A. R. TIWARI, J. ( 1 ) THIS appeal, presented under Section 377 Cr. P. C. , is directed against the judgment dated 26. 8. 1987, rendered by Additional Sessions Judge, Caroth, District Mandsaur in Sessions Trial No. 84 of 1987, thereby convicting appellant Murli under Section 302 IPC and sentencing him to suffer imprisonment for life and convicting remaining two appellants under Section 302/34 IPC and sentencing each of them to suffer imprisonment for life. ( 2 ) FACTS are jejune. Appellant Murli and appellant Shivlal are real brothers. Prosecution witnesses Arjunsingh, Babulal and Prabhulal (PW5-7, 9 and 10) are real brothers. The prosecution story in nut-shell is that Arjunsingh installed engine on the bank of Ansar river near Piplya-wala-deh three days prior to the date of the incident i. e. 18. 12. 1986. On 17. 12. 1986, this engine went out of order. Arjunsingh, therefore, summoned Ratanlal and was bringing him on 18. 12. 1986. at about 9. 00 A. M. for repairs of the engine. Arjunsingh and Ratanlal were passing through the route near the field of one Ramprasad when Murli demanded to know as to why they were passing through that route. Ratanlal replied that it was the field of Ramprasad. Murli then went away after saying that he would show. Arjunsingh and Ratanlal reached the place where the engine was installed. At about 10. 00 A. M. , appellant Murli appeared with gun and other two appellants came there with Lathis. After some exchange of words appellants Shivlal and Ramlal exhorted with words -TTMARO SALON KO. The appellant Murli then fired the gun which hit Ratan on his chest He immediately fell down and breathed his last. The First Information Report was lodged by Arjunsingh (PW-7) which is marked in the case as Ex. P/15. The post-mortem was got done. The report is Ex. P/5. Spot map prepared by police is Ex. P/12 and prepared by Patwari is Ex. P/16. The Chemical Examinerts report is Ex. P/27. After completion of the investigation, the challan was filed. The appellant Murli was charged under Section 302 IPC and the other appellants were charged under Section 302/34 IPC to which they pleaded not guilty and claimed to be trial. After conclusion of the trial, the learned trial Judge convicted and sentenced the appellants as above. Aggrieved, the appellants have preferred this appeal. The appellant Murli was charged under Section 302 IPC and the other appellants were charged under Section 302/34 IPC to which they pleaded not guilty and claimed to be trial. After conclusion of the trial, the learned trial Judge convicted and sentenced the appellants as above. Aggrieved, the appellants have preferred this appeal. ( 3 ) WE have heard Shri J. P. Gupta, learned senior counsel with Shri Rahul Gupta for the appellants and Shri Piyush Mathur, learned Deputy Govt. Advocate for the respondent/state. We have perused the record. ( 4 ) THE defence is that the appellants have been falsely lugged in due to pre-existing enmity. It is stated in statement under Section 313 Cr. P. C. that Murli was earlier assaulted by Babu (PW-9), Prabhu (PW-4), Arjun (PW-7) and Tejsingh (PW 8) and, on report of Murli, criminal case is launched and pending. ( 5 ) THE counsel for the appellants took us through the evidence and contended that there is no sufficient and T1dipendablet evidence to sustain conviction of appellant Murli under Section 302 IPC and that other two appellants have been wrongly connected with the aid of Section 34 IPC. In further pursuit, he urged that there is no legal evidence about alleged common intention. He stated that the words TTMARO SALON KOT even if accepted did not constitute intention, categorised as common, to kill Ratanlal. He urged that before fastening vicarious liability, the Court must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of act committed by the former. In the case on hand, counsel submitted, there is no evidence of substance to precipitate such satisfaction and as such conviction with the aid of Section 34 IPC is fit, for being incinerated. Evidence has to be evaluated in proper perspective and grain has to be shifted from chaff. (Budhwa alias Ramcharan and others v. State of Madhya Pradesh)1 is pertinent. The Deputy Govt. Advocate on the other hand dubbed contentions as non-meritorious and supported the judgment spiritedly. ( 6 ) PW-2 Dr. S. L. Verma has proved postmortem report (Ex. P/5) which amply established that cause of death was shock due to rupture of heart by fire arm pellet and mode of death was homicidal. This part is not challenged. The Deputy Govt. Advocate on the other hand dubbed contentions as non-meritorious and supported the judgment spiritedly. ( 6 ) PW-2 Dr. S. L. Verma has proved postmortem report (Ex. P/5) which amply established that cause of death was shock due to rupture of heart by fire arm pellet and mode of death was homicidal. This part is not challenged. Hence Ratanlal (deceased-victim) died a homicidal death. The core question is as to who did him to death and whether tow appellants, as alleged, abetted the crime and formed common intention to liquidate the victim. ( 7 ) WE now proceed to scan other evidence. ( 8 ) F. I. R. (Ex. P/is) IQdged by Arjunsingh (PW-7) clearly recites that appellant Murli threatened, and fired the gun hitting the victim on his chest and consequently causing his death. Seizure memo of gun is Ex. P/2. Report about gun was called vids Ex. P/9. Report is Ex. P/20 which supports the case of prosecution. PW -7 Arjunsingh deposed that Murli fired gun at Ratanlal and is the author of injuries resulting in death. PW-8 Tejsingh, PW-9 Babulal and PW-10 Prabhulal corroborate PW - 7 Arjunsingh. There is nothing on record to disbelieve these four witnesses who are on the point against appellant Murli and are unshaken on the anvil of cross-examination. We thus find that it is safe to act upon the statements duly supported by F. I. R. , Seizure Memo, Expert and Medical opinion, of these witnesses. The trial Court rightly placed implicit faith in their natural verson. Nothing substantial is demonstrated to take a different view so far as appellant Murli is concerned. ( 9 ) POSITION of law is not in tenebrosity. Lord Denning J. in Miller v. Minister of Pensions, stated thus: That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt. Lord Du Pareu J. observed that:- All that the principle enjoins is a reasonable secepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth. ( 10 ) IN the result, we find that the verdict of guilt against appellant Murli is valid and legal and rests on evidence which is sure and sufficient. His appeal is thus manifestly acarpous. ( 11 ) NOW coming to the case of the other two appellants, we notice the undernoted facts and features: (a) Appellant Ramlal is the father of appellant Murli and appellant Shivlal is his real brother. (b) Earlier criminal case on the report of Murli is pending which furnished sufficient bias to involve these two appellants falsely. (c) They are said to be armed with lath is but are not said to have assaulted. The only allegation against them is of exhortation with words MARO SALON KOT as put in F. I. R. (Ex. P115 ). (d) Initially, only Murli is said to have come and objected about water. (e) The testimony of PW-7 Arjunsingh (Sale Ko Mar), PW-8 Tejsingh (Mar Do Sale Ko), PW9 Babulal (Maro Sale Ko) and PW -10 Prabhulal (Mar Sala Ko), expressed in singular tone, is at variance with version in F. I. R. which speaks in plural expression as Salon Ko (f) Deceased was only a mechanic. Hence alleged words are not necessarily referable to him. (g) Mensrea is absent. ( 12 ) ON our analysis, we find that firstly, the allegation of exhortation is a concocted piece and secondly that does not essentially convey the impression about intention to kill. The words Maro may be understood as conveying intention to beat and not to kill as the words are not Jaan Se Maro. Finding cannot be conjectural. ( 12 ) ON our analysis, we find that firstly, the allegation of exhortation is a concocted piece and secondly that does not essentially convey the impression about intention to kill. The words Maro may be understood as conveying intention to beat and not to kill as the words are not Jaan Se Maro. Finding cannot be conjectural. TI ( 13 ) MATHURALAL Reddy v. The State of Hvderabad, it is held that: A mere direction from one person to another and carrying out of that direction by the other may be only instigation of the latters act and may not be a case of a joint act falling under S. 34. ( 14 ) IT is thus noticed that there is no definite and dependable evidence to lead to inference that the appellant Murli committed crime in furtherance of common intention. There is no meeting of minds or Tpreconcert. It is trite law that same or similar intention is not the same thing as common intention. There is no case of sharing the intention of the other. It is luculent that the case against the remaining two appellants is not proved beyond reasonable doubt within the parameters as noted above. ( 15 ) IN (Bhagwan Bia Singh and another v. The State of Uttar Pradesh), it is held that: Here also, there is no mention that Mohan Singh had caught hold of the hands of the deceased for the purpose of aiding the appellant No. 1. Thus, there is no reliable evidence to show the participation of appellant Mohan Singh in the assault on the deceased and in these circumstances, therefore, S. 34 would have no application so far as appellant No. 2 is concerned. T ( 16 ) WE are thus of the view that the accusation against the other two appellants, beastly born of evil design, does not seem to be true and further the words, as attributed, though untrust-worthy, do not even establish the case of joint act falling under Section 34 IPC. The pettifoggery introduced to involve these appellants on the fulfrum of relationship with Murli and hostility with the complainant-party should be seen to perish. ( 17 ) THE reasons contained in paras 23 and 24 of the impugned judgment are thus found to be improper and fit to be dislodged. The pettifoggery introduced to involve these appellants on the fulfrum of relationship with Murli and hostility with the complainant-party should be seen to perish. ( 17 ) THE reasons contained in paras 23 and 24 of the impugned judgment are thus found to be improper and fit to be dislodged. If these two appellants had come determined to fight, as was assumed, then nothing would have prevented them from using lathis. The plea of exhortation is thus not free from doubt and is utterly unsafe to base and sustain conviction and sentence. ( 18 ) EX consequent, we find that the conviction and sentence recorded under Section 302/34 IPC are not on firm foundation and the same thus deserves to be vacated so as to prevent miscarriage of justice. To this extent rumple deserved rupture. Verdict against Murli, corroborated by medical and other evidence, is however, valid and proper. ( 19 ) ACCORDINGLY, we allow this appeal only in part as under: (a) The appeal of Ramlal (father) and Shivlal (brother) is allowed. Accordingly conviction and sentence imposed on them under Section 302/34 IPC are set aside. They are acquitted of the charge levelled against them. They are reported on bail. Their bail- bonds shall stand cancelled. (b) The appeal of Murli is dismissed. Accordingly conviction and sentence inflicted on him under Section 302 IPC are maintained. (c) The direction about property is of firmed. ( 20 ) THE omega then is that the appeal is thus allowed soc far as appellants Ramlal and Shivlal are concerned and is dismissed as regards the appellant Murli. Appeal of Al and A2 allowed and of A3 dismissed. 1. AIR 1991 SC 4 . (1947) 2 All. E. R. 373. AIR 1966 Sc 177. AIR 1978 SC 34 . .