JUDGMENT K.K. Birla, J. - This is an appeal against the conviction under Section 304 I.P.C. and a sentence of 10 years R.I. 2. I have heard the learned counsel for the appellant and the learned A.G.A. 3. In brief, the prosecution case is that on 21.2.79 at about 5.00 p.m. Karan Singh informant and Bara Singh (deceased) were coming from Kashipur. Sompal Singh accused stopped them at his but and asked them to join in drinks. Chhote Singh was also sitting in the hut. Later on, there was an altercation between Sompal Singh accused and Dara Singh, Chhote Singh and Karan Singh tried to intervene. An axe was lying in the hut. Sompal Singh accused gave axe blows to Dara Singh. He escaped throwing the axe there and could not be apprehended by Karan Singh and Chhote Singh. Sri Dara Singh died on the spot. Sri Karan Singh is a Chaukidar in the Plantation. He went to inform his employees about the incident and next day came back with his employer Bir Singh and then he lodged the F.I.R. at about 2.15 o.m. on 22.2.79. 4. On post mortem 3 incised wounds and one abrasion were found by Dr. J.C. Arora (P.W. 2). The accused was tried for an offence under Section 302 I.P.C. 5. The prosecution examined 5 witnesses in support of its case. Sri Chhote Singh (P.W. 4) is the witness of occurrence. Sri Karan Singh could not be examined as he was not traceable. The learned Addl. Sessions Judge had accepted the statement of Sri Chhote Singh (P.W. 4). He however, found the case proved under Section 304 (1) I.P.C. and convicted him as mentioned above. 6. It is contended by the learned-counsel for the appellant that Sri Karan Singh has not been examined. This circumstances has not been taken against the prosecution case as according to the learned Addl. Sessions Judge this witness was not traceable. This is correct. Sri Chhote Singh (P.W. 4) has stated in his examination-in-chief that Sri Karan Singh was not available in the village. His whereabouts are not known, and that even it is not known whether he is alive or dead. On a perusal of the records, it is clear that his whereabouts could not be known and as such this witness was discharged. His whereabouts are not known, and that even it is not known whether he is alive or dead. On a perusal of the records, it is clear that his whereabouts could not be known and as such this witness was discharged. Therefore, non examination of Sri Karan Singh is of no help to the appellant, in my opinion. 7. There is delay in lodging of the F.I.R. An explanation is given in the F.I.R. itself. The statement of Sri Chhote Singh finds corroboration from the medical evidence. As discussed by the learned Addl. Sessions Judge Sri Chhote Singh is an independent witness and had no reason to depose falsely against the appellant. His statement by and large is consistent. There is no substance for false implication. In view of the above discussion and considering the broad feature of the case I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. There is no infirmity in the reasonings of the learned Addi. Sessions Judge. Therefore, the appellant was rightly convicted. 8. The appellant has been sentenced to 10 years R.I. under Part I of Section 304 I.P.C. I agree with the learned counsel for the appellant that the sentence passed is quite excessive. The learned Addl. Sessions Judge had found that the altercation developed on the spur of the moment, the deceased and the accused had taken liquor and thereafter, some talks took place in a drunken state. In the circumstances, this sentence is quite severe. The appellant has already undergone a sufficient period of imprisonment even if he has not been released. In the circumstances, the sentence is modified to the imprisonment already undergone. 9. The appeal is partly allowed. The order of conviction is set aside. The sentence is modified to the imprisonment already undergone. The appellant shall be released forthwith.