JUDGMENT Jaswant Singh, J.:- This order shall dispose of Criminal Appeal No.719-DB of 2001 and 426-DB of 2007, arising out of FIR no.77 dated 23.8.1999 registered at PS Naggal, under Sections 302/34 IPC. 2. Convict -appellant Amrik Singh has filed Criminal Appeal No.719-DB of 2001 challenging the judgment and order dated 14.8.2001 passed by the learned Sessions Judge, Ambala, convicting him under Section 302 read with Section 34 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to undergo further RI for six months. 3. Criminal Appeal No.426-DB of 2007 has been filed by convict-appellant Ajit Singh @ Jeet Singh, a Proclaimed Offender during the trial of his co-accused Amrik Singh, challenging the judgment and order dated 14.12.2006 and 15.12.2006 respectively whereby he was convicted by the learned Sessions Judge, Ambala, under Section 302 read with Section 34 IPC and sentenced to undergo life imprisonment. 4. As already noticed above, since both the appeals arise out of the same FIR, hence we proceed to dispose of both these appeals by a common order. 5. This is another unfortunate case where a daughter namely Saravjit Kaur, aged 19 years has died at the hands of her father Amrik Singh and his co-accused Ajit Singh @ Jeet Singh. As per prosecution case on 23.8.1999, Saravjit Kaur resident of Village Seikhupura, PS Naggal was brought to Civil Hospital, Ambala City at 7.10 pm for deep burn injuries on her person. On receipt of ruqa, ASI Purshotam Dass posted at PS Urban Estate, Ambala approached PW1 Sh.J.S.Dhanjal, the then Chief Judicial Magistrate/Duty Magistrate, Ambala City for recording the statement of injured. PW9 Mahabir Singh ASI posted at PS Naggal, on receipt of a telephonic message regarding said incident also reached Civil Hospital, Ambala. The learned Duty Magistrate recorded the statement Ex.PE of Saravjit Kaur in “question-answer” form at 8.50 pm, upon which formal FIR Ex.PE/2 was recorded at PS Naggal under Sections 307/34 IPC. 6. According to Saravjit Kaur, her father (Amrik Singh) used to quarrel with her and on that day he alongwith Ajit Singh @ Jeet Singh had come to the house and both had taken liquor and abused her mother and thereafter her father and Ajit Singh @ Jeet Singh threw a match stick on her. 6. According to Saravjit Kaur, her father (Amrik Singh) used to quarrel with her and on that day he alongwith Ajit Singh @ Jeet Singh had come to the house and both had taken liquor and abused her mother and thereafter her father and Ajit Singh @ Jeet Singh threw a match stick on her. She further stated that she used to stop her father from taking liquor and hence she was put on fire and suitable punishment be got awarded to them and that she had given the statement voluntarily. PW9 Mahabir Singh, ASI conducted the investigation before it was handed over to PW6 Harbans Singh, Inspector. PW9 Mahabir Singh, ASI visited the place of occurrence, prepared rough site plan, took into possession one match box, one can containing kerosene oil and one chaddar from the place of occurrence, and after making them into separate sealed parcels deposited the same with MHC. 7. On 24.8.1999, Saravjit Kaur died in the hospital at 1 am. Thereafter, inquest report Ex.PH was prepared, the dead body was sent for post mortem examination and offence under Section 302 IPC was added in the FIR. Convict Amrik Singh was arrested on 25.8.1999, however, convict-appellant Ajit Singh @ Jeet Singh absconded and was declared a Proclaimed Offender. Resultantly, charge was framed against Amrik Singh under Section 302 read with Section 34 IPC to which he pleaded not guilty and claimed trial. Prosecution examined 12 witnesses during the trial of Amrik Singh and 14 witnesses were examined during the trial of his co-accused Ajit Singh @ Jeet Singh, who was arrested on 10.8.2005 by PW 13 Shamsher Singh,Sub Inspector and supplementary challan was filed against him on 3.10.2005. Evidence in both the cases is similar. In order to prove the guilt against both the accused, apart from the dying declaration of deceased Saravjit Kaur, recorded by the Duty Magistrate, Ambala, the prosecution also relied upon the eye witness account of Surinder Kaur PW8 and Ram Kishan PW7 further corroborated by medical evidence. 8. Evidence in both the cases is similar. In order to prove the guilt against both the accused, apart from the dying declaration of deceased Saravjit Kaur, recorded by the Duty Magistrate, Ambala, the prosecution also relied upon the eye witness account of Surinder Kaur PW8 and Ram Kishan PW7 further corroborated by medical evidence. 8. The case set up by the prosecution was that accused Amrik Singh and Ajit Singh had taken liquor in the house of Amrik Singh and when they demanded more money from deceased Saravjit Kaur for purchase of liquor, she refused, which enraged Amrik Singh and his companion, upon which Ajit Singh @ Jeet Singh said that such a daughter should be done away with. Thereupon, Amrik Singh brought a kerosene oil can from the kitchen and sprinkled it on her and Ajit Singh @ Jeet Singh ignited a match stick and set her on fire. On the other hand the defence version was that the deceased was hot tempered and she used to quarrel with her brothers and sisters and on that fateful day she had committed suicide and in the process of saving her, accused Amrik Singh had also suffered burns on his hands and clothes. Amrik Singh further took the plea that his father Harnam Singh and brother Such Singh had tried to falsely implicate him as he was demanding his share in the property. 9. Accused Ajit Singh @ Jeet Singh in his statement under Section 313 Cr.PC stated that he was a teatotaller and had been falsely implicated in this case at the instance of Sucha Singh who had filed a criminal case against him (Ajit Singh @ Jeet Singh) his wife and son under Section 325 IPC and accused Amrik Singh was witness of his brother Sucha Singh. He further stated that Ram Kishan used to work with Sucha Singh and as such he was also inimical towards him (Ajit Singh @ Jeet Singh). 10. The learned trial court on the basis of dying declaration and eye witness account of Surinder Kaur PW8 and Ram Kishan PW7 found that the case against both accused under Section 302 read with Section 34 IPC stood proved beyond shadow of reasonable doubt and thereby convicted and sentenced them. 11. 10. The learned trial court on the basis of dying declaration and eye witness account of Surinder Kaur PW8 and Ram Kishan PW7 found that the case against both accused under Section 302 read with Section 34 IPC stood proved beyond shadow of reasonable doubt and thereby convicted and sentenced them. 11. Learned counsel for the appellants has contended that the dying declaration of Saravjit Kaur could not be relied upon as the Doctor’s opinion about her being in a fit condition to give statement has not come on record. It was further argued that the occular testimony of Surinder Kaur PW8 and Ram Kishan PW7 is not reliable at all and convict-appellants had been falsely implicated. By referring to charge sheet Ex.DB in case titled “State v. Jeet Singh” arising out of FIR No.140 dated 28.8.1997 under Sections 323/325/34 IPC registered at PS Naggal and statement Ex.DD of Amrik Singh,PW1, it was next contended that presence of Ajit Singh @ Jeet Singh at the time and place of occurrence was highly improbable and unbelievable. 12. Learned State counsel has supported the reasoning adopted by the learned trial Court. 13. After hearing the learned counsel for the parties we find that the finding regarding conviction of both the accused, recorded by the learned trial court suffers from no legal infirmity. 14. Surinder Kaur, aged 14 years, while appearing in the witness box as PW8 deposed that she used to stay at the house of her maternal uncle Sucha Singh situated in Village Seikhupura to pursue her studies. Amrik Singh is brother and neighbour of her maternal uncle Sucha Singh. She further deposed that Amrik Singh used to daily come to his house after taking liquor and quarrel with his family members. On 23.8.1999 at 5.30 pm when she was drawing water from a handpump in the courtyard of house of her maternal uncle Sucha Singh, Ram Kishan PW7, a villager had come to her maternal uncle Sucha Singh to congratulate him on the birth of his grandson. On 23.8.1999 at 5.30 pm when she was drawing water from a handpump in the courtyard of house of her maternal uncle Sucha Singh, Ram Kishan PW7, a villager had come to her maternal uncle Sucha Singh to congratulate him on the birth of his grandson. After sometime they heard noises coming from the house of Amrik Singh and she alongwith Ram Kishan,PW7 went upstairs of their house and observed that a quarrel was going on and Amrik Singh brought a can containing kerosene oil and sprinkled the same on Saravjit Kaur and Ajit Singh @ Jeet Singh set her on fire with a match stick, thus setting Saravjit Kaur ablaze. The statement of Ram Kishan PW7 is on identical lines thus corroborating the version put forth by Surinder Kaur. Accused Amrik Singh in his statement under Section 313 Cr.P.C., admitted that Sucha Singh is his brother and Surinder Kaur PW8 is their sister’s daughter staying at the house of Sucha Singh to pursue her studies. PW12 Dr.Vijay Bansal, Medical Officer, Civil Hospital, Ambala City in his testimony has deposed that Saravjit Kaur was medico legally examined by him and he found that there were superficial to deep burns on her lower face, neck, chest, abdomen, both legs anteriorly and posteriorly, both upper arms and both hands. He has also stated that the injuries had been sustained within two hours. He also sent a ruqa to arrange for recording of her dying declaration. PW1 Dr. Rakesh Chaudhary, who conducted the post mortem of the dead body on 24.8.1999 has deposed that the cause of death in this case was shock as a result of extensive burns which were ante mortem in nature and were sufficient to cause death in the normal course. Thus, relying on the consistent version of eye witnesses which withstood the test of lengthy cross examination we find that the learned trial Court has rightly recorded the finding that presence of both the accused and the manner of commission of offence is proved. 15. Mahabir Singh, ASI (PW9), who initially conducted the investigations of the case, in his testimony has deposed that the opinion of the doctor regarding fitness of Saravjit Kaur was obtained and the doctor declared her fit to make the statement. In his cross examination he has stated that he had shown the opinion of the Doctor to the learned Duty Magistrate. In his cross examination he has stated that he had shown the opinion of the Doctor to the learned Duty Magistrate. In the proceedings recorded in his own handwriting, Sh.J.S.Dhanjal,PW11, learned Chief Judicial Magistrate/Duty Magistrate has specifically recorded that Saravjit Kaur, on written application was declared fit to make statement. Further, from the testimony of Dr.Vijay Bansal,MO PW-12, we find that it was deposed by him that although the condition of Saravjit Kaur was serious but she was conscious and well oriented at the time of her admission. Nothing has come on record to show that within an hour her condition had deteriorated to such an extent rendering her unfit to make the brief statement regarding the manner of commission of offence before the Duty Magistrate. In our opinion, the learned trial court has rightly held that if one or the other quarter managed to hold back the written opinion of the Doctor from the Court, it cannot affect the genuineness or correctness of the dying declaration. 16. A five Judges Bench of Hon’ble the Supreme Court in Laxman v. State of Maharashtra, 2002(4) RCR (Criminal) 149 has held that a certification by a doctor is essentially a rule of caution and the dying declaration without certification by the doctor can be acted upon if it is proved from the testimony of Magistrate that the declarant was fit to make such a statement. Relying upon Laxman’s case (supra) Hon’ble the Supreme Court in Sukanti Moharana v. State of Orissa, 2009(4) RCR (Criminal) 119 has held that the Court has to ensure that the declaration is not result of tutoring, prompting or imagination and merely because the dying declaration is a brief statement it cannot be discarded, as to the contrary the shortness of the statement itself guarantees truth. Hon’ble the Supreme Court further held that a dying declaration recorded by competent Magistrate stands on a much higher footing as he has no axe to grind against the persons named in the dying declaration of the victim. It was further held that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind. 17. It was further held that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind. 17. Keeping in view the aforesaid settled legal position we find that the learned trial court has rightly relied upon the admissible evidence of dying declaration to record a finding of guilt of the accused. In the present case even the testimony of eye witness whose presence is natural at the relevant time is consistent and fully reliable which further proves the guilt of both the accused. We then find that the learned trial Court has committed no illegality in accepting the dying declaration and ocular testimony in support of its finding. 18. The plea raised on behalf of accused Ajit Singh @ Jeet Singh that his presence at the time and place of occurrence is highly unbelievable in view of Amrik Singh co-accused being a witness against him in the pending FIR does not cut any ice with us in view of the voluntary and truthful dying declaration made by deceased Saravjit Kaur, specifically naming her father and Ajit Singh @ Jeet Singh as committers of the dastardly act and fully supported and corroborated by the eye witness account of Surinder Kaur PW8 and Ram Kishan PW7. Therefore, this contention is rejected. 19. For the reasons stated above, we find that both the convicts-appellants have been rightly held guilty by the trial court and hence their conviction is upheld. 20. It has come on record that accused Amrik Singh was a habitual daily drinker and on that fateful day he alongwith his companion Ajit Singh @ Jeet Singh, after drinking in Amrik Singh’s house had demanded more money from his daughter Saravjit Kaur for purchasing more liquor and on her refusal to do so, he and his companion, Ajit Singh @ Jeet Singh got enraged and in that state caused her death. Thus, we find that they would be guilty of offence of culpable homicide not amounting to murder in view of exception (1) to Section 300 IPC. Therefore, we modify their conviction from Section 302 read with Section 34 IPC to Section 304 Part II IPC. 21. Thus, we find that they would be guilty of offence of culpable homicide not amounting to murder in view of exception (1) to Section 300 IPC. Therefore, we modify their conviction from Section 302 read with Section 34 IPC to Section 304 Part II IPC. 21. It is further evident from the record that Amrik Singh, father of deceased Saravjit Kaur had also suffered burn injuries on his hands while trying to save her and his co-accused Ajit Singh @ Jeet Singh is presently aged about 75 years. In our opinion, the ends of justice would be fully met if the sentence awarded to them is reduced to the period already undergone by them. Ordered accordingly. Resultantly both the appeals are partly allowed with the modifications in the aforesaid terms. ------------