JUDGMENT : A.D. Jagadish Chandira, J. 1. This appeal is directed against the Judgment dated 31-08-2015 passed by the learned Sessions Judge, Mahalir Neethimandram, (Fast Track Mahila Court) Thoothukudi, Thoothukudi District, in S.C. No. 105 of 2013 finding the appellant guilty and convicting him and sentencing him to undergo imprisonment for life for the offence under section 302 I.P.C. and also imposing a fine of Rs. 1000/- and in default, to suffer rigorous imprisonment for a period of six months. 2. The brief facts of the prosecution case is that P.W. 1 Sundari and the appellant/accused are husband and wife and they have four children, out of which, three are girls and one is a boy and as a family they were residing at J.J. Nagar at Udangudi within the jurisdiction of the respondent police. P.W. 1-Sundari is a helper in the construction work. The deceased Babitha aged about 15 years is the eldest daughter of P.W. 1 and the appellant/accused and she has studied upto 9th standard and was at home. The appellant/accused had come to know that his daughter Babitha developed intimacy with one Kumar, the son-in-law of his wife's elder sister. Further, on 16.02.2012 at 12.00 noon, when the deceased was alone in the house, the said Kumar had behaved inappropriately with her and it had been witnessed by Akhila P.W. 8, the wife of Kumar, who had reprimanded both of them and later, the appellant/accused had come to know about the same and thereby, the appellant/accused was having grievances against his daughter. On the night of 17.12.2012, the appellant/accused had quarrelled with his wife, P.W. 1 stating that their daughter was of immoral character and that she had brought disgrace to the family and that she should not live. Further, in continuation of the same, on 18.12.2012 at 9:45 a.m, while the deceased Babitha was lying in the iron cot, the appellant/accused scolding her that she is of bad character and that she should not be alive throttled her neck and caused the death. The incident was witnessed by P.W. 2 Muthukumar, P.W. 8 Akhila and P.W. 4 Essakimuthu. Further, the appellant/accused had also threatened the witnesses stating that if they disclose about the incident, he would do the same thing to them and saying so he ran away from the house. The incident was witnessed by P.W. 2 Muthukumar, P.W. 8 Akhila and P.W. 4 Essakimuthu. Further, the appellant/accused had also threatened the witnesses stating that if they disclose about the incident, he would do the same thing to them and saying so he ran away from the house. P.W. 1 coming to know of the incident returned from her work and she gave a complaint to the respondent police, who based on the complaint, Ex. P-1 commenced investigation and after completing investigation, filed the final report against the accused for the offences under sections 302 and 506(ii) IPC. 3. After committal to Sessions, charges came to be framed against the appellant/accused for the offences under Sections 302 and 506(ii) IPC. The appellant/accused pleaded not guilty and claimed to be tried. The defence taken by the appellant/accused was total denial and false implication in the case. The prosecution examined 13 witnesses and marked 10 exhibits and 4 material objects. After going through the evidence adduced in this case, the learned Judge found the appellant/accused not guilty for offence under section 506 (ii) IPC, however, found the appellant/accused guilty for offence under section 302 IPC and convicted him as stated above. Hence this appeal. 4. We have heard Mr. S.R. Anbarasu, learned counsel for the appellant/accused and Mr. S. Chandrashekar, learned Additional Public Prosecutor for the State. 5. We have given our anxious consideration to the facts and circumstances of the case, the arguments advanced by the learned counsel for both sides, the evidence on record and the Judgment delivered by the learned trial Judge. 6. From the above, we are of the considered opinion that the death of the victim Babitha was caused by the appellant/accused by strangulating her which resulted in the death of the victim due to asphyxia due to strangulation. 7. In order to convict the appellant/accused, the trial Judge had relied on the evidence of P.W. 2, P.W. 4 and P.W. 8, who are the eyewitnesses to the occurrence and also relied on the evidence of P.W. 3 Dr. Saraswathi, who had conducted autopsy and issued Ex. P.2 postmortem certificate. The trial Judge had also held that P.W. 1 and P.W. 2 though being the wife and son of the appellant/accused, have supported the prosecution and clearly deposed about the murder committed by the appellant/accused. 8. Saraswathi, who had conducted autopsy and issued Ex. P.2 postmortem certificate. The trial Judge had also held that P.W. 1 and P.W. 2 though being the wife and son of the appellant/accused, have supported the prosecution and clearly deposed about the murder committed by the appellant/accused. 8. In order to sustain the conviction, the prosecution mainly relied on the evidence of P.W. 1 Mrs. Sundari, the wife of the appellant and P.W. 2 Muthukumar, the son of the appellant. In this case, P.W. 2-Muthukumar, the son of the appellant and younger brother of the deceased is an eyewitness. He had in clear terms deposed that P.W. 1 is his mother and the appellant/accused is his father and that on the date of occurrence, he was ill and was at home. He had further deposed that his sister Babitha, the deceased herein and his cousin sister Akhila, P.W. 8 were present at home and he had deposed about his father the appellant/accused strangulating the neck of his sister and causing her death. He had also stated about his cousin sister Akhila P.W. 8 asking him to go out and bring someone else and that he had brought his uncle Essakimuthu P.W. 4 a neighbour, who had rushed to the scene of occurrence and he had also witnessed the occurrence. He has spoken about the said Essakimuthu informing his mother and she having rushed to the house from work weeping and that his father having run away from the place weeping and that thereafter the police had examined him. The trial Judge finding that P.W. 2 was nine years old at the time of occurrence, enquired him and had recorded his satisfaction for examining him as a witness and further, the trial Judge had also given a finding that the witness P.W. 2 was able to understand the whole purpose of him coming to Court and giving evidence in Court. Further, the prosecution had examined P.W. 3-Dr. Saraswathi, Senior Surgeon in Government Hospital Tiruchendur, who had conducted autopsy on 19.12.2012 at 01:15 p.m and issued the postmortem certificate, Ex. P.2 and she had given opinion that the deceased would appear to have died of asphyxia due to strangulation. 9. It is a case of filicide wherein the appellant/accused caused the death of his daughter Babitha by strangulation. Saraswathi, Senior Surgeon in Government Hospital Tiruchendur, who had conducted autopsy on 19.12.2012 at 01:15 p.m and issued the postmortem certificate, Ex. P.2 and she had given opinion that the deceased would appear to have died of asphyxia due to strangulation. 9. It is a case of filicide wherein the appellant/accused caused the death of his daughter Babitha by strangulation. The case of the prosecution is supported by the evidence of P.W. 1, wife of the appellant/accused, P.W. 2 son of the appellant/accused, P.W. 4 Essakimuthu, a neighbour and P.W. 8 Akhila, a relative of the appellant/accused and niece of P.W. 1. P.W. 2, P.W. 4 and P.W. 8 are the eyewitnesses to the occurrence. Further, their evidences are fortified by the evidence of P.W. 3 Dr. Saraswathi, who has given the opinion that the deceased would have appeared to have died of asphyxia due to strangulation. 10. The learned counsel for the appellant/appellant though would raise several grounds on appeal, would restrict his arguments and submit that even if it is accepted that the appellant/accused had caused the death of his daughter Babitha, the case would not fall under section 302 IPC, but would fall under section 304(ii) IPC. He would submit that the evidence on record would show that the appellant/accused was lamenting the whole night over the conduct of his daughter, who had, by her act, brought disgrace to the family and on the next day seeing his daughter alone got enraged and in a moment of exasperation throttled his daughter's neck and had caused the death of his daughter. He would further submit that the evidence of the witnesses is clear that after committing the act, he had left the house weeping and sobbing and that the assault was not premeditated or pre-planned with an intention to commit the murder whereas, it had happened on the spur of the moment on seeing his daughter whom he thought had brought disgrace to the family by her immoral conduct. He would submit that it had been committed by a hapless father in a fit of rage that she had spoiled her life by her conduct and that no weapon had been used in the offence. He would submit that it had been committed by a hapless father in a fit of rage that she had spoiled her life by her conduct and that no weapon had been used in the offence. In support of his argument, the learned counsel would rely on the evidence of P.W. 1 who had stated that her husband was lamenting the whole night coming to know about the incident that had happened on the previous day wherein his daughter was found to be in a compromising position with her (P.W. 1) sister's son-in-law and further, he would also rely on the evidence of P.W. 2, who had stated that his father had left the house weeping and sobbing after the incident. He would submit that the conduct of the appellant/accused would show that he had no intention to commit the murder of his daughter and that he had not taken undue advantage or acted in a cruel or unusual manner. Further, he would submit that after coming out on bail during suspension of sentence the appellant/accused is living with his family taking care of the family and that he has got two daughters of marriageable age and a son who is studying and would pray that the mitigating circumstances may be taken into account and consideration while deciding the appeal. 11. After hearing the submission of the learned counsel for the appellant/accused and carefully analyzing the evidence on record, we are convinced that the act of the appellant/accused was not preplanned or premeditated but had been committed by a hapless and exasperated father in a fit of anger whilst deprived of his power of self control and thereby the case would fall within exception 4 to Section 300 IPC. In order to fit in a case within exception 4 of Section 300 IPC, all the ingredients mentioned must be satisfied. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. In this case also, there is no premeditation or preplan and the appellant/accused has not taken undue advantage or acted in a cruel or unusual manner and the incident had happened in the heat of passion and that after committing the act the appellant had left the scene of occurrence weeping and sobbing. The facts in the present case indicate that all the ingredients of Exception 4 to Section 300 IPC are present. In similar circumstances, the same view has been taken by the Hon'ble Apex Court in the following cases:- 1. (2017)5 SCC 796 (Surain Singh vs. State of Punjab) 2. (2018)7 SCC 777 (Tularam vs. State of M.P) 12. Thus, in entirety, considering the facts of the case, the legal evidence on record and in the background of the legal principles laid down, we come to the inevitable conclusion that all the requirements under Section 300 Exception 4 have been satisfied and thus, the appropriate conviction would be under Section 304 part II IPC instead of Section 302 IPC. 13. In the result, the appeal is partly allowed. The conviction and sentence imposed on the appellant under Section 302 IPC in S.C. No. 105 of 2013 by the learned Sessions Judge/Mahalir Neethimandram (Fast Tract Mahila Court), Thoothukudi is set aside and instead the appellant is convicted under Section 304(ii) IPC and is sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 1000/- (Rupees One Thousand only) and in default, to undergo R.I for one month. The appellant shall be given set off for the period of sentence already undergone under Section 428 Cr.P.C. The appellant is on bail. The bail bond executed shall stand cancelled and the trial Court shall take steps to secure the appellant/accused in order to undergo the remaining period of sentence.