JUDGMENT: (L. Narasimha Reddy) - This appeal is preferred by A.1 to A.3 in S.C.No.195 of 2004 on the file of the Metropolitan Sessions Judge, Vijayawada. All of them were accused of committing murder of one Bavaraju Sreenu, on 16.08.2003, at about 11.05 p.m. Through its judgment, dated 06.06.2005, the trial Court convicted the appellants for the offences under Sections 302, 404 and 201 read with Section 34 of Indian Penal Code. It sentenced them to undergo imprisonment for life, for the offence under Section 302. A.1 was directed to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for three months. A.2 and A.3 were sentenced to pay a sum of Rs.500/-, in default, to undergo simple imprisonment for two months, for the said offence. All of them were sentenced to undergo imprisonment for two years and pay a fine of Rs.100/-, in default, to undergo simple imprisonment for one month, for the offence under Section 404 of I.P.C. As regards the offence under Section 302 read with 34 I.P.C., they were sentenced to suffer imprisonment of five years, each, and to pay a fine of Rs.100/-, each, in default, to undergo simple imprisonment for one month. 2. The case of the prosecution, as presented before the trial Court, was that; on 16.08.2003, the deceased took an auto-rickshaw, on hire, at 4.00 p.m., and left his house, as usual. On the same day, at 10.30 p.m., when he was at Kummaripalem Centre, Vijayawada, three persons asked an auto driver-PW.4, waiting at that place, to engage his auto, on hire, to take them to Thummalapalem Centre. PW.4 is said to have demanded Rs.60/-, whereas the said three persons bargained to Rs.40/-. When PW.4 did not agree for their offer, the deceased expressed his willingness to take them to Thummalapalem Centre for Rs.40/-. Accordingly, three persons boarded the auto. 3. At about 1.00 a.m., in the midnight, PW.4 is said to have heard that the auto, that was being run by the deceased, was lying at Sitara Centre, after it met with an accident. He is said to have informed the same to PW.5, the brother-in-law of the deceased. 4. PW.7 is said to have noticed an auto coming at around 12 in the midnight, on 16.08.2003, in a very high speed towards Sitara Centre from Gollapudi area. He is said to have informed the same to PW.5, the brother-in-law of the deceased. 4. PW.7 is said to have noticed an auto coming at around 12 in the midnight, on 16.08.2003, in a very high speed towards Sitara Centre from Gollapudi area. According to him, unable to control the vehicle, the person driving the auto, dashed the same against a compound wall, on the roadside. PW.7 and some others said to have rushed to the spot, and it is said that two persons, who were travelling in the auto escaped, whereas the person, who is driving the auto remained in it, with injuries, to his leg. The owner of the house, in the nearby locality, is said to have offered a piece of old saree, for tying it around the wound of the injured person. Thereafter, PW.7 and others are said to have shifted the injured person to the Government hospital, in an available auto. 5. PW.1 is said to have noticed a dead body, lying in the cement tree guard near Janachaitanya Housing Plots at 9.00 a.m., on 17.08.2003. He brought the same to the notice of the police by filing a written complaint, marked as Ex.P.1. The Sub-Inspector of Police-PW.2, registered a case in Crime No.438 of 2003, under Section 174 Cr.P.C., and issued FIR, marked as Ex.P.14. During the course of investigation, he is said to have secured the presence of PW.9 and others, and proceeded to the scene of offence. Ex.P.7 is the observation panchanama. M.Os.7 to 10 were seized and Ex.P.15 is the rough sketch of the scene of offence. The photographs of the scene of offence were also taken and marked as Exs.P.2 to P.6. Inquest was conducted on the dead body, in the presence of mediators and Ex.P.8-inquest panchanama, was drawn. The dead body was sent for autopsy and was preserved for two days, duly publishing a news item, for the information of the public in general. 6. On 18.08.2003, PW.3, the wife of the deceased, together with PWs.4 to 6 is said to have come to the police station, claiming that the dead body is that of her husband. The statements of PW.3 and her relatives were recorded and after they identified the dead body in the mortuary of the Government hospital, it was handed over to them. The appellants were apprehended subsequently. 7. The statements of PW.3 and her relatives were recorded and after they identified the dead body in the mortuary of the Government hospital, it was handed over to them. The appellants were apprehended subsequently. 7. With this background, it was alleged that the appellants are the persons, who hired the auto of the deceased, and they were last seen together by PW.4. It was also alleged that the appellants have forcibly taken away the valuables and the driving licence of the deceased, killed him. Thereafter, they were said to have tried to flee with the auto-rickshaw and in the process, met with accident. 8. The appellants pleaded not guilty. 9. the trial Court, the prosecution examined PWs.1 to 13, whose description has already been furnished to the extent necessary. The documents, Exs.P.1 to P.20 were marked. Ex.P.1 is the report; Exs.P.2 to P.6 are the photographs, with negatives; Ex.P.7 is the observation report; Ex.P.8 is the inquest report; Exs.P.9 to 12 are reports of mediators; Ex.P.13 is the identification proceedings; Ex.P.14 is the FIR under Section 174 of Cr.P.C.; Ex.P.15 is the rough sketch; Ex.P.16 is the altered FIR and Ex.P.17 is the post-mortem report. The report of the chemical examiner is marked as Ex.P.18 and letter of advice as Ex.P.19. The final opinion is marked as Ex.P.20. M.Os.1 and 2 are said to be the pant and shirt of the deceased; M.O.3 is the driving licence; M.Os.4 to 6 are the rolled gold chain, wristwatch and silver ring, said to have been snatched by the appellants from the deceased. M.O.7 is the pair of chappals and M.O.8 is the handkerchief, recovered from the scene of offence. M.O.9 is the bloodstained earth, and M.O.10 is the control earth. 10. Smt.Gayathri Reddy, learned counsel for the appellants, submits that there are no eye-witnesses to the offence and the circumstantial evidence has several missing links. She contends that there was inordinate delay in conducting the test-identification parade, and even the alleged identification of M.Os.5 to 7 was not conducted, in accordance with the procedure prescribed under Rule 45 of the Cr.P.C. Learned counsel further urges that there are several contradictions in the evidence of the material witnesses, be it, as to the manner in which A.1 was said to have been accorded treatment, or the conducting of post-mortem, on the body of the deceased. She contends that material witnesses, such as L.W.14, the owner of the house, whose compound wall, the auto is said to have dashed against, or the Doctor, who conducted the autopsy, were not examined, at all. Learned counsel submits that the prosecution has failed to establish the link between the occurrence of incident, and the appellants. She places reliance upon certain decided cases. 11. Learned Additional Public Prosecutor, on the other hand, submits that there is clinching evidence, on several aspects, and no exception can be taken to the conviction, against the appellants. He contends that there is a clinching evidence in the form of the deposition of PW.4, who has seen the appellants and the deceased last together, and that PW.7, who has not only seen the appellants, but also retrieved A.1, from the auto, in an injured condition. He submits that another witness, PW.8 had clearly identified the 1st appellant in an injured condition and the cumulative effect of all this evidence would provide all the links, to connect the appellants with the offence. 12. The point that arises for consideration before this Court is, as to whether the conviction and sentence ordered by the trial Court can be sustained in law? 13. Admittedly, there is no direct evidence for the offence of murder of the deceased. In fact, the dead body was seen for the first time only at 9 p.m., on the next day. The prosecution pleaded that all the appellants have boarded the auto of the deceased by hiring it with an object of travelling to Thummalapalem Centre. PW.4 is said to be the person, who was approached first, for hiring the auto, but declined to engage it, since the appellants did not agree to pay Rs.60/-. There is no denial of the fact that the appellants were not at all acquainted with the deceased, nor there existed any transaction between them. The motive attributed to the appellants is that they wanted to hire an auto, over-power the auto driver, seize any of the valuables from him, and thereafter, flee with the auto-rickshaw itself. Even if this alleged plan is true, it was hatched in general, and not against the deceased. 14. PW.5 is said to have seen the deceased, as well as the appellants at around 11.00 p.m., when he was waiting at some place in the city. Even if this alleged plan is true, it was hatched in general, and not against the deceased. 14. PW.5 is said to have seen the deceased, as well as the appellants at around 11.00 p.m., when he was waiting at some place in the city. On his wishing, the deceased said to have stopped the auto and the appellants are said to have got down and purchased cigarettes. Beyond this, we do not have any other evidence, to point out that the deceased and the appellants were seen together. 15. The important breakthrough, according to the prosecution is, the retrieval of A.1 from the auto, by PW.7. The witness stated that an auto was found coming in a very high speed from the Sitara centre, and that unable to control the vehicle, the driver dashed the same against a compound wall of a house. LW.4 is said to be the owner of the house, and it was stated that she supplied a piece of old saree for tying it against the wound caused to the 1st appellant. It is the case of PW.7, that himself and others have shifted the 1st appellant to the Government hospital, in an available auto. If this statement is true, it would be helpful to the prosecution, to a large extent, in connecting the appellants with the offence. 16. PW.7 did not speak, as to whether the 1st appellant was admitted in the hospital, at all, and as to the nature of treatment accorded to him at that place. He is silent as to the number of the auto-rickshaw, or to the persons, who have accompanied the 1st appellant to the hospital. 17. An attempt was made by the prosecution to supplement the evidence of PW.7, with that of PW.8. He is said to be Ayurvedic Doctor at Ibrahimpatnam. His version would not at all accord or tally with that of PW.7. He is said to have examined, and treated the 1st appellant; on 18.08.2007. 17. An attempt was made by the prosecution to supplement the evidence of PW.7, with that of PW.8. He is said to be Ayurvedic Doctor at Ibrahimpatnam. His version would not at all accord or tally with that of PW.7. He is said to have examined, and treated the 1st appellant; on 18.08.2007. In his own words, what transpired between him and the 1st appellant is, as under: "On 18.08.2003 morning at about 10.30 a.m., one person by name Turaka Veerabhadra rao,whom I can identify came to my clinic along with his wife for treatment for injury to right foot of right leg said to have been sustained in an auto accident, he was already applied with bandage saying at the hospital of Dr.Murthy of Ibrahimpatnam on the previous day. I opened the bandage and found wound incised to his right foot then I advised him to go to Govt.Hospital as it is a medico legal case. A.1 is the said person in the accused box I know him even previously. Police examined me." 18. From this, it is evident that the 1st appellant was already treated by one Dr.Murthy, of Ibrahimpatnam, and a bandage was tied on the injury. The only part, said to have played by PW.8, is that he just opened the bandage and thereafter, advised the 1st appellant to go to Government hospital. Another important aspect of the matter is, that he is already acquainted with the 1st appellant. 19. If the 1st appellant was already sent to Government hospital, for treatment on the midnight of 16.08.2003, itself, as spoken to by PW.7, there was no question of PW.8 advising him to take treatment in Government hospital. Dr.Murthy, who is said to have treated the 1st appellant, one day before; was not examined. While according to PW.7, first-aid was in the form of tying a piece of old saree supplied by L.W.4. PW.8 stated that the first treatment was accorded by Dr.Murthy. This material contradiction renders the evidence of PW.7 shaky. The failure of the prosecution to examine LW.14, against whose compound wall the auto is said to have dashed, leads to further suspicion and consequential presumption. 20. The cause of death, according to the prosecution, was on account of the stab injuries on the body. The post-mortem report, however, discloses something else. The failure of the prosecution to examine LW.14, against whose compound wall the auto is said to have dashed, leads to further suspicion and consequential presumption. 20. The cause of death, according to the prosecution, was on account of the stab injuries on the body. The post-mortem report, however, discloses something else. The confusion is further confounded, on account of the failure of the prosecution to examine the doctor, who conducted the post-mortem. 21. Test-identification parade had its own significance, wherever the case of the prosecution is based upon circumstantial evidence. Time and again, the Hon'ble Supreme Court, as well as various High Courts reiterated that such parades must be conducted at the earliest available point of time. It was pointed that any delay in conducting the test identification parade is prone to be utilized to acquaint the witness with the accused. Reference in this context may be made to the judgments of the Supreme Court in Muthuswami v. State of Madras, AIR 1954 SC 4 , Shaikh Umar Ahmed Shaikh v. State of Maharashtra, 1998 (1) ALD (Crl.) 903 (SC) = 1998 (5) SCC 103 , and Hari Nath v. State of U.P., AIR 1988 SC 345 . 22. In the instant case, the offence took place in the intervening night of 16/17 August, 2003, and the appellants were apprehended on 02.09.2003. The test identification parade was conducted on 5.11.2003. The allegation of the appellants, that in the meanwhile their photographs were shown to the witnesses; assumes significance. 23. One more aspect of the matter is that the prosecution placed heavy reliance upon the recovery of M.Os.4 to 6 from the appellants, which are said to be the articles, snatched from the deceased. These articles were identified by PW.3, the wife of the deceased. Rule 45 of the Criminal Rules of Practice, prescribes the procedure to be followed for identification of such articles. The Rule requires that the seized articles must be mixed with four or five articles of similar nature and description, and thereafter, the identification must be undertaken. In the instant case, the record does not disclose the said procedure. If the said M.Os., were simply put before PW.3, and she stated that they belong to her husband, the deceased, without mixing them with other similar objects, a clear infraction of Rule 45 emerges. 24. In the instant case, the record does not disclose the said procedure. If the said M.Os., were simply put before PW.3, and she stated that they belong to her husband, the deceased, without mixing them with other similar objects, a clear infraction of Rule 45 emerges. 24. The cumulative effect of the defects pointed out in the preceding paragraphs is that the prosecution failed to construct an uninterrupted chain between the murder of the deceased and the appellants. It may be true that the appellants also owed some explanation, in the context of an allegation, as to having been injured in the accident, and the nature of treatment taken by them. However, any lapse on their part, by itself, does not come to the rescue of the prosecution. The burden squarely rests upon the prosecution, to bring home the culpability of the appellants. 25. Hence, the appeal is allowed, and the conviction and sentence recorded against the appellants-accused by the learned Sessions Judge, Vijayawada, in S.C.No.195 of 2004, dated 06.06.2005, is set aside. The appellants-accused shall be set at liberty forthwith, if they are not required in any case. The fine amount, if any, paid by the appellants shall be refunded to them.