JUDGMENT : Manindra Mohan Shrivastava, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 06.09.2012 passed by the Additional Sessions Judge, Balod, District Durg in Sessions Trial No. 25/2012 whereby and where under the appellant has been found guilty for the commission of offence and sentence as described below: Offence Punishment U/s. 302 IPC Imprisonment for life and fine of Rs. 50/- with default stipulation. 2. Prosecution story as unfolded from the records and the judgment is that merg intimation dated 22.05.2012 Ex. P-1 was given in the police station by Ramji (P.W.-1), the Kotwar of village Chilhati Khurd in which it was stated that at about 6.00 in the morning, Santosh Kumar, son of appellant, came to his house and informed that his father has committed murder of his mother. On the basis of the said merg, police registered FIR Ex. P-2 in the police station and thereafter, proceeded to the scene of occurrence. According to the prosecution, dead body was found in the house of the appellant and inquest Ex. P-6 was prepared by giving notice, in the presence of panchas. Dead body was sent for postmortem examination and Dr. V.K. Chorkha (P.W.-9) conducted postmortem and prepared postmortem report in Ex. P-16. Multiple injuries including incised injuries, plenty in number, were found all over the body, including the vital parts of head and neck. The doctor opined that cause or death was shock due to excessive hemorrhage as a result of injuries sustained and was homicidal in nature. The appellant being suspected, was apprehended and his memorandum in Ex. P-7 was recorded in the presence of witnesses and according to the prosecution, on the basis of this memorandum statement, the axe alleged to be used in the commission of the offence was recovered from a hidden place of the house of the appellant upon his disclosure. Upon completion of investigation, charge sheet was filed. On the basis of material contained in the charge sheet, learned trial court charged the appellant of having committed the offence of murder of his own wife in the night of 22nd May 2012. Appellant having abjured the guilt, was put to trial. 3. In order to prove its case, the prosecution examined in all 9 witnesses. On the basis of material contained in the charge sheet, learned trial court charged the appellant of having committed the offence of murder of his own wife in the night of 22nd May 2012. Appellant having abjured the guilt, was put to trial. 3. In order to prove its case, the prosecution examined in all 9 witnesses. The appellant was thereafter examined under Section 313 Cr.P.C. In respect of incriminating evidence and circumstances appearing against him in the evidence lead by the prosecution. The appellant denied having committed the offence and pleaded innocence. No defence witness was examined. Relying upon the evidence lead by the prosecution, the trial court held the appellant guilty of commission of the offence and sentenced as prescribed above. 4. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant contended that the conviction is founded only on suspicion without there being any clinching and reliable evidence to prove circumstantial evidence against the appellant. He argues that even according to Investigating Officer (P.W.-8), the appellant himself had reached the police station for lodging the report in the morning which shows his conduct not compatible with the hypothesis of his guilt. Next submission is that the prosecution witness Santosh Kumar (P.W.-4) has stated that the appellant had gone to Lohara and till he slept, he did not see that the appellant had come back home and when in the morning he woke up, appellant was not at home. Therefore, from the prosecution evidence itself, the alibi of the appellant is established and it is plausible that in the night when the appellant's wife died due to multiple injuries, the appellant was not at home. Lastly, it is submitted that even the Patwari, Ram Kumar Sahu (P.W.-5) has admitted in his cross examination that the backyard of the house is open and if doors are broken to make entry, nobody would be able to see. Therefore, on the aforesaid circumstances, appellants involvement in the incident becomes highly doubtful and merely because he happens to be the husband of the deceased, conviction cannot be sustained in the law particularly when the prosecution has failed to come out with any motive as to why the appellant would kill his own wife. 5. Therefore, on the aforesaid circumstances, appellants involvement in the incident becomes highly doubtful and merely because he happens to be the husband of the deceased, conviction cannot be sustained in the law particularly when the prosecution has failed to come out with any motive as to why the appellant would kill his own wife. 5. On the other hand counsel for the State in support of the judgment and conviction of sentence submits that the medical evidence has proved beyond doubt that appellant's wife was subjected to brutal assault by a sharp edged weapon by which number of injuries were inflicted on her body including vital injuries in the neck, head and other vital parts. According to the postmortem report, the time of death was around midnight. Deceased was the wife of the appellant and the appellant has failed to establish plea of alibi by leading any clinching evidence. Moreover, the axe alleged to have been used in the commission of the offence has also been recovered on the memorandum of the appellant, proved from the reliable evidence of memorandum witnesses Tilak Ram Thakur (P.W.-2) and Kumbhkaran (P.W.-3). Therefore, the conviction of the appellant does not warrant any interference. 6. Present is a case where the conviction of the appellant has taken place only on the circumstantial evidence. Homicidal death of Manju, the deceased is not substantially in dispute and the prosecution has led overwhelming evidence to prove the same. Dr. V.K. Chorkha (P.W.-9) has proved postmortem report in Ex. 6. Present is a case where the conviction of the appellant has taken place only on the circumstantial evidence. Homicidal death of Manju, the deceased is not substantially in dispute and the prosecution has led overwhelming evidence to prove the same. Dr. V.K. Chorkha (P.W.-9) has proved postmortem report in Ex. P-16-A. He has deposed in the court that he had carried out the postmortem and following injuries were found: ^^2- 'ko dks igpkuus okys O;fDr;ksa ds uke 1- eFkqjk izlkn] firk volsjh mez 55 lky tkfr dqEgkj fuoklh lksjyh] 2- lksgu jke firk cq/k:jke mez 21 lky tkfr dqEgkj fuoklh lEcyiqj] 3] cStukFk firk nqykjs mez 40 lky tkfr dqEgkj fuoklh MkS.Mh yksgkjk gSA ijh{k.k & ,d lkekU; dndkBh dh e`r toku ;qorh tks lks;s gq, iksf'ku ij FkhA 'kjhj esa vdM+u Fkk nksuksa vka[k [kqys Fks] datsfDVok esa ykfyek Fkh] iqryh QSyh Fkh thHk nkarks ds chp es ncs Fks] lw[kk gqvk [wku vkSj [kwu dk FkDdk psgjs esa uklk fNnz esa] nksuks Hkqtk vkSj nksuksa gkFk] Nkrh] isV] ihB ds Hkkx esa ,oa nkfgus tka?k esa ekStwn FkkA 2- pksVs tks 'kjhj esa ekStwn Fkh & ,d 5 xq.kk 3 ls-eh- ysljsVsM owaM ekFks ij nkfguh rjQ FkkA 2 xquk 2 lsa-eh- dk [kjksap ukd ij FkkA nks bUlkbt owaM Fkk tks xys ds jkbZV lkbM esa FkkA igyk xyk ds Åijh fgLls esa Fkk tks 9 xq.kk 6 lsaeh xq.kk MsIFk xys dh gM~Mh rd FkhA nwljk bUlkbt owaM igys bUlkbt owaM ds ,d ls-eh- uhps Fkk tks 6 xq.kk 4 ls-eh- xq.kk MsIFk xys ds gM~Mh rd FkkA pksV ds vanj [kwu dk FkDdk FkkA vkSj pksV ls [kwu fudy djds Åij ls uhps dh vksj tk jgh FkhA xys dh lqijQhfl;k fMiLVDPkj gMMh;kW ihNs dh dV pqdh FkhA 3- cka;s Hkqtk esa ,d bUlkbt owaM Fkk tks 9 ls-eh- xq.kk 3 ls-eh- xq.kk 6 lsa-eh- dk FkkA 5 Xkq.kk vk/kk ls-eh dk [kjksap Fkk tks cka;s dksguh ij FkkA nkfgus Hkqtk esa ckgjh fgLls esa bUlkbt owaM Fkk tks 9 ls-eh- xq.kk 3 lsa-eh- xq.kk 2 ls-eh- dk FkkA nkfgusa ds ckgjh fgLls esa bUlkbt owaM Fkk tks 6 xq.kk 3 lsa-eh xq.kk 3 ls-eh dk FkkA vkSj tks nkfgus gkFk esa dksguh ds uhps Fkk og 7 lsa-eh- xq.kk 3 lsa-eh- xq.kk 4 lsa-eh- dk FkkA 4- Nkrh es eYVhiy dUV~;wtu Fks tks uhys dyj ds Fks nkfguh rjQ Nkrh ds fupys rjQ tks dUV~;wtu og la[;k esa 2 Fkk tks izR;sd 2 xq.kk 1@2 ls-eh- dh FkhQA isVB esa Åijh fgLls ij tks dUV~~;wtu Fkk og Øe'k% 5 xq.kk 1@2 ls-eh- dh FkhA ihB dh rjQ tks bUT;wjh Fkh blesa ikap fyfu;j dUV~;tu Fks uhys dyj ds FksA ihB ds Åijh fgLls esa ck;sa rjQ tks dUV~;wtu Fkk 6 xq.kk 1@2 ls-eh- dk FkkA 5- lqij Ldsiqyj jhtu Fkk tks bl izdkj gS fd 8 xq.kk 1@2 ls-eh- 6 xq.kk 1@2 ls-eh dh Fkh vkSj 6 xq.kk 1@2 ls-eh- dh FkhA nkfgus rjQ tks ihB ds e/; esa tks bUlkbTk owM Fkk og Øe'k% 6 xq.kk 3 lsa-eh xq.kk 5 lsa-eh dk FkkA nwljk 6 lsa-eh xq.kk 1-5 ls-eh- xq.kk 2 ls-eh- dk FkkA tks ihB ds ckgjh fgLls es Fkk tks nkfgus rjQ Øe'k% 6 xq.kk 3 ls-eh- xq.kk 1 ls-eh- Fkk] 2 xq.kk 1 lsa-eh- vkSj 6 fyfu;j dUV;wtu ftldh izR;sd dh lkbZt 6 xq.kk ½ ls-eh dk FkkA ihB ds fupys fgLls esa tks bUlkbt owaM Fkk og 5-5 ls-eh- xq.kk 2 lsa-eh xq.kk 5 lsaeh dk FkkA nwljk 6 ls-eh xq.kk 2 ls-eh- dk FkkA 6- ihB ds Åijh fgLls esa bUlkbZt owaM Fkk og 6 xq.kk 3 xq.kk 5 lsaeh Fkk e/; Hkkx 3 xq.kk 2 xq.kk 2 lseh FkkA 4 xq.kk 1@2 lseh dk Fkk ihB ds cka;s rjQ ¼fgLls½ es FkkA 7- ekFks esa yslsjsVM owaM Fkk frYyh datsLVsM Fkh] efLr"d datsLVsM Fkk Nkreh esa dUV~;wtu Fkk] Nkrh dh e/; dh gM~Mh VwVh gq;h Fkh QqlQql datsLVsM Fks] 'okluyh dV pqdk Fkk] nksuks QsQM+s dstsLVsM FkkA gkVZ ds nksuks psEcj [kkyh Fks] isV es Hkh dUV~;wtu bUT;wjh Fkk vkarks dh f>Yyh datsLVsM FksA eqg xkzluth] xzluh datsLVsM FksA^^ The opinion given by the doctor was as below : ^^vfHker & gekjs jk; esa pksV otuh /kkjnkj dVh vkCtsDV ds dkj.k vk;h gS yslsjsVsM owaM ,ao dUV~;wtu Fks os gkMZ ,oa CyaV vkCtsDr ds dkj.k vk;h Fkh tks gksekslkbMy uspj dh FkhA^^ Though he was subjected to cross-examination on the aspect of query report in respect of the weapon alleged" to be used, as far as the evidence of postmortem and injury found and the cause of death is concerned, the same has remained uncontroverted. As we see, the deceased was brutally murdered and large number of injuries were found on her body which included a lacerated wound on the forehead, two incised wounds on the right side of the neck, incised wound on the left shoulder, left arm, multiple contusion on the chest, incised wound on the back. These are only few of the injuries which we have mentioned which are very prominent and serious, in addition, there are number of injuries found all over the body which can only show that deceased was brutally assaulted by sharp edged weapon to ensure that she dies. 7. The fact that the dead body of the deceased was lying in the blood bath inside her own house is also proved by the inquest report Ex. P-6 prepared by the Investigating Officer in the presence of panch witnesses Tilak Ram Thakur (P.W.-2) and Kumbhkaran (P.W.-3). Village Kotwar Ramji (P.W.-1) has also deposed that when upon receipt of information of death they went to the house of the appellant, the door was open, the dead body was lying and was covered with a sheet. After removing, dead body was seen, Manju was dead and injuries on neck and back were apparent and the blood was spread on the floor. Investigating Officer (P.W.-8), Tilak Ram Thakur (P.W.-2) and Kumbhkaran (P.W.-3) all have clearly stated regarding dead body lying inside the house which is also proved from the evidence of Patwari (P.W.-5). Even the appellant's son Santosh Kumar (P.W.-4) has also stated that he saw his mother lying dead in the house. Therefore, there is overwhelming evidence lead by the prosecution that dead body was found inside the house. 8. The appellant has not raised any clinching and reliable evidence to establish the plea of alibi nor the same is elicited from the cross-examination of any of the prosecution witnesses. Though our attention has drawn to what has been stated by Santosh Kumar (P.W.-4), the son of the appellant, we are not convinced that evidence of this witness proves that the appellant was not in the house throughout the night. Santosh Kumar (P.W.-4) says that his father had gone to Lohara and the four sons along with their mother were in the house. Santosh Kumar (P.W.-4) says that his father had gone to Lohara and the four sons along with their mother were in the house. He then states that he does not know at what time his father came back and further that at 5.00 a.m., in the morning his father was not there. There is no emphatic statement that throughout the night, their Father was not there at the home. True it is that the burden of the accused to establish its defence is not as high as that of prosecution, it must satisfy a reasonable degree of plausibility for being established as probable. The appellant did not lead any other evidence nor has whispered in statement under Section 313 Cr.P.C. which is elicited in the cross-examination by the prosecution witnesses that over the night he was not at home. Therefore, we are unable to accept that the appellant even on plausible standards, has been able to raise doubt on the prosecution case on account of plea of alibi. The appellant was husband of the deceased and in the house, the appellant, his wife and four children were residing as stated by Santosh Kumar (P.W.-4) himself, Wife of the appellant was brutally assaulted and murdered. The appellant was required to explain as to how his wife sustained such multiple fatal injuries on her body inside the house and died. This burden on account of appellant being possessed of specific knowledge of these facts emanates from Section 106 of the Evidence Act. 9. As far as the recovery of axe is concerned, the two prosecution witnesses PW-2 and PW-3 have supported the memorandum statement Ex. P-7 and seizure of axe from within the house of the appellant. Dr. V.K. Chorkha (P.W.-9) in his opinion given on enquiry, has stated that the injuries could be caused by the axe recovered. This corroborates the prosecution story. 10. The evidence of patwari (P.W.-5) in the cross-examination, cannot be read to say that the house of the appellant, was having no doors at all either on the front or on the back. All that has been elicited in the cross-examination of the eyewitness is that if the door on the backside is opened or broken, it may not be easily seen by the villagers. All that has been elicited in the cross-examination of the eyewitness is that if the door on the backside is opened or broken, it may not be easily seen by the villagers. Therefore, it does not render the prosecution story doubtful that there was possibility of someone else entering the house from the backside and murdering the appellant's wife. In any case, if plea of alibi has not been established, the natural conduct on the part of the appellant would have been to disclose as to how the incident happened. True it is that Investigating Officer (P.W.-8) states that appellant came in the morning to the police station for lodging report, that by itself, pitted against other incriminating circumstance, would not create a reasonable doubt with regard to the incriminating act of the appellant. 11. Last but not the least, counsel for the appellant argued that even according to the memorandum statement said to be prepared by the prosecution when a dispute had arisen between the appellant and his wife in the night when she torn his underwear and complained that the appellant had complained physical relation with her for two months and gave an assault on the appellant with axe resulting injury in the small finger of left hand and only in that situation without premeditation and in the heat of passion, appellant assaulted his wife, therefore, on the basis of this prosecution case, the case would be covered under Exception 4 and the conviction of the appellant may be altered to one under Section 304 Part II IPC. Exception 4 of Section 300 reads thus: Exception 4--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. Explanation.--It is immaterial in such cases which party offers the provocation or commits the assault. 12. Even if we were to accept for the sake of argument that appellant assaulted his wife without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, the exception would not be attracted because we find that the appellant in the present case has acted in extremely cruel and unusual manner. 13. 12. Even if we were to accept for the sake of argument that appellant assaulted his wife without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, the exception would not be attracted because we find that the appellant in the present case has acted in extremely cruel and unusual manner. 13. We have already reproduced herein above the evidence of the doctor who has found number of injuries on the body of the deceased which includes incised wounds on various parts as also on the vital parts of the body including neck. This only reflects that the appellant acted in extremely cruel manner. Therefore, we find ourselves unable to accept the submission for alteration of sentence to one under Section 304 Part II IPC. In the result the appeal is dismissed.