JUDGMENT ARUN MISHRA, J. The appeal has been preferred by the accused appellant aggrieved by his conviction under section 302, Indian Penal Code and sentence of Rigorous Life Imprisonment and fine of Rs. 500/- in default of payment of fine he has to undergo further three months' R.I. as per judgment dated 31-3-1999 passed by Addl. Sessions Judge, Beohari, District Shahdol. 2. The prosecution case briefly stated is that on 30-6-1998 accused committed murder of his wife Sukhmanti Bai by inflicting injury with the help of axe. Fulbariya informed village Kotwar Bhaiyalal as to commission of offence by the accused. He went immediately to the house of the accused Ban Singh, Sarpanch Shambhu, Up-sarpanch Babulal, Bhole Singh, Maha Singh etc. were also present at that time, they asked accused "what he has done", accused confessed the guilt that he had committed murder of his wife and asked village Kotwar to lodge the report at concerned police station. Jagat Bahadur, son of the accused aged 6 years also disclosed that his father had killed his mother by inflicting injury with the axe and sabbal. Shirt and Gamchha of the accused were blood stained. The prosecution further alleged that accused used to consume liquor and beat the deceased. Deceased asked the accused not to consume liquor. Marg intimation (P-13) was recorded by the police on the basis of information furnished by village Kotwar. Inquest was done, autopsy was performed, report P-14A was submitted, after due investigation first information report (P-1) was reduced in writing, offence was registered and accused was charge-sheeted. 3. The accused abjured the guilt and contended that he has been falsely implicated in the case. 4. Shri V. K. Lakhera, learned counsel appearing for appellant has submitted that Jagat Bahadur was main witness, he appears to have informed other witnesses as to the factum of the incident. He has not supported the prosecution case; hearsay evidence could not be relied upon so as to base the conviction of the appellant. 4. Shri V. K. Lakhera, learned counsel appearing for appellant has submitted that Jagat Bahadur was main witness, he appears to have informed other witnesses as to the factum of the incident. He has not supported the prosecution case; hearsay evidence could not be relied upon so as to base the conviction of the appellant. Making of extra-judicial confession by the accused to the witness examined by the prosecution was not probable and as stated by Jagat Bahadur he was not even present in the house as such making of extra judicial confession falls down, accused has been falsely implicated owing to the enmity due to Panchayat election in order to get rid of the appellant holding the post of Sarpanch, he was falsely implicated in the case, thus appellant be acquitted. Shri Lakhera has alternatively submitted that on sudden altercation it appears that accused inflicted injury on the person of the deceased, consequently it is not a case under section 302, Indian Penal Code, it would be a case under section 304-II as case falls under exception of section 300 amounting to culpable homicide not amounting to murder. 5. Shri R. S. Patel, Addl. AG appearing for State has submitted that no case is made out so as to make interference in the appeal. There is overwhelming evidence beside circumstances projected in the case and conduct of the accused indicates that he had committed the offence of murder of his wife. In case someone else was responsible for death, accused being husband should have lodged the report. Burden of proof of exception is on the accused as per section 105 of the Evidence Act. Consequently no case is made out considering the extra-judicial confession made and also the fact that accused was present in the house when independent witnesses reached the house, thus appeal being meritless, deserves dismissal. Shri R. S. Patel, Addl. AG has further submitted that it is a case of out and out murder and accused appellant has been rightly convicted under section 302 of Indian Penal Code. 6. In the instant case we have to examine the case whether prosecution has adduced the evidence so as to fasten the guilt upon the accused. Shri R. S. Patel, Addl. AG has further submitted that it is a case of out and out murder and accused appellant has been rightly convicted under section 302 of Indian Penal Code. 6. In the instant case we have to examine the case whether prosecution has adduced the evidence so as to fasten the guilt upon the accused. It is a case of murder of wife of the accused, what is the conduct of the accused, whether he has explained the fact and circumstance which were in his knowledge in case he was not accused, as provided in section 106 of the Evidence Act. It is also required to be gone into whether accused has proved the exception as burden of proving the exception is upon the accused as provided under section 105 of the Evidence Act. 7. In the instant case First Information Report was lodged as per intimation furnished by Village Kotwar Bhaiyalal. Incident took place at about 11 am on 30-6-1998. In the first intimation report it was mentioned by Bhaiyalal (PW-1) Village Kotwar that he was in the house, Fulbariya and son-in-law of the accused came to his house and informed him that Ban Singh has committed murder of his wife; on receiving the said intimation he immediately reached to the house of accused Ban Singh Sarpanch Shambhu, Up-sarpanch Babulal, Bhole Singh, Maha Singh etc. were also present at that time in the house of the accused. He made inquiry from Ban Singh what he has done, on that accused stated that he has committed murder of his wife, he should go to lodge report at concerned police station. Son of the accused Jagat Bahadur also informed that accused had inflicted injury with axe and sabbal on the head of the deceased. Clothes of the accused were blood stained. There used to be altercation between the accused and deceased as accused was habitual of consuming liquor and used to beat the deceased. Report has been lodged forthwith without any delay, name of the accused has been specifically mentioned, there is nothing to doubt the truthfulness and involvement of accused in the offence. Bhaiyalal (PW-1) has also stated in the Court that extra-judicial confession was made by the accused when he made an inquiry what he has done. Jagat Bahadur had also informed him. Bhaiyalal (PW-1) has also stated in the Court that extra-judicial confession was made by the accused when he made an inquiry what he has done. Jagat Bahadur had also informed him. Since Jagat Bahadur has denied having made the aforesaid statement, we discard the statement of Jagat Bahadur. The fact remains that accused was present in the house when the dead body of his wife was lying inside and he had made extra judicial confession. There was no enmity of village Kotwar, it could not be said that in order to get rid of the accused, he has been falsely implicated in the case. In fact he stood removed from the post of Sarpanch as admitted by his son Jagat Bahadur. 8. Babulal (PW-2) Up-sarpanch of Village Panchayat Khadakhoh also stated that deceased was present in the house and had confessed before him guilt of having committed murder of his wife, which he has stated in Para-4 of his deposition. Jagat Bahadur son of the accused appears to have won over he has not supported the prosecution case. Anand Singh (PW-4) yet another son of Ban Singh aged 7 years could not be examined, his statement was not recorded as he kept quiet in the Court, thus Court was unable to record his statement as mentioned by the Court. Obviously he was not interested in deposing against his father. In case offence was committed by someone else his both sons should have deposed. Whatever that may be, we discard deposition of Jagat Bahadur (PW-3) as he has not supported the prosecution case. Maha Singh (PW-5) also reached to the house of the accused after commission of offence. He has also stated that Village Kotwar Bhaiyalal as well as Sarpanch Shambhu Singh were also summoned. They all made enquiry to the accused who was standing on the door, accused has confessed in their presence that he had committed the murder of his wife. There is absolutely nothing to disbelieve his version and this witness was also supported by Gulab Singh (PW-6), father of the deceased. Gulab Singh (PW-6) has also stated that there used to be altercation between deceased as well accused as accused used to beat the deceased. Sukhbariya, mother of the deceased has also stated that deceased used to be beaten by the accused. Gulab Singh (PW-6) has also stated that there used to be altercation between deceased as well accused as accused used to beat the deceased. Sukhbariya, mother of the deceased has also stated that deceased used to be beaten by the accused. Malsam (PW-9) uncle of the accused has also stated that once deceased had informed him that accused used to beat her. Thus it is apparent that deceased was often beaten by the accused. Balkaran (PW-10) has also stated about the disputes between husband and wife, he is brother of the deceased. Heera Lal (PW-12) has stated that Babulal had informed him that Ban Singh had killed his wife, thereafter he informed Shambhu Singh, Sarpanch that accused had killed his wife and he came to the spot. Brijbhan (PW-13) has also stated that he went to the house of Ban Singh, Village Kotwar and summoned him. That fact has also been supported by Bhole Singh, Ganpat, Gulab Singh etc. and asked them to call Bhaiyalal. Bhaiyalal (PW-14) has also stated that when he reached the house of the accused, accused had made extra judicial confession that he had committed murder of his wife. Investigation part has been proved by Budheshwar (PW-15). Shambhu Singh (PW-16) is the Sarpanch of village Khadakhoh and has supported the factum of accused having made the extra judicial confession. Dr. M. Lal performed the autopsy. Post Mortem report (P-14) indicates that there was one incised wound over 1 cm. below from the middle of the right interior orbital margin about 2 cm. x ¼ cm. in size situated horizontally; one incised wound over middle of lower lip about 2 cm. x ¼ cm. in size situated obliquely; two incised wound over middle of chin about 2 cm. x ½ cm. in size; right outer ear cut from middle about 3 cm. in size and fracture in right side of skull about 15 cm. x 3 cm. in size situated obliquely. Injuries were sufficient in ordinary course of nature to cause death. 9. In our considered opinion after discarding the evidence of Jagat Bahadur son of the accused, there is overwhelming evidence with respect to the accused being present in the house and having confessed the guilt. The offence took place at about 11 am, prompt report was lodged by village Kotwar. Accused was removed from the post of Sarpanch owing to irregularities in the construction work. The offence took place at about 11 am, prompt report was lodged by village Kotwar. Accused was removed from the post of Sarpanch owing to irregularities in the construction work. Thus it could not be said that due to enmity in the matter of post of Sarpanch the accused has been falsely implicated in the case. Conduct of the accused also fortifies the conclusion that he was guilty. There is burden upon the accused when he was present in the house to explain his own conduct as provided in section 106 of Evidence Act and to explain facts to his knowledge. Accused has not offered any explanation much less cogent one. In case someone else had committed the offence, accused would have been the first person to lodge the report, would not have sent the village Kotwar to lodge the report against himself after having confessed the guilt. In such circumstances burden is upon the accused to explain the circumstances appearing against him and his own conduct as held by the Apex Court in State of U. P. vs. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 , Shri Kishan vs. State of Haryana, AIR 1994 SC 1597 , Sheikh Abdul Hamid and another vs. State of Madhya Pradesh. AIR 1998 SC 942 , Trimukh Maroti Kirkan vs. State of Maharashtra JT 2006 (9) SC 50. 10. Coming to the submission of the counsel that due to sudden provocation accused appears to have inflicted injury. It appears that several blows were inflicted by the accused with the help of axe as well as sabbal which were seized from the spot itself. The burden of proving the case of exception lies on the accused as per section 105 of the Evidence Act. Nothing has been brought out in the cross-examination of any witness nor there is any other evidence so as to bring out the case under the exception, nothing could be pointed out by the counsel that there was sudden provocation so as to cause injury to the deceased. Thus in our opinion the accused has failed to prove that his case falls under exception. In the facts and circumstances of the case we do not find any evidence so as to make out case under any of the exception to section 300 of Indian Penal Code. 11. Thus in our opinion the accused has failed to prove that his case falls under exception. In the facts and circumstances of the case we do not find any evidence so as to make out case under any of the exception to section 300 of Indian Penal Code. 11. Consequently we do not find any merit in the submission raised by the appellant's counsel. Appeal being devoid of merit, is hereby dismissed. Conviction of the appellant under section 302 of Indian Penal Code and sentence of Rigorous Life Imprisonment and fine of Rs. 500/- and in default of payment of fine further three months' R.I. are hereby affirmed.