JUDGMENT

FAZAL ALI, J.:— This appeal is directed against the judgment of the Assam High Court dated 13-8-1976 by which the High Court allowed the appeal and after reversing the judgment of the Sessions Judge acquitting the appellants, convicted the accused Keshoram Bora and Someswar Bora under S. 302/34 and sentenced them to imprisonment for life. The appellant Keshoram Bora has preferred this appeal under the SC (Enlargement) of Criminal Appellate Jurisdiction) Act, 1973 as also under S. 379 of the Code of Criminal Procedure. 1973.

2. A detailed narrative of the prosecution case is contained in the judgment of the High Court and it is not necessary for us to repeat the same all over again.

3. According to the prosecution, Kalinath Bora was uprooting pulses from his land on 19th December, 1967 at about 9 a. m. when the accused Keshoram Bora and Someswar Bora appeared on the scene armed with Shels along with their father and brother and attacked the deceased. The deceased received a number of injuries as a result of which he feel down. F. I. R. was lodged by P. W. 3 Roma Kanta Bora at Police Station Dhing at about 11 a. m. on the same day. In the F.I.R. however, only the name of P. W. 1 Upendra Chandra Bora was mentioned as a witness. The police arrived on the scene of the occurrence and after the usual investigation submitted a charge-sheet against the accused as a result of which they were committed to the Court of Session, but ultimately acquitted as indicated above.

4. The defence of the accused was that the actual occurrence took place in the land belonging to the father of the accused Kamal Chandra when the deceased tried to assault the ploughmen of the accused and in order to protect them the appellant Keshorma Bora assaulted the deceased with a pointed weapon resulting in fatal injuries to him. The accused thus pleaded that the complainant had come armed and trespassed into the field of the accused and wanted to assault his men as a result of which the appellant assaulted the deceased in self defence.

5. The learned Sessions Judge was of the view that as the prosecution itself presented two contradictory versions, hence the prosecution failed to prove the manner in which the occurrence took place and accordingly acquitted the accused.

6. The central evidence against the accused consisted of P. Ws. 1, 2, 4, 5, 6, 7 and 8. This evidence was sought to be corroborated by an oral dying declaration said to have been made by the deceased to P. W. 4 in the presence of P. Ws. 1 and 2 as also by an extra judicial confession made by the accused to Roma Kant Bora, P. Ws. 3. Both the High Court and the Sessions Judge disbelieved the evidence furnished by the dying declaration and the extra judicial confession. The High Court, however, accepted the evidence of the eye-witnesses and overruled the finding of the Sessions Judge that the prosecution had itself given two contradictory versions of the occurrence. We have heard counsel for the parties and have gone through the judgment of the High Court and of the Sessions Court and we find ourselves in complete agreement with the reasons given by the High Court in accepting the prosecution case. The Sessions Judge appears to have treated the evidence of two witnesses, namely, P. Ws. 5 and 7 as the spokesmen of the prosecution case when in fact those witnesses had been declared hostile by the prosecutor and the court granted permission to the prosecution to cross-examine these witnesses. While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, it is equally well settled that when once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a witness. In these circumstances, therefore, the Sessions Judge was not at all justified in treating the version given by P. Ws. 5 and 7 as the version of the prosecution itself. The High Court, therefore, rightly set aside the