JUDGMENT : 1. This appeal, under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C) is directed against the judgment and order dated 18.10.2003 passed by Additional Sessions Judge (F.T.C.), Tehri Garhwal in Sessions Trial No. 20 of 2002, whereby the appellant was convicted under section 395 and 412 Indian Penal Code, 1860 ( for short IPC), and sentenced the convict to rigorous imprisonment for a period of 5 years (under section 395 IPC), and rigorous imprisonment for a period of 5 years (under section 412 IPC) along with fine of Rs. 10,000/- on both counts. In default of payment of fine, appellant was directed to under go rigorous imprisonment for further three months. Both the sentences were directed to run concurrently. However, the appellant was acquitted of the charge of offence punishable under section 394 IPC. 2. It would be necessary to set out the brief facts of the case which gave rise to the present criminal appeal. The brief facts are extracted hereunder:- Complainant Rajendra Sethi lodged an FIR (Ex. A1) with the averments that on 05.03.2002, when he along with his driver and clerk was coming back to Rishikesh after recovery of Aadat ¼vk<+r½ in Santro car no. UA07C-0011, as soon as they crossed Narendra Nagar Polytechnic, at about 8-8:30 p.m., a Santro car overtook the car of the complainant (Rajendra Sethi) from which four persons, armed with pistol came out, they pull down the complainant, driver and the clerk from the car, committed marpeet with them and looted the cash and mobile of the complainant, and, thereafter pushed all of three into the trench and also looted the car of the complainant. On the basis of the said report, case crime no. 20 of 2002 under section 394 IPC was registered and investigation was conducted by S.I. Satyapal Singh Rana (P.W.10), who inspected the spot, prepared site plan (Ex. A6), prepared recovery memo (Ex. A2) & (Ex. A10) and after recording the statement of the witnesses submitted charge sheet (Ex. A14) under sections 394, 395, 120B and 412 IPC against the appellant. 3. The case was committed to the Court of Session for trial. The trial court framed charges against the appellant under sections 394, 395,120B and 412 IPC. To the said charges, appellant pleaded not guilty and claimed to be tried. 4. A14) under sections 394, 395, 120B and 412 IPC against the appellant. 3. The case was committed to the Court of Session for trial. The trial court framed charges against the appellant under sections 394, 395,120B and 412 IPC. To the said charges, appellant pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the appellant, prosecution got examined as many as 10 witnesses P.W. 1 Brijmohan (driver), P.W. 2 Rajendra Sethi (complainant), P.W. 3 Veer Bahadur Singh (clerk). P.W. 4 Madan Lal Bijalwan (shopkeeper) P.W. 5 Rajendra Singh (shopkeeper) P.W. 6 Ramesh (shopkeeper) P.W. 7 H.P. Kaptiyal (chawki in-charge) P.W. 8 Ghanshyam Singh (Dy. Collector), P.W. 9 Constable Thakur Singh and P.W. 10 S.I. Satya Pal Singh Rana (Investigating Officer). Thereafter, statement of the appellant under section 313 Cr.P.C. was recorded wherein the appellant denied all the incriminating evidence and his involvement in the commission of the said offence. It is further stated that he worked as labourer in the house of Rajendra Sethi and claimed that he has falsely been implicated due to enmity on account of demand of his labour charges. It is further stated by the appellant that nothing has been recovered by the police from his house and false recovery of Rs. 70,000/- has been shown from the house of the appellant by the police, as the said amount was kept by the appellant for the marriage of his daughter, namely, Seema and false case was lodged against him. He further stated that from 1999 he was doing business in the name of Bhagirathi Trading Company and was having flour mill from which he had earned Rs. 70,000/-. The accused examined 3 witnesses to substantiate his defence. 5. The learned trial court, after scrutinizing the arguments addressed by the counsel for the parties and evidence adduced by them, concluded that the prosecution has been successful in establishing the guilt of the accused person beyond reasonable doubt and held him guilty for the offences mentioned above and sentenced him accordingly. Aggrieved by the judgment and order dated 18.10.2003, the appellant is before this Court. 6. P.W.1 Brijmohan (driver) supported the version of the FIR. He Participated in the test identification parade and identified one Gajendra Singh and submit that Gajendra Singh was involved in the incident. Aggrieved by the judgment and order dated 18.10.2003, the appellant is before this Court. 6. P.W.1 Brijmohan (driver) supported the version of the FIR. He Participated in the test identification parade and identified one Gajendra Singh and submit that Gajendra Singh was involved in the incident. In his cross-examination he stated he had not seen Gajendra Singh at the time of incident and after the incident Rajendra Sethi lodged the report at P.S. Muni Ki Reti. He further stated that he did not know Mani Ram Gupta and no recovery has been made in his presence from Mani Ram Gupta (appellant herein). 7. P.W. 2 Rajendra Sethi also corroborated the version of the FIR. In his statement he deposed that except four accused persons, some more persons were in the car and he had seen the faces of four persons in the car light and Gajendra Singh is one of the persons (who was present in the Court). After the incident, he made complaint at Dhaalwala Police Chawki and thereafter lodged report at P.S. Muni Ki Reti. On the basis of suspicion he disclosed name of Mani Ram Gupta (ex-clerk of P.W.2); he stated that two months before the incident Mani Ram Gupta came to his house and disclosed about his poor financial condition due to which P.W.2 offered him job but there were some hot talks between them due to which he had thrown Mani Ram Gupta from the job. P.W. 2 identified Gajendra Singh in test identification parade. In his cross examination P.W.2 has stated that at the time of the incident all the accused persons, in order to conceal their identity, covered themselves with blanket and applied colour on their faces. He further stated that at the time of the incident he had not seen Mani Ram Gupta at the spot and in his statement before the investigation officer, he deposed that he had suspicion on Mani Ram Gupta in the commission of the alleged crime. 8. P.W. 3 Veer Bahadur Singh (clerk) also corroborated the version of P.W.1. 9. P.W. 4 Madan Lal Bijalwan (shopkeeper) made statement that on 05.303.2002 Rajendra Sethi and his clerk came to his shop for recovery and he paid sum of Rs. 15,000/- to Rajendra Sethi. 8. P.W. 3 Veer Bahadur Singh (clerk) also corroborated the version of P.W.1. 9. P.W. 4 Madan Lal Bijalwan (shopkeeper) made statement that on 05.303.2002 Rajendra Sethi and his clerk came to his shop for recovery and he paid sum of Rs. 15,000/- to Rajendra Sethi. P.W.5 Rajendra Singh Panwar (shopkeeper) made a statement that on 05.03.2002 at about 3.00 p.m. Rajendra Sethi and his clerk came to his shop for recovery and he paid sum of Rs. 17,000/- to Rajendra Sethi. P.W.6 Ramesh also stated that at about 3.30 p.m. Rajendra Sethi and his clerk came to his shop for recovery and he paid sum of Rs. 30,000/-to Rajendra Sethi. 10. P.W.7 H.P. Kaptiyal, Chawki In-charge, stated that after receiving information about the loot, he and In-charge S.I. J.D. Arya along with other personnel started search, on 06.03.2002 recovered the looted santro car. 11. P.W.8 Ghanshyam Singh, Dy. Collector, has conducted the test identification parade and prepared report (Ex. A3). P.W. 9 Constable 118 CP Thakur Singh, prepared the chick report. (Ex. A5). P.W.10 Satya Pal Singh, I.O., after preparing the site plan (Ex.A6), recovery memo (Ex.A9) and after recording the statement submitted charge sheet (Ex.A4) in the matter. 12. Learned counsel for the appellant would submit that appellant is not named in the FIR and at the time of the incident he was not present there. It is further contended that appellant is convicted under section 395 IPC and there is not a single whisper of section 395 IPC against the appellant and appellant has only been implicated only on the basis of the suspicion. In support of his contention, learned counsel for the appellant also placed reliance upon the judgment of the Hon’ble Apex Court in the case of Raj Kumar @ Raju vs. State of Uttaranchal (now Uttarakhand) reported in (2008) 11 SCC 709 . 13. According to Mr. P.S. Bohara, learned counsel representing the state, case against the appellant was proved on the basis of the recovery made from his possession. 14. Heard learned counsel for the parties and perused the entire material on record. 15. In the case in hand, it was evident from the evidence of P.W.1 to P.W.3 that they had fully corroborated the version of FIR (Ext.A1) relating to commission of dacoity in Santro car no. 14. Heard learned counsel for the parties and perused the entire material on record. 15. In the case in hand, it was evident from the evidence of P.W.1 to P.W.3 that they had fully corroborated the version of FIR (Ext.A1) relating to commission of dacoity in Santro car no. UA07C-0011, in the night of 05.03.2002, when they crossed Narendra Nagar Polytechnic, at about 8-8:30 p.m. Admittedly, appellant was not identified by any of the witnesses, to be the miscreants, who committed the said dacoity. Accused Mani Ram Gupta in his statement recorded under section 313 Cr.P.C. has specifically stated that false recovery of Rs. 70,000/- has been shown from his house. He has further stated that the said amount was kept by the appellant for the marriage of his daughter, namely, Seema and to prove this fact, has also produced the marriage card of his daughter. 16. Present appellant has been charge sheeted against in respect of the offence punishable under section 395 IPC. The learned Sessions Judge has acquitted the co-accused Gajendra Singh on same set of evidence but convicted the accused Mani Ram Gupta under section 395 IPC. No appeal has been preferred against acquittal of Gajendra Singh. Necessary ingredients of committing the offence under section 395 IPC are not attracted in the present case. Before an offence under section 395 IPC can be made there must be assembly of five or more persons. The learned court below lost site of the fact that only two persons, namely, Mani Ram Gupta (present appellant) and Gajendra Singh Chauhan were charge sheeted and name of accused Mani Ram Gupta came into light only on the basis of suspicion. It is admitted fact that at the time of the alleged loot, all the four accused persons, in order to conceal their identity, covered themselves with blanket, and the incident took place at about 8-8:30 p.m, therefore it is not possible to identify all the accused persons. Further, the santro car and remaining amount has not been recovered from anyone, which creates serious doubt on the prosecution case. 17. Accordingly, the judgment, order of conviction and sentence can not sustain in the eyes of law due to the failure on the part of the prosecution to prove the guilt of the appellants beyond all reasonable doubt. As such, the impugned judgment, order of conviction and sentence are quashed and set aside. 18. 17. Accordingly, the judgment, order of conviction and sentence can not sustain in the eyes of law due to the failure on the part of the prosecution to prove the guilt of the appellants beyond all reasonable doubt. As such, the impugned judgment, order of conviction and sentence are quashed and set aside. 18. The appeal is allowed. The appellant is acquitted of the charges of offences punishable under sections 395 and 412 IPC. The appellant Mani Ram Gupta, who is in custody be released from custody forthwith, if he is not required to be detained in any other case. 19. Copy of this judgment along with the lower court records be sent back for information and taking necessary action.