JUDGMENT - VISHNU SAHAI, J.:---The appellant aggrieved by the order dated 9-11-1987, passed by the IIIrd Additional Session Judge, Solapur in Sessions Case No. 289 of 1986, convicting and sentencing him to undergo five R.I. and a fine of Rs. 2,000/- and 6 month R.I. in default, under section 304 Part II I.P.C., has come up in appeal before me. Along with the appellant, six other persons namely (1) Bhanudas Sopan Kumbhar (2) Vishwanath Sopan Kumbhar (3) Machindra Narhari Kumbhar (4) Prakhakar Vishwanath Kumbhar (5) Uttam Duryodhan Kumbhar and (6) Vasant Machindra Kumbhar were tried but, they have been acquitted by the aforesaid order. 2. The prosecution case in brief is as under : The informant Batu alias Krishna Laxman Kumbhar P.W. 4 was the brother-in-law of the deceased Murlidhar Kumbhar. The latter was the brother of hte wife of the informant and used to reside with the informant. In the land of the deceased, there was a well situate at a distance of about 200 feet from the informants house. That well was jointly shared by the deceased, co-accused Bhanudas (father of the appellant) and some others. On 8-5-1986, at about 4.00 p.m. when the deceased Murlidhar and his servant Navnath were at the well, the appellant along with his father Bhanudas Sopan Kumbhar, Vishwanath Sopan Kumbhar, Machindra Narhari Kumbhar and Prabhakar Vishwanath Kumbhar came and a quarrel between them and Murlidhar is said to have ensued. On hearing shouts, the informant went running to the well and saw that appellant was assaulting Murlidhar with a jambiya (big-knife) on his neck and Bhanudas was assaulting him with a stick on the back. It is alleged that on receiving the stick blow on the back, he fell down. It is further alleged that thereafter, appellant and six co-accused persons ran away. After the incident the informant and Navnath carried Murlidhar to a place beneath a tree. It is alleged that Gangubai P.W. 6 Duryodhan Chavan, P.W. 7 and some others also reached there and Murlidhar is said to have given a oral dying declaration in their presence. It is also stated that Bajrang and Mahadeo took Murlidhar on their motors-cycle to Pandharpur dispensary but, on the way Murlidhar died. 3. It is alleged that the same day (8-5-1986) at 7 p.m. the informant dictated his F.I.R. Exh. 30. It is also stated that Bajrang and Mahadeo took Murlidhar on their motors-cycle to Pandharpur dispensary but, on the way Murlidhar died. 3. It is alleged that the same day (8-5-1986) at 7 p.m. the informant dictated his F.I.R. Exh. 30. On the basis of the F.I.R., a case under section 302 I.P.C. was registered against the appellant and others. 4. The post mortem examination of the dead body of Murlidhar was conducted on 9-5-1986 between 1 p.m. to 2 p.m. by P.W. 5 Dr. Ramesh Sidramappe Ukarande. On the dead body, the doctor found the following ante-mortem injuries ; 1. Incised Wound 2" x 1/2" x 4" between 2nd and 3rd ribs 3rt. side, near stemocostal region. 2. Abrasion 1/4" in length on rt. testis. In the internal examination, the doctor found severe internal damager, including rupture of arch of aorta. In the opinion of the doctor, injury No. 1 and corresponding internal injuries could be caused by the knife (Article No. 8) shown to him and were sufficient in the ordinary course of nature to cause death. 5. The investigation was conducted by P.W. 11 Kashinath Malappa Konnuri. The Investigating Officer registered the case on the basis of the F.I.R. The same day, he visited the place of the incident. He performed the inquest on hte dead body of the deceased. On 9-5-1986, some co-assussed of this case were arrested by him. Same day, panchanama of the place of incident was drawn by him and from the place of incident, he recovered plain earth, blood stained earth and stones. Statement of some of the witnesses were also recorded. On 12-5-1986, at the pointing out of co-accused Bhanudas Kumbhar, a stick was recovered. On 19-5-1986, at the pointing out of appellant, a jambiya was recovered. On 8-6-1986, the seized articles were sent to the Chemical Analyst. On 19-8-1986, a charge sheet was submitted against the appellant and co-accused persons. 6. In the trial Court, charges under sections 147/I.P.C., 148/I.P.C. and 302/149 I.P.C. were framed against the appellant and others to which they pleaded not guilty. In the trial Court, as many as 11 witnesses were examined by the prosecution. Out of them, there is a solitary eye witness namely Batu @ Krishan Kumbhar P.W. 4. 6. In the trial Court, charges under sections 147/I.P.C., 148/I.P.C. and 302/149 I.P.C. were framed against the appellant and others to which they pleaded not guilty. In the trial Court, as many as 11 witnesses were examined by the prosecution. Out of them, there is a solitary eye witness namely Batu @ Krishan Kumbhar P.W. 4. The other witnesses, included those in whose presence, the appellant is alleged to have taken out the knife which he had used in the incident and before whom, he made a oral dying declaration. The learned trial Judge believed the prosecution case whom, he made a oral dying declaration. The learned trial Judge believed the prosecution case with respect to the appellant and convicted and sentenced him in the manner stated above. As said earlier, he acquitted the six co-accused persons. 7. I have heard Shri T.E. Mane, learned Counsel for the appellant and Mrs. S.J. Pingulkar learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. I have perused statements of the witnesses recorded in the trial Court and various Exhibits which were tendered ad proved by the prosecution in the trial Court. I have also gone through the impugned judgment. After giving my anxious consideration to the matter, I am firmly of the opinion that this appeal must succeed. 8. There is no dispute that the conviction of the appellant rests on the solitary testimony of P.W. 4 Batu @ Krishna Laxman Kumbhar, the informant. The learned trial Judge has not chosen to place reliance on his testimony vis-a-vis the acquitted accused persons. I am alive to the fact that conviction can be recorded on the statement of a solitary witness but, then the evidence of that witnesee must be cogent trughful and unimpeachable. The question to be examined, is as to whether the evidence of P.W. 4 Batu @ Krishnal Laxman Kumbhar can be classified in that category. I regret that the same cannot be classified in that category. Admittedly, this witness in the F.I.R. and in his statement in the trial Court has stated that father of the appellant Bhanudas assaulted the deceased with a stick on his back. He stated that as a result of the stick blow, the deceased fell down. I regret that the same cannot be classified in that category. Admittedly, this witness in the F.I.R. and in his statement in the trial Court has stated that father of the appellant Bhanudas assaulted the deceased with a stick on his back. He stated that as a result of the stick blow, the deceased fell down. From a perusal of the ante-mortem injuries of the deceased, it would be crystal clear that the deceased did not sustain any stick injury on his back. In other words, the irrestible conclusion is that the witness has falsely implicated the father of the appellant. In the concluding lines of his F.I.R., he states as follows : "All these persons committed murder with a common intention at about 4.00 hours by stabbing with knife and by beating with sticks and stones." If the ante-mortem injuries of the deceased are to be perused, then it becomes very apparent that he suffered no injury attributable to stones also. Mrs. Pingulkar, learned Additional Public Prosecutor contended that injury No. 2 of the deceased could have been caused by stones. I regret that I cannot accede to this contention of hers. Citus of injury No. 2 shows that deceased must have been putting on clothes over the region on which injury No. 2 has been caused. If that was so, then there was no question of injury No. 2 resulting from the hurling of stones. I have gone through the statement of doctor Ramesh Sidramappa Ukarande, P.W. 5 and the doctor has nowhere stated that injury No. 2 could have been caused as a result of stones. In other words, the prosecution case that three co-accused persons hurled stones at the deceased is rendered unbelievable. Mrs. Pingulkar pointed out that in his statement in the trial Court, P.W. 4 Batu @ Krishna Kumbhar did not state that three persons threw stones, and therefore, her submission is that it is not the prosecution case that three persons participated in the incident by hurling stones. This omission in the statement of P.W. 4 Batu @ Krishna Laxman Kumbhar in the trial Court is not an innocent one. P.W. 4 Batu alias Krishna Laxman Kumbhar modulated his version of the incident from that in the F.I.R. obviously because the autopsy surgeon did not find any injuries as a result of pelting of stones. This omission in the statement of P.W. 4 Batu @ Krishna Laxman Kumbhar in the trial Court is not an innocent one. P.W. 4 Batu alias Krishna Laxman Kumbhar modulated his version of the incident from that in the F.I.R. obviously because the autopsy surgeon did not find any injuries as a result of pelting of stones. Hence, I am not inclined to place reliance on his testimony. The Apex Court has held in paragraph 18 of the decision reported in 1976 Cr.L.J. page 496 (Boadri, Appellant v. State of RAjasthan, Respondent)1, "If a witness, who is the only witness against the accused to prove a serious charges of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony." 9. It appears that a large number of co-accused person, who have been acquitted by the trial Court, have been falsely involved in the instant case by P.W. 4 Batu alias Krishna Laxman Kumbhar. That being so, it would be hazardous to accept his solitary testimony vis-a-vis the appellant. It is well-settled that where the major part of the statement of a writness is false, the dictates of prudence require that the residue should not be accpted, where truth and falsehood in the statement of a witness are so inextricably mixed that they are incapable of being separated, the whole prosecution case falls (see para 8 of A.I.R. 1975 S.C. pg. 1962 (Balaka Singh and others, appellants v. State of Punjab, respondent)2. 10. Another reason for acquitting the appellant is that according to the prosecution, the knife with which he had killed the deceased was recovered at his pointing out. This knife was sent to the Chemical Analyst and he did not find any blood stains on it. It is the definite case of the prosecution that this was the very knife which had been used in the incident. This knife (Article No. 8) was shown to the autopsy surgeon who replied that the ante mortem injuries of the deceased can be caused by it. I may mention that the learned trial Judge has not chosen to place reliance on this evidence of recovery of knife. 11. This knife (Article No. 8) was shown to the autopsy surgeon who replied that the ante mortem injuries of the deceased can be caused by it. I may mention that the learned trial Judge has not chosen to place reliance on this evidence of recovery of knife. 11. Another type of evidence on which the prosecution relied against the appellant, in the trial Court, was the oral dying declaration made by the deceased to witnesses Gangubai Devappa Kumbhar, P.W. 6 and Duryodhan Yelappa Chavan, P.W. 7. In para 20 of his judgment, the learned trial Judge, has given reasons, with which I am in agreement, for not accepting the aforesaid dying declaration. 12. I may also mention that even the F.I.R. in this case was not read over to the complainant after he had lodged it. The complainant P.W. 4 Batu @ Krishna Laxman Kumbhar frankly stated so in his examination in chief in the trial Court, thus : "The contents of the F.I.R. were not read over to me by the police." 13. With all the aforesaid infirmities, in the prosecution case, in my opinion, it would be extremely hazardous to sustain the conviction of the appellant on the solitary testimony of P.W. 4 Batu @ Krishna Laxman Kumbhar who admittedly is an enmical, witness. In my opinion, this appeal deserves to be allowed. 14. In the result, the appeal is allowed. The conviction and sentence of hte appellate under section 304 part II I.P.C. is set aside. In case he has paid fine, the same shall be refunded to him. He is on bail. He need not surrender. His bail bond and surety bonds stand discharged. Appeal dismissed. *****