R. N. BISWAL, J. ( 1 ) THIS appeal is directed, at the instance of the above two accused persons against the order of conviction and sentence dated 29-3-1995 passed by the learned Additional Sessions Judge, balasore in S. T. No. 11 / 77 of 1994 wherein he convicted them under Sections 302/201/ 324 read with Section 34, IPC and sentenced each of them thereunder to undergo imprisonment for life, R. I. for two years and one year respectively. ( 2 ) SHORN of unnecessary details the prosecution case is that there was a prolonged civil litigation between Kunimani Nayak arid khudamani Nayak in one hand and surendra Nayak on the other in respect of a particular piece of land. Ultimately khudamani and Kunimani got the decree in their favour. They sold the land in question to the wife and two grand-children of late Baidhar Singh in the year 1992 and gave delivery of possession thereof to them. Being annoyed and frustrated Surendra Nayak and his sons including the accused persons created 'gandagol' with Baidhar Singh and his family members with a view to dispossess them from the said land. On 17-8-1993 baidhar Singh and his son Gajendra Singh (P. W. 6) went to Balasore to consult with an advocate about their litigation. During the evening time they left Balasore in a bus upto soro wherefrom they came to Mangalpur in a trekker. After getting a torch light repaired there, they proceeded to their village slmilikhol on foot through a pathway in a paddy field. On the way at about 9. 30 p. m. accused Babu Nayak alias Umakanta Nayak restrained Baidhar Singh. At this time when p. W. 6 asked him saying "babu tar kis hal", he threatened him to keep quiet saying "sala pati karna, Pati kale salaku Kati debi" and pushed him, for which he fell down in water. In the meantime he pressed the neck of baidhar Singh and made him fall down and brought out a knife. When P. W. 6 tried to snatch away the knife from Babu Nayak the latter asked the co-accused Sarat saying "salaku Dhar". At this accused Sarat pushed him and in the process the left thumb of p. W. 6 got slightly cut by the knife held by accused Babu. When P. W. 6 tried to snatch away the knife from Babu Nayak the latter asked the co-accused Sarat saying "salaku Dhar". At this accused Sarat pushed him and in the process the left thumb of p. W. 6 got slightly cut by the knife held by accused Babu. So, out of fear P. W. 6 fled away from the spot when both the accused persons killed his father. On the way P. W. 6 went to the house of Bhaskar Samal (P. W. 5) and disclosed him that the accused persons killed his father. He advised him to flee away. Then he went to the house of mukunda Jena (P. W. 7) and narrated the incident before him who advised him to go to the police station and report the incident. Thereafter, he went to village Mangalpur and requested Mina Babu to make arrangement for him to go to Soro Police Station. Then in the trekker of said Mina Babu he went to soro Police Station and orally reported the incident to the Officer-in-charge who reduced the same into writing and treated it as FIR. ( 3 ) ON receiving the FIR the Officer-in-charge swang into action. He proceeded to the house of the informant where he found the dead body of the deceased lying on the outer verandah of the house. As the day broke he held inquest over the dead body, sent it to the District Headquarter Hospital, balasore for autopsy, examined the witnesses, prepared the map of the place where the dead body was found lying, proceeded to the place of assault, prepared the map thereof and seized sample earth therefrom. He also seized the wearing apparels of the accused persons, one torch light, some documents relating to the dispute between the accused persons and the informant party, arrested the accused persons, forwarded them to Court and after completion of investigation, submitted charge-sheet against them. After the case was committed to the Sessions Court, charges were framed against the accused persons under Sections 302/201/324/34, IPC. The plea of the accused persons is complete denial of their complicity in the crime. In order to bring home the charges against the accused persons, prosecution examined as many as 18 witnesses, out of whom P. W. 6 is the only eye-witness to the occurrence. The defendant did not choose to examine any witness. The plea of the accused persons is complete denial of their complicity in the crime. In order to bring home the charges against the accused persons, prosecution examined as many as 18 witnesses, out of whom P. W. 6 is the only eye-witness to the occurrence. The defendant did not choose to examine any witness. After assessing the evidence on record, learned additional Sessions Judge, Balasore found the accused persons guilty of the offence punishable under Sections 302/201/ 324 read with Section 34, IPC and sentenced them thereunder as mentioned earlier. ( 4 ) BEING aggrieved with that order of conviction and sentence, the accused persons (hereinafter referred to as 'appellants') have preferred this appeal. ( 5 ) LEARNED advocate for the appellants submitted that the trial Court erred in convicting the appellants on the sole testimony of P. W. 6 who is no other than the son of the deceased. Only because P. W. 6 is son of the deceased and the only witness to the occurrence, his evidence cannot be brushed aside altogether. Ordinarily a close relative would be the last person to screen the real offender and falsely implicate an innocent person. Conviction can also be based on the evidence of a solitary witness. Evidence is weighed and not counted. But the evidence of a solitary witness who happens to be a close relative of the victim must be scanned with much caution. Evidence of such a witness must be cogent, trustworthy and above reproach. ( 6 ) NOW it is to be seen whether the evidence of P. W. 6 stood these tests. It transpires from his evidence that there was land dispute between Khudamani and Kunimani on one side and Surendra Nayak, father of the appellants on the other. Khudamani and kunimani own the suit. Two years prior to the occurrence they sold the said disputed land to the deceased's family. So the appellants' family bore grudge upon them. Some time before the occurrence, the appellants, their father Surendra Nayak and brother ananta Nayak had threatened to kill the deceased and his family members. On the date of occurrence P. W. 6 and his father baidhar Singh went to Balasore town to consult an Advocate's Clerk about their litigation and threat to their lives given by the appellants. On their instructions the advocate's Clerk typed a petition and gave that to them. On the date of occurrence P. W. 6 and his father baidhar Singh went to Balasore town to consult an Advocate's Clerk about their litigation and threat to their lives given by the appellants. On their instructions the advocate's Clerk typed a petition and gave that to them. It transpires from the evidence of P. W. 12, the Clerk of Advocate, harekrushna Das, Balasore that on 17-8-1993 he scribed the petition, Ext. 6 as per the instructions of Baidhar Singh. He went to the Court of Sub-Divisional Magistrate, balasore along with Baidhar Singh, the deceased and P. W. 6 and filed the said petition there. But during cross-examination he admitted that he was not examined by the I. O. His name also does not find place in the charge Sheet. So his evidence cannot be accepted. But it transpires from the evidence of P. W. 11, the then Bench Clerk of Sub-Divisional Magistrate, Balasore that on 17-8-1993 Baidhar Singh filed a petition as per Ext. 6 in the Court of Sub-Divisional magistrate, Balasore against Surendra nayak, Ananta Nayak and the appellants. He made an endorsement on it to the effect "forwarded to the Officer-in-Charge" to be signed by the Sub-Divisional Magistrate. In absence of the Sub-Divisional Magistrate it was signed by the Executive Magistrate Sri s. N. Mohapatra, in-charge of the Sub-Divisional Magistrate. On perusal of Ext. 6 it is found that the appellants and Surendra nayak and Ananta Nayak had threatened the deceased to kill him. P. Ws. 1 and 2, the sister-in-law and the wife of the deceased respectively also deposed that on the date of occurrence P. W. 6 and the deceased had gone to Balasore. So that evidence of P. Ws. 1, 2, 6 and 11 and Ext. 6 show that P. W. 6 and the deceased had been to Balasore on the date of occurrence and that there was, ill-feeling between the appellants and the deceased. ( 7 ) IT further transpires from the evidence of P. W. 6 that he himself and the deceased returned from Balasore in a bus and alighting at Soro boarded a trekker, enroute mangalpur. Getting down at Mangalpur at about 7. 00 p. m. , they proceeded towards their village Similikhol on a pathway in a paddy field. On the way, appellant Babu alias Umakanta Nayak caught hold of the deceased. Getting down at Mangalpur at about 7. 00 p. m. , they proceeded towards their village Similikhol on a pathway in a paddy field. On the way, appellant Babu alias Umakanta Nayak caught hold of the deceased. At this P. W. 6 asked him saying "e kis hal Babu" to which he threatened him saying "be Sala Dhunda Pati Karibuni, hanidebi". Then he pressed the neck of the deceased and made him fall down on the ground and called the appellant Sarat. In the meantime appellant-Babu inflicted a kick blow on P. W. 6 for which he fell down. Before P. W. 6 started running Babu inflicted a knife blow near his left thumb causing bleeding injury. At that moment the deceased was lying on the spot raising sound "gan Gan". While running away P. W. 6 saw both the appellants assaulting the deceased. On his way P. W. 6 came to the house of makunda Jena (P. W. 7) and informed him about the incident. Then he came to the house of Mina Babu of Mangalpur who sent him to Soro Police Station by his trekker where he reported the incident verbally to the Officer-in-Charge which was reduced into writing. On perusal of the evidence of p. W. 18, the Investigating Officer, it is found that P. W. 6 did not state before him that appellant Sarat took any part in the alleged crime, and that he heard his father raising sound "gan Gan". So this part of his evidence cannot be relied upon. ( 8 ) FIRST it is to be seen whether the order of conviction as passed against appellant-Babu warrants interference by this Court. The evidence of P. W. 6 as discussed above shows that Babu pressed the neck of the deceased and made him fall down. As transpires from the evidence of P. W. 7 in the night of occurrence while he was engaged in teaching his students, P. W. 6 came to his house, and called him. When he came out, he told him that his father was killed and requested him to lend Rs. 10. 00, but he gave only Rs. 5. 00. This part of his evidence could not be shaken during cross-examination. Furthermore, it transpires from the evidence of p. W. 8 that in the same night at about 10. 00 to 11. When he came out, he told him that his father was killed and requested him to lend Rs. 10. 00, but he gave only Rs. 5. 00. This part of his evidence could not be shaken during cross-examination. Furthermore, it transpires from the evidence of p. W. 8 that in the same night at about 10. 00 to 11. 00 p. m. the informant came to his house and disclosed before him about the murder of his father. On his request he directed his driver and helper to take him to the police station. Disclosure of the incident before P. Ws. 7 and 8 just after the occurrence by P. W. 6 shows that he is a natural witness. The evidence of the doctor P. W. 14, who conducted autopsy over the dead body shows that he found one bruise of size 4" x 1" in front of the neck over thyroid cartilage of the dead body. On dissection of it fracture of thyroid cartilage was noticed with excavation of blood in throat. This injury could be possible by pressing of neck with considerable force. He further specifically deposed that the deceased died due to strangulation. So the ocular testimony of P. W. 6 coupled with the medical evidence show that appellant-Babu alias Umakanta Nayak alone committed the murder of the deceased because of previous enmity as discussed earlier. ( 9 ) WITH regard to the offence under Section 324, I. P. C. , it is revealed from the F. I. R. that when P. W. 6 was attempting to snatch away the knife from appellant-Babu, Sarat pushed him for which his (P. W. 6) left thumb was cut. P. W. 6 did not disclose before P. Ws. 7 and 8 about the assault on him by Babu. In natural course he was expected to disclose this fact to them. Moreover, no knife was seized by the I. O. in connection with this case. So the evidence of P. W. 6 that appellant-Babu alias Umakanta Nayak inflicted a knife blow on him cannot be relied upon; even though the doctor P. W. 13 found one incised wound on the ventral aspect of first phalanx of his left thumb. Moreover, no knife was seized by the I. O. in connection with this case. So the evidence of P. W. 6 that appellant-Babu alias Umakanta Nayak inflicted a knife blow on him cannot be relied upon; even though the doctor P. W. 13 found one incised wound on the ventral aspect of first phalanx of his left thumb. ( 10 ) AS regards the offence under Section 201, I. P. C. is concerned, the occurrence took place on the pathway in a paddy field in between village Saralia and Tentulipada, but the dead body was found lying on the outer verandah of the house of the deceased. P. W. 9 had stated before the I. O. that he had seen appellant-Babu carrying a person on his shoulder in the night of occurrence. He could not recognise that person since his face was lying downwards, but he did not state so before the Court on oath. So this part of his evidence cannot be relied upon; but still then it can be inferred beyond reasonable doubt that appellant-Babu after killing the deceased carried his dead body to his (deceased) house and threw it in the outer verandah with the intention of screening himself from legal punishment. ( 11 ) AS discussed earlier, P. W. 18 the I. O. stated that P. W. 6 did not state before him that Sarat took any part in the alleged crime. At this stage the learned Standing Counsel submitted that both the appellants came to the spot together. So, even if Sarat did not participate in the assault, still, then he can be vicariously liable for the offence committed by Babu alias Umakanta Nayak by the aid of Section 34, I. P. C. common intention within the meaning of Section 34, I. P. C. implies a pre-plan pursuant to which the crime is committed. The said plan may develop on the spot in course of commission of the crime. In the case at hand there is nothing to show that there was pre-plan between the two appellants to commit the murder of the deceased. Only because appellant Sarat was present on the scene of occurrence, such an inference cannot be drawn. Moreover, as discussed above, as per the evidence of P. W. 6 after the deceased was made to fall down by babu, he called Sarat. Only because appellant Sarat was present on the scene of occurrence, such an inference cannot be drawn. Moreover, as discussed above, as per the evidence of P. W. 6 after the deceased was made to fall down by babu, he called Sarat. If Sarat had also intention to commit the murder, he would not have waited till Babu alias Umakanta asked him to come near. Before convicting appellant-Sarat for the offence under Sections 302/201/324 read with Section 34, I. P. C. the trial Court should have come to a definite conclusion that he had prior consort with the other appellant in commission of the crime. From the fact and circumstances of the case it appears that appellant-Sarat might have prior consort of mind with the co-appellant to commit the crime, but there is a long gap between might have and must have. Prosecution failed to bridge that gap. So, the order of conviction of appellant-Sarat for the offence under Sections 302/324/201/34, I. P. C. deserves to be set aside on benefit of doubt. ( 12 ) AT this stage the learned counsel for the appellants submitted that if one part of the evidence of P. W. 6 is disbelieved, then relying upon the other part, appellant-Babu cannot be convicted. "the maxim falsus in uno fulsus in omnibus" (false in one thing false in everything) is not a sound rule of law. Seldom one comes across a witness whose evidence is not exaggerated or does not contain a grain of untruth. It is duty of the Court to scan the evidence carefully and separate the grain from the chaff. In the present case even though P. W. 6 is the only witness to the occurrence and that he is the son of the deceased, still then his evidence with regard to the complicity of appellant-Babu for the offence under Sections 302/ 201, IPC is cogent, clinching and above reproach. So, the submission of the learned counsel for the appellants that once appellant-Sarat is acquitted, the co-appellant also be let off, cannot be accepted. ( 13 ) AT last learned counsel for the appellants submitted that both the appellants were charged for the offence under Sections 302/201 /324 read with Section 34, IPC and once appellant -Sarat is acquitted of all the charges, the other appellant cannot be convicted under Sections 302/201, IPC. ( 13 ) AT last learned counsel for the appellants submitted that both the appellants were charged for the offence under Sections 302/201 /324 read with Section 34, IPC and once appellant -Sarat is acquitted of all the charges, the other appellant cannot be convicted under Sections 302/201, IPC. Even if charge has been framed under Sections 302/201/324/34, IPC conviction can be made under Sections 302/201, IPC unless prejudice is shown to have been caused to the accused. In this case there is nothing to show that appellant-Babu shall be prejudiced if he is convicted under sections 302/201, IPC. Therefore, the appeal is allowed in part. The order of conviction and sentence for the offence under Sections 302/324/201/34, ipc as against appellant-Sarat Nayak is set aside and he is acquitted of the charges framed thereunder, by granting benefit of doubt. While setting aside conviction of appellant-Babu for the offence under Sections 324/34, IPC, his conviction for the offence under Sections 302/201/34, IPC is converted to Sections 302/201, IPC. Appellant-Babu has been sentenced by the trial Court to undergo imprisonment for life for the offence under Section 302 and R. I. for two years for the offence under Section 201, IPC. We do not interfere with such minimum punishment prescribed for such offences but direct that to run concurrently. Appeal partly allowed. .