JUDGMENT 1. - These two appeals namely, S. B. Criminal Appeal No. 716 of 1973 filed by Lalooda and another and S. B. Criminal Jail Appeal No. 114 of 1974 filed by Lala, are directed against the judgment of the learned Additional Sessions Judge, Udaipur, dated 12th of November, 1973, whereby he convicted appellant Lala under section 304 Part 1 I. P. C. and sentenced him to rigorous imprisonment for five years and to pay a fine of Rs. 100/-. Accused-appellant Lalooda was convicted under section 304 part I read with section 34 I.P.C. and was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 100/-; in default of payment of fine to undergo further rigorous imprisonment for a period of two months. Both these appeals arise from the same incident and are, therefore, disposed of together by a common judgment. 2. The facts which are relevant for the disposal of this appeal, briefly stated, are as under:- 3. The accused-appellant Lalooda and Lala are the nephews of deceased Dhule. They own a field known as Samerwala. On 23rd of July, 1972, when they were working in the above mentioned field, they sighted a big snake in their field. They thereupon called their uncle Dhula (since deceased) saying that a big snake has come in their field. Thereupon deceased Dhule went to their field with a Lathi in his hands. The prosecution story is that accused Laluda said that the snake was a big one and so asked Lala to bring a gun. Thereupon accused Lala went to the house of deceased Dhula and brought the loaded gun from there. Meanwhile deceased Dhula and Laluda had killed the snake with Lathis. The prosecution case given in the challan was that Laluda had fired gun as a consequence of which Dhula died. Lala was roped in the police challan on the ground that he also aided Laluda by bringing the gun and was thus guilty under section 34 of the Indian Penal Code. The prosecution case given in the challan was that Laluda had fired gun as a consequence of which Dhula died. Lala was roped in the police challan on the ground that he also aided Laluda by bringing the gun and was thus guilty under section 34 of the Indian Penal Code. The prosecution stuck to that story at the trial and as a consequence of which Laluda was charged under section, 302 I.P.C. simpliciter and Lala was charged under section 302 read with section 34 I. P. C. It may be pointed out here that besides Laluda and Lala, three more persons, namely, Vala, Puna and Kala, were challenged on the allegation that they had entered into a conspiracy to kill deceased Dhula Vala, Puna and Kala have been acquitted of the offence charged with. However, Laluda has been convicted under section 302 read with section 34 I. P. C. although he was charged under section 302 I. P. C. simpliciter and Lala has been convicted under section 302 I. P. C. simpliciter although he was charged under section 302 read with section 34 I. P. C. Two eye-witnesses have been produced by the prosecution, namely, Mst. Ratan P. W. 4, and Mst Kakari P.W. 8. Both the witnesses have stated that Laluda and Lala were, working on the date of the incident in a field called Samerwala. Dhula was also working in the nearby field. He was called by Laluda who shouted "Dhula kaka doro na sarap nikle hai". According to the witnesses, on hearing this, Dhula had gone to his field with a lathi in his hand. Both these witnesses have stated that at that time accused Lalooda had asked accused Lala to fetch the gun from house of Dhula and accused Lala had brought the same from there. These witnesses, however, in their police statements, have stated that it was accused Laluda who had fired the gun. But before the Sessions Court they have totally changed their version and deposed that it was accused Lala and not Laluda who had fired the gun at deceased Dhula. Thus the prosecution has taken a somersault and changed the entire stratum of the prosecution story by attributing the part of Laluda of firing the gun on Dhula in the trial. But before the Sessions Court they have totally changed their version and deposed that it was accused Lala and not Laluda who had fired the gun at deceased Dhula. Thus the prosecution has taken a somersault and changed the entire stratum of the prosecution story by attributing the part of Laluda of firing the gun on Dhula in the trial. The learned Sessions Judge himself has observed to quote his own words:- "It is no doubt true that there is a glaring discrepancy on this point in the statement of these two witnesses as compared with their police statement". 4. He, however, has tried to reconcile the discrepancy on wholly unjustifiable grounds that in view of the statement of Kala P. W. 10 it is proved that accused Lala, in fact had fired the gun. Kala P. W. 10 is not an eye-witness. He has deposed to the oral extrajudicial confession of accused Lala. It may be pointed out that the evidence of such an oral extrajudicial confession is of a very weak type of evidence and in the presence possession of the statement of the eye-witnesses, no credence can be given to the testimony of a witness based on an extra judicial confession. The learned Sessions Judge, in my opinion, was therefore, wrong to have relied upon the statement of Kala P. W. 10 to hold that it was Lala, the appellant, who had fired the gun at deceased Dhula. In view of totally giving go by to the original version on material point as to who was the real person who had fired gun at deceased Dhula, it is very difficult formed to hold that Laluda is guilty under section 302 read with section 34 I. P. C. The prosecution changed its entire version. It, first of all, attributed the act of firing the gun to Laluda and then changed the story by attributing the part of firing the gun at deceased Dhula to Lala. 5. It, first of all, attributed the act of firing the gun to Laluda and then changed the story by attributing the part of firing the gun at deceased Dhula to Lala. 5. Laluda had been convicted under section 302 read with section 34 I. P. C, but in face of glaring discrepancies in the prosecution story, in the challan and in the case made out in the evidence, I am unable to hold Lala guilty of the offence under section 302 I. P. C. Laluda, therefore, cannot be convicted under section 302 I. P. C. It may also be pointed out that the Lala was a young boy of 12 years of age at the time of incident and no evidence has been led to show that he fired the gun with an intention to kill deceased Dhula. Lala is nephew of Dhula. The prosecution has tried to establish that there was enmity between the nephews and the deceased Dhula, but that version is not at all convincing. If there would have been enmity between the deceased uncle and the nephews (accused-persons) they would have never sought the help of their uncle Dhula. From the material on the record, it is not proved beyond any manner of doubt that Lala fired gun at Dhula with an intention to kill him. Indeed, in view of the some results taken at the evidence stage, the case becomes highly doubtful whether Lala had at all fired at deceased Dhula, more particularly when even in the charge-sheet, the act of killing was not attributed to them. In view of the entire material on the record, I am of the opinion that the prosecution has failed to prove beyond any manner of doubt that Lala killed deceased Dhula. He is, therefore, acquitted of the offence under section 302, I. P. C. As regards Laluda, suffice it to say that he had asked Lala to bring the gun to kill the snake. The prosecution has however alleged that Laluda asked Lala to fire the gun. That is also not the case of the prosecution in its challan. Laluda therefore, also deserves to be acquitted of the offence charged. 6. In the result, both the appeals are allowed. The order of conviction passed against both the accused appellants, Lala and Laluda, is set aside and they are acquitted of all the offence charged with. That is also not the case of the prosecution in its challan. Laluda therefore, also deserves to be acquitted of the offence charged. 6. In the result, both the appeals are allowed. The order of conviction passed against both the accused appellants, Lala and Laluda, is set aside and they are acquitted of all the offence charged with. They are on bail and they need not to surrender to their bail bonds, which are hereby discharged.Appeals allowed. *******