P. C. Phukan, J.— This appeal is directed against the judgment and order dated 28.7.98 passed by the learned Sessions Judge at Jorhat in Sessions Case No. 89 (J-J) of 1995 convicting the accused Manibar Das and Ranjit Das under section 302/34IPC and sentenced them thereunder to imprisonment for life and also to pay fine of Rs. 2,000/- each, in default, to further one year's rigorous imprisonment. 2. We have considered the records of the case, perused the impugned judgment and order, and heard Mr. JM Choudhury, learned senior counsel for the two accused-appellants and Mrs K. Deka, learned Public Prosecutor, Assam. 3. On 19.4.94 in the morning Thanu Ram Bora (PW 1) lodged an FIR (Ext 1) in Teok Police Station to the effect that last evening at about 7 PM his son Keshab Bora (deceased) went to shop to make some purchase and in front of the shop of Shri Prahlad Das (not examined) near Baguriguti Bridge, accused Ranjit Das, Sadhu Das, Manibar Das, Sada Das (Prahlad Das's son) and Lulu Das attacked him with lathis and rods. Ratul Bora (PW 2), Bhupen Tamuli (PW / 7) and Ranjit Dutta (PW 8) brought him home where he succumbed to his injuries at about 4.30 AM next morning. The Investigating Police Officer (PW 11) visited the place of occurrence about 2 KM away from the deceased's house, drew up a sketch map Ext 7, held inquest (report Ext 2) sent the dead body for post mortem examination (report Ext 6) and examined the witnesses. PW 11 arrested the accused Sadhu Das and Manibar Das. Other accused persons surrendered 8 in the Court. On completion of investigation the police charge sheeted all the five accused persons under sections 147/341/352/302 IPC. Of them accused Sadhu Das, Sada Das and Lulu Das were juvenile and were forwarded to Juvenile Court for trial under the Juvenile Justice Act, 1986. As regards accused Ranjit Das and Manibar Das, learned Magistrate committed the case to the Court of Sessions. 4. In the Court of Sessions a charge under sections 302/34 IPC was framed, read over and explained to the accused Ranjit Das and Manibar Das to which they pleaded not guilty and claimed to be tried. In the trial the prosecution examined eleven witnesses. During their examination under section 313 Cr PC, both the accused pleaded innocence and declined to adduce any evidence. In the trial the prosecution examined eleven witnesses. During their examination under section 313 Cr PC, both the accused pleaded innocence and declined to adduce any evidence. The defence case is one of total denial. 5. On consideration of the evidence on record and after hearing the prosecution and the defence, the learned Sessions Judge convicted and sentenced the two accused persons Ranjit and Manibar as stated above and hence this appeal. 6. Mr. JM Choudhury, learned senior counsel for the two accused-appellants, had led us minutely through the evidence on record. PW 10 Dr. Amrit Kumar Saikia, Medical and Health Officer at Jorhat Civil Hospital, performed the post mortem examination of the deceased and found the following ante mortem injuries: “External appearance :Bruise (1) Abrasion left elbow, 1 cm x 1 cm (2) Abrasion back (left) 5 cm x 1 cm (3) Swollen left eyelid with haemotoma. Cranium and spinal canal: (1) Haemotoma left side of forehead extending to temporal region, 6 cm x 5 cm. (2) Haemotoma right temporal region extending to occipital region, 7 cm x 5 cm. (3) Right temporal bone. (4) Subdural Haemotoma on the left temporal region. Thorax-Abrasion on the back left mid chest Muscles bones and joints- Fracture of right and left joints temporal bones." 7. According to the doctor, the injuries found in temporal bone were corres­ponding to the external injuries. The doctor opined that the death was caused as a result of the injuries sustained which might have been caused by heavy blunt weapon. The doctor further said that the head injury as found was sufficient to cause instantaneous death. The doctor however, opined in cross-examination that the injuries found might have been caused by fall from a tree. That the injuries were not caused by fall of a tree in the instant case is absolutely clear from the eye witness account of PWs 2,7 and 8 and the doctor's own statement in examination-in-chief that the injuries might have been caused by heavy blunt weapon. Medical opinion pointing out alternative possibility need not be accepted J where there is eye witness account as to how the injuries were actually caused. It has been amply proved by the prosecution that the deceased was brutally I assaulted causing his death at the time and place as alleged by the prosecution. 8. Medical opinion pointing out alternative possibility need not be accepted J where there is eye witness account as to how the injuries were actually caused. It has been amply proved by the prosecution that the deceased was brutally I assaulted causing his death at the time and place as alleged by the prosecution. 8. Now, the question is whether the accused-appellants Ranjit Das and Manibar Das participated in the assault on the deceased causing his death. Of the total eleven witnesses examined by the prosecution in this case, PW 3 Rajen Bora just wrote the FIR Ext 1, PW 4 simply witnessed the inquest and PW 9 Judicial Magistrate only recorded the statements of Ratul Bora (PW 2), Bhupen Tamuli (PW 7) and Ranjit Dutta (PW 8). The evidence of-PWs 3,4 and 9 leads us nowhere as to the implication of the two accused-appellants with the alleged offence and hence they were not cross-examined by the defence. PW 10 is the doctor who performed the post mortem examination and PW 11 Sub Inspector of Police investigated the case. To connect the two accused-appellants with the alleged offence, the prosecution relies upon the evidence of PWs 2, 7 and 8 as well as that of PWs 1, 5 and 6. PWs 2, 7 and 8 claimed to have seen the two accused-appellants along with others inflicting fatal injuries on the deceased and also claimed that the deceased made dying declaration before them that the two accused-appellants along with others assaulted him. PW 1 deposed that on the fateful evening at about 7 or 8 PM, Ratul (PW 2), Bhupen (PW 7) and Ranjit (PW 8) told him that the two accused-appellants along with others assaulted his son and his son himself told him after he was brought home by PWs 2, 7 and 8 that the two accused-appellants along with others assaulted him. PW 5 visited the deceased's house on the following day and was told by the deceased's father (PW 1) that the two accused-appellants killed his son. PW 6 claimed that the deceased himself told him that the two accused-appellants along with others assaulted him shortly before he became speechless. PW 5 visited the deceased's house on the following day and was told by the deceased's father (PW 1) that the two accused-appellants killed his son. PW 6 claimed that the deceased himself told him that the two accused-appellants along with others assaulted him shortly before he became speechless. The evidence discussed above goes to show that the deceased made dying declaration thrice, first before the eye witnesses (PWs 2,7 and 8) immediately after the occurrence, secondly before his father (PW 1) after he was brought home in injured condition, and thirdly before his brother (PW 6) shortly before he became speechless. 9. Mr. JM Choudhury, learned senior counsel for the two accused appellants, argues that had the deceased actually made dying declaration as aforesaid, that would have been mentioned in the FIR Ext 1. This argument can not be brushed aside as of no substance as regards the dying declaration allegedly made before PW 1 who lodged the FIR Ext 1. PW 1 himself admitted in cross-examination that he did not ask his son anything as he became unconscious and that he could not understand well that his son had said. That being so, the statement of PW 6, who arrived later, that "when asked he (deceased) said that Ranjit, Manibar, Sada Das had assaulted him" does not merit acceptance. That apart, the claim of PWs 1 and 6 that the deceased made dying declaration before them separately has not been corroborated by any other witness. In any view of the matter, we are not inclined to accept such claim of PWs 1 and 6; but at the same time we do not propose to discard the dying declaration made before the eye witnesses (PWs 2,7 and 8) immediately after the occurrence when the deceased was still conscious and was in a position to speak in view of the evidence of PWs 2,7 and 8. Before embarking upon a discussion on their evidence, we would like to conclude discussion on the evidence of PWs 1 and 5, who claimed to have been reported about the implication of the accused persons with the alleged offence. PW 1 claimed that he was so reported by PWs 2,7 and 8.-The evidence of PWs 2, 7, and 8 however, shows that PW 2 alone reported to.PW 1. PW 1 claimed that he was so reported by PWs 2,7 and 8.-The evidence of PWs 2, 7, and 8 however, shows that PW 2 alone reported to.PW 1. PWs 7 and 8 reported the matter to deceased's mother (not examined) and not to his father (PW 1). PW 5 deposed that PW 1 told him the names of the two accused appellants as assailants. PW 1, however, did not corroborate PW 5 in this regard. 10. Learned Sessions Judge elaborately discussed the evidence of PWs 2, 7 and 8 which we have also scrutinised. PW 2, having learnt at about 7 PM on 18.4.94 that his cultivation was being damaged by cattle, came and drove them out. He then met PWs 7 and 8 and along with them proceeded towards Baguriguti Bridge. PWs 7 and 8 corroborated PW 2 by saying that at that time they were also proceeding towards the shop near the bridge and met PW 2 on the way. PWs 2, 7 and 8 said with one voice that near the bridge they saw the two accused-appellants along with accused Sada, Sadhu and Dulu assaulting the deceased with iron rods and lathis. This part of their evidence has not been challenged in their cross examination by the defence. What was suggested to PW 2 in his cross-examination is that he along with PWs 7 and 8 and the deceased had broken articles in the shop of Prahlad and assaulted Prahlad's son Sada (accused) which PW 2 promptly denied. It was put to PW 7 in his cross examination that the deceased had broken articles in the shop of Prahlad which was denied. Then there was the omnibus suggestion to PW 8 in his cross examination that he did not see the occurrence and deposed falsely which he stoutly denied. Even the sworn statements of PWs 2, 7 and 8 that when they tried to stop the accused persons from assaulting the deceased, the accused persons assaulted them and they ran towards the field and were waiting there have not been challenged in their cross examination. The conduct of PWs 2, 7 and 8 in running away from the place of occurrence out of fear and waiting at some distance was quite natural. Later PWs 2, 7 and 8 returned to the place of occurrence and found the deceased lying injured on the ground.. The conduct of PWs 2, 7 and 8 in running away from the place of occurrence out of fear and waiting at some distance was quite natural. Later PWs 2, 7 and 8 returned to the place of occurrence and found the deceased lying injured on the ground.. The deceased told them that the two accused-appellants, along with Sadhu and Sada had assaulted him. This part of their evidence also has not been challenged in their cross-examination. Section 32 of the Evidence Act speaks of statements both written and verbal, and a Court can not refuse the oral evidence of a verbal statement which fulfils the requirement of the section. The section only requires that there must be a statement made by a person about the cause of his death. Mr. JM Choudhury, learned senior counsel for the appellants, assails the dying declaration on the ground that PWs 2,7 and 8 in their oral evidence of the verbal dying declaration did not reproduce the exact words used by the deceased. But simply on this ground the dying declaration can not be thrown out in view of the unchallenged evidence of PWs 2, 7 and 8 in this regard. Mr. JM Choudhury, learned senior counsel, then contends that the evidence of PWs 2, 7 and 8, though unchallenged in respect of verbal dying declaration, should be discarded, because due to his head injury the deceased was not in a position to speak and the doctor. PW 10 said in examination-in-chief itself that the head injury as found was sufficient to cause instantaneous death. But contrary to such opinion of the doctor, the deceased did not die an instantaneous death and died only at 4.30 AM next morning, more than 9 hours after he received the injuries. PWs 2 and 7 categorically said that at the time of making the dying declaration the deceased was in a position to speak. Since the deceased made the dying declaration immediately after the occurrence in presence of the eye witnesses PWs 2,7 and 8 in which he named the accused-appellants as his assailants, the opinion of the doctor that the head injury of the deceased was sufficient to cause instantaneous death can not be regarded as conclusive on the question of the ability of the deceased to speak. It has been held in Somappa Vamanappa Madar Shankorappa Ravanappa Kaddi vs. State of Mysore reported in AIR 1979 Supreme Court 1831 that : “ The High Court rightly commented on the evidence of the experts and expressed its view that whether the shock had actually set in on Basangouda Patil when he sustained injuries could be narrated by the persons who had seen him at that a point of time and the doctor who examines an injured later would not be in a position to provide a satisfactory answer to such a question. The opinion of the doctor that looking to the injuries he was of the view that the shock would have been instan­taneous cannot be conclusive on a question of the ability of the deceased to talk." 11. In view of the above, we are inclined to believe the sworn testimony of PWs 2,7 and 8 on the point of dying declaration on the deceased as to the cause of his death implicating the two accused-appellants, and we accept such dying declaration to be truthful and free from any inducement. 12. The next point that has been raised by Mr. JM Choudhury, learned senior counsel for the accused-appellants, is that the alleged incident having taken place at about 7 PM and there being no light, PWs 2, 7 and 8 could not have recognised the assailants in the darkness. But slightest suggestion to that effect was not put to PWs 2,7 and 8 in their cross examination, even though they categorically said in examination-in-chief that they saw the two accused-appellants along with others assaulting the deceased, and PW 8 said in examination-in-chief that the night of occurrence was a moonlit one. PWs 2, 7 and 8 saw the two accused-appellants along with others assaulting the deceased, came near them and tried to disengage them, and were assaulted by them. In the facts and circumstances of the case, we have no doubt that PWs 2,7 and 8 could recognise the two accused-appellants whom they knew since before the occurrence. 13. PWs 2, 7 and 8 satisfactorily accounted for their presence at the place of occurrence at the relevant time. Cross examination of PW 7 reveals that the accused persons were singing Bihu song using obscene language and picked up quarrel with the deceased when he raised objection against such singing and assaulted him causing his death. 13. PWs 2, 7 and 8 satisfactorily accounted for their presence at the place of occurrence at the relevant time. Cross examination of PW 7 reveals that the accused persons were singing Bihu song using obscene language and picked up quarrel with the deceased when he raised objection against such singing and assaulted him causing his death. There is nothing on record to show that prior to such assault the deceased or PW 7, who happens to be related to the deceased, had any enmity with any of the accused persons. A relation would be the last person to screen the real culprits by falsely implicating innocent persons. PWs 2 and 8 are not related to the deceased. PW 8 is a neighbour of the deceased. The evidence of eye witnesses living in the neighbourhood can not be discarded on the ground of being partisan witnesses. The evidence of PWs 2,7 and 8 conforms to the medical evidence as regards the wounds caused and the weapons used. Nothing material has been elucidated in cross examination of PWs 2 and 8 to discredit their evidence. 14. PWs 2, 7 and 8 deposed that they saw the two accused-appellants along with other accused persons assaulting the deceased with lathis and rods without specification of the number of blows inflicted by the various accused persons, the manner of their infliction, standing or lying posture of the deceased at the time of assault etc.- Needless to say that when a group of persons closes or a victim and assaults him as in the instant case, the witnesses who see the assault from varying distances are not expected to give more than a general account of the incident. True, the evidence of PWs 2,7 and 8 against the accused- persons is of a general character. But there is no cross-examination at all atleast in respect of the evidence of PWs 2 and 7 directed to discard their evidence of this ground. It is clear from the eye witness account that each of the accused persons participated in the assault on the deceased, and the leading feature of section 34 IPC is the element of participation in action. All the accused persons were together at the time of the incident armed with lathis and rods they were waiting for the deceased. It is clear from the eye witness account that each of the accused persons participated in the assault on the deceased, and the leading feature of section 34 IPC is the element of participation in action. All the accused persons were together at the time of the incident armed with lathis and rods they were waiting for the deceased. They joined in the assault and inflicted several injuries on the unarmed deceased causing his death. In view of the use of lathis and rods by several accused persons in the assault on the deceased, the ferocity of the attack, multiplicity of injuries, site of the injuries including some on the head, a vital part of the human body and all other surrounding circumstances, the two accused appellants along with other accused persons must be said to have assaulted the deceased intending to cause his death in furtherance of their common intention. 15. In view of the above, the learned Sessions Judge rightly convicted the accused-appellants under section 302/34 IPC. However, as regards the sentence awarded to them thereunder to imprisonment for life and also to pay fine of Rs. 2,000/- each in default to further one year's rigorous imprisonment, we do not think there was any need to have imposed a sentence of fine over and above the sentence of life imprisonment. We, therefore, set aside that part of the sentence and confirm only sentence of life imprisonment. The fine amount, if already paid, shall be refunded to the accused-appellants. 16. Except to the limited extent on modification in the sentence as aforesaid, this appeal fails and is dismissed. 17. Send down immediately the lower Court records along with a copy of the judgment and order of this Court.