while both father and son were sleeping in two separate hutments. Incidentally a lantern was burning at their place of sleeping. The dacoits opened fire which resulted into injuries to his father Sant Lal P.W. 3 and another person Babu Ram. The F.I.R. of this case was got registered at Police Station Kheri on the next morning at about 9.45 a.m. After registration of the case, its investigation was taken up by P.W. 9 P.N. Saproo. He was accompanied by P.W. 6 N.S. Sainger, S.I. and other policemen. G.D. entry and check report was prepared by Head Moharir A.K. Shukla. He has not been examined. All the formalities and the papers were proved by P.W. 6 N.S. Sainger and P.W. 9 P.N. Saproo. On 26.9.1981, Ram Lakhan appellant along with another accused was arrested by P.N. Saproo, P.W. 9 in company with N.S. Sainger. They were arrested in the presence of two independent witnesses Chiddu and Raj Kishore Shukla at about 10 a.m. from their houses on that very day and afterwards the other accused has been acquitted by the trial court. A number of household articles including utensil and ornaments were recovered from their houses but all of the recovered articles were not put up for identification. Some of these recovered articles put up for test identification are Ext. 1 to 9. Some were identified by Shatroghan Lal, P.W. 1 and other by his wife Shanti. She has not been produced in evidence. The identification was got conducted by Net Ram, P.W. 10. Some of these recovered articles put up for test identification are Ext. 1 to 9. Some were identified by Shatroghan Lal, P.W. 1 and other by his wife Shanti. She has not been produced in evidence. The identification was got conducted by Net Ram, P.W. 10. The prosecution in support of its case has examined P.W. 1 Shatroghan Lal, P.W. 2 Pooran Lal, P.W. 3 Sant Lal, P.W. 4 Babu Ram, P.W. 5 Chandrabhal and P.W.6 S.I. N.S. Sainger as witness of the dacoity, C/Khaman Lal, P.W. 7, Pritam Singh, Special Executive Magistrate P.W. 8, P.N. Saproo, P.W. 9 Netra Ram P.W. 10, S.C. Agnihotri P.W. 11 the Investigating Officer. Evidence of P.W. 8 is not relevant now because those accused who were subjected to test identification by him were acquitted by trial court. (3) The accused appellants had denied the prosecution allegations and have pleaded implication in this case on account of enmity. Ram Lakhan has come up with the defence that brother and sister-in-law jointly lived in the same house. He has examined one witness in this case as D.W. 1. He is his father. He had claimed that he had sent a telegram regarding the arrest of his son to I.G. Police. Copy of the telegram is on record as Ext. Kha-1. (4) So far as the factum of dacoity is concerned, it cannot be doubted. It has been established beyond doubt. In the circumstances, the question that remains to be decided by this Court is as to whether these three appellants who were nominated in the F.I.R. were participants in the incident. In this regard, the statement of P.W. 1 read in its totality clearly depicts the picture that indicates that he had some grudge against these three appellants. He claimed that he had met these three accused persons for the first time at the clinic of Dr. Mishra. According to P.W. 2, P.W. 6 N.S. Sainger is brother of his father-in-law Gajraj. The statement of P.W. 2 Pooran Lal is clearly suggestive of the fact that he had some animus. Dr. Mishra had contested an election for the post of Pradhan against his own maternal uncle. His maternal uncle had lost that election. These three appellants as suggested by the defence to him had sided in the election with Dr. Mishra. The statement of P.W. 2 Pooran Lal is clearly suggestive of the fact that he had some animus. Dr. Mishra had contested an election for the post of Pradhan against his own maternal uncle. His maternal uncle had lost that election. These three appellants as suggested by the defence to him had sided in the election with Dr. Mishra. Apart from it, this witness was also suggested that he had some dispute with Ram Lakhan on the operation of a tubewell. This suggestion if tested in the light of the fact that he had some animus to nominate these accused persons in the dacoity assumes importance. He, therefore, cannot be relied upon. Sant Lal, P.W. 3 is father of the P.W. 1 Shatroghan Lal. He has clearly admitted in cross-examination that after receiving injuries, he fell unconscious and was not in a position to identify the other accused persons who were tried along with these three appellants. Those identified were acquitted on the ground by the trial court that their identification by P.W. 4 and P.W. 5 was not acceptable in the light of the statement of P.W. 3 Sant Lal. If we exclude Sant Lal, P.W. 3, Babu Ram P.W. 4 and Chandrabhal P.W. 5 from consideration, we are left only with the evidence of Shatroghan Lal, P.W. 1 and Pooran Lal, P.W. 2. It is admitted to Babu Ram P.W. 4 that in the morning, before lodging of the F.I.R. people of the village had collected there and every one of them was told by Shatroghan Lal that Gajraj, Newali and Ram Lakhan were present amongst the dacoits. If we analyse this statement, the probability that Sant Lal, P.W. 1 and Pooran Lal, P.W. 2 were instrumental in the nomination of these three appellants in the offence is strengthened. It is also admitted to the witnesses that those who arrived at the scene of occurrence stationed themselves under the chappar of Dhani Ram. Admittedly, chappar of Dhani Ram is at the distance of 30-35 kasis. The evidence shows that a kasis is equal to three steps. Thus, these witnesses were standing at the distance of 90 to 105 steps. It is also an admitted fact that the night of occurrence was dark. Admittedly, chappar of Dhani Ram is at the distance of 30-35 kasis. The evidence shows that a kasis is equal to three steps. Thus, these witnesses were standing at the distance of 90 to 105 steps. It is also an admitted fact that the night of occurrence was dark. (5) In the face of above fact and circumstances, even if it is accepted that grass lying on the ground was set afire by any witness and the light was created but that fire will be too short-lived and will not provide sufficient light to the witnesses to identify the miscreants from such a long distance. Excluding the evidence of P.W. 2, 3, 4 and 5 from consideration regarding the identification of these three appellants, the solitary evidence with regard to their identification by P.W. 1 Shatroghan Lal will be too weak to be acted upon. It will be most unsafe to place any reliance on the testimony of these witnesses. (6) It has been urged by learned A.G.A. that there is recovery from Ram Lakhan. Recovered articles from Mahanand have not been got proved by the trial court. All the articles recovered from the appellants Ram Lakhan and acquitted accused Mahanand were mixed up together and thereafter were put up for identification from Shatroghan Lal and Smt. Shanti, his wife. It is not fair for the Investigating Agency to put up for identification the recovered articles from two accused after they were mixed together. The law requires that the recovered articles from every accused should be subjected to test identification independently. There articles recovered from two different accused persons under what provision were mixed up is not clarified. This procedure cannot be accepted as lawful. Such a procedure under the law cannot be accepted and once the recovery from Mahanand were not acted upon by the trial court on the ground that the eye-witnesses Chiddu and Raj Kishore Shukla were not examined to prove the recovery of those articles it will be impossible for this Court to act upon the recovery made from Ram Lakhan. These recoveries were made within a gap of four hours from each other. The recovered articles were proved by Chandhrabhal P.W. 4 who has recognized some of the articles which were identified by these witnesses. These articles are house hold-articles of daily use which could easily be found in almost every house in a village. These recoveries were made within a gap of four hours from each other. The recovered articles were proved by Chandhrabhal P.W. 4 who has recognized some of the articles which were identified by these witnesses. These articles are house hold-articles of daily use which could easily be found in almost every house in a village. No special features regarding these articles were pointed out either in the F.I.R. or in the evidence recorded by the trial court of P.W. 1 Satroghan Lal. Apart from it, yet another anomaly is apparently available to the Court from the testimony of these three witnesses that some jewelleries were also recovered from both the appellants as well as acquitted accused Mahanand. There is absolutely no evidence as to what happened to those jewelleries. Whether they were belonging to the victim of this incident or they belonged to some other dacoity. Why they were not put up for identification in this case? All these facts and circumstances leave no room for any doubt that the proceeding of recovery of articles from the appellants Ram Lakhan and Mahanand cannot be acted upon without a pinch of salt. Against the investigation, it will be sufficient to state that it is highly inept. The evidence brought is so sketchy and insufficient that it is difficult to place any reliance upon it for upholding the conviction of these appellants. In the result this appeal is allowed. The order of their conviction and consequent sentence passed against the appellants is set aside. These appellants are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.