Section 106 of the Indian Evidence Act places the burden on the accused to provide a plausible explanation for facts within their special knowledge, and the failure to do so can lead to adverse inferences.

JUDGMENT

Mukta Gupta, J. - By these appeals, the appellants challenge the impugned judgment dated 29th August 2018 convicting Gurdeep Singh and Rehman Ali for murder of one lady Falguni, one 5 years old child Chetna and one male Ashit Kumar; and order dated 30th August 2018 directing Gurdeep Singh to undergo imprisonment for life alongwith a fine of ?10,000/-, and in default of payment of fine to undergo rigorous imprisonment of six months, and directing Rehman Ali to undergo imprisonment for life and a fine of ?2,000/- and in default of payment of fine to undergo rigorous imprisonment of two months under Sections 302/34 of the Indian Penal Code, 1860 ('IPC').

2. Learned counsels for the appellants assailing the conviction and consequent order on sentence contend that the appellants have been convicted based on circumstantial evidence. However, only two circumstances have been pressed into service for establishing the guilt of the appellant i.e. firstly, the appellants were found at the place of incident at the time when the two police personnel i.e. Constable Sushil Kumar, PW-3 and Constable Rajender Kumar, PW-5 reached at the place of incident and secondly, clothes worn by the appellant Gurdeep Singh were found to be stained with blood. No evidence has been led to prove that the appellant Gurdeep Singh was a resident of the flat where the offence took place. In the statement recorded under Section 313 of Code of Criminal Procedure, 1973 ('CrPC'), Gurdeep Singh clearly stated that on hearing screams, he went to the flat where he found the three persons murdered and he was mistaken to be the assailant. It is contended that to base a conviction on circumstantial evidence, the chain of circumstances must be complete and the only conclusion that can be drawn from the same should be in consonance with the guilt of the accused and there should be no gap left in the chain of evidence. On the strength of these two circumstances purportedly proved by the prosecution, the appellant Gurdeep Singh cannot be convicted for the offence punishable under Sections 302/34 IPC. No evidence was led in form of departure entry from the police station to prove that Constable Sushil Kumar and Constable Rajender Kumar were on patrolling duty. No effort was made by the police to associate any independent witness at the time of investigation despite number of independent witnesses being available.

3. It is further contended that there is serious discrepancy as to on which floor the alleged incident took place, for the reason, though it is the case of the prosecution that the incident took place on 3rd floor of the house in question, however, Rahul Arora, PW-22 deposed that he was residing in the third floor of the house and the incident took place on the fourth floor of the house. The conduct of the appellants to be standing at the place is not in consonance with their guilt, as in case they would have committed the murder, they had sufficient time to flee away from the place of incident. There was no motive whatsoever attributable to Gurdeep Singh to have committed the offence alleged. It is the case of the prosecution that the clothes of the two appellants were seized at the spot and despite specific question put in cross examination as to from where the clothes were given to change to the appellants, no explanation was rendered by police officials. Even as per the testimony of the police officers, the place of incident was easily accessible. Rahul Arora, the informant clearly stated that there were screams of the women from the place of incident and other persons were also going up and down at the place of incident after he had made the call to the police.

4. Countering the arguments of learned counsels for the appellants, learned APP for the State submits that PW-15, Sanjay Bhalla has proved that the flat where the three dead bodies were found, belonged to appellant Gurdeep Singh. The appellant Rehman Ali was an employee of appellant Gurdeep Singh, wh