JUDGMENT 1. - All the five Appellants were tried by the Additional Sessions Judge No. 1, Kota for committing murder of Mohan and Babbu Harijans. The charges were that they were members of an unlawful assembly and in prosecution of the common object of the assembly committed the above double murder. Appellants Raju, Ashok and Tulsi were also charged for the offence under Sec. 4/25 of the Arms Act and the appellant Ashok had an additional charge for the offence under Sec. 353 I.P.C. The learned Additional Sessions Judge vide judgment dated March 29, 1993 in Sessions Case No. 31 of 1987 convicted all the appellants for the offence punishable under Sections 148 and 302 read with Sec. 149 I.P.C. and sentenced them to suffer one year rigorous imprisonment and to pay fine of Rs. 100/- each (in default of payment to undergo one months rigorous imprisonment and life imprisonment and a fine of Rs. 100/- (in default, one months rigorous imprisonment) respectively on both the counts. Appellants Ashok and Raju were further convicted under Sec. 4/25 of the Arms Act and sentenced to suffer one year rigorous imprisonment and to pay a fine of Rs. 100/- (in default one month's rigorous imprisonment). While, appellant-Ashok was also convicted under Sec. 353 I.P.C. and sentenced to undergo one months rigorous imprisonment and to pay a fine of Rs.n 100/-. in default of payment of fine to undergo rigorous imprisonment for 15 days. The substantive sentences were ordered to run concurrently. 2. The prosecution case lies in a narrow compass. The occurrence had taken place at about 8 p.m. on November 7, 1986 on the public road near Mohan Cinema Talkies in the city of Kota. The report of the incident was promptly made to the Police Station, Kaithunpole, Kota within half an hour at 8.30 p.m. by P.W. 1 Constable Brij Mohan. The prosecution story about the incident, as unfolded in the First Information Report (for short F.I.R.), was that informant Brij Mohan was on patrolling duty near the place of incident at the relevant time, and "had gone to a near by hotel `Toofan Mail' to take water, Constable Rekh Chand was taking his meals there. The prosecution story about the incident, as unfolded in the First Information Report (for short F.I.R.), was that informant Brij Mohan was on patrolling duty near the place of incident at the relevant time, and "had gone to a near by hotel `Toofan Mail' to take water, Constable Rekh Chand was taking his meals there. At about 8 p.m. they heard loud noise towards Mohan Talkies, where-upon, they rushed there and found two persons lying on the road infront Mohan-Talkies and were being assaulted by 5-6 persons with knives and lathis. The proceeded further to rescue the victims but the assailants, seeing them in police dress, fled away towards Chhota Talab. Informant Brijmohan constable identified the appellants Babu, Raju and Ashok of Ladpura area to be amongst the miscreants. The remaining persons were not known to him. Raju and Ashok had knives while Babu was having a lathi at that time. Constable Brijmohan succeeded in catching hold the appellant Babu while he was running but in the struggle both fell down and he managed to get escaped. One of the miscreants inflicted a lathi blow on the shoulder of Brijmohan. Appellant Ashok also made an attempt to strike him with a knife but it was warded off by stepping towards back. Prosecution story further guess that Ramesh Harijan and constable Murlidhar came at the site and chased the miscreants but could not succeed in holding them. Then, Constables Brijmohan, Rekh Chand and Murlidhar went to the place where Mohan and Babu Harijan were lying injured in a pool of blood with several wounds on their persons. Mohan had succumbed to his injuries on the spot, while Babu was alive. Both of them were immediately taken to the hospital by Constable Rekh Chand and Murlidhar, while Brijmohan went to the police station to make the report. Crime No. 141/86 was registered at Police Station, Kaithunpole, Kota under Section 302, 307, 147, 148, 149, 332 and 353 I.P.C. On the report made by Constable Brijmohan. 3. After registration of the case, investigation was made by P.W. 12 - Randhir Singh Yadav, who was posted as Station House Officer (S.H.O.) of the Police Station, Kaithunpole. In the course of investigation, he inspected the scene of occurrence and prepared site-plan Ex. P2. Photographs of the dead bodies (Ex.P. 14 and Ex. P 22) were taken by Laxman Singh Photographer. In the course of investigation, he inspected the scene of occurrence and prepared site-plan Ex. P2. Photographs of the dead bodies (Ex.P. 14 and Ex. P 22) were taken by Laxman Singh Photographer. Blood stained and control soil was taken from the scene of occurrence vide memos Ex. P27 to Ex.P 30. A cycle, lying at the place of occurrence, was seized vide memo Ex. P. 31. The inquest report (Ex.P. 6 and Ex.P 9) of the dead bodies of Babu and Mohan were also prepared and their blood stained cloths were seized vide memos Ex.P 8 and Ex.P 23. Appellants Ashok, Babu and Raju were arrested vide arrest memos Ex. P 33. Ex.P 34 and Ex.P 35. While appellants Tulsi Ram and Kalu were arrested vide arrest memos Ex.P 36 and Ex.P 37. During investigation appellant Ashok gave information (Ex.P 38) and in pursuance to that disclosure a knife was recovered from his house vide seizure memo Ex.P 12. On similar disclosures weapons were recovered from other accused persons. After completion of usual investigation, a charge-sheet was laid against all the appellants in the Court of Special Judicial Magistrate, Kota, who in turn committed the case to the Court of Sessions, from where-it was made over to the Court of Additional District and Sessions Judge No. 1. Kota for trial. 4. At the trial, prosecution examined 15 witnesses to seek conviction of the appellants. The plea of the accused, in their statements under Sec. 313 Cr.P.C. was of denial. No witness was examined in defence. After completion of trial, the learned Judge convicted and sentenced the appellants as stated herein above. 5. Before dealing with the contentions raised by Shri K.K. Mehrish, learned counsel appearing for the appellants, we would like to narrate the nature of evidence led by the prosecution and relied upon by the trial Court, which is thus: (i) depositions of the eye-witness, namely, P.W. 1 - Brijmohan Constable, P.W. 2 - Murlidhar Constable, P.W. 6 - Ramesh Harijan and P.W. 11 - Rekh Chand Constable: (ii) recovery of weapons on the disclosure and at the instance of the accused persons (iii) other corroborative pieces of evidence in the shape of F.I.R., medical evidence, site-plan etc. 6. 6. Shri K.K. Mehrish with his usual eloquence and persuasive way, while assailing evidence of the eye-witnesses contended that they are chance witnesses and their evidence required close scrutiny as their presence at the place of occurrence was not expected in the normal course. Learned counsel also contended that except Ramesh (P.W. 6) all other eye-witnesses are Police Constables and they were not knowing the appellants at the time of occurrence, as such, in absence of prior identification parade their evidence identifying the appellants in the trial Court is of no use. According to the learned Counsel, eye-witnesses Brijmohan, Murlidhar and Rekh Chand being police persons their evidence should not be acted upon without independent corroboration. Then, it was contended that in the site-plan Ex.P 2, prepared during investigation, the investigating officer (for short I.O.) has not marked the spots were from the eye witnesses had seen the incident and this circumstance alone was sufficient to suspect their presence there. Learned counsel also contended that the incident had taken place on a busy road having a number of shops there and the shop keepers were natural and independent witnesses to speak about the incident. But none of them was examined as a witness. Lastly, it was contended that F.I.R., in the instant case, was prepared later-on as it was received in the office of the Magistrate after two days of occurrence. 7. On the other hand Shri R.S. Agarwal, learned Public Prosecutor, supported the judgment of the trial Court and contended that there was over-whelming evidence on record to bring home guilt of the appellants. According to him, presence of the Police Constables near the place of the occurrence was not by mere chance or co-incidence as they were performing their official duty in that area at the relevant time and, as such, they cannot be termed as chance witnesses. Shri Agrawal, further contended that F.I.R. in the instant case was made promptly within half an hour of the incident and the informant Brijmohan Constable had no animosity or malice to falsely implicate the appellants or fabricate a false story about the incident. For the delay in receiving F.I.R. in the office of Judicial Magistrate. Shri Agrawal, further contended that F.I.R. in the instant case was made promptly within half an hour of the incident and the informant Brijmohan Constable had no animosity or malice to falsely implicate the appellants or fabricate a false story about the incident. For the delay in receiving F.I.R. in the office of Judicial Magistrate. It was contended, that second Saturday and Sunday being holidays it was received there on Monday, as such, there was no delay and that no material has been brought on record by the accused to show that it was an anti-dated. For omission to mark spots in the site-plan where from the eye-witnesses were seeing incident, it was contended that the I.O. is required to record in the site-plan what he sees or observes at the site during his inspection and if any spot is shown or marked in the site-plan on the basis of information supplied by any other person it shall be hit by Sec. 162 of the Code of Criminal Procedure and would be inadmissible in evidence. 8. Before dealing with other contentions. We would first take up the seriously agitated question about the effect of failure or omission to mark spots in the, site-plan where from the witnesses were seeing the incident and whether on account of this failure the presence of eye-witnesses becomes suspicious at the time and place of occurrence. The contention of Shri Mehrish is that this makes the presence of eye-witness highly suspicious and on this ground alone their evidence should not be relied upon. Strong reliance is placed on the decisions of this Court in Savia & Another v. State of Rajasthan 1985 Cr. LR (Raj.) 1 and Ram Kumar v. State 1988 R.C.C.P. 65 . 9. After giving our careful consideration we are of the view that the above contention of Shri Mehrish has no merit. The object of preparing a site-plan is to make marking on the map and to indicate all that the I.O. actual sees and observes on the spot, for example, the blood, piece of cloth or any other article, such as, empty cartridges etc. found there. Any marking on the sketch map put by the I.O. who was obviously not an eye-witness to the incident. found there. Any marking on the sketch map put by the I.O. who was obviously not an eye-witness to the incident. On the basis of the statements made by the witnesses to him, would not be admissible in view of the provisions of Sec. 162 of the Code of Criminal Procedure. Sec. 162 provides that no statement made by any person to a Police Officer in the course of investigation or any record thereof. Whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose at an enquiry or trial in respect of any offence under investigation except that when any witness who was examined by the Police is called for the prosecution, his former statement reduced in to writing. If duly proved, may be used : (i) by the accused for the limited purpose of contradicting such witness in the manner provided by Sec. 145 of the Evidence Act and no other : (ii) also by the prosecution for the purpose of contradicting him with the permission of the Court : (iii) witness statement so used i.e. either by the accused or the prosecution in cross-examination, he may be re-examined if any, explanation is necessary. Thus, Sec. 162 Cr.PC. imposes a complete ban on the use of statements recorded by a Police Officer in the course of investigation under Chapter XII for the purposes of corroboration or as substantive evidence. Such statement can be used by the accused and with permission of Court by the prosecution only for the purpose of contradicting the witness who has made such a statement in the manner provided by Sec. 145 of the Evidence Act. 10. The expression `statement' or any part of such statement takes in its fold the statements given by a witness at different stages or on different dates to the same or different investigating Officers. Therefore, the statements of witnesses, or remarks in maps of the place of occurrence or marks on it showing that place where the witnesses were standing at the time of incident on the basis of the statement by a witness during investigation are hit by Sec. 162. Therefore, the statements of witnesses, or remarks in maps of the place of occurrence or marks on it showing that place where the witnesses were standing at the time of incident on the basis of the statement by a witness during investigation are hit by Sec. 162. For example, `deceased stood here and received lathi blows from the accused or witnesses stood here and saw the incident or the route taken by the deceased when chased by the accused based on the statements of witnesses, are hit by Sec. 162 Cr.C.P.C. 11. In Lori Singh v. State of U.P. A.I.R. 1962 S.C. 399 , It was contended on behalf of the accused that statements of the prosecution witnesses were unbelievable in view of the place shown in site-plan where the deceased was said to have received the injury, repealing this contention, the apex Court observed: "In the second place, the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of the eye-witness. The marking of the spot on the sketch-map is readily bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This, in our opinion, would not be admissible in view of the provisions of Sec. 162 of the Code of Criminal Procedure, for it is, in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot: but any mark put on the sketch map based on the statements made by, the witnesses to the Sub-inspector would be inadmissible in view of the clear provisions of Sec. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. It was again observed in para-8 of the Judgment as under:- The sketch-map in the present case has been prepared by the Sub-Inspector and the place where the deceased was hit and also the place where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances, these marks on the map based on the statements made to the Sub-Inspector are inadmissible under Sec. 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured. If he was standing at the spot marked on the sketch-map. 12. In Jagdish Narain and another v. State of U.P. 1996 Cr.LR (SC) 215. the same view has been reiterated thus:- "While preparing a site-plan an investigating Police Officer can certainly record what he sees and observes for that will be direct and substantive evidence being based on his personal knowledge but as, he was not obviously present when the incident took place, he was to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testified about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person for whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, the formers evidence would be admissible to corroborate the latter in accordance with Section 157 Cr.PC. However, such a statement made to a Police Officer when he is investigating into an offence in accordance with Chapter-XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) Cr.P.C. appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site-plan PW. 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eye-witnesses it would not have been admitted in evidence being hit by Section 162 Cr.P.C. 13. That necessarily means that if in the site-plan PW. 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eye-witnesses it would not have been admitted in evidence being hit by Section 162 Cr.P.C. 13. In view of the above legal position and pronouncements made by the Apex Court of the country, the view taken by this Court in Sabia's case or Ram Kumar's case (supra) does not hold good. Consequently, we reject the contention of Shri Mehrish that in view of omission or marking on the site-plan of the places where the eye-witnesses were standing at the time of incident casts suspicion about their presence. 14. The next contention of Shri Mehrish that eye-witnesses of the incident are chance witnesses as their presence at the place and time of occurrence was not expected and as such, their evidence be not acted upon without corroboration from an independent source, has also no substance. A witness is called a chance witness, if by co-incidence or chance he happens to be at the place of occurrence at the time of its taking place. If such witness happens to be relative or friend of the victim or inimically disposed of towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable, but does require cautions and close scrutiny. In the instant case, the eye-witnesses, namely, Constables Brijmohan and Murlidhar were on patrolling duty at the time and place of the incident. Similarly, PW. 11 Constable Rekh Chand was taking his meal in `Toofan Mail' Hotel after performing his patrolling duty from 3 p.m. to 6 p.m. Hence, none of these witnesses falls within the category of a chance witness and on this ground alone their testimony cannot be suspected or disbelieved. 15. Further contention of Shri Mehrish that the testimony of Constable, eye-witnesses should not be relied and acted upon on the ground of their being police persons is also without any substance. There is no such rule of law laying down that a police person should not be believed without any corroboration. 15. Further contention of Shri Mehrish that the testimony of Constable, eye-witnesses should not be relied and acted upon on the ground of their being police persons is also without any substance. There is no such rule of law laying down that a police person should not be believed without any corroboration. A police witness is like any other witness and his testimony has to be considered and acted upon like that of any other witness and if his testimony is found to be reliable and credible then it can be acted upon for recording conviction even without any corroboration. 16. Inspite of all that have been stated above, we still examined the evidence of the above eye-witnesses with caution and care and our analysis is thus: PW. 1 - Brijmohan and PW. 2 - Murlidhar Constables were on their patrolling duty near the place of occurrence at the time of incident. Constable Brijmohan was in a near-by hotel to take water while Constable Murlidhar was patrolling towards `Chhota Talab' when they heard a loud noise from the side of Mohan Talkies at about 8.00 p.m. they rushed to the scene of occurrence and found Mohan and Babu Harijans lying on the public road infront of Mohan Talkies and were being assaulted by 5-6 persons with knives and lathies. Constable Brijmohan identified Raju, Babu and Ashok appellants amongst the assailants as they were known to him from before. The other assailants were not known to him. In an attempt to catch hold the miscreants. Constable Brijmohan succeeded in holding appellant Babu while he was to run away from the scene of occurrence, but both of them fell on the ground in a struggle and he (Babu) succeeded to ran away from the place. Appellant Ashok Kumar also attempted with a knife on constable Brijmohan but the attack was warded to by stepping towards back. Constable Murlidhar had identified all the assailants while they were running from the scene of occurrence. Both the witnesses have described the incident in their own way. After the accused had fled away, the witnesses came near the victims and identified them to be Mohan and Babu Harijans of Sripura area - Kota. They had sustained serious injuries at the hands of the assailants and were lying on the road in a pool of blood. Both the witnesses have described the incident in their own way. After the accused had fled away, the witnesses came near the victims and identified them to be Mohan and Babu Harijans of Sripura area - Kota. They had sustained serious injuries at the hands of the assailants and were lying on the road in a pool of blood. Mohan Harijan had died on the spot while Babu was still alive at that time. Then, Murlidhar and Rekh Chand constable shifted Mohan and Babu Harijans to the hospital while Brijmohan proceeded to the police station, Kaithunipole, Kota to lodge the report. This report Ex.P 1 was promptly made by him within half an hour of the incident leaving no occasion for any adulteration or embellishment. In the Court also constable Brijmohan identified the appellants Raju. Babu and Ashok. He also identified Tulsi and Kalu appellants in earlier identification parade held during investigation and Tulsi was identified by him in the Court while the witness Murlidhar identified Raju, Babu, Ashok and Tulsi appellants in the Court. Both the witnesses have stated about the part played by each of the appellants and the weapons held by him at the time of incident. The witnesses have been cross-examined at length but nothing substantial has been elicited to shake their testimony. We find the testimony of these witnesses consistent and firm and that none of them was having any malice or enmity against the appellants to implicate them falsely. A complete account of the incident was given in the report Ex.P 1 which was made with promptitude. We are fully convinced that the statements of facts about the incident narrated in the report Ex.P 1 and as described by P.W. 1 - Brijmohan in the trial Court is a true and correct version of the incident, the fact that only three of the five appellants were named in the F.I.R. adds to its credibility. The name of P.W. 2 - Murlidhar constable also finds place in the F.I.R. The conduct of the witnesses at the time and after the incident was quite natural. In our view, the trial Court committed no error in placing reliance on the testimony of the constables Brijmohan and Murlidhar. 17. PW. 11 - Rekh Chand constable is another eye-witness of the occurrence. He was taking his meals in hotel `Toofan-Mail' after his duties were over. In our view, the trial Court committed no error in placing reliance on the testimony of the constables Brijmohan and Murlidhar. 17. PW. 11 - Rekh Chand constable is another eye-witness of the occurrence. He was taking his meals in hotel `Toofan-Mail' after his duties were over. According to this witness constable Brijmohan (PW. 1) was also in the hotel when they heard noise towards Mohan Talkies at about 8 p.m. He claims to have seen the incident along with Brijmohan constable. However, his testimony helps the prosecution to a limited extent that the incident had taken place on the public road near Mohan Talkies and constable Brijmohan was their to witness the incident who had gone alongwith this room Hotel `Toofan-Mail'. From his statement it transpires that he did not know the accused persons from before and in absence of prior identification parade. Identification of the appellants in the Court and that, too, without naming them, has no value. Similarly we are not inclined to place any reliance on the evidence of PW. 6 - Ramesh Harijan who also appeared as an eye-witness of the incident. Admittedly, he is close relative of the deceased being real brother of Babu deceased and maternal uncle of Mohan deceased. He was also having enmity against the appellants as he was facing trial along with other persons for causing murder of the brother of appellant Babu. The presence of this witness at the place of occurrence was not in the normal course and he claimed to have reached there by chance. Further, the conduct of this witness at the time and after the incident was quite unnatural and unbelievable. His name does not find place in the F.I.R. also. On critical analysis his testimony does not inspire any confidence and we have no hesitation in rejecting his testimony. 18. Thus, for the identity of the accused persons for participating in the incident we have ocular testimony of P.W. 1 and P.W. 2 only. The evidence of PW. 6 - Ramesh has not been found to be reliable. Similarly, the evidence of PW. 11 - Rekh Chand does not help to establish the identity of the assailants. So far the identity of Babu, Raju and Ashok. In commission of the crime is concerned, there is no difficulty as their, identity is well established from the testimony of PW. 1 -Brijmohan and RW. Similarly, the evidence of PW. 11 - Rekh Chand does not help to establish the identity of the assailants. So far the identity of Babu, Raju and Ashok. In commission of the crime is concerned, there is no difficulty as their, identity is well established from the testimony of PW. 1 -Brijmohan and RW. 2 - Murlidhar constables with strong corroborative piece of evidence in the shape of F.I.R. which was lodged by PW. 1 - Brijmohan with promptitude. PW. 1 Brijmohan had no axe to grind against them to falsely implicate them. In addition to that, there is corroborative evidence in the shape of recovery of knives on disclosures made by the appellants. Raju and Ashok and a lathi on the disclosure made by the appellant Babu vide recovery memos Ex.P 11, Ex.P 12 and Ex.P 13 respectively. All these articles have been found to be stained with human blood vide serologist report Ex.P 44. In presence of overwhelming evidence, we have no hesitation in holding that Raju, Babu and Ashok appellants actively participated in the incident in which two persons, namely, Mohan and Babu sustained injuries and died. 19. Now, the question remains for the appellants Kalu and Tulsi Constable Brijmohan did not know them from before, hence, their names were not mentioned in the F.I.R. He also did not identify Kalu in Court as he was not present in the Court when Brijmohans statement was recorded. Constable Murlidhar also could not identify Kalu accused in Court as on 25.5.90, when his statement was recorded, he was not present in the Court. Thus, none of these two witnesses has identified the appellant Kalu in the trial Court. It Is true that Kalu was identified by P.W. 1 in the identification parade during investigation on 8.12.95 but, this identification is not a substantive piece of evidence and could at best be used for corroboration. Further, we are not inclined to attach any value to the prior identification parade in which Constable - Brijmohan is said to have identified Tulsi and Kalu appellants for the simple reason that Constable Brijmohan was posted in the same Police Station where the case was registered. Accused Tulsi was arrested on 21.11.86 vide arrest memo Ex.P 36 and Kalu was arrested on 2.12.86 vide arrest memo Ex.P 37. Accused Tulsi was arrested on 21.11.86 vide arrest memo Ex.P 36 and Kalu was arrested on 2.12.86 vide arrest memo Ex.P 37. Admittedly, both of them remained in Police custody for some time, as such, the possibility of seeing them by the witness Brijmohan Constable during their Police custody cannot be ruled out. If evidence of Brijmohan Constable is excluded for the accused Tulsi and Kalu, then, there remains sole testimony of PW. 2 Murlidhar. No doubt, Murlidhar constable has identified the appellant Tulsi in the trial court and he claims to be knowing him from before. But, for the reason that the names of Kalu and Tulsi accused are not mentioned in the F.I.R., we do not find it safe to convict them on lone testimony of Murlidhar. It appears that Murlidhar did not tell the names of Tulsi and Kalu accused to Brijmohan when he had gone to lodge the report, otherwise, their names would have been mentioned in the report. In these circumstances, we are inclined to extend benefit of doubt to the appellants Kalu and Tulsi. 20. We also do not find any merit in the contention of Shri Mehrish that non-examination of the shop-keepers of nearby shops as eye-witnesses to prove the guilt of the appellants is a serious infirmity and on this ground the appellants be given benefit of doubt. Firstly, on this ground, testimony of PW. 1 - Brijmohan and P.W. 2 - Murlidhar Constables, which has been found to be trustworthy, cannot be discredited or excluded from consideration. Secondly, there is no material on record to show that any particular shop-keeper had gone near the victims to see the incident and was deliberately with-held by the prosecution. The occurrence had taken place after 8 p.m. and even some shops were open at the time of incidence, there is no evidence that any one of the shop-keepers had offered any assistance to the victims at the time of attack. Generally, shop-keepers, specially in a city life, keep themselves away and do not come forward either to assist the victim or to be witness in the case. The evidence of P.W. 1 - Brijmohan and PW. 2 - Murlidhar has been found reliable and trust-worthy by us and we find no reason as to why conviction of the appellants, Ashok, Raju and Babu may not be sustained on their evidence. 21. The evidence of P.W. 1 - Brijmohan and PW. 2 - Murlidhar has been found reliable and trust-worthy by us and we find no reason as to why conviction of the appellants, Ashok, Raju and Babu may not be sustained on their evidence. 21. The last submission of Mr. Mehrish may now be examined which is purely a question of law. The submission of Mr. Mehrish is that in case the appellants Tulsi and Kalu are acquitted by this Court, conviction of the remaining three appellants or any one of them cannot be converted from 302 read with Sec. 149 I.P.C. to one under Sec. 302 or 302 read with Sec. 34 I.P.C. In support of his contention Mr. Mehrish has strongly relied on the decision of the Apex Court In Nank Chand v. State of Punjab A.I.R. 1955 SC 274 . In that case, the charge against the accused was under Sec. 302 read with Sec. 149 I.P.C. The trial Court found the sole appellant and three others guilty under Sec. 302 read with Sec. 34 I.P.C. and the remaining three accused were acquitted. On appeal, the High Court convicted the appellant alone under Sec. 302 I.P.C. Before the Supreme Court his conviction under Sec. 302 simplicity was challenged on the ground that the charge was within the aid of Sec. 149 I.P.C. and there was no charge for a substantive offence under Sec. 302 I.P.C. The Supreme Court held that the person charged with the offence read with Sec. 149 cannot be convicted of the substantive offence without specific charge being framed as required by Sec. 233 Cr.P.C. It was observed by their Lordships as under:- "By framing a charge under Sec. 302 read with Sec. 149 I.P.C. against the appellant. The Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under Sec. 302 I.P.C., was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. In the above decision, their Lordships have not held that a conviction under Sec. 302 read with Sec. 149 could not be converted into under Sec. 302 read with Section 34 I.P.C.In Karnail Singh and another v. State of Punjab A.I.R. 1954 SC 204 and Gupteshwar Nath Ojha v. State of Bihar A.IR. 1986 SC 1649 : 1986 Cr.LJ 1242 , the apex Court considered this aspect specifically and held that in case where a charge under Sec. 302 read with Sec. 149 I.P.C. is framed, conviction under Sec. 302 read with Sec. 34 I.P.C. is valid, and failure to charge the accused under Sec. 34 could not result in any prejudice and in such cases, the substitution of Sec. 34 for Sec. 149 I.P.C. must be held to be a formal matter. In the instant case, on facts, there could be no difference between the object and the intention with which the offence in question was committed and hence, conviction of the three appellants Ashok, Raju and Babu under Sec. 302 read with Sec. 34 I.P.C. can be made even though they were charged under Sec. 302 read with Sec. 149 I.P.C. Such Conversion is valid in law.In Nank Chands case (supra) also, the view taken in Karnail Singhs case has been affirmed in para-11 of the judgment wherein it was observed as under "It was urged that in view of the decision of this Court in Karnail Singh v. State of Punjab : A.I.R. 1954 SC 204 (k), a conviction under Sec. 302 read with Sec. 149 could be converted into a conviction under Sec. 302/34 which the trial court did, there could be no valid objection, therefore, to converting a conviction under Sec. 302/34 into one under Sec. 302 which the High Court did. Thus, the last submission of Shri Mehrish is not legally sound and it is rejected. 22. The net result of the above discussion is that the conviction and sentence of the appellants Tulsi and Kalu for the offences under Sections 302/149 and 147 I.P.C., are set aside. They are acquitted of all the charges and shall be released forthwith if not wanted in any other case. 22. The net result of the above discussion is that the conviction and sentence of the appellants Tulsi and Kalu for the offences under Sections 302/149 and 147 I.P.C., are set aside. They are acquitted of all the charges and shall be released forthwith if not wanted in any other case. However, conviction and sentences of the appellants, Ashok, Raju and Babu as awarded by the trial Court are maintained and their appeal is dismissed. The appeal is decided as indicated above. *******