JUDGMENT - SAHAI VISHNU, J.:---The appellant aggrieved by the judgment and order dated 30-11-1995 passed by the Vth Additional Sessions Judge, Kolhapur, in Sessions Case No. 14 of 1995, convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- in default to undergo one month imprisonment for the offence under section 302 Indian Penal Code, has come up in appeal before us. 2. Shortly stated, the prosecution case runs as under:--- The deceased Rashida was the daughter of Jan Mohammed Abdul Mulla P.W. 7. She was married to the appellant on 12-4-1993. For three months, the appellant treated her properly but, thereafter he and his family members started ill-treating and asking her to bring a gold chain of 1½ tolas and cash of Rs. 2000/-. When Rashida used to visit the house of her father, she used to complain to him about the demand and ill-treatment and when he used to visit her house, she also made same complaint to him. According to the prosecution, at the time of her death, Rashida was having a son aged six months. Her delivery took place at the house of her father. Thereafter, she went and started living with the appellant. When Jan Mohammad Mulla P.W. 7 visited Rashida, after the delivery, she complained of ill-treatment at the hands of the appellant on account of non-fulfilment of the demand of a gold chain and cash of Rs. 2000/-. He told her that he would arrange the said amount. On 16-9-1994, Rashida and the appellant came to the house of Jan Mohammad Mulla P.W. 7 and stayed for four days. The appellant repeated the demands to him and told him that in case they were not met, he would leave Rashida. On 28-9-1994, Jan Mohammad Mulla P.W. 7 along with Rashida, went to the appellants house in Mahagaon. The appellant asked him whether he had brought the cash and the gold chain. He replied that since his economic condition was not good, he had not brought them. On that the appellant told him that he would not allow Rashida to enter inside the house and started quarrelling. Thereupon, he gave understanding to the appellant that he would make the arrangements within four days and he should permit Rashida to stay with him. He replied that since his economic condition was not good, he had not brought them. On that the appellant told him that he would not allow Rashida to enter inside the house and started quarrelling. Thereupon, he gave understanding to the appellant that he would make the arrangements within four days and he should permit Rashida to stay with him. The next morning, after leaving Rashida at the house of the appellant, Jan Mohammad came back. 2-A. On the night of 29th/30th September, 1994, at about 12.15 to 12.30 a.m. the appellant came to the house of Vijay Shingate P.W. 2 whose house was adjacent to his house and told him that his wife had assaulted herself with a grinding stone on her month. Vijay Shingate P.W. 2 told him that he would come down and they would go to the hospital. The appellant replied that she was dead. Thereafter, Vijay Shingate went to the house of the appellant and found the corpse of Rashida lying on the cot facing towards the sky and there was a grinding stone in her right hand. There was a ligature mark over the throat. 2-B. At about 1 to 1.15 a.m. same night, the appellant came to the house of Mahadeo Patil P.W. 1 Police Patil and woke him up. He told him that there had been a quarrel between him and his wife and in a fit of anger, he had strangulated his wife and she is dead. Mahadeo Patil accompanied the appellant to his house and saw his wife lying on the cot facing the sky. She was dead. The appellant told Vijay Shingate P.W. 2 that earlier on account of fear, he had mentioned that Rashida had beaten herself by a grinding stone on her mouth but, the fact was that there were quarrels between him and Rashida since the last four months and on the date of the incident, there was also a quarrel between them during which he had pressed her throat and killed her. 3. The evidence of A.P.I. Dilip Patil P.W. 12 shows that on 30-9-1994 at about 7 a.m. Mahadeo Patil P.W. 1 came along with the appellant; lodged his F.I.R.; and on its basis he registered C.R. No. 102 of 1994 under section 302, Indian Penal Code. 3. The evidence of A.P.I. Dilip Patil P.W. 12 shows that on 30-9-1994 at about 7 a.m. Mahadeo Patil P.W. 1 came along with the appellant; lodged his F.I.R.; and on its basis he registered C.R. No. 102 of 1994 under section 302, Indian Penal Code. He thereafter, took the investigation in his hand and seized the clothes on the person of the appellant namely pant, shirt and bandi under a panchanama, in the presence of the public panch Rajaram Jadhav P.W. 6. He thereafter, conducted the investigation in the usual manner and on 30-10-1994, handed over the same to A.P.I. Dilip Kadam P.W. 13, who after completing the same, submitted the charge-sheet on 29-12-1994. 4. Going backwards, the autopsy on the corpse of Rashida was conducted on 30-9-1994, between 3 p.m. to 4.30 p.m. by Dr. Dilip Ambole P.W. 11 who found on it the following ante-mortem injuries:--- "1. Bruises area about 6 inch x ½ inch on frontal aspect of neck just below chin and above the thyroid cartilage. 2. On lateral aspect of the above injury, left side neck 3 to 4 bruising area seen just below angle of mandible, one bruising area on right side of sternal cleiodomastroid, 1 inch below the angle from mandible, size 1 inch x ½ inch. 3. Haemorrhages seen in sub-custaneous tissue of front and side of neck. 4. Small bruising area are seen on muscles of neck, thyroid cartilage and on hyoid bone. 5. Fracture of hyoid bone." In the opinion of Dr. Ambole the deceased died of asphyxia due to throttling. In the opinion of the Autopsy Surgeon, the ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. 5. The case was committed to the Court of Sessions where the appellant was charged for the offence punishable under section 302, Indian Penal Code to which charge he pleaded not guilty and claimed to be tried. 6. During trial, in all the prosecution examined 13 witnesses. We may straight away mention that there is no eye-witness of the incident and the case rests entirely on circumstantial evidence. The learned trial Judge believed some of the circumstantial evidence adduced before him and convicted and sentence the appellant in the manner stated in para 1, above. Hence, this appeal. 7. We may straight away mention that there is no eye-witness of the incident and the case rests entirely on circumstantial evidence. The learned trial Judge believed some of the circumstantial evidence adduced before him and convicted and sentence the appellant in the manner stated in para 1, above. Hence, this appeal. 7. We have heard the learned Counsel for the parties and perused the entire material on record. We are constrained to observe that there is sufficient circumstantial evidence to connect the appellant with the crime. We have reached the said conclusion bearing in mind that circumstantial evidence can only be made a basis for conviction if:--- (a) the circumstances are firmly established against the accused; (b) they are wholly consistent with the inference of the guilt of the accused; (c) they are wholly inconsistent with the inference of innocence of the accused; and (d) they are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused. 8. Having gone through the entire record and judgment of the trial Court, we find that the circumstantial evidence available against the appellant is as under: (i) the extra judicial confessions made by the appellant to the Police Patil Mahadeo Patil, P.W. 1 and the appellants neighbour Vijay Shingate P.W. 2; (ii) motive for the appellant to kill the deceased; (iii) presence of the corpse of the deceased inside the house wherein the appellant lived with the deceased. (iv) presence of blood bearing O group on the manila shirt seized from the appellant at the time of his arrest; (v) false defence of the appellant; and (vi) failure of the appellant to discharge the statutory burden on him in terms of section 106 of the Indian Evidence Act. So far as circumstance (i) is concerned, the learned trial Judge has placed no reliance on it. He has rejected the extra-judicial confession made by the appellant to Mahadeo Patil P.W. 1 on the ground that since he was a Police Patil, a confession made to him would be hit by section 25 of the Indian Evidence Act. In reaching the said conclusion, he has placed reliance on a Division Bench decision of our Court reported in 1978 Mh.L.J. 244 : 1978 Cri.L.J. 891 (Vistari Narayan Shebe, Appellant v. The State of Maharashtra, Respondent)1. In reaching the said conclusion, he has placed reliance on a Division Bench decision of our Court reported in 1978 Mh.L.J. 244 : 1978 Cri.L.J. 891 (Vistari Narayan Shebe, Appellant v. The State of Maharashtra, Respondent)1. The learned trial Judge has also rejected the extra judicial confession made by the appellant to Vijay Shingate P.W. 2 on the ground that it was made in the presence of Mahadeo Patil, the Police Patil, and consequently was hit by section 26 of the Indian Evidence Act. 9. However, in our view, the other circumstances are firmly established against the appellant and conclusively lead to the inference that he committed the murder of his wife. We now propose examining each of them. We begin with the circumstance (ii) namely the motive. We find that the evidence of motive has been furnished by Jan Mohammad Mulla P.W. 7, the father of the deceased. We have set out the motive exhaustively while setting all the prosecution case in para 2 of our judgment. Consequently, we do not intend graphically re-counting it. In short, the motive deposed to is that the appellant, after his marriage with the deceased on 12-4-1993 asked her to get from her father one gold chain of 1½ tola and Rs. 2000/- in cash and for her failure to do so, used to harass and beat her. This was told by the deceased to Jan Mohammad Mulla P.W. 7 when she came at her house and when he used to visit her house. The evidence of Jan Mohammad Mulla P.W. 7 shows that about two weeks before the incident i.e. on 16-9-1994, the appellant and the deceased came to his house and resided there for four days. The appellant reiterated his demand for the gold chain and cash and plainly told him that in case, the same was not met he would leave the deceased. The evidence of Jan Mohammad Mulla also shows that when on 28-9-1994, he along with the deceased went to the house of the appellant in Mahagaon, the appellant asked him whether he had brought the cash and the gold chain and when he told him that he had not brought them, as his economic condition was bad, the appellant told him that he would not allow the deceased to reside in the house. However, Jan Mohammad Mulla told him that he will make the arrangements within four days and he should permit the deceased to stay with him. The evidence of Jan Mohammad Mulla P.W. 7 shows that the appellant told him that in case he left the deceased at his house, she would not be allowed to live. His evidence shows that the next morning, he went to his house and the next day, he received the message about the death of his daughter. We have gone through Jan Mohammads evidence and we find it to be implicitly reliable. Although, he was subjected to an extensive cross-examination but, nothing could be extracted therefrom which would dislodge his evidence on motive. In our view, the evidence of Jan Mohammad Mulla shows that the appellant had a very very strong motive to commit the murder of the deceased. We feel that the circumstance of motive is established and is a very clinching circumstance against the appellant. 10. We now take up the circumstance (iii) namely the recovery of dead body from the house wherein the appellant lived with the deceased. In respect of this circumstances, the prosecution has adduced weighty evidence of witnesses Mahadeo Patil P.W. 1 (Police Patil) Vijay Shengate P.W. 2, Rujoy Bardeskar P.W. 4 and Dilip Patil P.W. 12. Evidence of the said witnesses shows that they found the corpse of the deceased in the house wherein the appellant was living with her. It is pertinent to mention that the evidence of Vijay Shengate P.W. 2 shows that at about 12.15 to 12.30 a.m. on the night of 29th/30th September, 1994, the appellant came and called him and hold him that his wife had assaulted herself with a grinding stone and was dead. His evidence shows that immediately thereafter, he went to the house of the appellant and found her corpse and after about half an hour to 45 minutes, the Police Patil (Mahadeo Patil) came. The evidence of Mahadeo Patil shows that the appellant came to call him at about 1 a.m. to 1.15 a.m. on the night of 29th/30th September, 1994 and told him that he had strangulated his wife and when he went to his house immediately thereafter, he found her corpse. The evidence of Mahadeo Patil shows that the appellant came to call him at about 1 a.m. to 1.15 a.m. on the night of 29th/30th September, 1994 and told him that he had strangulated his wife and when he went to his house immediately thereafter, he found her corpse. We have gone through the evidence of the said four witnesses examined by the prosecution, to prove this circumstance and we feel that their evidence clinchingly shows that the dead body of the deceased was recovered from the house of the appellant. 11. We also feel that circumstance (iv) namely presence of blood of O group on the manila shirt which the appellant was putting on when he was apprehended by the police on 30-9-1994 itself incriminates him because, the Chemical Analyst also found blood of the said group on the clothes of the deceased. It is pertinent to mention that the recovery of the said shirt has been established by the prosecution through the evidence of the public panch Rajaram Jadhav P.W. 6 and the Investigating Officer Dilip Patil P.W. 12 and although they were cross-examined, their evidence in respect of the recovery of the manila shirt could not be shaken. It is also pertinent to mention that both of them were independent witnesses who had no rancour or ill-will against the appellant. In our view, this circumstance also goes against the appellant. 12. We also feel that the circumstance (v) namely that the appellant took a false defence has also been established beyond reasonable doubt. In respect of this circumstance, we have the evidence of Vijay Shengate P.W. 2 and medical evidence. He stated that on the night of 29th/30th September, 1994 at about 12.15 to 12.30 a.m., the appellant came and told him that his wife had assaulted herself with a grinding stone on her mouth and was dead. This defence was obviously a tissue of lies because, not only the Autopsy Surgeon not found no injuries attributable to a grinding stone on the mouth of the deceased but, also because he found four bruises on her neck which are incompatible with this defence. It is pertinent to mention that the cause of death furnished by the Autopsy Surgeon, which was asphyxia due to throttling is also incompatible with this defence. It is well-settled that in cases of circumstantial evidence, false defence is a incriminating circumstance. 13. It is pertinent to mention that the cause of death furnished by the Autopsy Surgeon, which was asphyxia due to throttling is also incompatible with this defence. It is well-settled that in cases of circumstantial evidence, false defence is a incriminating circumstance. 13. We now come to the last circumstance namely the failure of the appellant to discharge the statutory burden fastened on him by section 106 of the Indian Evidence Act. The said section provides that "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". Since the deceased was killed in the house of the appellant and her dead body was recovered therefrom, it was incumbent/on him to explain how she was killed. We have earlier seen that the defence spelt out by him immediately after the incident to Vijay Shengate P.W. 2 namely that she had beaten herself on her mouth with a grinding stone, is false. It is true that in his statement under section 313, Criminal Procedure Code the appellant when confronted with the circumstance that the dead body was recovered from his house, stated that it was false but, we are not prepared to accept this denial of his in view of the evidence of the four prosecution witnesses referred to above, which unequivocally shows that the dead body was recovered from the house of the appellant. In our view, the failure of the appellant to discharge the statutory/burden under section 106 of the Indian Evidence Act is a final nail in his coffin. 14. We feel that the aforesaid circumstances namely circumstances (ii) to (vi), have been firmly established and conclusively lead to the inference that the appellant committed the murder of his wife and are incompatible with his innocence. 15. For the said reasons, we confirm the conviction and sentence of the appellant for the offence under section 302, Indian Penal Code and dismiss this appeal. The appellant is in jail and shall serve out his sentence. Appeal dismissed. -----