Judgment M. P. Singh, J. 1. Appellant No.1 Narendra Singh was sentenced to five years rigorous imprisonment under section 307 of the Indian Penal Code years (hereinafter referred to as Code) and he was further sentenced to three years rigorous imprisonment under section 27 of the Indian Arms Act, 1959. The sentences in his case were ordered to run concurrently. The remaining three appellants dinanath Singh, Kumar Singh and Haridwar Singh were each sentenced to three years rigorous imprisonment under section 307 read with section 34 of the code. These three appellants are said to be brothers. 2. The occurrence of marpit took place on 26th May 1969 at about 11 a. m. in village Bagchhara P. S. Chand, district Shahabad. A report about the occurrence was made at Chand P. S. on the same day at 1 p. m. on the basis of which a Sanha was recorded and subsequently a first information report was also registered. 3. Briefly stated the prosecution case is that on 26.5.1969 at about 11 a. m. the informant Behari Singh (P. W.4) and his brother Bachai Singh (P. W.2) were digging foundation for the purpose of raising a wall by the side of the house of the appellants. Appellant no.2 Dinanath Singh made a protest. There was a quarrel. Appellant no.2 then went sway giving threat and he returned along with other appellant variously armed with weapons, namely, gun and bhalas. It is said that appellants no.1 Narendra Singh fired his gun at (P. W.3) Satyanarain Singh. However, P. W.3 saved himself. The informant (P. W.4) at that time was working in a brick kiln at a distance of about 120 yards and he was sending bricks from that place. On hearing hulla he rushed towards the place where the foundation was being dug. The prosecution alleges that appellant no.3 Kumar Singh gave a bhala blow hitting Bihari singh on his finger. Bihari Singh then started running away. He was chased by the appellants. When he reached near a Jamun tree, which was on the south of the village, appellant no.1 Narendra Singh fired his gun at him hitting him on the thigh. Having received that injury, he fell down. The defence o f the appellants was that no occurrence as alleged by the prosecution, took place and that they have been falsely implicated due to previous enmity. 4. Having received that injury, he fell down. The defence o f the appellants was that no occurrence as alleged by the prosecution, took place and that they have been falsely implicated due to previous enmity. 4. At the trial, besides examining the Investigating Officer and the doctor, the prosecution examined 6 eye-witnesses to the occurrence. They are (P. W.2) Bachai Singh P. W.3 Satnarayan Singh. (P. W.4) Bihari Singh, the injured (P. W.7) Abinash Singh alias Damari Singh, P. W.8 Suryavarti Singh and (P. W.9) Mahesh Singh a teacher. The Trial Court did not act upon their evidence with regard to the first part of the incident, namely, firing at P. W.3. Satnarain Singh by appellant no.1. Narendra Singh. It accepted their evidence with regard to the firing at P. W.4 Bihari Singh near the Jamun tree and it accordingly convicted and sentenced the appellants as aforesaid. 5. In this court, learned counsel appearing for the appellant divided the appellants into two categories with regard to appellants 2 to 4 who are brothers his contention is that all of them have been convicted under section 307/34 of the Code but the facts and circumstances of the case do not warrant the application of section 34 of the Code. Learned counsel also pointed out that so far as the injury caused by bhala on the finger of P. W.4 is concerned, the prosecution could not prove it. He submitted that according to the evidence of the doctor, the injury on the finger was a crushed and lacerated one and it was caused by hard and blunt substance. Learned counsel appearing for the State placed the evidence of P. W.3 and 9. He argued that P. W.3 has deposed that he heard hulla to the effect "yahi Bihariya Aya Usko Maro" and then appellant no.3 Kumar Singh assaulted him with bhala on the finger. P. W.4, Bihari Singh, was chased and when he reached near the Jamun tree, gun was fired at him. P. W.9, Mahesh Singh, deposed that all the four accused persons had cried out "maro Maro". On the basis of the evidence of these two witnesses, namely, P. Ws.3 and 9, it has been contended that all the four appellants had a common intention at least to assault the informant Bihari singh, I am not inclined to accept this argument. P. W.9, Mahesh Singh, deposed that all the four accused persons had cried out "maro Maro". On the basis of the evidence of these two witnesses, namely, P. Ws.3 and 9, it has been contended that all the four appellants had a common intention at least to assault the informant Bihari singh, I am not inclined to accept this argument. "common intention" within the meaning of section 34 implies a pre-arranged plan and the prosecution is bound to prove that the criminal act was done in concert pursuant to the pre-arranged plan. It may be pointed out that the accused persons may have the same intention or similar intention and yet may have a common intention. Common intention must not be confused with the same and similar intention, From the evidence of P. Ws.3 and 9 aforesaid, it can only be said that all the accused persons had similar intention but I am not prepared to hold that they had common intention. In Mahbub Shah V/s. Emperor, (AIR 1945 privy Council 118 at page 121), the Privy Council has pointed out as follows : - "care must be taken not to confuse same or similar intention with common intention the partition which divides "their bound" is often very thin, nevertheless the distinction is real and substantial and if overlooked will result in miscarriage of justice. In their lordships view, the inference of common intention within the meaning of the terms in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. " In my opinion the provisions of section 34 of the Code do not apply to the facts and circumstances of the case and it cannot be said that common intention developed at the stage when the accused persons cried out "maro maro". In this view of the matter, appellants 2 to 4 cannot be convicted under section 307 by applying section 34 of the Code. 6. So far as appellant Narendra Singh is concerned it has been contended on behalf of the State that all the eye-witnesses have spoken about the gun firing at Bihari Singh by this appellant. In this view of the matter, appellants 2 to 4 cannot be convicted under section 307 by applying section 34 of the Code. 6. So far as appellant Narendra Singh is concerned it has been contended on behalf of the State that all the eye-witnesses have spoken about the gun firing at Bihari Singh by this appellant. On the other hand, learned Advocate appearing for him has advanced an argument that it may be that Narendra singh fired his gun at Bihari Singh but it should be held in the facts and circumstances of the case that the prosecution has not proved this fact beyond all reasonable doubts. Learned counsel has submitted that there is a great difference between the probability of the case and the case having been proved beyond all reasonable doubt. In my opinion the contention raised on behalf of the defence is correct. In the first place, it may be noted that the court below has not accepted the first part of the matters as alleged by the prosecution. According to the prosecution, the first firing was near the place where the foundation was being dug and gun was fired at P. W.3, Satnarain Singh. The trial court after considering the evidence on the record came to the following conclusion : "as already held above the prosecution has not been able to prove beyond reasonable doubt that part of the occurrence in which accused Narendra Singh is said to have fired at Satnarain singh". I may refer to the earlier observation of the trial court, which is as below : "it is true that the prosecution has certain weak features but taking a total view of the probabilities and improbabilities of the case I am inclined to accept the prosecution case as true except that part of the story wherein accused Narendra is said to have fired at satnarain (P. W.3)". In other words, the trial court held that the prosecution story with regard to the firing at Satnarain was not true. Learned Advocate for the appellants has, therefore, rightly contended that if this part of the prosecution case is disbelieved, then the second part of the occurrence will be a matter of mere guess and conjecture. He has, in my opinion, rightly submitted that the prosecution has not been able to prove the genesis of the occurrence as alleged. Learned Advocate for the appellants has, therefore, rightly contended that if this part of the prosecution case is disbelieved, then the second part of the occurrence will be a matter of mere guess and conjecture. He has, in my opinion, rightly submitted that the prosecution has not been able to prove the genesis of the occurrence as alleged. 7 The second thing to be noted is that admittedly there was enmity between appellant no.1 Narendra Singh on the one hand and the prosecution party on the other. From the evidence adduced by the prosecution itself, it appears that there were 144 and 145 proceedings and a title suit in respect of a piece of land. The trial court has also noted this fact in its judgment. I have already said that the prosecution did not prove the bhala injury on the finger of Bihari Singh (P. W.4 ). 8. Thirdly, it was submitted on behalf of the appellants that according to the evidence of P. Ws.2 and 3, the gun was fired at Bihari Singh (P. W.4) by appellant no.1 Narendra Singh from a distance of at least 10 yards P. W.3 said that the firing was from a distance of 15 to 20 yards. My attention was drawn to paragraph 20 of the lower courts judgment in which it is stated that according to the Coxs Medico Legal Court Companion 4th Edition 1950, at page 33, when fire-arm is discharged from a distance of 30 feet, the shots enter as individual pellets without any grouping and cover an area of about 20" in diameter. In the present case, the pellets showed spread of only 6" in diamater. It is true that there may be difference of few inches because of the fact that the firearm is discharged not perpendicularly nor on the flat surface of the body, but it is not possible that there will be a difference of about 14" in diameter. It was the duty of the prosecution to prove by examining Ballistic Ex pert or by adducing other kind of reliable evidence that the gun was fired from a distance of 10 to 15 yards. Learned Counsel for the appellants drew my attention to the fardbayan of P. W.3, Satnarain Singh, which is on record, where it was stated that the firing was from a distance of 20 to 25 yards. Learned Counsel for the appellants drew my attention to the fardbayan of P. W.3, Satnarain Singh, which is on record, where it was stated that the firing was from a distance of 20 to 25 yards. That fardbayan does not appear to have been legally proved but, as already stated, p. W.3 deposed that the firing was from a distance of 15 to 20 yards. There is, therefore, some force in the contention raised on behalf of the defence that the prosecution did not prove satisfactorily that the firing was from the place as alleged. 9. Lastly, it was pointed out on behalf of the defence that none of the 8 to 10 labourers was examined in the case nor any villager. He argued that the occurrence took place in broad day light and there were several houses nearby. He also pointed out that according to the Sanha lodged by (P. W.4) several villagers came and then the accused persons took to their heels. In my opinion this contention also has some force. In view of the fact that there was admittedly enmity between the prosecution party and appellant no.1, Narendra Singh, it was the duty of the prosecution to adduce independent witness to prove his case. Learned counsel for the State argued that P. W.9, Mahesh Singh, was an independent. witness and he was not connected in any way with the prosecution party. In my opinion, his sole testimony cannot be blindly accepted in the facts and circumstances aforesaid. I am, therefore, not inclined to sustain the conviction of appellant, Narendra Singh, also. Learned Counsel on behalf of the appellants also contended that in view of the acquittal of appellant Narendra singh under section 326 IPC he cannot be convicted under section 324 IPC. In the view which I have already taken about the case, it is not necessary to enter into this question. Having considered the submissions raised on behalf of the parties, I am inclined to give benefit of doubt to appellant no.1 Narendra Sinch also. The result is that all the four appellants are acquitted and their convictions and sentences are set aside. The appeal is allowed and the bail bonds of the appellants are cancelled.