ORDER :

K. Ramaswamy, J.

1. We have heard learned counsel for the State and the petitioner. Special leave granted.

2. The appellant is the second accused in the case. The case of the prosecution is that one Pathumma, the deceased, was a resident of Kunnappalli in Pathakkara amson. On May 29, 1987, the deceased was seen alive by PW 1. On the next day, namely, May 30, 1987, PW 4 went to the house of the deceased in the early morning and found her dead. Thereafter a complaint was lodged that A-1 and A-2 were found loitering in the neighbourhood of the house of the deceased and they had committed murder and thereafter decamped with the ornaments belonging to the deceased. The appellant was arrested on June 25, 1987. MO-4, Gold earrings were said to have been recovered from the appellant under Panchnama drawn and attested by PW 6, the Head Constable and another Panch witness. Thereafter PW 14 stated that the appellant and another person have sold ornaments, MO-6. He converted the ornaments belonging to the deceased into ingot MO-9. On the basis of this evidence, the trial court convicted the appellant for the offence under Section 302 Indian Penal Code and also convicted him under Sections 449 and 394 Indian Penal Code and sentenced the appellant for imprisonment for life and also imprisonment for a period of five years respectively and sentences were directed to run concurrently. The High Court acquitted the 1st accused and confirmed the conviction and sentences of the appellant. Thus this appeal by special leave.

3. The only question that arises for consideration is whether the prosecution has established its case beyond reasonable doubt. Admittedly, the case rests on circumstantial evidence. The three circumstances relied on by prosecution are that the deceased was found alive on the previous day and she was found dead on the next day, namely, May 30, 1987. The appellant and A-1 were seen in the locality on the previous day. On arrest, the appellant was found to be in possession of MO-4, earrings said to be belonging to the deceased. The chain of circumstances have not been conclusively established to connect the appellant with the commission of the crime. Admittedly, the appellant was not a resident of that locality. He was said to be working in that locality. PW 1 and PW 3 had no personal acquaintance with him. After the arrest, no attempt was made to hold Identification Parade for PW 1 and PW 3 to identify the appellant. For the first time he was identified in the court. So it is difficult to place reliance on such evidence. The earrings MO-4 said to be belonging to the deceased and claimed to have been recovered from the appellant. When the recovery was said to have been made under Panchnama, independent persons were said to be the witnesses for the recovery of MO-4 but no independent witness was examined. On the other hand, the Head Constable was examined. There is no explanation for non-examination. That apart, it is hazardous to convict an accused for offence under Section 302 on mere recovery under Section 27 of the Evidence Act. The circumstances are sufficient to hold that the prosecution has not proved its case beyond all reasonable doubt. The appeal is allowed and the conviction and sentences of the appellant are set aside. The appellant be set at liberty forthwith unless he is required in any other case.