Important Point:
The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."

1. By this application under Article 227 of the Constitution of India, the applicant – original accused nos.1 to 6 have prayed for the following reliefs:

9(A) to admit and allow this Special Criminal Application;

(B) to quash and set aside the FIR being IC.R. No.79/2011 registered with Anand Nagar Police Station, Ahmedabad (Annexure 'A') and Charge Sheet No.64/2012 (Annexure 'B') qua Section 304 and 395 of Indian Penal Code and thereby be pleased to allow the application below Exh.6 filed in Sessions Case No.153/2016 pending before 6th Additional District Judge, Ahmedabad (Rural) by quashing and setting aside the order dated 20.10.2016 passed by 6th Additional District Judge, Ahmedabad (Rural) in an application below Exh.6 in Sessions Case No.153/2016 (Annexure 'C') in the interest of justice;

(C) to stay the further proceedings of Sessions Case No.153/2016 pending before learned 6th Additional District Judge, Ahmedabad (Rural), Ahmedabad in the interest of justice;

(D) to grant such other and further relief/s as may deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice;

2. The case of the prosecution may be summarized as under:

2.1 The respondent no.2 herein lodged an FIR on 30/09/2011 for an incident which occurred on 29/09/2011 at about 11:00 O'clock in the night. The first informant while at home on 28/09/2011 received an anonymous phone call at about 11:00 O'clock in the night. He received a call from the mobile No.8460497647. The person who called him up inquired as to why the first informant was harassing a girl by name Sweety. The first informant tried to inquire with the person, who had called him up about his identity and the reply was “taro baap bolu chhu”. The first informant thereafter disconnected the phone. Soon thereafter the first informant again received two to three phone calls from the very same mobile number, but he did not answer those calls. The first informant thereafter called up his friend by name Kapil Pravinbhai Thakkar, residing at Shikhar Tower, Near Shyamal Cross Roads, Ahmedabad. Kapil Thakkar informed the first informant that he was sitting in a canteen situated at the Andhjan Mandal Cross Roads. The first informant thereafter reached the place where Kapil Thakkar was sitting and informed him about the phone calls received by him. Kapil Thakkar is said to have called up on the same number and inquired about the identity of the person. The person informed Kapil that he was standing near the Vastrapur Sardar Center and asked Kapil to reach that place. As that person was talking in a foul language, the first informant and Kapil also started talking in the same manner.

2.2 On 29/09/2011 at 10:30 in the night, the first informant visited the house of his friend Kapil. All other friends of the first informant were present at the house of Kapil. At that point of time, one of the friends of the first informant by name Darshan gave a call on the same number, however, the person who was called up did not reveal his identity. He in turn started hurling abuses. The first informant and his friends were asked to come to the Kapadiya School, Gurukul Road and accordingly, all reached at the said place, but none was present at that particular place. At about 11:30 in the night, the first informant received a phone call from one Krunal Bharatbhai Thakkar, a resident of the same apartment informing the first informant that he should lock the main door of his flat as about 15 20 persons were marching towards the apartment riding on 7 to 8 motorcycles, armed with weapons like hockey, sticks, etc. The first informant immediately locked the door from inside. Two of his friends named Bhumit and Rahul hid themselves in one room opposite to the toilet. One Anish hid himself in the bathroom and Kapil, the deceased went out on the balcony and locked the door from outsi