The burden of proof lies with the prosecution to prove the guilt of the accused beyond reasonable doubt. The onus of proof under Section 106 of the Evidence Act cannot be shifted to the accused unless they were in exclusive possession of the relevant place at the time of the incident.

JUDGMENT

1. By the two appeals the appellants, challenge the common impugned judgment dated 21st January, 2016 convicting them for offence punishable under Section 302/34 IPC and the order on sentence dated 28th January, 2016 directing them to undergo imprisonment for life and to pay a fine of ?50,000/- each in default whereof to undergo imprisonment for 10 months.

2. Learned Senior counsel appearing on behalf of Rahul Yadav contends that the learned Trial Court has convicted the appellant by shifting the burden of proof on the appellant, contrary to the law. As per the prosecution case, the injured Arvind who finally succumbed to injuries was removed from the house of the appellant and at best the appellant owes an explanation on that count in respect of the facts especially within his knowledge as per Section 106 of the Evidence Act, however for the rest of the evidence, the prosecution has to stand on its own legs and prove its case beyond reasonable doubt. The impugned judgment is self-contradictory. The case of the prosecution is based on the purported dying declaration made by the deceased to his father Ashok Kumar and his friend Pramod who appeared in the witness box as PW-2 and PW-5 respectively. However, the evidence on record clearly shows that the deceased was not in a situation to make any statement much less a dying declaration. The father of the deceased himself stated that he received a phone call from SI Vijay Dahiya stating that his son Arvind had been apprehended and he should come otherwise he will be beaten. Further, the witnesses have clearly stated that even prior to the incident dated 20th April, 2014 family members of the appellant had gone to the house of the deceased on 14th April, 2014 to make him understand that the deceased should not harass the sister of appellant Rahul. Further, even at the time of alleged incident on 20th April, 2014 it has come on record that number of people collected who were beating the deceased and the mother of the appellant and appellant were asking them not to beat him. There is no evidence on record that the two appellants herein shared a common intention to kill or cause injuries to the deceased so as to cause his death. Even as per the case of the prosecution it was Arvind who entered the house of the appellant to harass his sister and in such a situation it is not uncommon that people of the locality gather so as to save the girl from harassment and in the process if certain people from the public or neighbours assaulted the deceased, the appellants cannot be held liable. There are glaring contradictions in the statements of the witnesses. FIR has been lodged after gross delay of more than one day on the statement of SI Vijay Kumar who lodged the concocted FIR to save himself. Material witnesses like the sister and mother of the appellant Rahul, Dr. M.K. Kaushal the CMO of Bhagwan Mahavir Hospital who first attended the deceased were not examined. Material medical documents including the MLC have been tampered with and not produced before the Court. The post-mortem Doctor has gone overboard to help the real accused i.e. the Police Officers who gave beatings to the deceased and to cover up implicated the two appellants. Further, the so-called recovery of alleged weapon of offence danda from the house cannot also be considered for the reason it was made after four days of the incident and the blood grouping on the same could not be ascertained due to no reaction and degeneration of the specific antigens. In the alternative, it is contended that even if this Court relies upon the so-called dying declaration made to Ashok Kumar and Pramod, at best an offence under Section 326 IPC is made out and the appellant being in custody for the more than 9 years, he be released on the period already undergone.

3. Learned counsel for the Appellant Deepak @ Koki contends that even as per the evidence of prosecution Deepak @ Koki was not present at the spot and has been falsely implicate