B. K. BEHERA. J. ( 1 ) THE appellant assails the order of conviction recorded against him under section 302 of the Indian Penal Code and the sentence imposed on him to undergo imprisonment for life by the Court of Sessions after acceptance of the case of the prosecution that on June 22, 1981, the appellant committed the murder of his wife Ketaki (to be described hereinafter as the deceased) by means of an axe (M. O. II ). The appellants plea was one of denial. Of the witnesses examined for the prosecution, P. WA was said to be the sole witness to the occurrence. The learned trial Judge has accepted his evidence and has held that the appellant had dealt blows by means of M. O. II on the person of the deceased resulting in her death. The finding recorded by the trial court that the death of the deceased was homicidal in nature has not been challenged. The question for consideration is as to whether the appellant was the author of the crime. ( 2 ) APPEARING on behalf of the Appellant, Mr. K. C. Mohanty has strenuously urged that the evidence of P. W. 4 is not worthy of credence and cannot be made the basis of an order of conviction. As has been submitted by him and also by the learned Additional Government Advocate, if the evidence of P. W. 4 is not accepted, there is no other evidence to sustain the charge because M. O. II recovered in the course of investigation was not found to have stains of human blood in it and in the absence of other evidence finding of some stains of human blood in the Lungi (M. O. III) said to be belonging to the appellant and recovered in the course of investigation would not be sufficient to hold that the appellant had committed the murder. ( 3 ) P. W. 4 has testified that on the date of occurrence, the deceased and he had gone to the jungle with herds of buffalows for grazing. The appellant went there with a Bala and asked him to return back. The appellant, as testified by P. W. 4, dealt a. blow by means of the Bala on the neck of the deceased and dealt another blow on her person when he (P. W. 4) fled away from the place. The appellant went there with a Bala and asked him to return back. The appellant, as testified by P. W. 4, dealt a. blow by means of the Bala on the neck of the deceased and dealt another blow on her person when he (P. W. 4) fled away from the place. P. W. 4 has claimed to have informed his father (P. W. 2) about what he had seen. Evidence is to be weighed and not counted. The evidence of a solitary witness, if found to be true and unimpeachable, can be made the basis of an order of conviction. It would be seen from the evidence of P. W. 4 and that of P. Ws. 1 and 2 that the evidence of P. W. 4 is not worthy of credence. ( 4 ) P. W. I has deposed that when the deceased did not return home, he asked P. W. 4 about her whereabouts and P. W. 4 told him that when the appellant and the deceased were together, he came away. Thus to a specific query made by P. W. I, P. W. 4 had pleaded his ignorance about the whereabouts of the deceased and he had never stated to him that he had seen the act of the appellant killing his wife. ( 5 ) ACCORDING to P. W. 2 the father of P. W. 4, in the evening of the date of occurrence, P. W. 4 returned home and when he was asked as to why the deceased did not return, P. W. 4 gave out that while coming back, he had found the deceased talking with the appellant. Thus even at that stage, P. W. 4 had not told about what he had claimed to have seen, as testified by him at the trial. P. W. 2 has, however, gone on to say that when the deceased did not return, he asked his son as to what happened and P. W. 4 told him that while he was coming ahead with his buffalows, he had found the appellant dealing two cut blows on the person of the deceased by a Bala and that being afraid, he came away. It would, however, be seen from the evidence of P. W. 2 that in the course of investigation, he had made no such statement to the Investigating Officer about this. It would, however, be seen from the evidence of P. W. 2 that in the course of investigation, he had made no such statement to the Investigating Officer about this. This cannot be said to be an inconsequential omission and would amount to a vital contradiction in his evidence. This part of the evidence of P W. 2 cannot, therefore, be accepted. ( 6 ) IT would thus be seen that, as deposed to by P. Ws. 1 and 2, being specifically asked as to why Ketaki, the deceased, did not return home, P. W. 4 had not told them that he had seen the appellant dealing blows on the person of the deceased. In this state of evidence, it would be extremely hazardous to act upon the testimony of P. W. 4 and base a conviction thereon. The prosecution has failed to bring home the charge to the appellant who is entitled to an acquittal. ( 7 ) THE appeal succeeds and is allowed. The order of conviction recorded against the appellant under section 302 of the Indian Penal Code and the sentence passed against him thereunder are set aside. The appellant be set at liberty forthwith. Appeal allowed. .