JUDGMENT

R. C. Khulbe, J. - The present criminal appeal is directed against the judgment and order dated 27.01.2016 passed by the learned Additional Sessions Judge, Nainital, in S.T. No.107 of 2011, 'State vs. Sonu, whereby the learned Trial Court convicted the appellant u/s 304 IPC and sentenced him to undergo ten years' R.I. with a fine of Rs.10,000; in default of payment of fine he was also sentenced to undergo one year's additional imprisonment.

2. Brief facts of the case are that PW1 Mahendra Singh submitted an information Ex.Ka-1 with Police Station-Kotwali Ramnagar on 04.08.2011. On the basis of said information, a Chick FIR Ex.Ka-14 was lodged with the police station. Accordingly, inquest report Ex.Ka2 and post-mortem report Ex.Ka-3 were also prepared; the accused was arrested; and the arresting memo Ex.Ka4 was also prepared. After investigation, charge-sheet Ex.Ka-7 was submitted. Accordingly, after compliance with the provision of Section 207 Cr.P.C.; the concerned Magistrate took the cognizance and committed the case to the Court of Sessions. The Sessions Judge framed the charge under Sections 304 IPC on 31.03.2012. The appellant denied all the allegations and claimed to be tried.

3. To bring home the guilt of the appellant, the prosecution produced PW1-Mahendra Singh (informant), who proved the written report Ex.Ka-1; PW2 Rajendra Singh Rawat, who was appointed as Panch and in whose presence panchanama Ex.Ka-2 was prepared; PW3 Laxman Singh Bisht; PW4 Rajeev Kumar Bhatnagar is the eye-witness, who narrated the entire story; PW5 Dr. Nilamber Bhatt, who conducted the post-mortem and prepared post-mortem report Ex.Ka-3; PW6 S.I. Nilabh Khati is the I.O. in whose presence the appellant was arrested and who prepared the arresting memo Ex.Ka-4, information memo Ex.Ka-5, site plan Ex.Ka-6, recorded the statements of witnesses and submitted charge-sheet Ex.Ka-7; PW7 S.I. Sweta Negi has deposed that on 04.08.2011, she prepared G.D. Ex. Ka-8 and Ex.Ka-9 and also took photographs of dead body Ex.Ka-10 and sample Ex.Ka-12; PW8 Daan Giri, in whose presence the information was submitted with police station and, accordingly, the chick FIR KA-14 and G.D. Ex.Ka-15 were prepared; and, PW9 is Dr. H.C. Pant in whose presence the deceased was brought in injured condition. On the basis of injury, he prepared the medical report Ex.Ka-16 and the deceased was referred for higher centre.

4. After completion of prosecution evidence, statement of appellant was recorded u/s 313 Cr.P.C. in which he denied all the evidences and stated that the prosecution produced false evidences against him. However, no evidence was produced in defence.

5. After hearing both the parties, learned trial court convicted the appellant and sentenced him as mentioned in paragraph no.1 of the judgment.

6. Feeling aggrieved by the order of conviction and sentence, the present appeal is preferred before this Court.

7. Heard the learned counsel for the appellant as well as learned counsel for the State.

8. It is submitted by learned counsel for the appellant that he does not want to argue the case on merits, as the trial Court has rightly convicted the appellant based on sufficient material on record; there is no illegality in the impugned judgment, he fairly submitted that the matter relates to the year 2011; the appellant is sole bread earner of his family; he has already served more than six years in jail; his mother is very old and infirm; there is no criminal antecedents of the appellant; this Court, while upholding appellant's conviction, may consider to alter the sentence awarded to the appellant and reduce it to the extent of period already undergone. He lastly submitted that the trial court awarded one year sentence in default of payment of fine, which is on higher side.

9. The learned counsel for the State has no objection for the same but submitted that as per the evidence, the matter falls under section 304 (II) IPC where 10 years maximum punishment is prescribed.

10.