JUDGMENT & ORDER : Mir Alfaz Ali, J. We have heard learned counsel, Mr. H.J. Tamuli led by learned senior counsel Mr. D. Das and Mr. A.K. Sharma for the appellants and learned Addl. Public Prosecutor, Ms. S. Jahan, who have also taken us through the evidence and materials brought on record. 2. This appeal is directed against the judgment and order dated 22-05-2015, passed by learned Sessions Judge, Goalpara, in Sessions Case No.34/2013. By the said judgment, learned Sessions Judge convicted the appellants under Sections 147/341/323/302 read with Section 149 IPC and sentenced them to undergo simple imprisonment for one year u/s 147 IPC, for three months u/s 341 IPC, for six months u/s 323 IPC and imprisonment for life u/s 302 IPC read with Section 149 IPC and fine of Rs. 5,000/-each with default stipulation. 3. As per prosecution case, on 29-10-2012, at about 11.30, at night, when Santanu Rava (PW 5) and the deceased Sarip Rava were returning home from Besarkona, all the accused persons named in the FIR, restrained them at Batapara tiniali and mounted assaulted on them by deadly weapons, as a result of which, both Santanu Rava (PW 5) and Sarip Rava sustained severe injuries. Both the injured were shifted to hospital. Later on, Sarip Rava succumbed to the injuries. 4. PW 1, Naren Rava lodged the FIR (Ext.-1), on the basis of which, police registered Lakhipur P.S. Case No. 601/2012 under Sections 341/325/326/302/34 IPC and commenced investigation. During investigation, inquest report on the body of the victim was prepared by the investigating officer (PW 9), post mortem examination was conducted by Dr. Arup Ghosh (PW 7) and the injured Santanu Rava was examined by Dr. Asad Ullah (PW 8). 5. Dr. Asad Ullah, who examined the injured found the following injuries : “A lacerated wound was found on the top of the head in the posterior part. It was covered with fresh blood clot. The length was 4 cm and depth was full thickness of skin. (2) A lacerated wound was found on the right parietal region in oblique direction. It was covered with fresh blood clot. The length was 4 cm and depth was full thickness of skin. (3) A tender swelling with redness was found over the right shoulder region. Size —7 cm x 5 cm approximately. (4) A tender swelling with redness was found over the mid forearm region. It was covered with fresh blood clot. The length was 4 cm and depth was full thickness of skin. (3) A tender swelling with redness was found over the right shoulder region. Size —7 cm x 5 cm approximately. (4) A tender swelling with redness was found over the mid forearm region. Size— 7 cm x 5 cm. (5) A tenders welling with redness was found over the right illiac crest. Size—10 cm x 5 cm approximately. 6. Dr. Arup Ghosh, who conducted the post mortem examination on the body of the deceased Sarip Rava found the following injuries : “A male dead body of about 55 years with rigor mortis in all over the limbs. A stitched wound was found on the left parietal region, about 5 cm in length. On exploration, parietal bone was found fractured. There was bruise on the forehead. Multiple haemorrhagic contusion seen on the cerebral hemisphere of brain.” 7. In the opinion of the doctor (PW 7), death of Sarip Rava was caused as a result of the injuries sustained, which were ante mortem. During cross-examination, it was stated by the PW 7, that the injury detected on the body of the victim Sarip Rava could be caused by falling on a hard and rough object. 8. On conclusion of investigation, charge-sheet was laid against all the seven FIR named accused persons under Sections 143/341/323/302 IPC and eventually all of them stood trial. 9. In course of trial, prosecution examined nine witnesses to establish the charges. Two witnesses were examined by the defence. On appreciation of evidence, learned trial court convicted all the accused persons under Sections 147/341/323/302 read with Section 149 IPC and awarded sentences as indicated above. 10. It appears from the record and the impugned judgment, that learned trial court essentially relying on the evidence of PW 4 recorded conviction and imposed sentence on the appellants. Out of the six ocular witnesses examined by the prosecution, PW 2 & PW 5 were declared hostile by the prosecution. PW 1, PW 3 & PW 6 were not eye witnesses of the occurrence. Therefore, it would be apposite to go through the evidence of PW 4, upon whom the entire prosecution case is banking. 11. PW 4 stated in his examination-in-chief, that hearing hue and cry on the road, he came out, and saw that all the accused persons assaulted Sarip Rava (victim). Therefore, it would be apposite to go through the evidence of PW 4, upon whom the entire prosecution case is banking. 11. PW 4 stated in his examination-in-chief, that hearing hue and cry on the road, he came out, and saw that all the accused persons assaulted Sarip Rava (victim). At that point of time, when Shantanu Rava (PW 5) came running to the place of occurrence, he was also assaulted by the accused persons. According to him, one of the accused was carrying a ‘dao’ and another was carrying a batten. PW 4 further deposed, that the accused Makesh Rava was carrying a ‘dao’ and Jadu was carrying a batten. By giving a vivid description of the occurrence in his examination-in-chief, PW 4 tried to project himself as an eye witness of the occurrence. However, during cross-examination, this witness clearly stated that hearing hue and cry, he ran to the place of occurrence, and by the time he reached there, all the accused persons ran away. If this statement of the PW 4, that by the time he reached the place of occurrence, the accused persons left the place, then his evidence-in-chief describing in details, implicating all the accused persons cannot be believed. Learned Sessions Judge, while convicting the accused/appellants taking into account the lone testimony of this witness, failed to consider the cross-examination part of the evidence and swayed by the examination-in-chief. Cross-examination of the PW 4 makes it abundantly clear that, he did not have the opportunity to witness the occurrence. Admittedly the occurrence took place at 11 O’clock at night. Therefore, no credibility can be attached to the testimony of the PW 4. Once the evidence of PW 4 is discarded, the prosecution is left with the only witness, being PW 5, who happened to be an injured. However, this witness as well as PW 2 were declared hostile by the prosecution. 12. The law is well settled as to the appreciation of evidence of the hostile witness, that testimony of hostile witness does not get washed off the record, merely because of declaring such witness as hostile by the prosecution, or prosecution disowning their testimony. If the oral testimony of such witness is found to be trustworthy and supports and corroborates the other evidence, there is no bar in relying on the testimony of such hostile witness. 13. If the oral testimony of such witness is found to be trustworthy and supports and corroborates the other evidence, there is no bar in relying on the testimony of such hostile witness. 13. PW 5, who himself was an injured, deposed that at about 11/11.30 PM at night, while he was coming home along with Sarip Rava (deceased), accused/appellant Jadu attacked him on the road and assaulted him with a wooden batten. Receiving the blow, he became senseless. He also deposed that he could not recognise the other persons at the place of occurrence. This part of the evidence of PW 5, who is none, but the injured, in our considered view, cannot be disbelieved, as the cross-examination of this witness could not shake his evidence as regards appellant Jadu inflicting injury to him (PW 5). So far PW 2 is concerned, nothing material could be elicited from his testimony, which could be of help to the prosecution. 14. Testimony of PW 8, the doctor, who examined the PW 5, shows, that PW 5 had laceration and tenderness on his body. Though, the doctor did not record any opinion about the nature of injury, from the evidence of PW 8 and the injury report, it is not difficult to comprehend, that the injuries sustained by PW 5 were simple in nature and caused by blunt weapon. 15. A dispassionate scrutiny of the oral testimony of the vital prosecution witnesses, as indicated above, crystallises, that prosecution has failed to adduce any incriminating evidence against the appellants, except the evidence of PW 5, implicating the accused/appellant Jadu Rava. As per the evidence of PW 5, Jadu Rava assaulted him with a wooden stick and receiving the blow from Jadu, he fell down. Therefore, we are of the considered opinion, that the oral testimony of PW 5, coupled with the medical evidence, which shows that the PW 5 sustained simple injuries, like laceration and tenderness, the charge u/s 323 IPC against the appellant Jadu for causing hurt to PW 5 has been established. Thus, prosecution having failed to establish any of the charges against the appellants, except the appellant Jadu Rava, conviction and sentence of the appellants, except Jadu Rava are not sustainable. So far the appellant Jadu Rava is concerned, except the charge u/s 323 IPC, no other charge against him was proved. 16. Thus, prosecution having failed to establish any of the charges against the appellants, except the appellant Jadu Rava, conviction and sentence of the appellants, except Jadu Rava are not sustainable. So far the appellant Jadu Rava is concerned, except the charge u/s 323 IPC, no other charge against him was proved. 16. In view of the evidence has been discussed herein before, we set aside the conviction and sentence against all the other accused/appellants, except the appellant Jadu Rava. We also set aside the conviction and sentence in respect of Jadu Rava u/s 147/341/302/149 IPC. However, conviction and sentence of the appellant Jadu Rava u/s 323 IPC is upheld and confirmed. 17. It is submitted that the appellant, Jadu Rava has been in jail for about three years, meaning thereby, he has been in imprisonment for more than the maximum period prescribed for the offence u/s 323 IPC. Therefore, we direct that all the appellants be set at liberty forthwith, if not required in any other case. 18. Accordingly, the appeal stands partly allowed. 19. Send down the record along with a copy of this judgment.