JUDGMENT - M.F. SALDANHA, J.:---The four appellants in this group of criminal appeals were original accused Nos. 2, 3, 4, and 5 in Sessions Case No. 28 of 1985 decided by the learned Additional Sessions Judge, Greater Bombay, on 8-4-1988. It was alleged that the present appellants, alongwith original accused No. 1, had committed an act of dacoity with murder on 7-10-1984 at flat No. 18, B/2 situate on the 18th floor of Woodlands buildings, Peddar Road, Bombay. It was alleged by the prosecution that five accused were instrumental in tying up, gagging and ultimately committing the murder of a sole inmate of the flat one Veerchand Dhanji Tajani at about 4 p.m. on the afternoon on that day. It was further alleged that after committing the aforesaid murder, the accused had ransacked the flat and that accused Nos. 2 to 5 had hurriedly left the building; whereas accused No. 1 was found in a tied condition near the entrance of the flat. According to the prosecution, one Dr. Shroff, who is a neighbour, had noticed original accused No. 1, who was a servant employed by Tajani, in a tied condition near the entrance of the flat and that he had informed the liftman, Suresh Mohite (P.W. 4), to bring this fact to the notice of the Security Officer. When Suresh Mohite informed the Security Officer. Bali (P.W.1), he immediately came up and on entering the flat of Veerchand Tajani found him in tied condition on the bed. Since Veerchand Tajani was already dead, Bali lodged a complaint with the Police, who immediately came there and commenced their investigations. It is alleged that accused No. 1 was arrested on the same night and that the Police thereafter went in search of original accused Nos. 2 to 5, who are the present appellants, at their respective villages. The prosecution alleges that the four accused came to be arrested in quick succession and that a relatively large amount of property in the form of gold, jewellery and currency notes, etc., was earlier discovered at their instance or recovered by the Police in the course of the investigations. The prosecution further alleges that the sister-in-law of the deceased and her son were shown the property that was recovered from accused Nos. The prosecution further alleges that the sister-in-law of the deceased and her son were shown the property that was recovered from accused Nos. 2 to 5 and that a greater part of this property, which was in the form of jewellery, has been identified by them. Ultimately, on completion of the investigations, accused Nos. 1 to 5 were put on trial. The learned Additional Sessions Judge, Greater Bombay, at the conclusion of the trial was of the view that there was no evidence against accused No. 1 and, consequently, acquitted him. As far as accused Nos. 2 to 5 are concerned, they were convicted of the offence of robbery punishable under section 392 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. Accused Nos. 2 to 5 were further convicted of the offence punishable under section 302 read with section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, the respective sentences to run concurrently. As regards the alternative charge under section 411 of the Indian Penal Code against accused Nos. 2 to 5, in view of the aforesaid conviction, the learned trial Judge dropped this particular charge. 2. This is essentially a case of circumstantial evidence in so far as admittedly there is no eye-witness to the incident. The evidence adduced by the prosecution falls under certain broad heads, the first of them being the evidence of certain witnesses on the basis of which the prosecution seeks to establish the presence of the present accused at the scene of offence. Thereafter there is the evidence relating to the discovery, recovery and seizure of the property by the Police and the simultaneous arrest of accused Nos. 2 to 5 from their respective native places, all of which has taken place in quick succession in the immediate days following the incident. Thereafter the prosecution has sought to rely also on the fingerprint evidence, particularly that of one of the fingerprints which is attributed to accused No. 2 and which, according to the prosecution, was found on a bottle in the flat of the deceased. The next head of evidence on which the prosecution relies in the identity of the jewellery and the property by the sister-in-law of the deceased, Mrs. Tajani, her son and one Zhaveri (P.W. 24), who is an approved valuer. The next head of evidence on which the prosecution relies in the identity of the jewellery and the property by the sister-in-law of the deceased, Mrs. Tajani, her son and one Zhaveri (P.W. 24), who is an approved valuer. Lastly, there is the evidence of the respective Police Officers who is an approved valuer. Lastly, there is the evidence of the respective Police Officers who have recounted the manner in which the investigation was conducted, the manner in which the accused were traced and arrested. They have deposed about the manner in which the property was retrieved and the other supportive evidence was gathered. It will be essential in the present case, in keeping with the well set law relating to circumstantial evidence, that this Court will have to examine each of the circumstances alleged against the accused and will have to come to the conclusion that the chain of circumstances, which consists of several links, indicates that every link has been properly established and that the chain of circumstances lead to only one irresistible conclusion which points to the guilt of the accused and to nothing else. This is all the more necessary because the accused in their defence have neither admitted their presence nor have they admitted any recovery of property at their instance. They have taken up a defence of total denial. In this view of the matter, the prosecution case will have to be established on its dependent footing in so far as the accused have admitted nothing. 3. As far as the first head of evidence is concerned, the liftman, Suresh Mohite (P.W. 4) has deposed about what had happened on that afternoon. He states that the car lights of a vehicle belonging to one Mr. Apte, who resides on the 24th floor of that building, were found to be on and he was instructed to go up to the flat on the 24th floor and to inform Mr. Apte of this fact. He gives the time as 4 p.m. in the afternoon and states that he had gone to the flat at the instance of Bali (P.W.1), the Security Officer, and that he conveyed the message at Mr. Apte's, flat on the 24th floor. Thereafter he pressed the lift button and got into the lift when it came to the 24th floor. He gives the time as 4 p.m. in the afternoon and states that he had gone to the flat at the instance of Bali (P.W.1), the Security Officer, and that he conveyed the message at Mr. Apte's, flat on the 24th floor. Thereafter he pressed the lift button and got into the lift when it came to the 24th floor. He states that on the way down, the lift automatically stopped at the 19th floor and four young persons boarded the lift, out of whom one was carrying a bag. He specially states that these persons appeared to be frightened which is why his attention was probably specially drawn towards these persons and came to be focused on them to the extent that even one week later at the Police Station he has identified accused Nos. 2 to 5. Another incident occurred immediately thereafter, namely, that when the liftman came to the 18th floor, Dr. Shroff told Suresh Mohite (P.W. 4) that the servant of Mr. Tajani was lying in a tied condition outside the flat and that he should call the Security Officer. This was something unusual and out of the ordinary pattern and it is in all probability this circumstances of what transpired thereafter which made Suresh Mohite recall the fact that he had seen the four persons boarding the lift and leaving the building at that time and, furthermore, that their faces had got registered in his memory because of the fact that they appeared to be frightened. Suresh Mohite (P.W. 4) thereafter informed Bali (P.W.1), who, in turn, came to the flat and discovered the inmate of the flat, Mr. Tejani, in a dead condition. Obviously news must have spread all around the building particularly when the Police were immediately called in and the most pertinent question which the liftman and the security staff must have been asked by every body, including the Police, was with regard to who were the persons seen entering and leaving the building around that time. The evidence of this witness has been seriously assailed by Mr. Kadam and Mr. The evidence of this witness has been seriously assailed by Mr. Kadam and Mr. Talekar, learned Counsel appearing on behalf of the appellants, in so far as they contend that Suresh Mohite was a liftman; that he had spent a very short time in the lift and that there was no special reason at all for him to have noticed or remembered the identity of the four persons. The second head of criticism is that even if Suresh Mohite had seen these persons that there was nothing exceptional about them and, furthermore, that no identification parade was held and, therefore, that the Court should discard his evidence, not on the ground that he is a liar but that it is inconsequential. Unfortunately, the matter does not rest there because, as pointed out earlier, Suresh Mohite has identified the four accused on the 19th October, 1984 when his statement was recorded by the Police and when these accused, along with other persons, were in the Police Station. He has also identified the accused in the Court. It is true that there is a minor discrepancy in his evidence in so far as he has stated that it was accused No. 4 who was carrying the bag in the course of his evidence; whereas the defence has brought it on record that he had told the Police that accused No. 3 was the person carrying the bag. This, in our opinion, is a very minor and insignificant infirmity and there is nothing that the defence has brought on record that can seriously assail the evidence of this witness. The incident has taken place in the day time. The accused has boarded the lift on the 19th floor that was close by to the place where the incident took place and an unusual incident had also occurred immediately thereafter when Suresh Mohite (P.W. 4) was informed about accused No. 1 being in a tied condition. A cumulative effect of these factors does lead us to believe that if the memory of this witness were such that he could point out the four accused not only to the Police but also in the course of the trial that his evidence on the point of identification and on the all important aspect of establishing the presence of the accused in the building at that time will have to be accepted. 4. 4. The prosecution has also relied on the evidence of one maid servant Jayashree Gawade (P.W. 3), who knows accused No. 3 personally. It appears that initially this witness had turned hostile obviously because she did not want to give evidence against accused No. 3 whereupon she was cross-examined and material portions of her Police Statement were brought on record in the course of the cross-examination which, in turn, have been proved through the Investigating Officer, Jayashree has stated that accused No. 3 hurriedly came to the adjoining Shanti Building and that he had told her that he had been removed from service, that he hurriedly handed over an amount of Rs. 450/- to her with a message that Rs. 200/- should be given to his brother Yeshwant and that he also informed her that there was a taxi waiting downstairs as he was leaving for his native place. The evidence of this witness will at the highest indicate that accused No. 3 on that afternoon had suddenly come into possession of a certain amount of money and that he was in a hurry to leave for his native place. By themselves, these circumstances may appear to be innocuous, but in the light of the fact that this accused No. 3 was one of the persons who had taken part in the incident which culminated the death of Mr. Tejani and the ransacking of his flat and that he immediately thereafter came with a certain amount of currency and hurriedly left for his native place would have to be regarded as incriminating circumstances against him in the light of the connection with the earlier incident. 5. The prosecution has examined Krishnabai More (P.W. 7), who is a maid servant working in the adjoining building by the name Sheth Minar on Peddar Road. This witness has deposed to the fact that accused No. 3 collected his salary on the afternoon of that day from the person with whom he was working on the pretext that he had to leave for his native place urgently and further that accused No. 2 had also accompanied him at that time. This witness has deposed to the fact that accused No. 3 collected his salary on the afternoon of that day from the person with whom he was working on the pretext that he had to leave for his native place urgently and further that accused No. 2 had also accompanied him at that time. Again, the fact that accused No. 3 wanted to collect his salary and go away to his native place or the fact that he was accompanied by accused No. 2 may in themselves, appear to be innocuous circumstances, but this Court will have to take note of two factors of some significance, the first of them being that accused No. 3 was in a desperate hurry to collect his salary for which he waited for some time, that he was accompanied by accused No. 2 and that he had also stated that he was leaving for his native place urgently without disclosing any special reason for this visit. The urgency and the hurry displayed by accused No. 3 on that afternoon is a circumstance that would go heavily against him in the light of the fact that his presence at the scene of offence a short time earlier was established and it was, therefore, clear that accused No. 3 in the company of accused No. 2 had decided to leave the city immediately which is consistent more with his guilt than with his innocence having regard to his connection with the offence. 6. The prosecution has also examined Yeshwant Kamble (P.W. 8), who is Security Supervisor of the Sheth Minar Building on Peddar Road. He has deposed about two facts, the first of them being the friendship between accused Nos. 1, 2 and 3, and the fact that on the date of the incident at about 4.30 p.m. he had seen accused Nos. 2 and 3 visiting the building and that he had also seen them leaving, one of them carrying a bag and the second one carrying some other item. It is true that this witness is a security supervisor of the adjoining building. 2 and 3 visiting the building and that he had also seen them leaving, one of them carrying a bag and the second one carrying some other item. It is true that this witness is a security supervisor of the adjoining building. Learned Counsel appearing on behalf of the appellants have vigorously attacked the evidence of this witness and the earlier two in so far as they have pointed out that there is no doubt whatsoever of the fact that the Police have just picked these persons up and recorded vague statements with the sole object of trying to establish the presence of the accused at or near the place of the incident. Learned Counsel have also contended that even the evidence taken at its face value would at the highest show that accused Nos. 2 and 3 were around the said Sheth Minar Building on that day and that they left in the afternoon, but this would not establish their presence at the Woodlands Building. It is necessary to bear in mind that in the light of the earlier evidence of Suresh Mohite (P.W. 4) and the Security Supervisor Bali (P.W. 1) and the fact that incident had just taken place in the Woodlands Building the presence of these two accused in the adjoining building and their hurried departure from that place are circumstances of some consequence and are circumstances that fully fit in with and establish the prosecution theory. The cumulative effect of the evidence of these witness will, undisputedly, indicate that the prosecution has brought on record the scene of offence on the date of the incident and the manner in which they have left therefrom. 7. Before dealing with the strongest circumstance against the present accused, namely, the recovery of a substantial amount of property, it is necessary for us to refer to the evidence relating to the finger prints. Bhimrao Shinde (P.W. 13), who is Finger Print Expert, has been examined as also Dattatraya Kathe (P.W. 14), who is a Police Photographer. It is alleged that the Police discovered certain chance finger prints which were sent to the expert for comparison with the admitted finger prints of the four accused. It is the prosecution case that one of the finger prints, which was found on a bottle and which was a very clear finger print, was found to be that of accused No. 2. It is the prosecution case that one of the finger prints, which was found on a bottle and which was a very clear finger print, was found to be that of accused No. 2. The defence Counsel have seriously challenged this finding before the trial Court and a reading of the very detailed cross-examination will indicate that the challenge out forward was a very substantial one. The defence has succeeded in showing that the science of finger prints which is relatively involved and a complicated science, require very much more than a visual comparison, and the defence has also succeeded in casting some doubt on the conclusion of the expert. The learned Additional Sessional Judge has, for this reason in paragraph (61) of the judgment, recorded the finding that the defence has succeeded in assailing the evidence of the finger print expert and that the contention of the defence that the evidence is not conclusive will have to be upheld. The learned Additional Sessions Judge has supported his conclusion with detailed reasoning. We, are in agreement with that reasoning and we do not propose to disturb it. 8. The prosecution has alleged that accused Nos. 2 and 3 were arrested at or around village Dapoli on 10-10-1984, that accused No. 4 was arrested at village Ambewat and that accused No. 5 was arrested at village Dhopatwadi on 15-10-1984. It has been argued on behalf of the defence that there is nothing unusual or incriminating about the accused wanting to go to their home town. One factor needs to be borne in mind, namely, that the four accused leaving Bombay at the same time and not being able to put forward any special reason for their wanting to leave Bombay, where all of them were working in such a hurry, and going to their native places is a circumstance that is more against the accused than one that can be regarded as being in their favour. This circumstance, however, is not to be viewed in isolation. The Police have brought on record the most incriminating evidence in this case, namely, the fact that immediately on the night of 7-10-1984 itself the investigating authorities came to know the names and addresses of all the four assailants. This circumstance, however, is not to be viewed in isolation. The Police have brought on record the most incriminating evidence in this case, namely, the fact that immediately on the night of 7-10-1984 itself the investigating authorities came to know the names and addresses of all the four assailants. The Police have immediately swung into action and significantly in more than one of the cases the Police reached the native place even before the concerned accused got there. The Prosecution has examined the respective Police Constables and the Investigating Officer who had gone to these places, traced out the accused and arrested them and brought them to Bombay. It was also alleged by the prosecution that in the case of all four accused substantial amount of property in the form of ornaments and currency came to be seized from their possession or recovered at their instance and the Police have recorded the respective Panchanamas covering this evidence. It is unnecessary to reproduce this evidence in detail because the learned Additional Sessions Judge has in the course of a detailed judgment analysed the evidence very carefully and has come to the conclusion that it is both reliable and acceptable. We shall, therefore, deal with the broad heads of challenge that were canvassed before us with regard to this part of the evidence which is the most important and the strongest evidence on the basis of which the learned Additional Sessions Judge has convicted the accused. 9. The first head of challenge that was put forward and the one which requires serious consideration was that the Police were aware of the fact that the accused whom they were after or whom they had arrested were in possession of certain property and, therefore, according to learned Counsel appearing on their behalf the incriminating circumstance or the inference that can be drawn against the accused under section 27 of the Evidence Act would virtually disappear. To this extent, we have carefully scrutinized each of the Panchanamas; we have gone through the evidence and cross examination of each of the panch witness and minutely examined the evidence of the Investigating Officers. To this extent, we have carefully scrutinized each of the Panchanamas; we have gone through the evidence and cross examination of each of the panch witness and minutely examined the evidence of the Investigating Officers. We are satisfied, after a thorough scrutiny of this material, that the discoveries attributed to the appellants on the basis of the statements made by them and which have been recorded in the Panchanamas are acceptable in evidence and that the discovery of the property at their instance was not only properly and legally done but, furthermore, that it would lead to the irresistible inference against the respective accused. It is true that there are some very minor discrepancies with regard to the time and place with regard to the fact that certain details have been omitted here and there as also, for instance, the fact that separate arrest memorandums were not made; that the property that was seized on each occasion was not entered into a Muddenmal Register of that particular Police Station or that a separate Panchanama in respect of the search of the accused when he was arrested has not been made. Had this procedure been complied with, the prosecution case would have been further strengthened, but the important question that arises is the issue as to whether having regard to these infirmities which have been pointed out and which the learned defence Counsel contend are major lacunae in the prosecution case, whether the legal effect of the discoveries, recoveries and seizures and the inferences that can be drawn therefrom would in any manner be diluted. To our mind, the infirmities that have been pointed out are not of much significance and they would not in any manner affect the substratum of the prosecution case. 10. Learned Counsel appearing on behalf of the appellants have drawn our attention to the legal position that emerges in a situation where it is shown that the Police had prior knowledge of the existence or the place where the property was said to have been hidden. They have referred to the decision of the Madras High Court in the case of (Public Prosecutor v. Subba Reddi)1, A.I.R. 1939 Madras 15, wherein the Court has taken the view that if the Police had prior knowledge then the discovery under section 27 of the Evidence Act is rendered virtually innocuous. They have referred to the decision of the Madras High Court in the case of (Public Prosecutor v. Subba Reddi)1, A.I.R. 1939 Madras 15, wherein the Court has taken the view that if the Police had prior knowledge then the discovery under section 27 of the Evidence Act is rendered virtually innocuous. In another decision reported in the case of (Dasu Ram v. State)2, A.I.R. 1952 Rajasthan 20, the learned Judges have repressed the view that the evidence of discovery will have to be conclusive on the point that it was pursuant to the statement made by the accused in the presence of independent Panchas that the discovery was made and that it was not a case of Police virtually picking up property after they came to know of its existence or where it had been kept. Learned Counsel have also relied on a decision reported in the case of (In re Karunakaran)3, 1975 Cri.L.J. 798 as also of the Supreme Court in the case of (Nagappa Dondiba v. State of Karnataka)4, A.I.R. 1980 S.C. 1753, in support of their contention that this Court will have to reject the entire evidence relating to the discovery of the property as also the inferences that flow therefrom since it was obvious that pursuant to interrogation of the concerned accused that the Police Officers came to know of the place where the property was placed and, consequently, that the Panchanama that was drawn up is virtually a sham Panchanama. To this extent, we have examined the respective Panchanamas, the evidence of the Panchas and the depositions of the respective Police Officers almost microscopically because it was absolutely essential that this Court be satisfied that the discoveries and the recoveries in the case of all four accused passed the test of legal scrutiny. It is true that the learned Additional Sessions Judge has gone through this exercise, but having regard to the fact that this is case of circumstantial evidence and the fact that this is the stronger connecting link between the offence and the guilt of the accused, it was our endeavour that we should be doubly satisfied with regard to each accused and each incident. Having gone through that exercise, we are of the view that the conclusions arrived at by the learned trial Judge are wholly within the four corners of law and that the principles which could be culled out from the decisions cited by the learned Counsel appearing on behalf of the appellants have been fully and completely adhered to. It would, therefore, have to be held that the discovery of the ornaments, the currency and the other terms of property, all of considerable value, from accused Nos. 2, 3, 4, and 5 has been correctly and conclusively established by the prosecution. It is also necessary for us to record that quite apart from the minor nature of infirmities which the defence had canvassed, this Court will have to take note of the fact that these are basically matters of procedure and at the highest they could be regarded as procedural irregularities which could not in any manner vitiate the validity and the legal effect of the discoveries, recoveries seizures and the consequences that flow to the accused as a result of such a situation. 11. In a case of the present type where admittedly there are no eye-witnesses and where on the basis of certain other pieces of evidence the prosecution has established the presence of the accused at the scene of offence and where further the accused are found with substantial quantities of property that has been removed from the scene of offence at the time when the offence took place, the inference that this Court would have to draw is not merely that the accused can stand convicted for having been found in possession of stolen property, but that they are liable for the offence of robbery in so far as it cannot be argued that the removal of the property from the offence of robbery in so far as it cannot be argued that the removal of the property from the scene of offence was done by persons other than the present accused. Learned Counsel appearing on behalf of the appellants have advanced a submission on a point of law, namely, that even if the prosecution has proved beyond doubt that the accused were found a possession of the stolen property that at the highest it could lead to a conviction under section 411 of the Indian Penal Code. Learned Counsel appearing on behalf of the appellants have advanced a submission on a point of law, namely, that even if the prosecution has proved beyond doubt that the accused were found a possession of the stolen property that at the highest it could lead to a conviction under section 411 of the Indian Penal Code. Had there been no evidence of satisfactory nature from which this Court could hold that they were present at the scene of offence, learned Counsel would have been right in their submission. We have, however, come to the conclusion on the basis of cogent and satisfactory evidence that the presence of the accused at the scene of offence stands established. In this view of the matter, a conviction under section 411 of the Indian Penal Code simpliciter would not be tenable or justifiable unless, as observed by us earlier, the accused could satisfactory explain the manner in which they came by the property or unless there was material to suggest that the property had been removed by other persons and thereafter deposited or handed over to the present accused. For the purposes of setting at rest this controversy, it would be both necessary and useful to refer to the evidence of Hemlata Manilal Tejani (P.W. 17), the sister-in-law of the deceased, and her son Amrish Manilal Tejani (P.W. 19), nephew of the deceased. These two witnesses are close relations of the deceased and it has come on record that they used to visit his flat and they were familiar with his possession. They are both residing in the same building and both these witnesses have been called by the Police on 19-10-1984 immediately after the police had recovered the ornaments' and they were asked to identify the property in question. Broadly speaking a greater part of the property consisted of gold ornaments. Both Mrs. Hemlata Tejani (P.W. 17), and Amrish Tejani (P.W. 19), have identified these ornaments as belonging to the deceased and as being the ornaments which were kept by him in the flat. Mrs. Hemlata Tejani has given convincing reasons for having been able to identify these ornaments, quite apart from her memory, such as the fact that they formed part of a general lot which were decided among the family members after the death of her mother-in-law. Mrs. Hemlata Tejani has given convincing reasons for having been able to identify these ornaments, quite apart from her memory, such as the fact that they formed part of a general lot which were decided among the family members after the death of her mother-in-law. There are several other items such as the watch which the deceased was wearing, items like a tie pin, cufflinks, a pin of the Turf Club which the deceased used to wear, all of which these witnesses have identified before the Police as also before the Court. Their evidence is completely supported by the evidence of the valuer Kaushiklal Zhaveri (P.W. 24), who has also been examined by the prosecution. The witness states that for several years he used to examine and value the family jewellery and he has identified the property recovered by the Police as forming part of it. The evidence of these witnessed was attacked by learned Counsel appearing for the defend principally on the ground that there are broad similarities between done only because the Police told these witnesses that this was the jewellery which was removed from the flat of the deceased. There are certain other heads of criticism, namely, the fact that there were a very large number of items and that Mrs. Hemlata Tejani (P.W. 17), has wrong identified a few of the items and the submission is that the Court should reject the evidence completely. The learned trial Judge has accepted the evidence of all these three witnesses. We have considered the reasons adduced by the learned Trial Judge and, to our mind, these reasons cannot be faulted with. However, having regard to the challenge put forward by learned Counsel appearing on behalf of the appellants, we have embarked virtually on a de novo appreciation of evidence but we see no reason why this evidence should be discarded. To our mind, the prosecution has succeeded conclusively in establishing that the ornaments and other personal effects recovered from the possession of the accused were, in fact, remove from the flat of the deceased at the time of the commission of the offence. This, to our mind, is the strongest factor and the strongest link in the claim of circumstances established by the prosecution for the purpose of bring home the guilt against the accused. 12. This, to our mind, is the strongest factor and the strongest link in the claim of circumstances established by the prosecution for the purpose of bring home the guilt against the accused. 12. As regards the evidence of the Investigating Officers, learned Counsel appearing on behalf of the appellants have seriously attacked the quality of the investigation and they have contended that if there are any serious lacunae in the investigation that the entire prosecution case will have to fail. The main heads of challenge have been dealt with by us already and we have recorded the finding that these cannot be regarded as lacunae but at the highest minor procedural irregularities that would not affect the prosecution case at all. 13. Mr. Kothari, the learned Additional Public Prosecutor, has submitted that the judgment of the trial Court is a considered judgment, that the learned trial Judge has very fairly and correctly appreciated the evidence placed before him and that the convictions recorded by him are liable to be confirmed. As against this, learned Counsel appearing on behalf of the appellants have raised the first contention with regard to the sustainability of the conviction under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code. They point out that no charge under section 302 read with section 34 of the Indian Penal Code had even been framed against the accused and, furthermore, that the charge under section 396 read with section 34 of the Indian Penal Code has failed because accused No. 1 has been convicted is only four, the learned Additional Sessions Judge adopted the reasoning that even though a conviction for dacoity would be unsustainable that the accused are liable to be convicted under section 392 read with section 34 of the Indian Penal Code. Carrying forward the same reasoning, the learned Additional Sessions Judge held that the charge under section 396 of the Indian Penal Code which consists of committing murder and dacoity were to fail that the accused could still be convicted under section 302 of the Indian Penal Code simpliciter. We are inclined to uphold the submission advanced by learned Counsel appearing on behalf of the appellants that on the facts of the present case the conviction under section 302 of the Indian Penal Code will have to be set aside. 14. We are inclined to uphold the submission advanced by learned Counsel appearing on behalf of the appellants that on the facts of the present case the conviction under section 302 of the Indian Penal Code will have to be set aside. 14. An examination of the medical evidence indicates that even though there were as many as thirty injuries on the person of the deceased that none of these injuries are of a serious nature and none of the injuries have been inflicted with a dangerous weapon or a weapon which in the ordinary course of nature would cause death. Furthermore, on a scrutiny of the evidence on record, we are of the view that the intention of the accused was, undoubtedly, directed towards the act of robbery and not towards the killing of the inmate of the flat. Had the accused decided to kill the deceased Tejani, they would have entered the flat armed with necessary weapons and, consequently, they would have attacked him rather than attempting to tie him down and gag him. It is quite clear from the state of the body and the panchnamas of the scene of offence that the accused overpowered the deceased Tejani, that they succeeded in tying him down and that in order to prevent him from raising an alarm that they had also, consequently, gaged him. It is, however, clear that the deceased must have put up a strong resistance and in the course of the struggle in order to keep him quiet that some pressure was applied to his neck obviously to stop him from shouting and that he was also dealt with one or more blows on his head. It is quite certain that the injuries to the deceased were caused by the accused, but this material would not be sufficient for a conviction for the offence of murder. Having regard to the fact, therefore, that at the very highest it can be held that the accused acting in furtherance of their common intention have caused hurt to the deceased Tejani in the course of committing robbery for which a conviction under section 394 read with section 34 of the Indian Penal Code would be in order. 15. Having regard to the fact, therefore, that at the very highest it can be held that the accused acting in furtherance of their common intention have caused hurt to the deceased Tejani in the course of committing robbery for which a conviction under section 394 read with section 34 of the Indian Penal Code would be in order. 15. We, accordingly, set aside the conviction recorded against the appellants by the trial Court under section 302 read with section 34 of the Indian Penal Code as also the conviction under section 392 read with section 34 of the Indian Penal Code and in its place substitute those convictions with a conviction under section 394 read with section 34 of the Indian Penal Code. 16. On the question of sentence, the record of this case indicates that when the appeals were taken up for admission the then Division Bench took note of two circumstances from which the Court took an extremely serious view of the matter. Those circumstances were that playing cards were found on the chest of the deceased Tejani, and the second circumstance was that certain coins were also found on the body. It appeared to the Court from this evidence, prima facie, that the accused had acted with such a staggering degree of cellousness and with such a high degree of brutality that they had not only tortured and killed the deceased and looted his flat but that they thereafter in a fit of arrogance spent some time playing a game of cards for money stakes and that this was done using the chest of the deceased virtually as a card table. Though this appears to be a prima facie tenable conclusion, after carefully scrutinizing the entire evidence on record, we find that the circumstances do indicate otherwise. It is established that the accused persons, all of whom were servants, were obviously tempted by the fact that the deceased, who was a well to do person and living all alone, could be overpowered and deprived of substantial amount of valuable property and that they joined together and decided to commit the offence. In such a situation, considering the fact that the offence was committed in the afternoon in an apartment building. In such a situation, considering the fact that the offence was committed in the afternoon in an apartment building. It is quite obvious to us that the natural conduct of the accused would be to pick up as hurriedly as possible whatever valuables and currency they could lay their hands on and to disappear from the scene of offence as fast as possible. We also find from the panchnama of the scene of offence that everything from the cupboard in that room was virtually scattered around the place and in the course of this hurried operation it probably happened that some playing cards and some coins and some ball pens did land on the body of the deceased. This circumstance in itself, therefore, cannot be regarded as an instance either of extreme brutality or of savage conduct nor will it categorise this case as one belonging to the rarest of the rare cases. The law is well-settled that capital punishment can only be awarded if the facts and circumstances fully establish that the case in question comes within what the Supreme Court has defined as "the rarest of the rare cases". It is true that this Court had earlier issued a suo motu notice in each of the appeals for enhancement of sentence, but, in our view, the plea put forward by learned Counsel appearing on behalf of the defence that the conviction under section 302 of the Indian Penal Code itself is unsustainable and, in any event, that this is not the case for the award of a extreme penalty of death is both correct and liable to be upheld. The learned Additional Public Prosecutor has advanced certain submission such as the fact that the incident in question was a very serious one and that affects seriously the aspects of personal and public safety and, consequently, that this Court should take a deterrent view of the case are all true in principle, but to our mind, not good enough for purposes of enhancing the sentence. 17. In this view of the matter, the appeals are partially allowed. The conviction and sentence of the appellants under section 302 read with section 342 of the Indian Penal Code as also the conviction and sentence under section 392 read with section 34 of the Indian Penal Code recorded by the learned Additional Sessions Judge are set aside. 17. In this view of the matter, the appeals are partially allowed. The conviction and sentence of the appellants under section 302 read with section 342 of the Indian Penal Code as also the conviction and sentence under section 392 read with section 34 of the Indian Penal Code recorded by the learned Additional Sessions Judge are set aside. In their place, the appellants are convicted of the offence punishable under section 394 read with section 34 of the Indian Penal Code and are sentenced to suffer imprisonment for life. 18. At this stage, learned Counsel appearing on behalf of the appellants, pointed out that the accused are poor persons; that they are all relatively young in age and with family and young children. In this view of the matter, learned Counsel made a strong plea that this Court should show maximum mercy to the accused and that the sentence imposed on them should be lesser than imprisonment for life. We have carefully considered this aspect of the case, but this Court will also have to bear in mind the extreme seriousness of the incident that has resulted in the death of Tejani, the manner in which he met his end, the fact that this was a daring daylight robbery committed by domestic servants which would seriously shake social order and public order if any degree of undue leniency is shown. The circumstances pointed out to us cannot be regarded as mitigating circumstances. In this view of the matter, we are not inclined to consider the plea put forward on behalf of the appellants. The appeals are accordingly partially allowed. 19. Before parting with this judgment, we would like to place on record the fact that the record of this case is relatively heavy and voluminous and that the case involved a number of important and interesting points of law and, therefore, we would like to commend Mr. Kadam, learned Counsel appointed amicus curiae by the State of Maharashtra, and Mr. Talekar who has represented original accused Nos. 3 and 5, as also Mr. Kothari, the learned Additional Public Prosecutor. These Counsel have put in considerable amount of labour and have assisted the Court to a very large extent. It is necessary under these circumstances for us to quantify the fees payable to Mr. Kadam, learned Counsel who has been appointed to appear amicus curiae on behalf of the appellants. Kothari, the learned Additional Public Prosecutor. These Counsel have put in considerable amount of labour and have assisted the Court to a very large extent. It is necessary under these circumstances for us to quantify the fees payable to Mr. Kadam, learned Counsel who has been appointed to appear amicus curiae on behalf of the appellants. Having regard to the complexity of the case and the number of days that it has taken, we quantify the fees payable to Mr. Kadam at Rs. 500/- per day for each day of hearing. Appeal allowed partially. -----