The case of the prosecution briefly runs as under:P.Ws.1 and 3 are spouses.P.Ws.2 and 4 are their sons.They are residing in Karunguzhi in Cuddalore district.On 25.3.2006, P.Ws.1 and 3 have left Puducherry.There was house-breaking.25 sovereigns of gold jewels and cash Rs.1,25,000/- were missing from the bureau.Inspite of search, they cannot be found.On 29.3.2007, at Vadalur Police station, P.W.1 gave Ex.P1 complaint to P.W.10 S.I. of Police.He registered this case (Ex.P10 F.I.R.).P.W.11 Inspector took up his investigation.He visited the scene house.Prepared Ex.P2 Observation Mahazar in the presence of P.W.6 and another person.Drew Ex.P11 Rough sketch.At a place, near Vadalur, P.W.1 seized gold chain from A-1 based on his confessional statement Ex.It was witnessed to by P.W.7 and one Rajendran.A-1 and A-2 in C.C.No.85 of 2006 on the file of the learned Judicial Magistrate No.III, Cudddalore are the revision petitioners.They were tried for the offences under Sections 457 and 380 I.P.C. before the said Court.To substantiate the charges, prosecution examined P.Ws.1 to 11, marked Ex.Relying on the said evidence, the trial Court convicted and sentenced them as under:(i) 457 I.P.C One year R.I. and fine Rs.1000/- each(ii) 380 I.P.C.One year R.I.and fine Rs.1000/- eachBoth sentences were directed to run concurrently.P.W.11 also recorded Ex.P7 confessional statement from A-2 in the presence of P.Ws.8 and 9 and recovered gold jewel under Mahazar in the presence of said witnesses.A-1 and A-2 were produced before the Court.Case properties were also produced before the Court.The trial Court solely relying on Sec.27 Evidence Act recoveries, convicted and sentenced them.Aggrieved, A-1 and A-2 preferred an appeal in C.A.No.73 of 2008 before the learned Additional Sessions Judge (Fast Track Court No.2), Cuddalore.8 The learned Appellate Judge confirmed their conviction and sentence and dismissed the appeal.In the circumstances, they have directed this revision.The learned counsel for the revision petitioners contended that the available evidence as against A-1 and A-2 is Section 27 Evidence Act recovery.It is a make-believe affair.No prudent man will believe this artificial recovery.There is inconsistencies in the evidence of the prosecution witnesses.Further, the evidence of recovery witnesses would show that they have not actually seen the recoveries.Based on such evidence, a conviction cannot be sustained.In this connection, the learned counsel for the revision petitioners cited Vijayakumar @ Kutty Vs.State through Inspector of Police, Kovilpatti East Police Station, Thoothukudi Dist.(2012(1) MWN (Cr.) 463 (DB) and Chinna Pillai & another Vs.State through the Inspector of Police, Krishnagiri (MANU/TN/1068/2012).On the other hand, the learned Govt. Advocate (Crl.side) submitted that in this case the recovery evidence is clinching.The case properties were recovered based on the confessional statement of the accused.Recovery witnesses P.Ws.7 and 9 have clearly stated about recording of the confession and recovery of the gold items.This evidence is sufficient to convict the accused.In the circumstances, the trial Court as well as the Appellate Court have rightly convicted and punished them.I have anxiously considered the rival submissions, perused the impugned judgments, entire materials on record and also the decisions cited at the bar.Now, the question is whether the finding of guilty recorded by both the Courts below suffers from legality and propriety.This case is solely based on Sec.27 Evidence Act recovery.The recoveries were stated to have been effected by P.W.11 Investigation officer.M.Os.1 and 2 gold chain belong to P.W.1/defacto complainant who identified them as of his own.The question arose whether both Courts were right in recording finding of guilty solely based on the evidence of P.Ws.7, 9 and 11 and Ex.With respect to recovery from A-1, P.W.7 has been examined.The recoveries stated to have taken place nearly 6 months after the occurrence.In his chief examination, P.W.7 stated that at about 9.30 a.m., near tea stall, in Vadalur, A-1 was having 5-1/2 sovereigns of gold chain M.O.2 in his hand and some policemen were around him.A-1 is stated to be a robberer.Whether he would carry the stolen item/s openly is a million dollar question.No prudent man will believe this.Further, in his cross examination, P.W.7 stated that the police had obtained his signatures in some papers.It indicatesthat P.W.7 has not witnessed the recovery.The same is to be viewed along with the subsequent recovery stated to have been effected based on the confessional statement of A-1 from one Nataraj's land in Karunguzhi.With respect to the recovery from A-2, P.W.9 has been examined.P.W.9 says that at about 9.45 a.m. when he came out of Anandha Bhavan hotel in Vadalur, A-2 was having 2 sovereigns of gold chain in his hand and policemen were also there.He too did not directly witnessed the actual recovery of jewel.The other witness P.W.8 turned hostile.Further, P.W.9 flately stated that he did not know anything about the jewel.This evidence has also been recorded by the trial Court.From Exhibit P-4 confessional statement of the accused, the learned Principal Sessions Judge,Tuticorin, recorded that It means, if he is taken, from the concealed place, he will produce the bill-hook, which was used to kill Madasamy.Evidence recorded by the learned Principal Sessions Judge from the recovery witness P.W.10 Velusamy, V.A.O is also on similar line.The Trial Court had admitted in evidence the culpatory part of the confessional statement of the accused also.It is the duty of the Court to dissect the evidence regarding the confession and to; divide the sentence into its component parts and only admit that part, which led to the discovery of the particularfact, viz., the hidden property.''In this case, both the trial Court as well as the Appellate Court have failed to note this important aspect of law and they have not appreciated the said evidence in proper perspective.In the circumstances, the finding of guilty recorded by both the Courts based on such evidence suffers from legality and propriety.In the circumstances, ordered as under:(1) This Criminal revision is allowed.(2) The conviction recorded and sentence awarded by the trial Court as well as the Appellate Court are set aside.(3) The revision petitioners/A-1 and A-2 are acquitted under Section 457 and 380 I.P.C.(4) The fine amount paid shall be refunded to them.10.11.2016Index : Yes Internet : Yes vaanTo1 The Principal Sessions Judge, Cuddalore2 The Additional Sessions Judge (Fast Tract Court No.II), Cuddalore3 The Judicial Magistrate No.III, Cuddalore4 The Public Prosecutor, High Court, Madras5 The Superintendent, Central Prison, Cuddalore6 The Inspector of Police, Vadalur Police station.DR.P.DEVADASS, J., vaan Crl.R.C.No.16 of 201110.11.2016http://www.judis.nic.in

Cited provisions: Section 457 in The Indian Penal Code; Section 380 in The Indian Penal Code