A.C. Upadhyay, J.— 1. This appeal from jail is directed against the judgment and order dated 30th September, 2005, passed by the learned Ad-hoc Addl. Sessions Judge, Karimganj, in Sessions Case No. 15/2003, whereby appellants above named were convicted under section 302, read with section 34 of the IPC and sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000 each, in default, to undergo rigorous imprisonment for three months more. 2. Smt. Netrabala Namasudra at village Chandrai in the Ratabari Police Station area lodged an ejahar with the R.K. Nagar Police Outpost, stating that at around 7 p.m. on 24.6.1998, the accused Taiyab Ali, Maiyab Ali, Tasmir Ali, Ansar Ali and Reki Bibi attacked and assaulted her son Nikhil Namasadru out of previous grudge, when he was on way back home from the local bazar and had reached near Chandrai LP School. The victim was left unconscious by the accused persons at the place of occurrence. On seeing him lying on the carriageway in a semi-conscious state, some passersby took him to a nearby public health centre for treatment. 3. On receipt of the ejahar, police registered a case being Ratabari PS case No. 136/1998 and started an investigation. The victim, however, died after he was brought home from Hailakandi Civil Hospital. On completion of investigation, a charge-sheet, under section 302, read with section 34, IPC was filed against the accused persons. 4. On receiving the case for trial upon being committed by the trial court, the learned Sessions Judge, Karimganj, framed formal charge, under section 302, read with section 34, IPC against the accused above named. When the charge was read over and explained to the accused, they pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as ten witnesses to bring home the charge against the accused-appellants. The stand of the accused, in the statement recorded under section 313, Cr.PC was of total denial. On conclusion of hearing, the learned Ad-hoc Addl. Sessions Judge, convicted the accused-appellants above named under section 302, IPC, read with section 34 of the IPC, giving rise to this appeal. 6. We have heard Ms. Rita Das Mazumdar, learned amicus curiae and Mr. S. Das, learned Addl. PP, Assam. 7. On conclusion of hearing, the learned Ad-hoc Addl. Sessions Judge, convicted the accused-appellants above named under section 302, IPC, read with section 34 of the IPC, giving rise to this appeal. 6. We have heard Ms. Rita Das Mazumdar, learned amicus curiae and Mr. S. Das, learned Addl. PP, Assam. 7. Learned counsel for the appellant, referring to the evidence of the doctor, who had initially examined the victim, submitted that the injuries sustained by the victim are not corroborated by the witnesses, and as per the medical report, the victim may have died due to lack of proper treatment, since the injuries sustained by the victim are not homicidal in nature. 8. In reply to the above submission, learned Addl. PP, referring to the post mortem examination of the victim, submitted that the ante mortem injuries sustained by the victim were grievous in nature, caused by blunt object and, according to the doctor, the cause of death was due to head injury sustained by the victim. Learned Addl. PP pointed out that the statement of the victim recorded under section 161, Cr.PC by the Investigating Officer, can be treated as oral dying declaration made by the victim and such statements are admissible in evidence. Furthermore, there is no reason to disbelieve the testimony of eyewitnesses, who could distinctly see the assailants fleeing away from the place of occurrence. 9. In order to appreciate the arguments advanced by learned counsel for both the parties, we would like to discuss hereinafter, the core of prosecution evidence. 10. We find from the evidence of PW1, Smt. Netrobala Namasudra, that she, apart from being the mother of the victim, is also the first-informant of this case. PW1 deposed that at around 7 p.m., on the fateful day, she was informed by one Shri Taposh Paul that her son Nikhil Namasudra, who was on way back home from Chameli bazar, near the Chandrai LP School accused Mayeb, Ansar and Moyar assaulted her son and threw him on the side of the road in a semiconscious state. Immediately thereafter she rushed to the spot and saw her son writhing in stomach pain. On being asked, the witness, namely Taposh, Banu, Boku and the wife of Sudhir Paul told her that her son was assaulted by Taiyab Ali, Ansar Ali and Maiyab Ali. Immediately thereafter she rushed to the spot and saw her son writhing in stomach pain. On being asked, the witness, namely Taposh, Banu, Boku and the wife of Sudhir Paul told her that her son was assaulted by Taiyab Ali, Ansar Ali and Maiyab Ali. Thereafter, the witness and the informants took the injured son of PW1 to Ramkrishna Nagar, Public Health Centre, where he regained his senses after 12 hours. After regaining senses the victim told her that the above named appellants had assaulted him. The victim had been admitted, for seven days, in the said hospital and then he was shifted to Hailakandi Civil Hospital, where he was not allowed admission, for which he had to be taken home. However, on the next day the injured victim succumbed to the injuries. In her cross-examination, PW1 clarified that her son had sustained injuries in and around naval area. 11. Shri Tapash Paul, who is (PW2) an eyewitness to the occurrence, deposed that at the time of occurance he was returning home from Chameli bazar. PW2 heard someone crying, "Save! Save!", from behind and immediately he rushed to the place and in the beam of torch light, he saw the accused Taiyab Ali and Maiyab Ali running away on opposite direction and the victim writhing in pain with bleeding injuries, was lying on the ground. PW2 offered the victim drinking water to quench his thirst. Thereafter, the victim was handcarted to a nearby hospital for treatment. On being asked, the victim told PW2 that Taiyab, Maiyab and Ansar had assaulted him with lathi, mallet, etc. PW2 confirmed that Alalendu alias Baku (PW4) informed the family members of the victim after the occurance. The defence could not elicit anything substantial by cross-examining PW2. 12. When we turn to the deposition of Smt. Premada Bala Paul, (PW3) we find that at around 7-8 p.m., on the fateful day, one of her neighbour, Sri Tapash Paul (PW2) rushed to her house asking for a lamp and drinking water, and when she came outside with a lantern and water, she saw victim Nikhil on the side of the road. On being asked, the victim told the witness that accused Taiyab had assaulted him. Thereafter, the witnesses present at the place of occurrence and family members of the victim took the injured to a nearby hospital. On being asked, the victim told the witness that accused Taiyab had assaulted him. Thereafter, the witnesses present at the place of occurrence and family members of the victim took the injured to a nearby hospital. In her cross-examination, PW3 clarified that Nikhil had told her that he was assaulted by accused Taiyab Ali, Maiyeb Ali and Ansar Ali. 13. When we turn to the deposition of Shri Amalendu Paul (PW4) we find that at around 7-7.30 p.m., on the fateful day, both, PW4 and his brother Tapash (PW2) were on way back home from Chameli Bazaar. When they were a little distance away from their house, they heard a screaming sound "Save! Save!" from behind and on beamine their torchlight, they saw Taiyab Ali and two others running away from the place of occurrence. After going a little further, PW4 saw Nikhil crying for help, lying on the road, with his hands on the abdomen, in pain. On being asked, the witness was told by the victim Nikhil that he had been assaulted on his abdomen by Taiyab Ali, Maiyab and Ansar Ali with lathi and mallet. The witness, thereafter, offered drinking water to the victim to quench his thirst and thereafter handcarted him in to a nearby health facility with the help of the family members of the injured. PW4 stated that Nikhil died a few days later. In his cross-examination, PW4 clarified that when the torch light was flashed, Taiyeb Ali turned towards him, as such he could recognize the accused easily. PW4, fairly stated that he could not recognize two other men, who were running ahead of Taiyeb Ali. 14. At around 7.00 - 7.30 p.m. on the fateful day, Sri Bhanu Paul (PW5) was on way back home from Chameli Bazaar. PW5 noticed that Nikhil was lying on road, near the Atul Paul's rice mill and, on being asked Nikhil told PW5 that he had been assaulted by Taiyab Ali, Maiyab Ali and Ansar Ali with lathi and mallet. 15. On the date of occurrence, in the fateful evening Shri Sujuk Paul (PW6) was in his house. On hearing a commotion, out side his house, PW6, came out and saw near Promode Paul's house that the victim Nikhil Namasudra was lying with injury marks on his head, shoulder and hands. 15. On the date of occurrence, in the fateful evening Shri Sujuk Paul (PW6) was in his house. On hearing a commotion, out side his house, PW6, came out and saw near Promode Paul's house that the victim Nikhil Namasudra was lying with injury marks on his head, shoulder and hands. And on being asked, Nikhil told PW6 that he had been assaulted by Taiyab All and his two brothers. 16. When we turn to the deposition of Smt. Setuka Rani Paul, (PW7) we find that at the time of occurrence she was in her house, on hearing a commotion near Promod Paul's house, she came outside and saw the victim Nikhil Namasudra lying on the road, near Promod Paul's house and, on being asked, she was told by the victim that he had been assaulted by Taiyab Ali and his two brothers Maiyab Ali and Ansar Ali. 17. PW8, Dr. Nazma Begum, who performed the post mortem on the corpse of Nikil Namasudra, found the following injury on the person of the deceased : (i) A longitudinally placed contusion over the left lumber area of back, reddish in colour, measuring 5" x 2". (ii) An obliquely placed contusion over left posterior chest wall in the middle portion and reddish in colour measuring 4" x 1". (iii) A lacerated injury on the inner aspect of left forearm in the middle 1/3rd, measuring ½" x ½ x ¼". According to PW8, injured Nikhil also complained of pain in the chest and abdomen, however, she could not find any visible external injury over chest and abdomen. The patient was kept under observation in the PHC, for one day and he was advised to do x-ray of the chest and to consult surgical expert to confirm about the internal injury. The injured was admitted in the PHC and treated at his request. He was discharged on 30.6.1998. The injured did not place x-ray report. The injured gave history of his assault and told PW8 that on 24.6.1998 at about 7 p.m. he was assaulted by some persons. In the opinion of the medical officer, injuries as shown in injury report are simple, fresh, and caused by blunt object. Regarding internal injury PW8 could not give any definite opinion, for want of x-ray report and expert's opinion. In the opinion of the medical officer, injuries as shown in injury report are simple, fresh, and caused by blunt object. Regarding internal injury PW8 could not give any definite opinion, for want of x-ray report and expert's opinion. In her cross-examination, however, PW8 clarified that she suspected that the injured may have sustained some internal injury, therefore, she advised him to attend an expert at Karimganj. PW8, further clarified that such injuries cannot be caused by falling. 18. PW10, Dr. Dulal Mukherjee, who performed the autopsy on the 1 ' dead body of Nikhil Namasudra, found the following injury on the person of the deceased : "External appearance : — He was an average built young man, male, whose rigor mortis was present, eyes and mouth half opened, and he while, when he regained his sense, saw Tapash, Boku, the wife of Sudhir Paul and Sujug Paul at the place of occurrence. Thereafter, mother and sisters of the victim Nikhil also came there and brought him to hospital by a handcart. It is also apparent from Exhibit 6 that the accused were neighbours of the deceased and this apart, the deceased had a longstanding dispute with them regarding possession of a land. Hence, the accused were well acquainted with the deceased and that the deceased had a very good opportunity of seeing the faces of the accused from a close range. It has been established from the oral testimony and the documentary evidence that the deceased died after 8-9 days of the occurrence. A man can well identify a person even in complete dark night, if he is well acquainted with him. As such, I find no ground to disbelieve exhibit 6, and it can be treated as a dying-declaration of the deceased under provision of section 32(1) of the Indian Evidence Act. 21. DW1, Md. Azir Uddin, is a resident of Chandkhani village, who claimed that he was a neighbour of both deceased as well as the accused-appellant. He deposed that the death of the decease occurred due to tuberculosis. Deposition of DW1 revealed that about 15 days prior to the death of the deceased, accused Nos.2 and 3 had left for Meghalaya state and as such, they were not involved in the death of the deceased. On a careful scrutiny of his entire evidence, it is felt that his testimony is quite untrustworthy. Deposition of DW1 revealed that about 15 days prior to the death of the deceased, accused Nos.2 and 3 had left for Meghalaya state and as such, they were not involved in the death of the deceased. On a careful scrutiny of his entire evidence, it is felt that his testimony is quite untrustworthy. PW9 deposed that he could not book the accused 2 and 3 under the law due to their absconding. In the statement given under section 313, Cr.PC, the accused Nos.2 and 3 have stated that at the relevant time they were working as labourer at Chukunga (Chutunga) of Meghalaya State, and to prove this fact, they examined DW1. From the evidence of Investigating Officer, it has been established that the accused 2 and 3 disappeared from their usual abode since the suspicious death of the deceased. Mere absconding is not such a vital circumstance that can be considered to establish that the absconder was having a guilty mind; even an innocent person may abscond because of the fear of being arrested by police, or being falsely implicated in a crime. But the disappearance of the accused after the occurrence is a relevant circumstance, which in the absence of any plausible explanation, can be taken into consideration as a conduct. From exhibit 6 and the deposition of PW1, it has been established that the deceased had a long-standing dispute regarding possession of a land with the accused persons, and the accused 2 and 3 disappeared from their abode just after the occurrence and apparently DW1 was influenced to give false evidence by deposing that the deceased died due to tuberculosis. There is no iota of proof regarding the death of the deceased due to tuborclosis. The doctor PW8 who treated the injured and PW10, the doctor who carried out autopsy of the dead body was not at all asked regarding the disease suffered by the deceased at the time of his death. The aforesaid circumstances could not exonerate the accused 2 and 3 from the alleged crime. Hence, their both, previous and subsequent conducts are relevant in view of section 8 of the Evidence Act. 22. When we analyse the evidence of PW10, it appears that the witness has confirmed that the death of the victim occurred within 12 hours prior to his examination. Hence, their both, previous and subsequent conducts are relevant in view of section 8 of the Evidence Act. 22. When we analyse the evidence of PW10, it appears that the witness has confirmed that the death of the victim occurred within 12 hours prior to his examination. Taposh Paul (PW2) and Sujuk Paul (PW6) have fully corroborated the medical findings regarding head injury sustained by the victim. Hence, we find no reason to disbelieve the medical evidence of PW10. On a careful scrutiny of the post mortem report of the doctor, we have no hesitation to hold that the deceased died due to head injury caused to him by the accused. The injury was caused by the appellants on the person of the victim with a definite intention to kill him. From the evidence of the witnesses, it transpires that the eyewitnesses PW2 and PW4 arrived at the place of occurrence upon hearing shouting of the victim and PW2 saw the accused Taiyab Ali and Maiyab Ali running away from the place of occurrence in the focus of the torchlight and PW4 also saw in the same focus of the torchlight of PW2 that the accused Taiyab Ali was running away with two other persons from the place of occurrence. On reaching the place of occurrence, PW2 could notice head injury on the person of the deceased which was bleeding as a result of the assault made to him. PW4 saw the injury on the person of the deceased and could know from the deceased himself that the accused have assaulted the deceased by stick and cudgel. During the cross-examination of PWs 2 and 4, the defence could not shake their evidence. The material evidence adduced by the eye witnesses remained unrebutted. 23. PW9, the Investigating Officer recorded the statement of the victim on 24.6.1998 in terms of the provision of section 161, Cr.PC. The statement so recorded was also exhibited. During this period, the victim was undergoing medical treatment at Ramkrishna Nagar P.H.C. Upon careful perusal of the statement of the victim (exhibit 6), we find that the deceased had a long-standing dispute with the accused regarding possession of a land. On 24.6.1990 at around 7 p.m. when the deceased reached near the house of Promode Paul from Chameli Bazaar somebody hit him over his waist by a stick. On 24.6.1990 at around 7 p.m. when the deceased reached near the house of Promode Paul from Chameli Bazaar somebody hit him over his waist by a stick. The victim fell down on the ground due to the hit. Thereafter 2-3 persons started to assault him by stick, hand and feet. The victim became unnerved for a moment, but after regaining his nerve, he shouted for help. At that point in time, the accused Tapash asked his compatriots to kill him by hitting him on his umbilicus. Immediately, the accused Taiyeb Ali and Ansar Ali caught hold of his hand and feet and accused pressed a stick over his umbilicus and rolled out. The victim became senseless. After a while when he regained his senses, he could see Tapash, Boku, the wife of Sudhir Paul and Sujug Paul. After some time, his mother and sister also came to the place of occurrence from where he was taken to the hospital in a hand-cart. 24. From the statement of the victim (exhibit 6), it appears that the accused persons were his neighbours and he had a long standing dispute with them regarding possession of a land. Therefore, it can safely be concluded that the victim was well acquainted with the accused persons. Exhibit 6 further clarifies that the deceased had a very good opportunity of seeing the accused persons from a very close distance to identify them. On a carefully scrutiny of the materials on record and the statement of the victim exhibit 6 recorded by the Investigating Officer, we find that exhibit 6 can be treated as a dying declaration of the deceased as per the provision of section 32(1) of the Indian Evidence Act. In this regard we may refer to the decision of the Supreme Court, in Mukeshbhai Gopalbhai Barot v. State of Gujarat, (2010) 12 SCC 224 , at page 229, wherein it was held as follows : "16. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations, Exts. 44 and 48 could not be taken as evidence in view of the provisions of sections 161 and 162, Cr.PC when read cumulatively. These findings are, however, erroneous. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations, Exts. 44 and 48 could not be taken as evidence in view of the provisions of sections 161 and 162, Cr.PC when read cumulatively. These findings are, however, erroneous. Clause (1) of section 32 of the Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under : "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable,,»arc themselves relevant facts in the following cases : When it relates to cause of death. - (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, sections 161 and 162, Cr.PC admittedly provide for a restrictive use of the statement recorded during the course of the investigation but sub-section (2) of section 162 deals with a situation where the maker of the statement dies and reads as under : "162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act." 17. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act." 17. A bare perusal of the aforesaid provision when read with section 32 of the Evidence Act would reveal that a statement of a person recorded under section 161 would be treated as a dying declaration after his death." 25. From the evidence of PWs 3, 6 and 7, who had gone to the place of occurrence from their house, having heard a hue and cry found the deceased lying there in an injured condition. From their evidence it is amply clear that they could know from the victim that the accused-appellants had caused hurt on him by stick and cudgel. PW6 could see injuries over the head, shoulder and hand of the deceased PW7 also noticed injuries over head and chest of the deceased. Cross-examination of these witnesses by the defence could not shake their testimony. 26. In order to establish the plea of alibi, defence examined DW1, a resident of Chandakhani village as a defence witness. DW1 claimed himself to be a neighbour of the deceased as well as the accused persons. He deposed that the death of the deceased was due to tuberculosis. DW1 further stated that about 15 days prior to the death of the deceased, the accused numbers 2 and 3 had left for Meghalaya and as such, they were not involved in the death of the deceased. However, on a scrutiny of the evidence on record more particularly the evidence of PW9, it appears that the accused persons could not be arrested since they were absconding from the place of occurrence. In their statement under section 313, Cr.PC, the accused 2 and 3 have stated that at the relevant point time they were working as labourer at Chukunga (Chutunga) of Meghalaya State, but the Investigating Officer of the case (PW9) clarified that the accused 2 and 3 disappeared from their usual abode after the suspicious death of the deceased. In their statement under section 313, Cr.PC, the accused 2 and 3 have stated that at the relevant point time they were working as labourer at Chukunga (Chutunga) of Meghalaya State, but the Investigating Officer of the case (PW9) clarified that the accused 2 and 3 disappeared from their usual abode after the suspicious death of the deceased. However, from the facts and circumstances as discussed above and from the forthright evidence of the witnesses to the occurrence as well as the statement of the victim exhibit 6 clearly suggest the involvement of the accused 2 and 3 in the alleged crime. 27. Learned counsel for the appellant, submitted that the death of the victim could have been averted had the victim been given proper medical treatment. But whether the death of the deceased could have been averted by giving proper medical treatment or not, is not material consideration before this court, since on a bare reading of Explanation to section 299 reveals that whether the death is caused by bodily injury of the person who causes such bodily injury shall be deemed to have caused the death by them resulting in proper remedy and skilful treatment, the death might have been prevented. The aforesaid Explanation clarifies and gives no room for any discussion on the subject. As a matter of fact it is not always that the proper remedy and skilful treatment are within the reach of the victim and the danger of allowing any exception in the matter could be easily imagined. The aforesaid situation does not exonerate the accused of the culpable homicide as the death ensued as a natural likely consequence of die injury caused by the accused persons. Therefore, we decline to accept the contention of learned counsel for the appellant. 28. In view of above discussion, we do not find sufficient reason to interfere with the findings of the learned trial court in this case, since prosecution could establish the charge against the accused-appellants beyond all reasonable doubt. Consequently, the appeal fails. The judgment and order passed by the learned trial court is hereby affirmed., Send back the LCR. We record our appreciation of the service rendered by Ms. R.D. Mazumdar, the learned Legal Aid Counsel in assisting this court. ; Accordingly we direct that an amount of Rs. Consequently, the appeal fails. The judgment and order passed by the learned trial court is hereby affirmed., Send back the LCR. We record our appreciation of the service rendered by Ms. R.D. Mazumdar, the learned Legal Aid Counsel in assisting this court. ; Accordingly we direct that an amount of Rs. 4,000 only be paid to the learned Legal Aid Counsel by the State Legal Service Authority as I remuneration. _____________