SUJIT BARMAN ROY, CJ. ( 1 ) THIS appeal is directed against the judgment dated 17th March, 1989 passed by the Sessions Judge, Balasore in S. T. No. 108 of 1988 convicting the appellant Bhagirathi Das under Section 302 I. P. C. and sentencing him thereunder to suffer R. I. for life. ( 2 ) THE prosecution case in brief is that on 9/5/1988 a written complaint was lodged by P. W. 1-Prasant Pal before the Officer-in-charge of Bhogarai Police Station, Bhogarai stating, inter alia, that the appellant-Bhagirathi Das, who was attached to Laxmipatna Police Outpost as a police constable was residing in a rented house near the house of P. W. 1. that day around at 10 O'clock in the morning while his son Raj Kumar Pal (since deceased) was going to take bath, the appellant took him to his residence and killed him by assaulting him with iron rod. Thereafter he locked the room and went away somewhere. While searching for his son for sometime, P. W. 1 came to learn that the appellant had confined the deceased in his room under lock and key. Learning this, when P. W. 1 asked the wife of the appellant, she told the informant that the appellant after locking the door of the room had left the place with the key. P. W. 1 then suspected some foul play and forcibly broke open the lock of the room and found that his son lying down inside the room. On the basis of the aforesaid complaint, the F. I. R. was registered under Section 302 I. P. C. at the said police station and after usual investigation, police submitted charge-sheet against the appellant only under Section 302 I. P. C. ( 3 ) IN course of time, the case was committed to the Court of the learned Sessions Judge, Balasore. On perusal of the materials on record, the trial Court framed a charge under Section 302 I. P. C. to which the appellant pleaded not guilty. On behalf of the prosecution, in all, 18 witnesses were examined On behalf of the appellant three witnesses including his daughter (D. W. 3)- Sanjulata Das were examined. The defence of the appellant in course of trial was that of complete denial of the prosecution case as alleged. On behalf of the prosecution, in all, 18 witnesses were examined On behalf of the appellant three witnesses including his daughter (D. W. 3)- Sanjulata Das were examined. The defence of the appellant in course of trial was that of complete denial of the prosecution case as alleged. At the same time, on behalf of the appellant, evidence was adduced parti-cularly by D. W. 3-Sanjulata Das that in the morning of the day of occurrence, the deceased entered inside her room when the other members of the family of the appellant were away from the house and taking advantage of this situation, the deceased forcibly raped her. It appears that at the time of occurrence, D. W. 3 was a minor girl being aged about 14-1/2 years. In this situation somebody suddenly opened the door and kicked the deceased. Seizing this opportunity, D. W. 3 fled away from the room though she could not recognize as to who had entered into the room and kicked the deceased at that time. It further appears from the medical evidence adduced on behalf of the appellant that at the time of occurrence, D. W. 3 Sanjulata Das was in the family way and her pregnancy was about 16 weeks old. ( 4 ) WE have heard learned Counsel for the appellant and also the learned Addi. Standing Counsel for the State of Orissa. Both of them took us through the evidence on record. ( 5 ) ON perusal of the evidence on record, it appears to us that there is absolutely no direct evidence as to who has assaulted the deceased. The case is entirely based on circumstantial evidence. The circumstances relied upon by the trial Court in the impugned judgment have been proved by P. W. 1 - Prasant Pal, P. W. 5-Kartik Chandra Rout, P. W. 6-Radha Krushna Dutta and P. W. 7 - Kartik Chandra Behera. Equally the evidence of P. W. 10-Dr. Chitta Ranjan Das who conducted post-mortem over the dead-body of the deceased is important for this case. ( 6 ) ON behalf of the appellant, three D. Ws. were examined namely, D. W. 1-Dr. Anuj Ram Padhi, D. W. 2 Harendranath Jena and D. W. 3-Sanjulata Das, being the daughter of the appellant. ( 7 ) P. W. 1 - Prasant Pal reiterated his version as given in the F. I. R. . ( 6 ) ON behalf of the appellant, three D. Ws. were examined namely, D. W. 1-Dr. Anuj Ram Padhi, D. W. 2 Harendranath Jena and D. W. 3-Sanjulata Das, being the daughter of the appellant. ( 7 ) P. W. 1 - Prasant Pal reiterated his version as given in the F. I. R. . He does not appear to be a witness to the occurrence. The importance of his evidence is that he found the dead body of the deceased inside the room of the appellant. It, therefore, appears that the deceased met with his violent death in the house of the appellant himself. ( 8 ) THE next important witness was P. W. 5-Kartik Chandra Rout. He has stated in his evidence that on the date of occurrence, at around 11 A. M. he saw P. W. 1 standing near the house of the appellant. P. W. 1 then told him that the deceased had been locked inside the room of the appellant. Thereafter, P. W. I approached some persons and broke open the door of the room. When P. W. 1 and this witness alongwith others entered into the said room after forcibly breaking open the door, they saw the dead-body lying on a mat with bleeding injuries on his left eye and mouth. They also noticed various marks of abrasions on the neck and back of the deceased. The deceased was bleeding from his penis also. Subse-quently, the police came and prepared inquest report (Ext-5) and he gave his signature thereon. Apart from this, he has not given any other evidence. ( 9 ) THE next important witness P. W. 6-Radha Krushna Dutta stated in his evidence that on 9. 5. 88 at about 4 P. M. in the afternoon he could learn that the deceased was murdered by the appellant. On hearing this, he immediately proceeded towards the house of the appellant alongwith others as mentioned in his evidence. He entered into the house and saw that the deceased was lying dead on the mat. The deceased was bleeding from his mouth. A piece of iron-rod which is generally used in a Tubewell was lying near the dead-body. A police-belt was also lying there. Apart from that, he also found a napkin, one iron rod and an Indian-towel (Gamucha) inside the room which were marked as Material Objects. The deceased was bleeding from his mouth. A piece of iron-rod which is generally used in a Tubewell was lying near the dead-body. A police-belt was also lying there. Apart from that, he also found a napkin, one iron rod and an Indian-towel (Gamucha) inside the room which were marked as Material Objects. At that time this witness further found that the wife the daughter (D. W. 3) of the appellant were sitting near their kitchen. On being asked by this witness, D. W. 3 disclosed that while she was alone in the house in the morning and lying down on a mat, the deceased came and sat beside her. While she was so gossi-ping the appellant suddenly entered into the room and gave one slap to her and thereafter, another slap to the deceased. When the accused-appellant was trying to throttle the neck of the deceased with the belt, D. W. 3 protested. Then she was asked by him to leave the place. Even after that, the appellant further assaulted the deceased and killed him. After killing the deceased, the appellant left for the Outpost by locking the door. This evidence was given by P. W. 6 as he heard about the incident from D. W. 3 - Sanjulata Das. ( 10 ) THE next important witness is P. W. 7 - Kartik Chandra Behera. His evidence is exactly identical to the evidence given by P. W. 6 and hence for the sake of brevity we do not like to repeat the same here. ( 11 ) THE evidence of the other prosecution witnesses is not considered necessary for any further discussion inasmuch as they did not throw any important light on any aspect of the main incident. ( 12 ) P. W. 10 - Dr. Chitta Ranjan Das conducted post-mortem on the dead-body of the deceased. According to his evidence, the deceased was a man of average built. He noticed that the face of the deceased had swellings, blood was discharged from the mouth and nose, tongue bitten, hands were cleanched and dry blood was present around the scrotum and penis. On further examination. P. W. 10 detected following injuries on the person of the deceased: (1) Swelling 2 x 1/2 over the right zygomatic area. (2) Swelling 3 x 2 over left maxillary an zygomatic area. On further examination. P. W. 10 detected following injuries on the person of the deceased: (1) Swelling 2 x 1/2 over the right zygomatic area. (2) Swelling 3 x 2 over left maxillary an zygomatic area. (3) Bruise 2 x 1/2 over left neck half inch below the ear lobule. (4) Multiple abrasions in anterior and both the sides of the neck, with intermittent healthy skin size varying from itt x itt to 1/2tt below thyroid cartilage. encircling the neck, horizon-tally. Some abrasions itt x 1/ 2tt x i/2tt present above the thyroid cartilage. On dissection of the above injuries the extra vasation of blood into subcu-taneous tissue in the neck, muscle was found. Some muscles are lacerated. Thyroid gland is congested, and extra vasation of blood to the thyroid gland. Right corneu of hyoid bone is fractured. (5) Abrasions 2tt x 1/2 over the right shoulder. (6) Bruise 3 x 2 over the right side of chest lower part. (7) Abrasion 2tt x 1/2 over the right upper chest. (8) Multiple abrasions varying size from 1-1/2 x I to 1/2 x 1/2 on posterior part of left elbow. (9) Bruise 2 x i/2tt over left side abdomen on upper part. (10) Abrasions 2 x I over left back on upper part. (11) Abrasions 1_i/2tt x 1 posteriorly over left wrist joint. (12) Abrasions 1-1/2 x 1 over left buttock. (13) Abrasion itt x 1/2 over right buttock. (14) Abrasions 1/2 x I over the pubic symphysus, near root of the penis. P. W. 10 further stated in his evidence that all the aforesaid injuries found on the person of the deceased were ante mortem in nature and the case of death was due to asphyxia by strangulation. He also stated that the Web Belt used by police personnel with their uniform, which was found at the place of occurrence, having brass-made number of hooks and clips could cause all external and internal injuries as mentioned above. He further opined that the aforesaid injuries were sufficient to cause death in the ordinary course of nature. ( 13 ) HOWEVER, the evidence of D. W. 3-Sanjulata Das is important in many respects though in our opinion she has not disclosed the full truth in her evidence. Sanjulata Das is the daughter of the appellant. He further opined that the aforesaid injuries were sufficient to cause death in the ordinary course of nature. ( 13 ) HOWEVER, the evidence of D. W. 3-Sanjulata Das is important in many respects though in our opinion she has not disclosed the full truth in her evidence. Sanjulata Das is the daughter of the appellant. She has stated in her evidence that at the time of occurrence, the other members of her family were not in the house. In her evidence she stated that the deceased died on 9. 5. 1988 in their house in the morning at about. 9. 30 A. M. At that time she was alone in the house. When she was alone in the house, the deceased entered into her room and closed the door from inside. Noticing this when she shouted, the deceased asked her to keep quiet. At that time the deceased caught hold of her and started molesting. He also tried to make her naked. He pulled out her saree, but she struggled herself to escape from his grips. She has given the details of the incident in her evidence. From her evidence it further appears that the deceased was trying to rape her. Ultimately she was made lying on the floor and at that time when she raised alarm, someone entered into her room and give a kick to the deceased. Seizing this opportunity, she ran away to the tank where her mother was taking bath. According to her, though it was morning time, the room was dark and for that reason, she could not recognise the person who allegedly kicked the deceased. Her further version was that at the time of occurrence, her father was not in the house. However, a little after, at noon-time her father returned home. Her father also saw that the deceased lying dead in their house. The police came around at 4. 40 P. M. She was also examined medically on police requisition. Ext.-B is the medical report which was submitted by the concerned Medical Officer after she was clinically examined. On the other hand, we find from the evidence of D. W. 1-Dr. Anuj Ram Padhi that Ext.-B. the medical report, was prepared on the result of the examination of D. W. 3 by Dr. Mira Pati. Ext.-B is the medical report which was submitted by the concerned Medical Officer after she was clinically examined. On the other hand, we find from the evidence of D. W. 1-Dr. Anuj Ram Padhi that Ext.-B. the medical report, was prepared on the result of the examination of D. W. 3 by Dr. Mira Pati. At the time of such examination, D. W. 3 was found to be pregnant for about 16 weeks. Some superficial injuries were found on the person of D. W. 3. ( 14 ) THIS is in short the gist of the evidence adduced by the prosecution and thereafter by the appellant. From the evidence of D. W. 3, it appears that at the time when she gave her evidence before the trial Court, she was aged about 16 years. Therefore, admittedly, at the time of occurrence, which took place 1-1/2 years before her evidence was recorded. she was about 14-1/2 years old. On analysis of the evidence of D. W. 3, we find that she did not disclose full truth in her evidence. It was suggested on behalf of the prosecution when D. W. 3 was cross-examined by it, that D. W. 3 was in love with the deceased. She denied such suggestion. She also denied that she was pregnant. Reasons are not far to see as to why she denied such suggestion. But the fact admitted by both the sides is not required to be proved. It is admitted by both prosecution as well as the appellant that she was in love with the deceased. She was also carrying at that time. Therefore, the story that D. W. 3 resisted deceased from attempting to commit rape seems to be improbable in the context of aforesaid facts and circumstances of the case. We are, however, constrained to hold that in all probability she was in love with the deceased and the deceased was responsible for her pregnancy and at the time of occurrence, they were found by the appellant in a position for which no father could maintain his cool in such circumstances. But at the time of occurrence D. W. 3 was a minor. Soon after the occurrence when P. W. 6 asked P. W. 3, she told him that at that time both were sitting on a mat. But at the time of occurrence D. W. 3 was a minor. Soon after the occurrence when P. W. 6 asked P. W. 3, she told him that at that time both were sitting on a mat. For that obvious reason she did not proceed further and did not disclose the full truth especially the circumstance in which she was found by her father. She was between the need for suppressing her relationship with the deceased and at the same time to save her father. In this circumstance, her version for exonerating the appellant cannot be accepted. ( 15 ) AT the same time, we disbelieve the appellants version that he was not in the scene of occurrence when the assault on the deceased took place. However, that becomes a plea when the case is found to be false, but cannot be a ground for denying him other benefits if he is entitled to the same under the law, in the circumstances of the case. ( 16 ) AS we are unable to rule out the possibility that D. W. 3 being the daughter of the appellant was found by him with the deceased, such circumstance must have constituted grave and sudden provocation for the appellant to react violently. As we are unable to rule out such possibility in the circumstances of the case, we cannot deny the benefit thereof to the appellant mainly on the ground that his other plea that he was not present at the scene of occurrence, was found by us to be false. ( 17 ) UNDER Exception-I to Section 300 of the Indian Penal Code, culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. According to us, if his daughter being a minor was found by the appellant in the circumstance as concluded by us, no father could have tolerated such a scene and the reaction is quite natural, though at the same time we depricate the appellants acting violently, we feel that he was deprived of the power of self-control in the said circumstance. But as the appellant had strangulated the deceased, his intention to cause death was manifest. But as the appellant had strangulated the deceased, his intention to cause death was manifest. In this circumstance, it seems to us that he committed culpable homicide not amounting to murder and hence he is liable to be convicted under Section 304, Part-I, I. P. C. The appellant has already suffered imprisonment for about 10 years. Accordingly, we hold that the conviction of the appellant under Section 302 I. P. C. was not proper and therefore, we alter the same to one under Section 304, Part-I, I. P. C. and restrict the period of imprisonment to the period already undergone by the appellant and accordingly direct that the appellant be set at liberty forthwith. The Criminal Appeal is partly allowed and is accordingly disposed of. Appeal allowed partly.