M. C. JAIN, J. Sessions Trial Nos. 358 of 1978 and 33 of 1979 were tried together by the II Additional Sessions Judge, Etawah. In all, seven persons including the present three appellants were put to trial under Sections 396 and 412 I. P. C. One of them, namely, Sri Krishan died during the pendency of the trial and the same against him abated. The other three Vijay Bahadur, Mohan Lal and Lala Ram were acquitted against whom the case was based on identification as they were not named in the F. I. R. The present three accused appellants, Ram Swaroop, Ram Singh and Ram Prasad came to be convicted under Section 396 I. P. C. with sentence of life imprisonment by judgment dated 2-11-1981. They have preferred this appeal. 2. The relevant facts are these: In between the night of 11/12-5- 1978 an armed dacoity was committed at about mid-night in village Babhnauti, P. S. Bela, District Etawah including at the house of Bala Prasad - informant PW 1. The F. I. R. was lodged on 12-5-1978 at 6. 30 a. m. The distance of the police station was four miles. The complainant Bala Prasad was sleeping at the Chabutra outside his house. His daughters Km. Adesh PW 3 and Km. Manju were also sleeping with him. The house of Ramanand (deceased), Sadanand PW 6 and Shivanand PW 7 was adjacent to the house of the complaint and the Chabutra of both the houses was one and the same. These three persons were also sleeping on the said Chabutra. A lantern was alight outside the house and one was inside the house. At about mid-night 8 or 9 dacoits entered into the house. The womenfolk inside the house raised alarm on which the persons sleeping outside awoke. The dacoits opened the main door and came at the Chabutra where they fired 2 or 3 shots. These shots hit Ramanand, Km. Manju and Km. Adesh. Because of injuries, Ramanand died 4 or 5 days later at Gwalior where he was taken for treatment. The dacoits committed dacoity at the houses of the complainant Bala Prasad, Ramanand, Lala Basant Lal and Manohar Lal. On shouts, the witnesses Raghubir Sahai, Ram Lal, Mittho, Satish Chandra and others reached the spot. Some Patel was stacked in front of the house of Manni Lal which was set a fire by the witness Shivanand. The dacoits committed dacoity at the houses of the complainant Bala Prasad, Ramanand, Lala Basant Lal and Manohar Lal. On shouts, the witnesses Raghubir Sahai, Ram Lal, Mittho, Satish Chandra and others reached the spot. Some Patel was stacked in front of the house of Manni Lal which was set a fire by the witness Shivanand. As a result, the entire area was illuminated. In this light, the three dacoits, namely, Ram Singh, Ram Prasad and Ram Swaroop were recognized by the witnesses. They were known to them from before. When the dacoits retreated, the complainant got a report scribed through Raghubir Sahai and gave it at the police station leading to the registering of the case which came to be investigated by S. O. Raja Ram Singh. The Investigating Officer inspected the spot, prepared the site plan, recorded the statements of the witnesses and did other activities related to investigation. It is not necessary to give details against the other accused who are not the appellants before this Court. After completing investigation, the present three appellants and others were charge-sheeted. 3. The defence of the present accused appellants was of false implication due to enmity. Ram Swaroop contended that he was Dhobi by caste and used to wash clothes of Ramanand, Sadanand and Shivanand. They had filed a report against him regarding theft in which final report was filed and, therefore, he was falsely implicated in this case. Similar was the contention of accused Ram Prasad who contended that a theft report was filed against him by Bala Prasad but a final report was submitted in that case. So, he was falsely implicated in the present case. 4. In support of its case, the prosecution in all examined seven witnesses. Out of them, Bala Prasad PW 1, Jagat Narain PW 2, Adesh Kumari PW 3, Jagdish Narain PW 4, Sadanand PW 6 and Shivanand PW 7 were the witnesses of fact who named all the three present accused appellants as being participants of the dacoity. Adesh Kumari PW 3 was injured also having sustained shot injuries. Suresh Chandra Mathur PW 5 was the Deputy Collector before whom identification proceedings had been conducted in respect of non-appellants. 5. We have heard Sri U. C. Mishra, learned Counsel for the appellants and Sri R. S. Maurya, learned A. G. A. from the side of the State. Adesh Kumari PW 3 was injured also having sustained shot injuries. Suresh Chandra Mathur PW 5 was the Deputy Collector before whom identification proceedings had been conducted in respect of non-appellants. 5. We have heard Sri U. C. Mishra, learned Counsel for the appellants and Sri R. S. Maurya, learned A. G. A. from the side of the State. The record has also been carefully perused. 6. The factum of dacoity was neither disputed before the trial Court nor has the same been challenged by the learned Counsel for the appellants in his arguments before us. The injury reports of Adesh Kumari, Km. Manju, Deo Narain and Ramanand (who subsequently died) are also there on record. The post-mortem of Ramanand is also there. All of them sustained gunshot injuries. So, the trial Judge rightly concluded that the prosecution evidence proved that the complained dacoity had taken place in the fateful night in which several persons received gunshot injuries out of whom Ramanand died also. 7. The main argument of learned Counsel for the appellants is that the evidence was wholly insufficient to hold them to be the participants of this dacoity. According to him, there was no sufficient light also to facilitate their recognition by the witnesses as they claimed. He also pointed out that no recovery of any looted property had been made from any of them. Two of them allegedly belonged to the same village and the third one to another village situated at a short distance and it was improbable that they would have gone to commit dacoity with open faces. Learned Counsel urged that they had simply been framed owing to enmity. 8. On the other hand, learned A. G. A. argued that there was clinching evidence to prove that the accused appellants did participate in the commission of this dacoity. They, according to him, have rightly been convicted by the trial Judge. 9. We have considered the rival contentions of the two sides in the light of evidence on record and other attending circumstances. We propose to deal with the important aspects of the matter in succeeding discussion. On careful consideration, we are of the definite opinion that the prosecution evidence against the named three accused appellants suffered from inherent improbabilities. There were many unpatchable holes and conviction of the accused appellants cannot be sustained. We propose to deal with the important aspects of the matter in succeeding discussion. On careful consideration, we are of the definite opinion that the prosecution evidence against the named three accused appellants suffered from inherent improbabilities. There were many unpatchable holes and conviction of the accused appellants cannot be sustained. It is to be pointed out first that no recovery of looted property was made from any of them. Had there been some recovery of looted articles from all or any of them, that would have lent support to their alleged participation in the commission of dacoity. We do not mean to say that the recovery of looted property is a must before the finding of guilt can be returned against someone in a case of robbery or dacoity. What we wish to emphasize is that recovery fortifies participation of particular person in the robbery/dacoity to some extent. 10. Secondly, all these three accused appellants were named in the F. I. R. lodged by Bala Prasad PW 1. Two of them, Ram Swaroop and Ram Prasad were the residents of the same village. We may refer to the testimony of Jagat Narain PW 2 (eye-witness) that the house of Ram Swaroop was situated at a distance of 15 or 20 paces from his house in village Babhnauti and that of Ram Prasad at a distance of 20-25 paces. The third accused, according to him, was resident of a place only four furlongs away. The consistent testimony of all the eye-witnesses was that the three accused appellants had not muffled up their faces. To say in other words, they had not taken any precaution to conceal their identity. It sound to be improbable, particularly in this view of the matter that none of them is shown to have any criminal antecedent. There was nothing on record to show that they were so hazardous that they dared to participate in this dacoity at the houses of known persons without taking any precaution to conceal their identity. It is human nature to screen or destroy the evidence of ones criminal act. No one, given to his choice, wants to face the consequences of his wrong doings or misdeeds. 11. Thirdly, the statements of the eye-witnesses were of generalised nature without specifying the role of any of the accused appellants. It is human nature to screen or destroy the evidence of ones criminal act. No one, given to his choice, wants to face the consequences of his wrong doings or misdeeds. 11. Thirdly, the statements of the eye-witnesses were of generalised nature without specifying the role of any of the accused appellants. Nor did any eye-witness say as to with what weapon, they or any of them, was armed. Had they seen and recognized them during the commission of dacoity, they (witnesses) would have given some indication through their testimony on the important aspects i. e. , of their specific role and weapons with which they were armed. 12. Fourthly, we find that the Investigating Officer did not show distances of different places in the site plan prepared by him including the distance between the scene of commission of dacoity and spot where Patel was allegedly set ablaze by Shivanand PW 7 producing light. The statement of Shivanand PW 7 was that the Patel had been set ablaze by him on the western side of the well and the well existed in northern side of Manni Lals house. On the other hand, the statement of Sadanand PW 6 (brother of Shivanand PW 7) was that the Patel had been set ablaze in the eastern side of the house of Manni Lal and walls of the house of Manni Lal were higher than the height of a man, meaning thereby that wall intervened between the scene of dacoity and the spot where Patel was set afire. Admittedly, the houses where the dacoity was being committed lay in the north-western side of the house of Manni Lal. If the wall of Manni Lal intervened in between, it is doubtful that the witnesses could avail of the light of burning Patel to recognize three accused appellants. It has also to be kept in mind that some of the dacoits were armed with fire-arms. They resorted to firing, injuring Adesh Kumari, Km. Manju, Ramanand and Deo Narain. Ramanand even happened to die of the fire-arm injuries sustained by him. It is doubtful that in terror-stricken and frightened state of mind, the witnesses could muster courage to look towards desperadoes and could correctly recognize them. Needless to say, the instinct of self- preservation is strongest in all living beings. Manju, Ramanand and Deo Narain. Ramanand even happened to die of the fire-arm injuries sustained by him. It is doubtful that in terror-stricken and frightened state of mind, the witnesses could muster courage to look towards desperadoes and could correctly recognize them. Needless to say, the instinct of self- preservation is strongest in all living beings. Had the dacoits noticed any of the witnesses looking towards them, they could and would have issued shots on them. It would have been paramount consideration in the mind of the witnesses to save themselves. 13. Bala Prasad PW 1 who lodged the F. I. R. was a person aged about 75 years. He stated that he had alighted from the chabutra immediately on the dacoits coming over there from inside the house of Ramanand (whose house was adjacent to his house ). The other witnesses, according to him, were at the distance of 10 or 15 paces from him and Jagat Narain was shouting from his house. He had concealed himself by the side of Chabutra. Jagat Narain PW 2 also stated that he kept concealed by the side of chabutra out of fear for about half an hour. It was doubtful these two witnesses were in a position to recognize the accused appellants. Adesh Kumari PW 3 is an injured witness. She stated that the dacoits had opened shots immediately on coming to the Chabutra on which she was sleeping. It was not free from doubt that she having received injury could recognize the three accused appellants. Sadanand PW 6 stated that he went to the police station alongwith the complainant but he was never interrogated by the Investigating Officer. Had he been at the spot witnessing the incident, his interrogation by the Investigating Officer was a must. He was not an injured witness and his presence could not be tested through any such supporting evidence either. His brother Shivanand PW 7 stated in para-6 that during the happening, he kept concealed by southern side of his chabutra. At the same time he claimed to have set fire to the Patel stacked near the house of Manni Lal. Manni Lals house was at some distance. If he kept concealed by the southern side of his own Chabutra, setting fire by him to the Patel near the house of Manni Lal ran counter to it and his assertions could not be reconciled. Manni Lals house was at some distance. If he kept concealed by the southern side of his own Chabutra, setting fire by him to the Patel near the house of Manni Lal ran counter to it and his assertions could not be reconciled. Oft-repeated story of setting fire to Patel or dry leaves was seemingly advanced to create artificial light as is usually done in dacoity cases. To say shortly, the source of light was quite doubtful. 14. Jagdish Narain PW 4 son of Laxmi Narain was allegedly sleeping at the Chabutra of his house which, according to him, was at a distance 10-15 paces from the house of Bala Prasad. From there he allegedly recognized the three accused appellants. It sounded to be doubtful. He, according to him, had reached the Chabutra of Bala Prasad after 20-25 minutes of the dacoits leaving the scene. He claimed to have accompanied Bala Prasad to the police station but could not say as to where he got the report scribed. Had he been there, he would have said that after the dacoits left, Bala Prasad got the report scribed by Raghubir. The presence of this witness was doubtful. 15. It came in the testimony of the witnesses that Ram Swaroop accused appellant was Dhobi and earlier he used to wash their clothes. A question was put to Shivanand PW 7 in his statement that fifteen days before the incident, Bala Prasad has lodged a report against Ram Prasad accused appellant for the theft of she-buffaloes. He could not answer this question either affirmatively or negatively. He, however, added that he had received letter regarding the theft of she-buffaloes, but did not enquire from his brother as to what happened with regard thereto. He pleaded ignorance when suggested that final report had been submitted in that case. The possibility could not be ruled out that the three accused appellants, who were known to the witnesses from before, were named owing to some earlier enmity or on the basis of suspicion. 16. On cumulative consideration of all the relevant aspects of the matter in the light of evidence and attending circumstances, the appellants could not be adjudged to have participated in the commission of the complained dacoity. 16. On cumulative consideration of all the relevant aspects of the matter in the light of evidence and attending circumstances, the appellants could not be adjudged to have participated in the commission of the complained dacoity. Of course, the dacoity did take place in which Ramanand happened to die, but only the factum of dacoity was proved, but not the participation of the present accused appellants in the commission of the same. The evidence against the accused appellants suffered from inherent weakness and improbabilities. It was too weak to warrant their conviction. 17. In the result, we allow this appeal and set aside the conviction and sentence of the three accused appellants Ram Swaroop, Ram Singh and Ram Prasad. They are already on bail. 18. Certify the judgment to the lower Court to incorporate the result of this appeal in relevant register and reporting compliance within two months. Appeal allowed. .