JUDGMENT V.D. Gyani, J. -- 1. The appellants have been found to be guilty of an offence punishable under section 307/34 IPC, and each of them has been sentenced to undergo rigorous imprisonment for four years, by Fourth Additional Sessions Judge, Ujjain, in Sessions Trial No. 53 of 1985, vide his judgment dated 7.8.1985. 2. Prosecution charged the accused that they, on 22 of November 1984, around 12.45 in the afternoon, at Nai Sadak Ujjain, in furtherance of their common intention fired a: country pistol at one Sardar Nayata (PW-15), with a view to cause his death. Prosecution examined as many as nineteen witnesses to prove the charge against the accused-appellants, but the material witnesses, apart from Sardar Nayata (PW-15), the injured, are Mushtaq Ali (PW-5), a police constable who claims to be on duty at Nai Sadak, Mohammad Hussain (PW-16), the brother-in-law of Sardar Nayata who had accompanied him. 3. The accused were arrested on 27.11.1984, vide arrest-memo (Ex.P. 21). On completion of investigation, they were charge-sheeted and tried for the above offence. The trial Court convicted the accused and sentenced them to undergo rigorous imprisonment for four years. Hence, this appeal. 4. The first question that arises for consideration in this appeal is, whether the prosecution has established sharing of common intention of causing death of Sardar Nayata by each of the appellants? 5. Shri Jaisingh, learned counsel appearing for the appellants pointed out from para 10 of the impugned Judgment, that the total evidence on this point, as has also been noted by the trial Court, is that soon after firing, he (Sardar Nayata) turning back, saw the accused running. To the same effect is the evidence of Mohammad Hussain (PW-16) and Mustaq All (PW-5), stated that although he could not see as to who threw the bomb, but according to him the appellants were present there. There is no other evidence. None from the locality has supported the prosecution on this crucial point. Jagdish (PW-1), Wahid (PW-2) and Akhil (PW-3), examined by the prosecution, have categorically stated that they did not see as to who had fired. Jagdish (PW-1) and Wahid (PW-2) were declared hostile. 6. The existence of common intention shared by the accused, on ultimate analysis is, a question of fact. Jagdish (PW-1), Wahid (PW-2) and Akhil (PW-3), examined by the prosecution, have categorically stated that they did not see as to who had fired. Jagdish (PW-1) and Wahid (PW-2) were declared hostile. 6. The existence of common intention shared by the accused, on ultimate analysis is, a question of fact. The trial Court has failed to analyse the evidence on this point and erroneously proceeded on assumptions• and• has also failed to notice the case on the point. 7. A host of authorities on the point can be referred. Beginning with Mahbub Shah v. Emperor (AIR 1945 PC 118), later followed by the Supreme Court in Pandurang v. State of Hyderabad ( AIR 1955 SC 216 ) and some other subsequent decision in Hardevsingh v. State of Punjab ( AIR 1975 SC 179 ), Gajjansingh v. State of Punjab ( AIR 1976 SC 2069 ) and Dajya Moshya Bhil v. State of Maharashtra ( AIR 1984 SC 1717 ). In Mahbub Shah's case (supra), their Lordship of the Privy Council have cautioned that "care must be taken not to confuse same or similar intention with common intention, the partition which divides 'their bounds' is often very thin, nevertheless, the distinction is real and substantial, and if overlooked, will result in miscar1iage of justice". Similarly in Pandurang's case (supra), the Supreme Court has said that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. In Hardevsingh's case (supra), it has been held by the Supreme Court that "the common intention must be to commit the particular crime". It may be that he had such common intention, but it is difficult to fill the gap between 'may' and 'must' [See Gajjansingh v. State of Punjab case (supra)]. 8. The evidence on the question of sharing of common intention is extremely weak and shaky, as such it cannot be held that the appellants had shared the common intention of causing death of Sardar Nayata, merely on the basis that they were seen running together. Even otherwise in a case of bomb-blast or firing, it is but natural that people start running helter-skelter. 9. Even otherwise in a case of bomb-blast or firing, it is but natural that people start running helter-skelter. 9. The identification of the accused on the basis of seeing their backs, as claimed by witness Mustaq All (PW-5) from a distance about fifty paces and by with Sardar Nayata (PW-15) from a distance about five six paces equally weak evidence. It is not to say that a person cannot at all be identified, by seeing his back, but he is a previously known person, but Mustaq Ali (PW-5), a police constable has no where stated in his evidence that the accused were known to him before the incident. As far Sardar Nayata (PW-15) is concerned, it is an admitted position that he was inimical disposed towards the accused as there was long standing enmity between him and the accused on account of murder of his brother. It would not, therefore, be safe to place intrinsic reliance on Sardar Nayata when he stated that he had seen the accused running, in absence of any corroboration from other independent reliable sources. 10. Not a single witness from the vicinity, although admittedly there are number of shops, has been examined by the prosecution and the trial Court accepted the explanation offered by the Investigation Officer that none came forwarded who were the person approached by him and who denied assisting the police, is not disclosed by the Investigating Officer making a vague general statement as of no avail to the prosecution. This lack of independent evidence has been treated as natural by the trial Court. The reason assigned is that generally the shopkeepers are busy in attending their customers and they do not pay any heed to what happens on the road. It is too tall a claim to be excepted. It is not that their minute of their presence in the shop. The shopkeepers are busy in attending their customers and what happens, such as firing or bomb-blast do not attract their attention. 11. The trial Court has noted that there is no direct evidence as to how these injuries were caused to Sardar Nayata (PW-15). The trial Court has further noted that Sardar Nayata in his First Information Report (Ex. P.24), has not stated as to how he was injured. According to the FIR (Ex. 11. The trial Court has noted that there is no direct evidence as to how these injuries were caused to Sardar Nayata (PW-15). The trial Court has further noted that Sardar Nayata in his First Information Report (Ex. P.24), has not stated as to how he was injured. According to the FIR (Ex. P.24), a bomb was thrown at him, while in his evidence before the Court, he stated that this fact that bomb was thrown was wrongly mentioned in the FIR. He admitted that on a later stage on being told by Mohammed Hussain (PW-16), his brother-in-law and Mustaq Ali (PW-5), a constable, that he came to know that a country pistol was fired at him. This discrepancy in his evidence before the Court and the earliest version as contained in the FIR is sought to be reconciled by the trial Court with reference to the evidence of the investigating Officer (PW-19), who on receiving the report went to the spot and found pieces of paper, the out-cover scattered on the road and some pellets as found in the injured part of the body. It was on this basis, the trial Court has placed reliance on the opinion evidence of the Investigating Officer that when the pistol was triggered of and the cartridge mis-fired and this possibly let to be resulted in the impression that a bomb was thrown and that is why Mohd. Hussain and Mustaq Ali both have "deposed that a hand bomb was thrown. Mustaq Ali is the police constable and claims to be an eye-witness. Throwing of a hand bomb and firing a country made pistol in its very nature of acts involved, is so distinct and different that there could be hardly any confusion for a police constable, if he is a really an eye-witness to either of the acts. Mustaq Ali (PW-5) has categorically denied the fact that any pistol was fired. He is not merely consistent but adamant on the point that it was a hand bomb which was thrown. He could not see as to who had thrown this bomb. This eye-witness account cannot be brushed aside by the opinion evidence given by the Investigating Officer, who does not even claimed to be a ballistic expert. 12. He is not merely consistent but adamant on the point that it was a hand bomb which was thrown. He could not see as to who had thrown this bomb. This eye-witness account cannot be brushed aside by the opinion evidence given by the Investigating Officer, who does not even claimed to be a ballistic expert. 12. Mohammad Hussain (PW-16) in his evidence has categorically stated that a bomb was hurled and he also ruled out pistol being fired at Sardar Nayata. He is emphatic in his evidence about a hand bomb, being thrown. He has not named the person who had thrown the bomb or fired at Sardar Nayata. His evidence is extremely discrepant. He has improved his previous statement and made convenient departure therefrom. 13. Apart from the above infirmities in the prosecution case, the evidence of Sardar Nayata (PW-15), the complainant is also full of contradictions and he has considerably improved upon his earlier statement as noted above, there could be no question of confusion or improvement covered by Sardar Nayata whether it was a bomb blast or a pistol being fired. The witness in his affidavit dated 12.12.1984, which he had fired in order to oppose bail application of one of the accused, had categorically stated that a bomb was thrown. This affidavit was sworn and fired within a month after the incident when there was no question of being confused and the witness on being confronted with this affidavit (Ex.D.3) stated that he made a wrong statement in the affidavit. Thus, disowning the fact stated on oath, even at the time of lodging the FIR as stated by him, he had already been told by Mustaq Ali that it was not a bomb but a country pistol that was fired at him, yet the FIR contained a statement that a bomb was thrown. The trial Court has overlooked the improvement made in the prosecution story as disclosed by the FIR. There is long standing enmity between him and accused, no reliance can be placed on his testimony, unless corroborated. 14. It is not at all found proved by the trial Court as to who amongst the three fired the pistol or threw a bomb. There is no finding recorded by the trial Court nor it is borne out from the evidence on record. 14. It is not at all found proved by the trial Court as to who amongst the three fired the pistol or threw a bomb. There is no finding recorded by the trial Court nor it is borne out from the evidence on record. The common intention another essential requirement of the charge, has also not at all been established by the prosecution. 15. In view of the foregoing discussion, this appeal deserves to be allowed and is accordingly allowed. The conviction and sentences, as recorded against the appellants, are set-aside and they are acquitted of the charge framed against them. Their bail bonds are discharged.