JUDGMENT - ZOTING D.S., J.:---This is an appeal preferred by the original accused Nos. 1 and 4 against the judgment and order of conviction dated 6-3-1997, passed by the learned Additional Sessions Judge, Dhule, in Sessions Case No. 95 of 1996 against the appellants, whereby appellant No. 1 original accused No. 1 has been convicted and sentenced for offence punishable under section 302 of Indian Penal Code to undergo life imprisonment and to pay a fine of Rs. 500/-, in default to suffer further R.I. for three months and the appellant No. 2 original accused No. 4 has been convicted and sentenced for offence punishable under section 302 r/w section 109 of Indian Penal Code to suffer life imprisonment. 2. Facts, which are not in dispute, may be briefly stated as under : Deceased Laxmibai alias Mangalabai was the first wife of the appellant No. 1 and the appellant No. 2 is the second wife of appellant No. 1. Brijlal (P.W. 5) is the real brother of deceased Laxmibai, whereas Reshambai (P.W. 2) was the mother of deceased. Yeshwant (P.W. 1) is the cousin of the deceased. The appellant No. 1 was married to deceased Laxmibai about 15 years prior to her death. During her wedlock, she got three daughters from the appellant No. 1, but she was not having any son from him. In all 8 accused including the appellants were put on trial for the aforesaid offence, however, except appellants the remaining accused were acquitted of the offence with which they were charged. The remaining accused are the relatives of the appellants. They all are residents of village Nandane, taluka and District Dhule. 3. Prosecution case is as under : As the appellant No. 1 was not having any son from deceased Laxmibai, he kept appellant No. 2 in his house as his mistress with a view to get a son from her. Till then, there was no dispute between the appellant No. 1 and deceased, however, the differences arose because the appellant No. 1 brought and kept appellant No. 2 at his house. It is further alleged that thereafter Laxmibai remained pregnant for fourth time. During the said period, appellant No. 2 also remained pregnant from appellant No. 1. Till then, there was no dispute between the appellant No. 1 and deceased, however, the differences arose because the appellant No. 1 brought and kept appellant No. 2 at his house. It is further alleged that thereafter Laxmibai remained pregnant for fourth time. During the said period, appellant No. 2 also remained pregnant from appellant No. 1. It is further alleged that the appellant No. 1 and her relatives entertained a belief that in case Laxmibai delivers a son the appellant No. 1 could not keep appellant No. 2 in his house and, therefore, appellant No. 2 instigated the appellant No. 1 to drive deceased Laxmibai from the house or to kill her. The other co-accused, therefore, started troubling Laxmibai. Laxmibai had disclosed her brother and other relatives about such ill-treatment from the accused persons including the appellants when she had gone to village Dusane on the eve of the marriage of her brother. The brothers and relations of deceased Laxmibai persuaded the appellant No. 1 to treat Laxmibai properly. Appellant No. 1 gave assurance that he would treat Laxmibai properly. Since the date of the marriage of her brother, deceased Laxmibai was staying at her paternal house. The brothers and mother of Laxmibai sent her along with accused to village Nandane on 18-3-1996. 4. The incident occurred on the intervening night of 25th and 26th March, 1996. The appellant No. 1 was living with his children, deceased Laxmibai and his second wife appellant No. 2 in the house situated in village Nandane. The agricultural land of the appellant No. 1 is situated at Nandane shivar about 3 kms. away from village Nandane. He was having a hut in the field. On the night of 25th March, 1996, the appellant No. 1 had taken deceased Laxmibai to his field at about 9.30 p.m. On the way to the field, Nimba (P.W. 6) and his driver Gorakh Patil (P.W. 7) gave lift to them in the car and dropped them near the field. The appellant No. 1 took deceased Laxmibai to his field. They slept in the said hut. It is alleged that during mid night of 25th and 26th March, 1996, the appellant No. 1 beat his wife Laxmibai with a stick and an axe and caused her death. The appellant No. 1 took deceased Laxmibai to his field. They slept in the said hut. It is alleged that during mid night of 25th and 26th March, 1996, the appellant No. 1 beat his wife Laxmibai with a stick and an axe and caused her death. The appellant No. 1 with a view to make a show that Laxmibai was killed by somebody else, ran to the village and informed the villagers accordingly. The news of death of Laxmibai was spread in the village Nandane. In the morning, Dattu Patil and Suklal Patil both resident of Burzad carried the message of Laxmibai's death to the parents and upon getting the said message, Brijlal Patil (P.W. 5) real brother of Laxmibai and Yeshwant Patil (P.W. 1) cousin of Laxmibai along with number of others went by tractor to Burzad. Leaving the tractor, Brijlal (P.W. 5) and Yeshwant (P.W. 1) proceeded on a motor cycle to the field where Laxmibai was lying dead. When they reached in the field, they found dead body of Laxmibai in front of the hut and they noticed several injuries on her person. Therefore, they proceeded on motor cycle to Songir Police Station and Yeshwant (P.W. 1) lodged the complaint at the said Police Station alleging that Laxmibai was killed by her husband and relatives and the appellant No. 2 as well as the other co-accused instigated him to kill Laxmibai. Offence at C.R. No. 27 of 1996 came to be registered on the basis of the said report for offence under sections 498, 302 r/w 34 of Indian Penal Code at Songir Police Station on 26-3-1996 at about 4.00 p.m. P.S.I. Pathare was out of station, therefore, P.S.I. Sonwane registered the crime. He proceeded to the place of the incident, held inquest over the dead body of deceased and drew inquest panchanama Exhibit 14 in presence of panchas. The dead body was forwarded to Civil Hospital, Dhule. He drew panchanama of scene of offence as per Exhibit 29. At that time, he found some pieces of bangles lying near the place where the dead body was lying and some pieces of bangles in the cart. He had also noticed some blood stains on the wooden bar of the cart. He attached the said bangle pieces. He collected the chips of the wooden bar which were stained with blood. At that time, he found some pieces of bangles lying near the place where the dead body was lying and some pieces of bangles in the cart. He had also noticed some blood stains on the wooden bar of the cart. He attached the said bangle pieces. He collected the chips of the wooden bar which were stained with blood. All the accused were arrested at 9.30 p.m. at village Nandane on 26-3-1996. P.S.I. Pathare (P.W. 13) returned to the Police Station. Further investigation was, therefore, carried out by him. Dr. Bhusale (P.W. 14) conducted autopsy over the dead body of deceased and prepared postmortem report. After postmortem examination, clothes of deceased were seized. Appellant No. 1 while in custody made a disclosure about the whereabouts of the weapons. He produced the stick and axe from the heap of husk from the place adjoining the hut situated in his field. They were attached under panchanama Exhibit 27. The appellant No. 1 was having minor injury on his head, therefore, he was referred to Civil Hospital at Dhule for examination. His clothes were seized, blood stains were found on it. Seized articles and the blood sample of appellant No. 1 was sent to Chemical Analyser for chemical analysis. After completion of investigation, both the appellants along with other co-accused were charge-sheeted for the aforesaid offence in the Court of Judicial Magistrate, First Class, Dhule. 5. Offence under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions, therefore, the learned Magistrate vide his order dated 5-7-1996 committed the case to the Court of Sessions for trial according to law. The accused were produced before the Additional Sessions Judge, Dhule. Charge under section 302 of Indian Penal Code was framed against appellant No. 1 and under section 302 r/w section 109 of Indian Penal Code against appellant Nos. 2 to 8. Charge under section 498-A r/w section 34 of Indian Penal Code was also framed against all the accused. Charge was read over and explained to them. They pleaded not guilty and claimed to be tried. According to both the appellants, they never ill-treated deceased Laxmibai. 2 to 8. Charge under section 498-A r/w section 34 of Indian Penal Code was also framed against all the accused. Charge was read over and explained to them. They pleaded not guilty and claimed to be tried. According to both the appellants, they never ill-treated deceased Laxmibai. As regards the occurrence of the incident, the appellant No. 1 put forward his defence that in those days wheat crop was being harvested in his field and some bags of wheat were also kept in the field and on the night of incident they went to the field and slept in the field. However, at 4.00 a.m. thieves appeared in the field and assaulted him and his wife. He managed to escape from the clutches of the thieves and ran towards village Nandane. He disclosed this fact to the villagers, then he took 4-5 persons of his village to the field. When they reached the field, the thieves had disappeared. Yeshwant (P.W. 1) came there in the next morning. He demanded an amount of Rs. 10,000/- from him and threatened him if he failed to pay the said amount, the would lodge complaint against him. As he could not pay the amount, complainant Yeshwant (P.W. 1) made a false complaint against him. 6. Appellant No. 2 Bhimabai pleaded that she has been taken as the second wife of the appellant No. 1 with the consent of deceased Laxmibai. According to her, there was no dispute between Laxmibai and her and they were living together happily and both of them remained pregnant from appellant No. 1. She denied that she abetted the commission of the crime. They have not adduced any evidence either oral or documentary in their defence. 7. After hearing the arguments advanced by both the parties and after going through the evidence of prosecution witnesses, mainly, consisting of the circumstantial evidence, the learned Additional Sessions Judge, Dhule held both the appellants guilty of the offence punishable under section 302 of Indian Penal Code, however, they along with co-accused are acquitted of offence punishable under section 498-A read with section 34 of Indian Penal Code. The remaining accused are acquitted of offence punishable under section 302 of Indian Penal Code. 8. The remaining accused are acquitted of offence punishable under section 302 of Indian Penal Code. 8. Being aggrieved by the order of conviction and sentence, passed against both the appellants for offence committed under section 302 of Indian Penal Code, they have preferred this appeal challenging the said conviction and sentence before this Court. We have heard the arguments advanced by Shri M.B. Sabnis, learned Counsel for the appellants and Shri K.B. Choudhary, learned A.P.P. for respondent. 9. Shri Sabnis, learned Counsel for the appellants has urged that the conviction passed against both the appellants rests solely on the evidence of Akkabai (P.W. 11), but according to him, if regard be had to the deposition in the cross-examination, it would appear that her entire testimony is of no use. It is, therefore, submitted that there is absolutely no direct evidence nor satisfactory circumstantial evidence to implicate the appellants in the crime. He assailed judgment of the trial Court contending that the learned trial Judge has committed error in rejecting the defence story putforward by the appellants that thieves committed theft of wheat from the field of the appellants and they assaulted deceased Laxmibai, as a result of which she died. It is further contended on behalf of the appellants that the circumstances relied upon to arrive at the findings of guilt against the appellants are not firmly established leading to the inference of the guilt of the accused. He further pointed out that certain circumstances against the appellants especially as regards the seizure of blood stained shirt and stick are wrongly relied upon by the trial Court, though no opportunity was given to the accused to explain these circumstances during their examination under section 313 of Criminal Procedure Code. Thus, according to him, the evidence on record is not sufficient to hold the appellants guilty of the offence with which they are charged. 10. As against this, the learned Additional Public Prosecutor submitted that though there is no direct evidence against the appellants, there is ample trustworthy circumstantial evidence against them and the said evidence unerringly leads to the inference of the guilt of the appellants. He submitted that Akkabai (P.W. 11) is the daughter of the appellant No. 1 and there is no reason for her to give false evidence against him. He submitted that Akkabai (P.W. 11) is the daughter of the appellant No. 1 and there is no reason for her to give false evidence against him. He further submitted that though the circumstances as regards seizure of the blood stained shirt and human blood found on the stick recovered in consequence of the information given by appellant No. 1 are not put to the accused, it is not pointed out by the appellants as to how prejudice is caused to them. He further submitted that copies of Chemical Analyser's report were already given to the appellants and they admitted the genuineness of the said documents and, therefore, no question of causing any prejudice to them on account of omission to put questions with reference to Chemical Analyser's report arises in this case. He further submitted that if at all it is considered that it will cause prejudice to the appellants, this Court can also put such questions to the appellant No. 1 if it finds fit to do so. He has fully supported the judgment of the learned trial Judge. 11. Having heard the arguments advanced by both the parties before this Court and after going through the entire evidence of the prosecution, we find that there is ample cogent, reliable and trustworthy evidence in the form of the circumstances, which are firmly established by the prosecution to sustain the conviction and sentence passed by the learned Additional Sessions Judge against appellant No. 1 only for the following reasons. In support of its case, prosecution examined as many as 15 witnesses, as under : Medical Evidence : P.W. 14 - Dr. Bhusale. P.W. 15 - Dr. Kulkarni. Panch : P.W. 3 - Prabhakar Sonar. Circumstantial P.W. 1 - Yeshwant. Evidence : P.W. 2 - Reshambai. P.W. 4 - Gorakh. P.W. 5 - Brijlal. P.W. 6 - Nimba. P.W. 7 - Gorakh. P.W. 8 - Jijabai. P.W. 9 - Manjula. P.W. 10 - Shantibai. P.W. 11 - Akkabai. Investigating P.W. 12 - Shankar. Officers : P.W. 13 - Ramnath. 12. The fact that deceased Laxmibai alias Mangalabai died an unnatural death on the intervening night of 25th and 26th March, 1996, in the field of appellant No. 1 at Nandane Shiwar has not come to be disputed in any manner by or on behalf of the appellants. Inquest panchanama was drawn by Shankar (P.W. 12) on 26-3-1996. 12. The fact that deceased Laxmibai alias Mangalabai died an unnatural death on the intervening night of 25th and 26th March, 1996, in the field of appellant No. 1 at Nandane Shiwar has not come to be disputed in any manner by or on behalf of the appellants. Inquest panchanama was drawn by Shankar (P.W. 12) on 26-3-1996. At that time he noticed several injuries on the person of deceased Laxmibai. There is also reference of such injuries in the first information report Exh. 22 lodged by complainant Yeshwant (P.W. 1). 13. The dead body was referred to the Medical Officer Dr. Bhusale (P.W. 14) for postmortem examination. He deposed that on 27-3-1996 he conducted autopsy over the dead body of deceased Laxmibai between 11.00 a.m. and 12.00 noon and on external examination, he noticed following 17 injuries : "(1) Contusion over right thigh upper 1/3 laterally. It is linear, horizontal of size 13 cm. x 2.5 cm. bluish colour. (2) Contusion over right thernar aspect of size 4 x 3.2 cm. bluish colour. (3) Abraded contusion on left forearm laterally middle 1/3 of size 10 cm. x 3.2 cm. reddish blue colour. (4) Contusion over left thenar aspect of size 4.1 x 2.3 cm. bluish colour. (5) Contusion over palm at base of ring finger 3 x 2 cm. bluish colour. (6) Contusion on left chest lateral side at 5.6.7th ribs of size 6 x 2 cm. obliquely bluish colour. (7) Abrasion on right cheek just below right eye 2.1 cm. x 1.2 cm. size reddish colour. (8) Contused abrasion on left leg lower 1/3 ant. or size 6.2 x 4.1 cm. bluish red colour. (9) Abrasion on medial malleolus left leg horizontally of size 2.1 x 1.2 cm. reddish colour. (10) Contused abrasion on lower 1/3 right leg ant. of size 6 x 5.3 cm. with tibia fibula right size lower 1/3 bluish red colour. (11) Abrasion over right knee ant. of size 3.2 x 2.1 cm. reddish colour. (12) Abrasion on right shoulder 2.1 x 1.2 cm. reddish colour. (13) C.L.W. on right fore arm laterally middle 1/3 of size 4 x 1.2 cm. x bone deep reddish colour. (14) Contused abrasion on right elbow laterally of size 2 x 1.2 cm. reddish colour. (15) Abrasion on left elbow laterally of size 2.1 x 2.2 cm. reddish colour. (12) Abrasion on right shoulder 2.1 x 1.2 cm. reddish colour. (13) C.L.W. on right fore arm laterally middle 1/3 of size 4 x 1.2 cm. x bone deep reddish colour. (14) Contused abrasion on right elbow laterally of size 2 x 1.2 cm. reddish colour. (15) Abrasion on left elbow laterally of size 2.1 x 2.2 cm. reddish colour. (16) Abrasion on back just below right scapular region of size 2.5 x 2 cm. reddish colour. (17) Contusion on lower back left side of size 2.1 x 1.2 cm. bluish colour." He has mentioned all these injuries in Column No. 17 of postmortem report Exhibit 48. On internal examination, he noticed fracture of right tibia fibula lower 1/3rd with blood and clots. He had also noticed contusion under the scalf of both the temporal parietal region. He described the internal damage in column Nos. 18 and 19 of the postmortem report. He stated that all these injuries were ante mortem. He opined that except injury No. 13, all injuries are possible by stick and injury No. 13 is possible by axe. According to him, cause of death of deceased Laxmibai was hemorrhagic shock following multiple injuries on body with fracture of right tibia fibula. He has also stated that on examination of uterus he noticed foetus of 28 weeks having length of 36 cms. This clearly shows that Laxmibai was pregnant and the age of foetus was about 7 months. There is absolutely no cross-examination on all the facts deposed to by the Medical Officer. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt in this case that deceased Laxmibai alias Mangalabai died homicidal death. 14. Now the next vital question that arise for our consideration is whether the prosecution has succeeded in proving that the appellants are responsible for the homicidal death of deceased Laxmibai. After going through the evidence of all the 15 witnesses examined by the prosecution, we have discovered that none of them is an eye-witness and the entire prosecution case rests on the circumstantial evidence and the circumstances which emerge from the prosecution evidence are : "1) Motive. Deposed to by Yeshwant (P.W. 1) and Brijlal (P.W. 5). 2) Deceased Laxmibai was last seen together in the company of appellant No. 1. Deposed to by Nimba (P.W. 6) and Gorakh (P.W. 7). Deposed to by Yeshwant (P.W. 1) and Brijlal (P.W. 5). 2) Deceased Laxmibai was last seen together in the company of appellant No. 1. Deposed to by Nimba (P.W. 6) and Gorakh (P.W. 7). 3) Laxmibai was reluctant to go to the field. Conduct of appellant No. 1 before the incident and subsequent to the incident. Deposed to by Akkabai (P.W. 11). 4) Discovery of stick and axe at the instance of appellant No. 1. Deposed to by Prabhakar (P.W. 3) and Ramnath (P.W. 13). 5) Seizure of blood stained shirt of appellant No. 1. Deposed to by Prabhakar (P.W. 3) and Ramnath (P.W. 13). 6) Injuries on person of appellant. Deposed to by Kulkarni (P.W. 15). 7) False defence of assault on Laxmibai by thieves put forward by appellant No. 1." 15. As we have mentioned earlier, the case rests on circumstantial evidence, it is well settled that the circumstantial evidence can be made a basis for conviction if :- (a) the circumstances are firmly established; (b) they unerringly lead to the inference of the guilt of the accused; (c) or wholly inconsistent with inference of the innocence of the accused; and (d) are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused. We have borne in our mind the aforesaid principles in reaching our conclusions. 16. We now examine each of the circumstances. We begin with the motive. In respect of the motive, we have the evidence of Yeshwant (P.W. 1) and Brijlal (P.W. 5). The motive suggested by the prosecution for commission of the offence is that deceased Laxmibai had only 3 daughters and no son, but the appellant No. 1 wanted a son and, therefore, he brought appellant No. 2 at his house as his second wife. Thereafter deceased Laxmibai remained pregnant for fourth time. During the said period, appellant No. 2 also remained pregnant from appellant No. 1 and, therefore, appellant No. 2 under the apprehension that if deceased Laxmibai gives birth to male child, the purpose of appellant No. 1 of getting son would be served, as such she had apprehension that the appellant No. 1 could drive her. During the said period, appellant No. 2 also remained pregnant from appellant No. 1 and, therefore, appellant No. 2 under the apprehension that if deceased Laxmibai gives birth to male child, the purpose of appellant No. 1 of getting son would be served, as such she had apprehension that the appellant No. 1 could drive her. Therefore, she and her parents instigated the appellant No. 1 to finish Laxmibai with a view to make it possible for Bhimabai to live at his house without any obstruction and for seeking said objective, they started harassing deceased Laxmibai. With a view to establish this circumstance, the prosecution relies on the evidence of the above referred two witnesses. Yeshwant (P.W. 1) is the cousin of deceased Laxmibai who lodged the first information report Exhibit 22. He gave evidence that he and the members of the family of deceased Laxmibai had no knowledge about performance of marriage by appellant No. 1 with appellant No. 2 till the time Laxmibai attended the marriage of her younger real brother. He stated that Laxmibai (Mangalabai) came to village Dusane on the eve of the marriage of her brother Vikram. She was accompanied by the appellant No. 1. When the marriage ceremony of Vikram was over, she told him that the appellant No. 1 brought appellant No. 2 in the house as Mistress and started ill-treating her. He further stated that Laxmibai further told him that both she as well as appellant No. 2 were pregnant and, therefore, the appellant No. 1 was beating and troubling her by saying that there would be an obstacle to Bhimabai in case Laxmibai would deliver a son. He further stated that Laxmibai further told that the appellant No. 1 was coercing her to leave his home and go to reside to her parental home and she apprehended danger to her life if she returned to her matrimonial house and live with the appellants. He further stated that as Laxmibai had come for the marriage of her brother, she came to the house of her mother with her husband. The visit of deceased Laxmibai with her husband on the eve of marriage of Vikram to the maternal house appears natural and it is not seriously challenged. He further stated that as Laxmibai had come for the marriage of her brother, she came to the house of her mother with her husband. The visit of deceased Laxmibai with her husband on the eve of marriage of Vikram to the maternal house appears natural and it is not seriously challenged. This witness further stated that he and parents of deceased persuaded the appellant No. 1 to treat Laxmibai well and on his assurance to treat Laxmibai properly, they sent Laxmibai along with appellant No. 1 to his house on 18-3-1996. He further stated that on 26-3-1996, he received message through Dattu Patil and Sukhlal Patil residents of Burzad that Mangalabai was lying dead in the field of appellant No. 1 at Nandane and on that information, he along with Brijlal (P.W. 5) and others visited the field of the accused where Laxmibai was lying dead and on noticing the injuries they went to the Police Station and lodged report. His evidence is corroborated by the first information report Exh. 22 lodged by him immediately when he came to know about death of Laxmibai and after seeing several injuries on her person when he visited the place where Laxmibai was lying dead. His evidence is further fully corroborated by the testimony of Brijlal (P.W. 5). The evidence of both the witness does not suffer from material contradictions and discrepancies. The fact that deceased Laxmibai was pregnant finds support in the medical evidence given by Dr. Bhusale (P.W. 14). It may be noted that the incident occurred on the intervening night of 25th and 26th March, 1996, whereas the apprehension expressed by deceased Laxmibai about danger to her life was just few days i.e. on the date of marriage of Vikram that had taken place on 16-3-1996. It may be noted that she was brought back from her maternal house 8 days prior to the incident. It may also be noted that deceased Laxmibai was at the advance stage of pregnancy as is evident from the medical evidence and under such circumstances, the evidence of both these witnesses appears consistent with the circumstances and the apprehension expressed by deceased Laxmibai which clearly reveals the motive for commission of the offence. 17. Coming to the next circumstance of last seen together. We have the evidence of Nimba (P.W. 6) and Gorakh the driver (P.W. 7) both residents of Burzad. 17. Coming to the next circumstance of last seen together. We have the evidence of Nimba (P.W. 6) and Gorakh the driver (P.W. 7) both residents of Burzad. Nimba (P.W. 6) purchased Ambassador car and Gorakh (P.W. 7) was driving the said car for going to their village from Jalgaon and on their way to the village, they noticed appellant No. 1 and deceased Laxmibai during night time going by the road and as Nimba (P.W. 6) had acquaintance with the appellant No. 1, he stopped the car and gave lift to the appellant No. 1 and his wife upto their field. This had happened at about 9.00 p.m. on 25-3-1996. The evidence of both these witnesses is corroborated by each other and the same is not disputed by the appellant No. 1 in his examination under section 313 of Criminal Procedure Code. The dead body of deceased was found in the morning in the field of appellant No. 1. It may be noted that appellant No. 1 has fairly admitted in his examination under section 313 of Criminal Procedure Code that he had gone to the field with deceased Laxmibai and stayed in the hut during night time. The deceased Laxmibai was last seen in the company of the appellant No. 1 and, therefore, what had happened during the night is within the exclusive knowledge of appellant No. 1. Therefore, burden of proving it is on him as per the provisions of section 106 of the Indian Evidence Act. The same will be considered in the light of the defence of the accused that will be discussed at appropriate place. However, prosecution has fairly established that deceased Laxmibai was last seen with the appellant No. 1 on the fateful night of incident and after few hours she was found lying dead in his field. 18. The next circumstance relied upon by the prosecution is regarding the conduct of the accused prior to the incident and after the incident. In this regard, the prosecution has relied on the evidence of Akkabai (P.W. 11) the daughter of the accused. She was a child of 11 years age at the time of giving evidence. 18. The next circumstance relied upon by the prosecution is regarding the conduct of the accused prior to the incident and after the incident. In this regard, the prosecution has relied on the evidence of Akkabai (P.W. 11) the daughter of the accused. She was a child of 11 years age at the time of giving evidence. After putting certain questions so as to satisfy whether the child understands the importance of sanctity of the oath and whether she gives rational answers, the learned trial Judge satisfied himself that Akkabai (P.W. 11) is a competent witness. She gave evidence that, on that day her father had returned from Sindkheda. He asked her to bring Rs. Ten from her paternal aunt Shewanta, so she went there and brought an amount from her. Her father (appellant No. 1) took that money from her and went out and he returned in drunken condition. She further stated that her father then asked her mother to go with him in the field but her mother was reluctant to go with him in the field. She has categorically stated that her father took her mother to the field against her will. In her cross-examination she stated that during dawn time, her father came and informed her grant-father and grand-mother to go with him as thieves beat him and her mother. The statement clearly indicates that on the fateful night of the incident the appellant No. 1 took deceased Laxmibai to his field though she was not willing to go there with him and before dawn time the appellant came up with the story that thieves assaulted her. When this witness went to the field she found her mother lying dead in the field with several injuries on her person. It is not the case of the appellant No. 1 that he brought this fact to the notice of Police Patil or Kotwal of the village. If story put forward by appellant No. 1 was a fact, he would have definitely informed the Police Patil or Kotwal or at least send message to that effect to them. There is nothing on record to show that he informed Police Patil or any other responsible person. If story put forward by appellant No. 1 was a fact, he would have definitely informed the Police Patil or Kotwal or at least send message to that effect to them. There is nothing on record to show that he informed Police Patil or any other responsible person. In his examination under section 313 of Criminal Procedure Code, he stated that he had gone to the Police Station to lodge the report, but the police refused to record the information given by him. What he stated does not appear probable. The Investigating Officer has categorically denied that the accused No. 1 ever came to Police Station to lodge report and that the police refused to take down his report. It may be noted that there appears no reason for the police to have grudge against the appellant No. 1 so as to refuse to record his complaint. He never made such complaint to superior Police Officer. Thus the subsequent conduct of his failure to lodge a complaint before Police Patil or to the police is a circumstance which goes against him and it is inconsistent with the natural conduct a prudent person under the circumstances. 19. The next circumstances relied upon by the prosecution pertains to disclosure made by accused under section 27 of the Indian Evidence Act. In this regard, we have the evidence of P.S.I. Prabhakar Sonar (P.W. 3) and P.S.I. Ramnath Pathare (P.W. 13). Prabhakar Sonar (P.W. 3), who acted as a panch witness, gave evidence that the appellant No. 1 Haram made a disclosure about the two sticks and an axe by making a statement that he had concealed the same in the husk in the house near his hut in his field. The memorandum statement of the appellant No. 1 was recorded vide Exhibit 26. He further stated that the accused expressed his willingness to produce these articles and thereafter the accused took police and panchas to his field. He led them towards the half built house by the side of the hut in the field. He removed the husk and produced the two sticks and one axe. He identified the sticks article Nos. 4/3 and 4/4 and axe article No. 4/2 before the Court. These articles were attached under seizure panchanama Exhibit 27. The Investigating Officer Ramnath Pathare (P.W. 13) deposed the same story. He removed the husk and produced the two sticks and one axe. He identified the sticks article Nos. 4/3 and 4/4 and axe article No. 4/2 before the Court. These articles were attached under seizure panchanama Exhibit 27. The Investigating Officer Ramnath Pathare (P.W. 13) deposed the same story. Thus the evidence of Investigating Officer finds full corroboration in the testimony of this witness. The evidence of this witness is assailed by the learned Counsel for the appellants by contending that he is a habitual panch witness and as such his testimony should not be accepted. He has brought to our notice the admissions made by this witness in his cross-examination to the effect that he used to act as panch witness whenever police called him for panchanama and he gave evidence in some cases. Merely as he acted as a panch witness in some cases, his statement given on oath cannot be rejected straight way. He appears to be an honest person to accept the fact that he acted as a panch witness in some cases, though he was not confronted with any of the documentary evidence to that effect. He narrated what had occurred in his presence. His evidence appears natural and we do not find any good reason to reject his testimony, because during the cross-examination his testimony remained unshattered. The weapons i.e. axe and sticks recovered in consequence of the information given by appellant No. 1 were sent to Chemical Analyser. The report of Chemical Analyser is at Exhibit 18. Out of the two sticks, human blood was found on one of them. It is reported that no blood was detected on the axe. The learned Additional Public Prosecutor forcefully submitted that the evidence brought by the prosecution on the point of discovery of the sticks and the axe does not at all suffer from any serious infirmity. He submits that under section 27 of the Indian Evidence Act, the place of concealment within special knowledge of the accused is important. He further submits that from the evidence on record, particularly, the evidence of the panch witness Prabhakar (P.W. 3) and the Investigating Officer, it is established that the appellant No. 1 made confessional statement with regard to concealment of the blood stained weapons viz. stick, etc. and in pursuance of the said confessional statement, blood stained stick and axe were recovered from the husk. stick, etc. and in pursuance of the said confessional statement, blood stained stick and axe were recovered from the husk. According to him, discovery of the blood stained stick at the instance of the accused No. 1 is a strong circumstance in favour of the prosecution. In order to support his case, he relied upon (State of Himachal Pradesh v. Jeet Singh)1, 1999 Cri.L.J. 2025. Paras 25, 26 and 27 are important. The Supreme Court in para 25 of the judgment observed that the confessional statement made before Investigating Officer during the course of interrogation is admissible and such interrogation is usually made in absence of panchas. In view of this peculiar position of section 27 of the Indian Evidence Act, which is in the form of exception to the general rule embodied in section 25 of the Indian Evidence Act, disclosure statement need not be made in presence of panchas. Therefore, the evidence of Investigating Officer is sufficient. However, in the present case, the evidence of panch witness is also available in addition to the evidence of Investigating Officer. There appears no lacuna in the evidence brought by prosecution with regard to discovery of blood stained articles. 20. It is to be noted that section 27 allows to prove confessional statement which is made by accused whilst in police custody and provide the information which leads to discovery. Reading of section 27 makes it clear that what is allowed to prove is the confessional statement of the accused thereby recovery at the instance of accused indicates that accused must have had knowledge of it, otherwise it was impossible for police to reach there. Hence, the said statement of appellant must be true and it cannot be false. The discovery which took place proves the truth of that statement, hence why not accept the truth. Thus law permits proof of such confessional statement. Information given by accused persons in the course which sets the police machinery in motion, while the fact discovered in consequence of the said information if results as proof of source of truth, then source is admitted in evidence. Here what is admissible is the exclusive knowledge of the accused that the weapons were concealed in the husk in the half built house in the field. Here what is admissible is the exclusive knowledge of the accused that the weapons were concealed in the husk in the half built house in the field. As human blood was found on the stick, the information given by the accused affords guarantee to show thereby that the information was true and accordingly can be safely allowed to be given in evidence. At the same time, it is to be noted that section 27 cannot be proved against other accused and as such evidence of disclosure under section 27 made by appellant No. 1 can be used against the appellant No. 1 only but not against appellant No. 2. 21. The learned Counsel for the appellants contended that though human blood was detected on one of the sticks alleged to have been discovered under section 27 of the Indian Evidence Act, the Chemical Analyser could not give opinion as regards the blood group so as to connect the accused with the blood of deceased. We are not impressed with this argument. Blood was found to be of human origin. Failure to detect the group does not mean that blood struck on the stick could not have been human blood at all. Rejection of evidence regarding recovery on such a ground is not proper. In this regard, if any authority is required, it is to be found in the case of (State of Rajasthan v. Teja Ram)2, reported in 1999 Cri.L.J. 2588. 22. The next circumstance relied upon by the prosecution is the seizure of the shirt of appellant No. 1 having blood stains. The said shirt is article No. 4/1. The seizure of the said shirt is fairly established by the evidence of the panch witness. Though there appears some inconsistency in the evidence of this witness and the Investigating Officer as regards the place from where it was attached, but the evidence is consistent as regards the seizure of the said shirt from the accused and it was stained with blood which was found to be of human origin. Though there appears some inconsistency in the evidence of this witness and the Investigating Officer as regards the place from where it was attached, but the evidence is consistent as regards the seizure of the said shirt from the accused and it was stained with blood which was found to be of human origin. The evidence of the discovery of the weapons including the stick and the blood stained shirt was assailed by the learned Counsel for the appellants on the ground that the said circumstances, though used by the trial Court, was not put to the appellant No. 1 in his examination under section 313 of Criminal Procedure Code and, therefore, according to him, those circumstances could not have been legally taken into consideration. In the case of (Shivaji Sahabrao Bobade v. State of Maharashtra)3, 1973(2) S.C.C. 793 , such an issue fell for consideration. It was held that it is open to the Appellate Court to call upon the learned Counsel for the appellant to show the explanation of the circumstance against the accused and if the accused is unable to offer any plausible or reasonable explanation of such circumstance, the Court may assume that no explanation is with the accused to offer and that even if the accused had been questioned at the proper time in the trial Court, he would have furnished any good ground to get out of the circumstance on which the trial Court had relied upon. Following the aforesaid view, the Apex Court recently in the case of (State (Delhi Administration) v. Dharampal)4, J.T. 2001(9) S.C. 136 and in the case of (State of Punjab v. Naib Din)5, J.T. 2001(8) S.C. 189 laid down that in the event of an inculpatory material not having been put to the accused, Appellate Court can always make good that lapse by calling upon the Counsel for the accused to show what explanation he has as regards the circumstances established against him but not put to him. 23. In view of this legal position, the appellant No. 1, who is in jail was called upon to explain as regards the above circumstance, which was not put to him by the trial Court. 23. In view of this legal position, the appellant No. 1, who is in jail was called upon to explain as regards the above circumstance, which was not put to him by the trial Court. His further statement though recorded before this Court so as to give an opportunity to him to explain the same, he denied the fact of seizure of the shirt and finding of blood stains on the stick and the shirt. His mere denial is not sufficient. Fact remains that the human blood was found on the shirt and on the stick produced by him. Seizure of shirt stained with blood is thus one more circumstance which goes against the appellant No. 1. 24. This brings us to consider the defence putforward by the appellant No. 1. According to him, thieves are the authors of the injuries caused to the deceased Laxmibai when he along with his wife was sleeping in the hut situated in the field on the fateful night. According to him, he escaped leaving Laxmibai alone in the field and he also received minor injuries on his person as the thieves assaulted him also and committed theft of 8-9 bags of wheat. We have already pointed out that as the deceased Laxmibai was admittedly last seen in the company of appellant No. 1, the appellant has to explain what had happened as the same was within his exclusive knowledge. He has not adduced any evidence in support of his defence, though he is required to explain the circumstance, which is within his exclusive knowledge. Therefore, in the light of the evidence brought on record by the prosecution, it is to be seen whether the story putforward by the appellant is probable. He relies on the injuries on his person. There were following two injuries on his person, according to Dr. Kulkarni (P.W. 15) : (1) Single abrasion on left parietal region 2 cm. in length and (2) Two abrasions at right parietal region 2 x 3 cm. in length. He was examined on 29-3-1996. The doctor opined that these are simple injuries and these are possible by self-infliction. Dr. Kulkarni (P.W. 15) has made it clear that while recording the history, accused himself gave history of self-infliction of injuries on his person. in length and (2) Two abrasions at right parietal region 2 x 3 cm. in length. He was examined on 29-3-1996. The doctor opined that these are simple injuries and these are possible by self-infliction. Dr. Kulkarni (P.W. 15) has made it clear that while recording the history, accused himself gave history of self-infliction of injuries on his person. The accused in his examination under section 313 of Criminal Procedure Code admits the same, however, he stated that he gave such history at the instance of police. This appears incorrect as no such suggestion appears in cross-examination of both the Police Officers, namely, Shankar (P.W. 12) and Ramnath (P.W. 13). According to him, there were 7-8 thieves and it is difficult to believe that the appellant could have escaped with such a minor injuries from the clutches of the thieves. It may also be noted that if 7-8 thieves entered into the field to commit the theft, there would have been theft of ornaments of deceased Laxmibai. The learned Additional Sessions Judge observed that there were no ornaments on the person of deceased. Hence question of committing theft of ornaments does not arise. We do not agree with the said observations, because at the time of postrmortem examination, the Medical Officer Dr. Bhusale (P.W. 14) in column No. 7 specifically gave description of the clothes and the ornaments on the dead body as under : "7. Sex, apparent age, race or caste. : Female, 35 yrs. Description of clothes and of : Whitish pink coloured ornaments on the dead body : saree with design. White : blouse. Ornaments : 1) Three pairs of yellow metal ornaments in both ears. 2) White metal ring in 2nd toe both side. 3) Mangalsutra in neck (White metal black) 4) Yellow metal ornaments in left side of nose." Thus it is fairly established that though the deceased Laxmibai was wearing ornaments they were not stolen. It may be noted that thieves would not have left the place without removing such ornaments if the incident as alleged by the appellant No. 1 had ever taken place. This circumstance also falsifies the defence of the appellant No. 1. According to appellant No. 1 Laxmibai was alone when he left the field. It may be noted that thieves would not have left the place without removing such ornaments if the incident as alleged by the appellant No. 1 had ever taken place. This circumstance also falsifies the defence of the appellant No. 1. According to appellant No. 1 Laxmibai was alone when he left the field. If it was so, as compared to 7-8 thieves, Laxmibai could not have successfully offered any resistance to the thieves and, therefore, it was not necessary for them to lay such merciless assault on her. Even otherwise, if Laxmibai was alone in the field, it was not difficult for 7-8 thieves to steal away the wheat bags from the field without killing her. Moreover, there is nothing on record to presume that there were gunny bags of wheat in the field on that night. Though it has come in evidence of Akkabai (P.W. 11) that wheat crop was cut and bundles of wheat crop were collected in the field, there is no evidence that the said crop was thrashed and wheat bags were lying in the field in the night of the incident. Assuming that the wheat was thrashed and stored in the gunny bags, it was not easy to carry 8-9 bags of wheat from the field. Apart from it, if the wheat was removed by the thieves, grains of wheat would have been found lying near the hut as well as on the way used by thieves for carrying the wheat bags from the field. Nothing of this sort was noticed while making panchanama. Considering all these facts, the defence putforward by the appellant No. 1 appears false and after thought. It clearly indicates that the appellant No. 1 himself must have killed his wife and tried to make a show by putting forward a false defence of assault on his wife by thieves so as to save himself from the clutches of law. It is now well settled that false explanation given by the accused also provides the missing link of chain of circumstances as held by the Apex Court in the case of (Jalalsab Shaikh v. State of Goa)6, 2000(5) Bom.C.R. (S.C.)344. This case was based on circumstantial evidence. It is now well settled that false explanation given by the accused also provides the missing link of chain of circumstances as held by the Apex Court in the case of (Jalalsab Shaikh v. State of Goa)6, 2000(5) Bom.C.R. (S.C.)344. This case was based on circumstantial evidence. Accused was alleged to have killed his wife with pick axe and it had come in evidence that his wife and son were residing in one room of the house belonging to the witness and the accused used to come in drunken condition and assault his wife and on the fateful day of the incident in the evening the accused quarrelled with his wife and on the next morning wife of accused was found dead. The accused absconded. He raised plea that he did not reside in the room where the dead body was found. The said defence was proved to be false. Under such circumstances, the Supreme Court held that false explanation given by the appellant, as rightly held by the courts below, provides a missing link of chain of circumstances and held the accused guilty of offence punishable under section 302 of Indian Penal Code. Considering facts and circumstances of the present case before us the same observations as referred to in the above judgment can be made applicable to this case. 25. Thus, on over all consideration of facts of the case, evidence on record and the important features which have been noted by us as above, together with the circumstances proved against the appellant No. 1, cumulatively lead to one irresistible conclusion that the appellant No. 1 alone was the author of the crime and had taken a false defence that the thieves killed deceased Laxmibai. Consequently, we find that the learned trial Judge has rightly held him guilty for causing death of the deceased Laxmibai. However, the learned trial Judge has also held appellant No. 2 (original accused No. 4) responsible for the death of deceased Laxmibai with the aid of section 109 of Indian Penal Code. In this regard, it is to be noted that all these circumstances proved are against appellant No. 1 and not against the appellant No. 2 except the suspicion. It is to be noted that suspicion howsoever strong may be, cannot take place of the proof. It is well settled that the prosecution has to prove its case beyond reasonable doubt. In this regard, it is to be noted that all these circumstances proved are against appellant No. 1 and not against the appellant No. 2 except the suspicion. It is to be noted that suspicion howsoever strong may be, cannot take place of the proof. It is well settled that the prosecution has to prove its case beyond reasonable doubt. The evidence as regards abetment appears to have been relied upon by the trial Court is of Akkabai (P.W. 11), who stated that the appellant No. 2 used to tell appellant No. 1 that he should kill her mother, but she has stated this fact for the first time before Court and not before Investigating Officer in her statement recorded under section 161(3) of Criminal Procedure Code. Therefore, this clearly appears to be an improvement to involve the appellant No. 2. Similarly, she has also stated that appellant No. 1 dragged her mother from the house, though she was reluctant to go. The fact of dragging, as disclosed by this witness, for the first time in her deposition again appears to be an improvement, as the same was not stated by her in her statement recorded under section 161(3) of Criminal Procedure Code and, therefore, the same cannot be safely accepted for want of corroboration from other source. Thus there is no cogent, reliable and trustworthy evidence to show involvement of the appellant No. 2 and as such the appeal deserves to be allowed partly so far as appellant No. 2 is concerned, by setting aside the order of conviction and sentence passed against her by the trial Court. 26. Taking into consideration the 17 injuries together with the internal damage caused to the deceased Laxmibai, who was pregnant and age of foetus was about 7 months and the fact that she succumbed to the injuries immediately, the appellant No. 1 could be imputed with the knowledge as well as intention that his acts were going to cause death of deceased Laxmibai thereby constituting an offence of murder under section 300 of Indian Penal Code punishable under section 302 of Indian Penal Code. The learned trial Judge has rightly held him guilty of offence under section 302 of Indian Penal Code. The order of conviction and sentence passed against the appellant No. 1 by the learned trial Judge, therefore, deserves to be confirmed. 27. The learned trial Judge has rightly held him guilty of offence under section 302 of Indian Penal Code. The order of conviction and sentence passed against the appellant No. 1 by the learned trial Judge, therefore, deserves to be confirmed. 27. In the result, we allow the appeal partly. The order of conviction and sentence passed against the appellant No. 2 (accused No. 4) for offence punishable under section 302 r/w section 109 of Indian Penal Code is hereby quashed and set aside. She is acquitted of offence charged under section 302 r/w section 109 of Indian Penal Code. Her bail bonds shall stand cancelled. She is directed to be set at liberty. The order of conviction and sentence passed against the appellant No. 1 by the trial Court stands confirmed. Appeal partly allowed. -----