JUDGMENT (Per P .Durga Prasad, J.) This appeal is directed against the conviction and sentence passed in S.C.No.350 of 2007 by the III Additional Sessions Judge, Karimnagar on 16.11.2007. 2. The appellant herein is accused No.2. He along with other two accused were prosecuted for the offences under Sections 302, 379, 201 read with Section 34 of the Indian Penal Code, 1860 (for short "IPC"). According to the prosecution, A-1 is the close friend of A-2 and A-3. A-2 and A-3 are residents of Choppadandi village and brothers. All the accused are having past criminal conduct. A-1 and A-2 involved in heinous offences like contract murders and kidnapping cases in Mancherial, Jagtial, Choppadandi police stations. A-1 is having history of killing persons for simple reasons. On 14.08.2004, A-1 to A-3 went to Hanamkonda to meet their advocate and discuss about the case, which is pending against A-3 in Cr.No.103 of 2002 under Sections 457 and 380 of IPC of Choppadandi police station. After meeting their advocate, all the accused visited the house of the relative of A-2 at Hanamkonda and had dinner and consumed liquor. They reached Karimnagar at 11.00 p.m. and again consumed liquor near Natraj talkies and went to the R.T.C. bus stand and enquired P.W.7 for engaging his auto to go to Choppadandi and he demanded Rs. 500/- to wards hire charges and an argument took place between them and during which P.W.7 suspected them and afraid of their behave-our and refused to engage the auto and went away on the pretext of filling diesel. Half an hour thereafter, the deceased came to the bus stand along with auto and all the accused hired the same for Rs. 100/- and they boarded the same, which was witnessed by P.W.7. When the auto was passing in front of PIMS, A-1 demanded the deceased to turn the auto towards Cherlabuthkur village and when the deceased refused, A-1 and A-2 got wild and beat him with hands and threatened him to kill if he disobeys their demand. The deceased afraid of them and turned the auto towards Cherlabuthkur and A-1 and A-2 unable to digest the disobeying of their demand and decided to kill him. A-1 tied his waist belt around the neck of the deceased and threatened him to stop. The deceased afraid of them and turned the auto towards Cherlabuthkur and A-1 and A-2 unable to digest the disobeying of their demand and decided to kill him. A-1 tied his waist belt around the neck of the deceased and threatened him to stop. A-1 and A-2 with the help of A-3 beat him with the hands and hit with a boulder on the head of the deceased and due to which the deceased sustained severe head injury and died on the spot. Then the accused thrown the dead body on the road side trench and concealed under bushes and later went to thehouseofP.W.13, a friend of A-1 with whom he got friendship while both of them were in jail and after having dinner A-1 to A-3 brought P.W.13 to the scene of offence and shown the dead body to make her believe that their capability in committing homicide. After showing the dead body, A-1 toA-3 dropped P.W.13 at the house and went away with the auto of the deceased. 3. On the complaint of P.W.1, Karimnagar Rural Police registered the case in Cr.No.346 of 2004 under Sections 302 and 201 of IPC and took up the investigation. On 17.08.2004 having come to know through the daily newspaper about the death of the deceased, his relatives came to the mortuary and identified the deceased and the Investigating Officer recorded their statements. On 22.02.2005 at 12.20 Noon, P.W.15 apprehended A-2 and A-3 at Mancherial Chowrastha, Karimnagar and interrogated them in the presence of P.Ws.10 and 11 and they confessed about the commission of the offence and also about the possession of the auto and the auto was seized under panchanama in their presence. On 25.02.2005 on the requisition of police, P.W.17 conducted the test identification parade of A-2 and A-3 in the District Jail, Karimnagar in which P.W.7 identified A-2. On 09.02.2006 P.W.16 apprehended A-1 at bypass road, Bommakal in the presence of LWs.21 and 22 and he also confessed about the commission of offence in the company of A-2 and A-3 and the M.O.10 purse belongs to the deceased was seized from A-1 and in the test identification parade P.W.10 could not identify A-1. Thus, A-1 to A-3 were prosecuted for the offence under Section 302 of IPC. 4. The case against A-1 was separated and tried and disposed of in S.e.No.252 of 2007, which ended in acquittal. 5. Thus, A-1 to A-3 were prosecuted for the offence under Section 302 of IPC. 4. The case against A-1 was separated and tried and disposed of in S.e.No.252 of 2007, which ended in acquittal. 5. In the present case, the Sessions Judge has framed the charges under Sections 302 read with 34, 201 read with 34 of IPC against A-2 and A-3 and both the accused pleaded not guilty. 6. In order to establish the charges, the prosecution has examined P.Ws.1 to 17 and got marked Exs.P-1 to P-28 and M.Os.1 to 10. No oral evidence was adduced on behalf of the accused. 7. By taking into consideration of the said oral and documentary evidence, the learned Sessions Judge found A-2 guilty for the charge under Section 302 read with 34 of IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and also convicted for the charge under Section 201 read with 34 of IPC and sentenced him to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/-. A-3 was acquitted for the above said charges. Aggrieved by the said conviction and sentence, A-2 has filed the present appeal. 8. Now the point that arises for consideration is whether the prosecution could able to establish the charge under Section 302 read with 34 and 201 read with 34 of IPC against the appellant/A-2 beyond reasonable doubt? POINT: 9. The appellant counsel has pleaded that except P.W.7 identifying the appellant in the test identification parade conducted by P.W.17, there is no other evidence to connect A-2 with the commission of offence. He pleaded that the identification of P.W.7 in the test identification parade cannot be relied upon as P.W.7 has not given the descriptive particulars of the accused during the course of investigation or before the Magistrate P.W.17, who conducted the test identification parade and as there is. delay of 25 days in conducting the test identification parade after arresting of the accused. 10. delay of 25 days in conducting the test identification parade after arresting of the accused. 10. The learned Additional Public Prosecutor, on the other hand, pleaded that the learned Magistrate P.W.17 has conducted the test identification parade by following the procedure and P.W.7 has categorically stated in his statement before the Magistrate that he can identify the accused if shown to him and he has rightly identified the accused during the course of test identification parade and as P.W.7 has last seen the deceased with the accused and subsequently found dead, the learned Sessions Judge has rightly convicted A-2 for the charge framed against him. 11. P.W.1 is the complainant, who worked as Panchayat Secretary of Jublinagar of Karimnagar Mandal, at that time he has lodged the complaint on the information received from the Village Servant about noticing the dead body in the outskirts of the village. P.W.2 has seen the dead body of a male person when he went to the fields for cutting the beedi leaves and informed the same to P.W.1. P.W.3 is the photographer, who has taken the photos of the deceased. P.W.4, who is the brother of the deceased, P.W.5, who is the father of the deceased and P.W.6, who is the brother-in-law of the deceased, have identified the dead body as that of the deceased on seeing the news item published in the newspapers. P.W.7 is said to be the witness, who has last seen the deceased with the accused. P.W.8 is the owner of the auto of the deceased. P.W.9 is the mediator for the inquest and scene of offence. P.Ws.10 and 11 are the mediators for confession of A-2 and A-3 and seizure of the auto of the deceased, but they turned hostile to the prosecution. P. W .12 is the doctor, who conducted the autopsy. P.W.13 is the wife of the friend of the accused to whom the accused has shown the dead body. P.W.14 is the Sub-Inspector, who has issued FIR. P.W.15 is the first Investigating Officer, who conducted the inquest and the scene of offence and recorded the confession and recovered the auto from the possession of the accused and P.W.16 is the Inspector of Police, who has arrested the accused and recorded the confession statement. P.W.17 is the Magistrate, who conducted the test identification parade of A-2 and A-3. 12. P.W.17 is the Magistrate, who conducted the test identification parade of A-2 and A-3. 12. From the above evidence adduced by the prosecution it is evident on finding a dead body of a male person in the fields. P.W.2 informed the same to P.W.1 and he lodged a complaint, thereafter police took up the investigation and got the dead body of the deceased photographed and published in the newspapers. On seeing the newspapers, P.Ws.4, 5 and 6, who are the relatives of the deceased, identified the dead body as that of the deceased, but none of them have spoken about their witnessing the causing death of the deceased by anybody. According to the prosecution P.W.7 is the person, who has last seen the deceased along with the accused. 13. Thus, only evidence that is pointing out the guilt of the accused is of P.W.7 and his identifying A-2 in the test identification parade conducted by P.W.17. P.W.7 is an auto driver and he knows the deceased, who is also an auto driver and according to him, when he was at Karimnagar bus stand along with his auto at 12'o clock in the night three persons approached him for hiring the auto to Choppadandi and he has demanded for . Rs. 500/- and they agreed for the same, then on suspicion he went away on the pretext of getting diesel and his auto was engaged by another person near Venkateswara temple and by the time he returned back to the bus stand, he noticed that the auto of the deceased was engaged by three persons and they were proceeding and on the next day he learnt that the deceased did not turn up and thereafter he came to know about the death of the deceased in the newspaper. He went to the Government hospital and saw the dead body of the deceased. The accused present in the Court were the persons engaged the auto on that day. He also identified one of the accused in the test identification parade conducted by the Magistrate in District Jail, Karimnagar. Therefore, according to him, he has seen the accused going in the auto of the deceased on that night. The accused present in the Court were the persons engaged the auto on that day. He also identified one of the accused in the test identification parade conducted by the Magistrate in District Jail, Karimnagar. Therefore, according to him, he has seen the accused going in the auto of the deceased on that night. On the next day he learnt that the deceased did not turn up and subsequently came to know about the death of the deceased through the newspapers and in the cross-examination he admitted that he did not state before the police about the descriptive particulars of the accused, who boarded the au to of the deceased and he has furnished the descriptive particulars when he was examined by the Magistrate prior to test identification parade and he identified A-2 in the test identification parade conducted by P.W.17. 14. P.W.17 is the Magistrate, who worked at Huzurabad at that time and he conducted the test identification parade on 19.03.2005 as per the requisition received from the C.I. of police, Karimnagar Rural at the District Jail, Karimnagar. P.W.7 was summoned by him and the suspects are A-2 and A-3. He conducted the test identification parade and P.W.7 has identified A-2 and could not identify A-3 in the test identification parade. In the cross-examination, he admitted that P.W.7 did not furnish the descriptive particulars of the suspects. 15. According to the Investigating Officer, P.W.15, he apprehended A-2 and A-3 at Mancherial Chowrastha of Karimnagar on 22.02.2005 at 12.20 p.m. and test identification parade was conducted on 19.03.2005 by P.W.17. 16. The appellant counsel has pleaded that the identification of A-2 by P.W.7 in the test identification parade cannot be relied upon in view of the delay of 25 days in conducting the test identification parade after the arrest of the accused and also about his not disclosing the identity particulars of the accused at the time of conducting the test identification parade or in his statement under Section 161 of the Criminal Procedure Code, 1973. The appellant counsel has relied upon a decision rendered in Subash and Shiv Shankarv. State of U.P. (1) AIR 1987 SC 1222 . The appellant counsel has relied upon a decision rendered in Subash and Shiv Shankarv. State of U.P. (1) AIR 1987 SC 1222 . "In the above said decision, the test identification parade was conducted three weeks after the arrest and no explanation was offered for the delay in holding the test identification parade The Apex Court observed that there is room for doubt as to whether the delay in holding the test identification parade was in order to enable the identifying witnesses to see the accused in the police lock-up or in the jail premises and make a note of his features. It is also further observed that neither in Ex. Kha-I nor in statement during the investigation, the eye witnesses have given any descriptive particulars of the accused Shiv Shankar while deposing before the Sessions Judge, they have stated that Shiv Shankar was tall person and had sallow complexion. If it is on account of these features, the witness was able to identify Shiv Shankar at the test identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh there. Thus, in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-I or in statement of witness during the investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the test identification parade and thereby given benefit of doubt to the accused and acquitted the said Shiv Shankar." 17. In the other decision rendered in Hari Nath v. State of U.P. (2) AIR 1988 SC 345 , the Apex Court observed that, "there is serious lapse on the part of the prosecution in putting the suspected culprits for test identification parade after lapse of four months of their arrest. There is no explanation at all for the delay. There might conceivably be occasions when there could be justification, or acceptable explanation for the delay. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue of the test identification parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue of the test identification parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. Cases can be illustrative and thereby held that the evidence of test identification parade lacks the requisite element of reassurance to support the conviction and thereby the conviction and sentence passed against the accused is set aside." 18. In the present case, admittedly, there is a delay of 25 days in conducting the test identification parade. P.W.7 has not given the descriptive particulars of the accused in the statement under Section 161 of Cr.P.C. to the police during the course of investigation. P.W.17 at the time of conducting the test identification parade recorded the statement of P.W.7, wherein also he has stated he saw the accused on the date of offence, prior to that he did not see. When he was questioned, there are any special marks of identification for the accused, he said no but he can identify him if shown. Therefore, even in the statement before the Magistrate, at the time of conducting the test identification parade he has not given the descriptive particulars of the accused. Therefore, in view of the above said decisions of the Apex Court, the identification of the accused by P.W.7 in the test identification parade cannot be relied upon in view of the delay in conducting the test identification parade and not furnishing the descriptive particulars of the accused by P.W.7 either during the course of investigation to the police or at the time of conducting test identification parade to P.W.17. If that identification of P.W.7 is discarded, there is no other evidence pointing out the guilt towards the accused. Moreover, the other accused, who were alleged to have involved in the commission of the offence along with the present appellant, were acquitted on the same evidence. Therefore, the accused is entitled to the benefit of doubt. Thus, the prosecution could not establish the charges under Sections 302 read with 34 of IPC and Section 201 read with 34 of IPC against the appellant. 19. Therefore, the accused is entitled to the benefit of doubt. Thus, the prosecution could not establish the charges under Sections 302 read with 34 of IPC and Section 201 read with 34 of IPC against the appellant. 19. In the result, the appeal is allowed and the conviction and sentence passed in S.C.No.350 of 2007 by III Additional Sessions Judge, Karimnagar on 16.11.2007 is hereby set aside and the appellant/A-2 is acquitted for the charge under Section 302 read with 34 of IPC and Section 201 read with 34 of IPC and he shall be released forthwith, if he is not required in any other case.