Judgment :- The above Criminal Appeals are filed by the appellants/accused Nos:1,3,4,6,7,10 and 11 as against the common judgment rendered in S.C.No:87 of 1989, dated 28.10.2004 by the learned Additional District and Sessions Judge, (FTC. No.1) Madurai and to set aside the conviction of the accused 1,3,4,10 and 11 under Section 412 IPC and sentence imposed upon them to undergo 10 years R.I., each and fine of Rs.5,000/= and in default to undergo 6 months R.I.; and conviction under Section 414 IPC and sentence imposed upon them to undergo 2 years R.I., and to pay a fine of Rs.1000/= in default to undergo 3 months R.I.; and conviction of accused 6 and 7 under Section 452 IPC and sentence imposed upon them to undergo 2 years R.I., each and to pay a fine of Rs.1,000/=, in default to undergo 3 months R.I.; and conviction under Section 395 r/w.397 IPC and sentence imposed upon them to undergo R.I., for 10 years each and to pay a fine of Rs.5000/=, in default to undergo 6 months R.I., each. 2. The brief facts of the prosecution case is as follows:- The accused 1 to 15 along with other absconding accused, who are the supporters of L.T.T.E., in Sri Lanka, for the purpose of helping the said movement to purchase arms and ammunition, and to run a separate movement in Tamilnadu in the name of Tamilnadu People Liberation Movement, conspired together to loot the jewels and money from the Bank of Madurai Ltd., K.K.Nagar Branch, Madurai and in pursuance of the said conspiracy, on 4-5.8.1988 illegally extorted the Car bearing Registration No:KRU 6187 from its driver; and on 06.08.1988 by replacing the number plate of the said Car bearing Registration No:KRU 6187 as TTN 9687 and also the number plate of the YEZDI Motorcycle bearing Registration No:TID 7181 as TDX 6727, and by carrying deadly weapons along with them, trespassed into the Bank and threatened the Bank Officials with such deadly weapons, including Pistol, and took away gold jewells of 20,593.650 grams and cash of Rs.38,945/= and were concealing the looted properties and thus have committed the offences punishable under Sections 120(b), 452, 395 r/w 397, 412, 414, 212 IPC and Section 25(1)(b)(a) of the Indian Arms Act. 3. 3. On receipt of the complaint given by P.W.1, Branch Manager of the Bank, P.W.41, the then Deputy Superintendent of Police, Thiruparangundram, took up investigation and on the same day visited the scene of occurrence and prepared Observation Mahazar, Ex.P.3 and also rough sketch, Ex.P.44 in the presence of mahazar witnesses. He also obtained statements from 31 persons in connection with the occurrence. He sent the finger prints of the accused to find out whether it matches with the finger prints of the LTTE men of other crimes in various cases. He also recovered the Car used for committing the offence under a cover of mahazar Ex.P.3. He arrested the first accused on 21.8.1988 in the presence of witnesses on the Dindigul-Madurai Highways Road, in front of Samayanallur Police Station and obtained confession statement and the admissible portion is Ex.P.15. Based on such confession, P.W.41 recovered the jewels kept in 122 separate small bags. The first accused also taken the police party to the house of the second accused who was arrested on 22.8.1988 and from his house, P.W.41 recovered, local made pistol, bullets, hand grenades, bombs, video cassettes etc., Thereafter the third accused was arrested on the same day and based on his confession knifes were recovered under Ex.P.18, and also 1015.600 grams of gold jewels kept in a plastic bag under Ex.P.19 was recovered. On the same day the fourth accused was also arrested and based on his confession statement P.W.41 recovered gold chain weighing 25.900 grams. P.W.41 also arrested the fifth accused and remanded all the accused to judicial custody. 4. P.W.41, while continuing his investigation, on 24.8.1988, searched the house of the first accused in the presence of witnesses and no properties were found. He also enquired the owners numbering 51 of the jewels mortgaged with the Bank. P.W.41 also arrested the 8th accused on 1.9.1988; 6th accused on 3.9.1988; 9th accused on the same day; 10th accused on 4.9.1988 and based on their confession statements recovered the material objects. He also arrested the 12th accused on 14.9.1988 and recovered bullets. He also arrested the 13th accused on 19.9.1988 and 14th accused on the same day and P.W.41 arranged for identification parade of all the accused and laid the final report on 18.11.1988 for the offences as stated above. 5. He also arrested the 12th accused on 14.9.1988 and recovered bullets. He also arrested the 13th accused on 19.9.1988 and 14th accused on the same day and P.W.41 arranged for identification parade of all the accused and laid the final report on 18.11.1988 for the offences as stated above. 5. Before the trial court on behalf of the prosecution P.Ws 1 to 41 were examined and Exs.P.1 to P.46 were marked, besides M.Os. 1 to 104. On behalf of the accused, one witness was examined and Exs. D.1 to D.6 were marked. 6. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, they denied their complicity of the offences alleged against them. 7. On a consideration of the oral and documentary evidence, the learned Additional District and Sessions Judge, Madurai, found the accused 1,3,4,6,7,10 and 11 guilty of the offences, convicted and sentenced them as stated earlier and acquitted all the accused of the charges under Section 120(B)IPC. Aggrieved of the said conviction and sentence, these appeals have been filed. 8. Mr.S.Ashok Kumar, learned senior counsel appearing for the first accused, appellant in Crl.A.No:176/2004, contended that though the prosecution examined nearly 41 witnesses, only two witnesses spoken to about the participation of A.1 in the alleged offence. They are P.W.29, VAO, who only spoken to about the arrest and recovery and P.W.41, the Investigation Officer. Even according to P.W.41, as elicited from the cross examination, it is only from Section 161 Cr.P.C., statement, which he obtained from P.W.11, he came to know that A.1 and A.5 might have also involved in the offence. But, curiously, a perusal of the evidence of P.W.11, would show there is no whisper about the role of A.1 in the said statement. According to the learned counsel, it is only a concoction or an attempt by the Investigating Officer to rope in A.1 in this case, since A.1 was having a soft corner on the Tamil Tigers of Ezham and that is why he rented out a flat to them. Ex.P.15 is the confession statement of A.1 and according to him his house was raided in the morning and nothing was recovered, but in the evening jewels were recovered, which is M.O.74 series. Ex.P.15 is the confession statement of A.1 and according to him his house was raided in the morning and nothing was recovered, but in the evening jewels were recovered, which is M.O.74 series. Further, according to the learned senior counsel, the evidence of P.W,29, VAO and P.W.41, Investigation Officer are contradictory to each other regarding the aspect of arrest and recovery of material objects. According to him, the first accused has been in the jail for 1 year and 18 days and pleaded for acquittal. 9. Mr. Shanmugavelayutham, learned Senior Counsel appearing for the appellant/4th accused in Crl.A.No:189/2004 submitted that this appellant has been found guilty only under Sections 412 and 414 as it is alleged that he is said to have received two pieces of jewels namely M.Os. 83 and 86. According to the learned Senior Counsel, P.Ws. 29 and 41 are the only prosecution witnesses who spoke about the fourth accused. Since P.W.29 was not able to identify A.2,3 and 4, he was treated as hostile. According to the learned senior counsel, the Investigation Officer admitted that he did not enquire whether somebody has kept the jewels in the house of A.4. Learned counsel also submitted arguments on behalf of Mr.Sankarasubbu, learned senior counsel appearing for the appellant/third accused in Crl.A.No:200/04, who is also similarly placed as like A.4. 10. Mr.A.Jayaramachandran, learned counsel appearing for the appellants/A.6 and A.7 in Crl.No:32/05 submitted that this is a case where P.W.1 himself has not made the description of these two accused who were alone convicted under Section 395 r/w 397 IPC for which participation of a minimum of 5 persons required. According to him, no weapon was recovered from these accused. Even in Ex.P.1, wherein it is only stated that "in the meantime, the other person who was sitting before me took up a pistol and threatened me not to shout". Dasthagir and another witness have not been examined and further nowhere it is alleged that AK-47 rifle was recovered at the time of arrest. Learned counsel also submitted that these accused are languishing in the prison for more than 7 years and 4 months. 11. Dasthagir and another witness have not been examined and further nowhere it is alleged that AK-47 rifle was recovered at the time of arrest. Learned counsel also submitted that these accused are languishing in the prison for more than 7 years and 4 months. 11. Mr.P.Shanmugasundaram, learned senior counsel appearing for the appellants/A.10 and A.11 in Crl.No: 67 and 29 of 2005 submitted that these accused have been found guilty under Sections 412 and 414 IPC, and if at all, Section 411 only will be attracted because all the prosecution witnesses only spoken about the presence of A.1 to A.3. He also submitted that A.10 has been in jail for 5 years and A.11 has been in jail for 6 years. 12. As far as A.1 is concerned, he was convicted under Section 412 IPC and sentenced to undergo 10 years R.I., and fine of Rs.5,000/= and in default to undergo 6 months R.I.; and conviction under Section 414 IPC and sentenced to undergo 2 years R.I., and to pay a fine of Rs.1000/= in default to undergo 3 months R.I. As regards the evidence against A.1, P.W.29, Village Administrative Officer and P.W.41, Investigation Officer only speak about his involvement of the offence. He was arrested on 21.8.1998. The allegation against A.1 is that he has rented out his house to Tamil Activists of Sri Lanka. P.W.41, has deposed that from the statement of P.W.11, Muralidharan, he came to know about the involvement of A.1 in this case. But the statement of P.W.11 Muralidharan is silent as far as A.1 is concerned. Therefore when the statement of P.W.11 before the Inspector of Police is silent about the involvement of A.1, the evidence of P.W.41 that he came to know about the involvement of A.1 in this case through P.W.11 is false and it is amazing as to how he came to know about the involvement of A.1 in this case. 13. As regards the evidence of P.W.29 and 41 regarding arrest and recovery available as against A.1, the evidence found to be contradictory with each other which is as follows:- 14. Whereas, But P.W.41 says that, 11.00 kzpf;F jfty; fpilj;jJ. 11.40 kzpf;F rkaey;Y}h; brd;Bwhk;." 15. He never said he brought P.W.29 and another VAO. But P.W.29 says that that PW.41 brought them. P.W.41 further says that vd;Dld; fhty; epiyaj;jpypUe;J 5 fhty; Jiwiar; Brh;e;jth;fs; te;jhh;fs;". Whereas, But P.W.41 says that, 11.00 kzpf;F jfty; fpilj;jJ. 11.40 kzpf;F rkaey;Y}h; brd;Bwhk;." 15. He never said he brought P.W.29 and another VAO. But P.W.29 says that that PW.41 brought them. P.W.41 further says that vd;Dld; fhty; epiyaj;jpypUe;J 5 fhty; Jiwiar; Brh;e;jth;fs; te;jhh;fs;". But he says nothing about P.W.29 and another VAO. 16. "rkaey;Yhpy; fhiy 11.40 kzpapypUe;J nut[ 19.15 kzptiu nUe;Bjd; (P.W.41). As per his evidence he met P.W.29 only at the time of arresting A.1 i.e.,at 2.00 pm., If so what about the evidence of PW.29 which reveals that DSP came to the office of P.W.29 and brought him and another VAO at 12.00 or 12.30 or 1.30 pm. Further, the evidence of P.W.29 in respect of whether P.W.41 was accompanying P.W.29 when the latter went to Tahsildars office to get prior permission for proceeding with P.W.41 is self contradictory. 17. Further, it could be seen that P.W.29 is VAO of Sathamangalam. His office is 20 Km., away from DSP office. Another VAO Panneerselvam is VAO of Tiruppalai. It is admitted by P.W.29 that there is separate VAO for Samayanallur. In these circumstances, why P.W.41 has selected VAOs who are 20 Kms., away from his office. Samayanallur is the place where A.1 was arrested and said to have given confession before P.W.41 at Samayanallur itself. But there is no reason why VAO of Samayanallur was not brought as a witness. The answer is that the confession statement was not recorded at Samayanallur as alleged by P.W.41. It was prepared at Annanagar Police Station and signature of P.W.29 was obtained in Annanagar Police Station. 18. Therefore, it is clear that confession alleged to have been given by A.1 is prepared in Annanagar Police Station itself. Hence the confession on which the entire story against A.1 was built is unbelievable, false and could be fabricated. 19. P.W.29 also says that confession of A.1 is written by DSP himself. But P.W.41 says that confessions of A.1 is written by the Head Constable. Therefore, there is a doubt over the confession given by A.1 However, it is very clear that P.W.29 could not be a witness when the confession was prepared. There is also similar contradiction between the evidence of P.W.29 and P.W.41 in respect of who had written confession attakshi. These material contradictions will clearly show that the alleged confession by A.1 is not believable. There is also similar contradiction between the evidence of P.W.29 and P.W.41 in respect of who had written confession attakshi. These material contradictions will clearly show that the alleged confession by A.1 is not believable. Further, in the confession of A.1, it is mentioned that the house let out by him to the Tamil Activists was raided in the morning on the same day, on which he was arrested. If the house was raided in the morning by the police party, they would have recovered the jewels concealed in the house in the morning itself. Therefore, the subsequent recovery in pursuance of the alleged confession of A.1 should be false. 20. Further, finger prints of Accused Bose and Balu were sent to Forensic Laboratory for proving their finger prints. But it is not know why finger prints of A.1 was not obtained and sent to forensic lab when gold jewels were alleged to be recovered from his house. 21. Apart from the above, the occurrence has taken place in the year 1988, during which year Tamil Activists were given a rousing welcome in Tamil Nadu. Even exhibitions were conducted in praise of Ealam leaders and amounts were collected and sent to LTTE organisation and other Tamil activists in Sri Lanka. Even the Government of Tamil Nadu had donated Rs.3 crores for the uplift of Tamil movements in Sri Lanka. During the period of occurrence none of the Tamil Organisation were banned in India. Only after the gruesome murder of the Honble former Prime Minister Mr.Rajiv Gandhi, these Tamil activists organisations were banned in India. Therefore, during the year of occurrence, letting of house to Tamil activists by A.1 could not be considered as an offence. Since the alleged recovery said to have been made from A.1 is unbelievable, his conviction under Section 412 and 414 IPC are not maintainable and he is entitled for acquittal. 22. Therefore, during the year of occurrence, letting of house to Tamil activists by A.1 could not be considered as an offence. Since the alleged recovery said to have been made from A.1 is unbelievable, his conviction under Section 412 and 414 IPC are not maintainable and he is entitled for acquittal. 22. In this case, A.6 and A.7 alone have been convicted for the offence under Section 452 IPC and sentenced to and sentence imposed upon them to undergo 2 years R.I., each and to pay a fine of Rs.1,000/=, in default to undergo 3 months R.I.; and convicted under Section 395 r/w.397 IPC and sentenced to undergo R.I., for 10 years each and to pay a fine of Rs.5000/= each, in default to undergo 6 months R.I., For the offence of dacoity, there must be at least 5 or more persons. When two persons alone are convicted, it is not dacoity, but only robbery, punishable under Section 392 IPC. Therefore, the punishment of other accused namely, accused 1,3,4,10 and 11 under Section 412 IPC is not sustainable. They can be convicted for offence under Section 411 as well as Sec.414 IPC. 23. It is submitted that A.10 and A.11 were already in jail for nearly 6 years. Therefore, the period already undergone by them is sufficient. A.1, A.3 and A.4 had been in jail for one year and 18 days. A.1 has already been acquitted of the charges in the earlier part of this judgment for the reasons mentioned therein. As far as A.3 and A.4 are concerned, there is no bad antecedents as against them and therefore the period already undergone by them is enough as punishment and they shall be released. As far as A.6 and A.7 are concerned, no weapon was recovered from them and they are in custody for the past 7 years and 4 months. There is no bad antecedents as against them also. Therefore, considering the long period of sentence already undergone by them, this court is of the view that the period of sentence already undergone by them is sufficient as far as A.6 and A.7 are concerned and they shall be released forthwith. 24. In fine, the appeal is allowed in part. The conviction under Section 414 IPC as against accused 3,4,10 and 11 and conviction of accused 6 and 7 under Section 452 IPC are confirmed. 24. In fine, the appeal is allowed in part. The conviction under Section 414 IPC as against accused 3,4,10 and 11 and conviction of accused 6 and 7 under Section 452 IPC are confirmed. The conviction of accused 3,4,10 and 11 under Section 412 IPC, and conviction of accused 6 and 7 under Section 395 r/w 397 IPC, are set aside, instead, they are found guilty under Sections 411 and 392 IPC respectively. However, as stated supra, the period already undergone by the respective accused are treated as sufficient punishment for the respective offences committed by them under Sections 411, 414, 392 and 452 IPC. Therefore, all the accused are directed to be set at liberty forthwith, unless they are required in connection with any other case.