JUDGMENT P.G. Agarwal, J. 1. This appeal is directed against the judgment and order, dated 11.7.2003, passed by the learned Ad-hoc Additional Sessions Judge No. 2, Kamrup, Guwahati, in Sessions Case No. 192(K)/2002. 2. The facts, leading to the present appeal, in brief, are that on 19.1.97 at about 10 P.M. the informant, Smt Helai Choudhury, P.W. 1 lodged a written FIR. Ext. 1 before the police stating, inter alia, that on that day, at about 8.30 P.M. the two accused-Appellants. Atul Kalita and Jyotish Kalita, assaulted his son. Sailen Choudhury, and threw him in an unconscious state at the Tinali Chowk, near the Rangia Higher Secondary School. The injured was removed to the local hospital and from there to the Gauhati Medical College Hospital, where he is still struggling for life. The injured succumbed to the injuries on the next date at the Gauhati Medical College Hospital. 3. During trial before the learned Ad-hoc Additional Sessions Judge No. 2, Kamrup, Guwahati, the prosecution examined as many as 10 (ten) witnesses and vide the impugned order, the learned trial Court convicted the two accused-Appellants under Section 302/34 IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2,000/- each, in default to, imprisonment for another three months. Hence, the present appeal. 4. P.W. 10 is Dr. Bhusan Chandra Roy Medhi, who held the autopsy over the dead body and found as follows: Dead body of average built, moderately fare complexion male Body was cold on touch rigour mortis present all over the body and limbs. Postmortem hypostasis present on back and fixed. Needle prick marks present on dorsum of forearms and hands (hospital made) Ganjee bandage present on head and upper part of left leg. 1. One abrasion 2 cm x 1 cm present on back of left elbow joint. 2. Abrasion with contusion 3 x 2 cms on back of lower left arm. 3. Abrasion 3 x 0.3 cm in front of right knee joint. 4. One abrasion 3 x 1.5 cm on lateral aspect of left leg. 5. One abrasion 1.5 x 0.5 cm on lateral aspect of left shoulder joint. 6. One stitched wound (closed with three black silk stitches) on right cheek, just below and lateral to right nostril. The wound lacerated one and muscle deep. 7. The right lateral upper lip contused and swollen. 5. One abrasion 1.5 x 0.5 cm on lateral aspect of left shoulder joint. 6. One stitched wound (closed with three black silk stitches) on right cheek, just below and lateral to right nostril. The wound lacerated one and muscle deep. 7. The right lateral upper lip contused and swollen. Sealp: One stitched wound (closed by 7 black silk stitches) on posterior right frontal and anterior right parietal region obliquely placed 9 cm x 1 cm x scalp layers deep (lacerated wound) present 5 cms right to midline. On dissection contusion and haemorrhages present on right frontal and right parietal and right occipital regions. Scull: Fissured fracture present on posterior right frontal and anterior right parietal bone. Blood clots adherent in fracture line. Vertebraie Healthy. Membrane: Congested Sub-rural haemorrhage present in right hemisphere. Brain: Contusions present at places on right frontal and parietal lobes. The brain is congested as a whole. The organs of chest, abdominal cavity are healthy. Heart chambers filled with full with clotted blood. Stomach contains about 100 ml. Brown colour fluid. Opinion: Cause of death is coma as a result of the injuries sustained on the head. The injuries are antemortem and caused by blunt impacts and homicidal in nature. Approximate time since death 12 to 20 hours. 5. In this case we find that the medical evidence has not been challenged and in view of the overwhelming oral evidence on record, the death of the deceased, as a result of the injuries sustained on the date of occurrence, has not been disputed. We, therefore, concure with the findings of the learned trial Court that this is a case of homicidal death. 6. In the present case, we find that there is no eye witness to the occurrence. Prabodh Kalita, P.W. 3, is the first person who saw the deceased lying in an injured condition. He has deposed that on the evening of the date of occurrence, at about 8 P.M. while he was returning home after closing shop, he saw the deceased, Sailen Choudhury, in an injured condition near the field at Rangia Higher Secondary School. As the house of Mahadev Das, P.W. 5 was nearby, he called Mahadev Das, who, thereafter, rushed to bring a rickshaw. As the house of Mahadev Das, P.W. 5 was nearby, he called Mahadev Das, who, thereafter, rushed to bring a rickshaw. Thereafter, the rickshaw-puller, Jahur Ali, P.W. 4, came along with the rickshaw P.W. 3 himself went to the house of Sailen Choudhury and informed them about the matter, whereupon Sailen's mother and brother came to the place of occurrence. The injured, Sailen Choudhury, thereafter, was taken to the local police station and he was removed to Gauhati Medical College, where he expired on the next day. Mahadev Das P.W. 5 and Jahur Ali, P.W. 4 have all supported the above statement of P.W. 3. P.W. 1 is Mrs. Helai Choudhury, mother of the deceased, and P.W. 2 is Jitendra Choudhury, the brother of the deceased. They have also deposed about the information being given to them by P.W. 3, whereupon they came to the place of occurrence and found their son/brother lying in injured condition and thereafter the son/brother was first taken to the police station and from their he was first sent to the Rangia Civil Hospital and later one he was removed to Gauhati Medical College Hospital, where he succumbed to the injuries on the next day, at about 4-30 P.M. The above evidence of all the 5 (five) witnesses stands fully corroborated by each other and it has also not been challenged. Moreover, we find from their testimony that none of these witnesses saw the deceased being assaulted. The trial Court has recorded the order of conviction on the basis of the oral dying declaration of the deceased P.W. 1 and 2 have deposed that they were informed by P.W. 3 that the deceased. Sailen Choudhury, was assaulted by the two accused Appellants. Atul Kalita and Jyotish Kalita and when they found the deceased lying in an injured condition, the latter, on being asked told that Atul Kalita and Jyotish Kalita had assaulted him. The oral dying declaration have been deposed to by both P.W. 1 and P.W. 2. However, we find that neither P.W. 3 nor P.W. 4 or P.W.-5 have deposed about the oral dying declaration. Although P.W. 5 has been declared hostile and his earlier statement, recorded under Section 161 Code of Criminal Procedure, was proved by way of contradictions on this point, for the reasons best known to the prosecution, P.W. 3 and P.W. 4 have not been declared hostile. Although P.W. 5 has been declared hostile and his earlier statement, recorded under Section 161 Code of Criminal Procedure, was proved by way of contradictions on this point, for the reasons best known to the prosecution, P.W. 3 and P.W. 4 have not been declared hostile. Although their earlier statement was otherwise, as submitted by the learned Public Prosecutor. 7. In the leading case of Khushal Rao v. State of Bombay AIR 1958 SC 22 , the Hon'ble Supreme Court laid down the following provisions of law as regards the admissibility, reliability of a dying declaration. The Apex Court held: (1) That it cannot be laid down as on absolute rule of law that a dying declaration cannot form the sole basts of conviction unless it is corroborated. (2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made: (3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. (4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. (5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of Human memory and human character, and (6) That in order to test the reliability of a dying declaration the Court has to keep in view the circumstances like the opportunity of the dying man for observation for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interest parties. 8. 8. The law, as stated above was reiterated by the Apex Court in a recent case of State of Karnataka v. Shariff 2003 (2) SCC 473 , from the G.D. Entry No. 331 dated 19.1.97, we find that the injured was brought to the Rangia Police station at about 9 PM on 19.1.97 and was sent to rangia PHE for treatment and FIR was filed at the police station itself P.W. 1 Smt. Helai Choudhury, is the informant and Ext. 1 is the said FIR. In Ext. 1 the name of the two accused-persons as assailant has been categorically mentioned and at that point of time the injured was still alive. Moreover, in the G.D. Entry itself, it shows that along with the injured P.W. 4, Jahur Ali, and other persons came to the police station P.W. 3 and P.W. 5, however, claimed that after putting the injured in the rickshaw they went home. 9. P.W. 1 is a 70 year old lady and she had been cross examined at length but nothing had come out to show that she deposed falsely. She had apparently no animus with the accused persons and there was absolutely no reason on her part to falsely implicate the two accused Appellants, when her son was still alive. This is not a case where after the death of the deceased in order to load fed old grudge or week vengeance name of some persons. Inimical to the informant, have been mentioned in the FIR P.W. 2 has also fully supported the evidence of P.W. 1. The trial Court, relying on the evidence of P.W. 1 and 2 as regards the dying declaration and accepting the dying declaration as true, convicted the accused Appellants. The indifferent attitude of P.Ws. 3, 4 and 5 though baffling is not surprising. The evidence shows that the deceased was known as a drunkard in the village and as such, he seems to have less sympathy and, may be, indirectly the people were happy at the exit of such a person from this world. We, however, failed to appreciate the manner in which the prosecution was conducted in such an important case. The evidence shows that the deceased was known as a drunkard in the village and as such, he seems to have less sympathy and, may be, indirectly the people were happy at the exit of such a person from this world. We, however, failed to appreciate the manner in which the prosecution was conducted in such an important case. P.W. 3 and P.W. 4 were not declared hostile and their earlier statement, as regards the dying declaration, was not brought on record although this was done in case of P.W. 5 and P.W. 6 the mother of P.W. 5, P.W. 6 even said that she did not go to the place of occurrence. The moot point for consideration is whether the evidence of P.W. 1 and P.W. 2 is reliable? The Indian Evidence Act does not provide for quantitative evidence and it is well settled that it is the quality of the evidence which is material. From the cross-examination of P.W. 1 and 2, we find absolutely nothing to show that these two witnesses were deposing falsely. As stated above, we find that filing of the FIR, containing the name of the two accused persons just immediately after the incident and that too when the injured was still alive, lends support to the evidence of these two witnesses that the deceased, in fact, made an oral dying declaration and in the said dying declaration the two Appellants have been implicated as the assailants. Learned Counsel has submitted that the injured was alive for about 18-20 hours but no dying declaration was recorded, either by police or by the doctors, either at the Rangia Hospital or at the Gauhati Hospital. For the negligence of the I.O. or the doctors, the evidence of P.W. 1 and 2 cannot be thrown out. Moreover, P.W. 1 and P.W. 2 arrived at the place of occurrence immediately after the incident and they heard as to what the accused told them about the assault and the cause of injury, which led to the death. We accept the evidence of P.W. 1 and 2 as true version of the incident and accordingly, hold that the dying declaration is reliable and convincing. In view of what has been stated above, we, therefore, find no merit in this appeal and the appeal accordingly stands dismissed. Appeal allowed