The evidence of recovery of stolen goods based on confession statements of the accused must satisfy the requirements for the applicability of Section 27 of the Indian Evidence Act, and the identification of the recovered items as the subject matter of the crime must be established beyond reasonable doubt.

The appellants are accused Nos. 2, 4 and 5 in S.C. No. 316 of 2007 on the file of the Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur and they are challenging the conviction and sentence imposed on them for the offence under Section 395 IPC .

2. The prosecution case is that the accused persons, 8 in number, hatched a criminal conspiracy to commit robbery of the gold ornaments of PW11 and as per the instruction of the 4th accused, the 2nd accused informed the 1st accused that a box containing gold ornaments of PW11 is being transported in an auto rickshaw driven by PW9 and that CW1 along with PWs 10 and 17 are travelling in the said autorickshaw to Thrissur Railway Station on the night of 19.05.2003 and on getting the said information, the accused persons chased the said autorickshaw in car bearing registration No. KL-8V 8075 and after blocking the autorickshaw with the car at a place near Kanimangalam at about 8.15 p.m., the accused persons robbed the box containing the gold ornaments after pulling out CW1 from the autorickshaw and pushing him down. The accused are thereby alleged to have committed the offences punishable under Sections 120B and 395 of IPC .

3. Since accused Nos. 1, 6 and 7 were absconding, the trial court framed charge under Sections 120B and 395 of IPC against accused Nos. 2 to 5 and 8 and when they pleaded not guilty to the charge, PWs 1 to 18 were examined and Exhibits P1 to P24(b) and MOs 1 to 19 were marked from the side of the prosecution. During the course of trial, the third accused also absconded.

4. After closing the prosecution evidence, the accused persons 2, 4, 5 and 8 were questioned under Section 313 Cr.P.C and no defence evidence was adduced.

5. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned judgment dated 29.03.2008, found accused Nos. 2, 4 and 5 guilty of the offence under Section 395 of IPC and not guilty of the offence under Section 120B of .

6. The trial court also found the 8th accused not guilty of the offence under Sections 120B and 395 of IPC and accused Nos. 2, 4 and 5 are sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo rigorous imprisonment for 3 months each under Section 395 .

7. Heard Sri. Vijaya Bhanu, the learned Senior Counsel appearing for the appellants and Sri. Sanal P. Raj, the learned Public Prosecutor and perused the records.

8. The point that arises for consideration in this appeal is whether the conviction and sentence passed against the appellant/accused are legally sustainable.

9. The learned counsel for the appellants argued that all the occurrence witnesses turned hostile to the prosecution and that the conviction based on the alleged recovery of MOs 3 to 15 on the basis of the alleged confession statement of accused Nos. 2, 4 and 5 is not legally sustainable, in as much as the prosecution has not succeeded in establishing the conditions necessary for the applicability of Section 27 of the Indian Evidence Act . It is also argued that there is no satisfactory evidence regarding the identity of MOs 3 to 15 as the subject matter of the crime and that the evidence of PW11 in this regard is vague and not trustworthy.

10. The learned Public Prosecutor argued that MOs 3 to 15 were recovered on the basis of the confession statement of the accused persons while in the custody of the Investigating Officer and that the evidence of PW11 regarding the identity of MOs 3 to 15 as the subject matter of the crime is reliable and therefore, there is no reason to interfere with the impugned judgment.

11. In this case, the prosecution is relying on the evidence of PW18, Investigating Officer who recorded the confession statement of accused Nos. 2, 4 and 5 while in custody and effected recovery of MOs 3 to 15 identified by PW11 as his gold ornaments and also the presum