JUDGMENT Dr. T.N. Singh, J.- 1. Seven years ago, when Devalia left her home early morning to cut grass in the fields, little did she knew that she had a tryst with destiny. She did not return. Her dead body was seen in the fields and information was lodged by her husband's brother at the Police Station the same day in the evening. What is not disputed indeed is that there is no eye-witness to the occurrence and the conviction of the appellant rests purely on circumstantial evidence. Having been sentenced under Section 302 I.P.C. to R. I. for life and another five years under Section 394, I.P.C., he has appealed from jail. 2. Now, some more facts about the prosecution case. When Devalia did not return home, her husband, her brother and other villagers started looking for her. At around noon her husband having discovered her dead body lying near a well at a distance of about 1 1/2 furlongs from the village, sent her brother (P.W. 4) to lodge report at the Police Station, which is Ex. P/14. The Officer-in-charge of the Police Station came to the village at night and held inquest over the dead body next day, on 19-4-1980, and sent the same for post-mortem examination. He also seized from the place of occurrence one blood smeared Kudra (sickle) lying near the dead body. The same day, he wrote out a First Information Report (Ex. P/18) at around 4.00 p.m., and recorded statements of some witnesses including P.Ws. 1 and 4. On 20-4-1980 and 22-4-1980 statements of some other witnesses were recorded by him. Somebody informed him that the accused was seen in Bamore area and he left accordingly for that place. On 23-4-1980, a pair of Painjana (anklets) was recovered from the accused by the Officer in-charge of Police Station, Bamore and the accused was arrested and brought with the seized article to Police Station Chanderi. On the same date, namely, 23-4-1980, the accused gave a statement to him that he had sold a pair of Chuda (bangles) to certain goldsmith of Bamore. On 24-4-1980, a pair of bangles was seized from. P.W.9 Ramdin and on 13-5-1980, the Tahsildar K.L. Jatav (P.W. 11) held proceedings for the identification of the seized articles the pair of Painjana and Chuda. Ex. P/13 was proved as the record of that proceeding. On 24-4-1980, a pair of bangles was seized from. P.W.9 Ramdin and on 13-5-1980, the Tahsildar K.L. Jatav (P.W. 11) held proceedings for the identification of the seized articles the pair of Painjana and Chuda. Ex. P/13 was proved as the record of that proceeding. Autopsy surgeon (P.W. 10) proved the post-mortem report (Ex. P/13) and deposed that he found as many as seven incised injuries, inflicted by sharp cutting weapon, on the face, head and neck of the deceased. He opined that the cause of death was shock and hemorrhage, bleeding from brain and arteries. The charge-sheet against the accused was filed on 21-5-1980. 3. Learned Defence Counsel (appointed by legal Aid Board) has assailed the recoveries and he also submitted that prosecution bas failed to prove a complete chain of solid circumstances to bring home the offence of murder of Devalia to the accused. Indeed, his contention is that the Trial Court having overlooked the missing links and the fragils and innocuous character of the circumstances proved being wholly incompatible with the innocence of the accused, the verdict rendered against him is not sustainable in law. '4. Learned Government Advocate Shri Govind Singh, on the other hand, relied on four circumstances which, he submits, are not only conclusively proved, those circumstances rather conclusively established the guilt of the accused. He has stressed the following circumstances on which the trial Court relied, to sustain the conviction and sentence passed against the accused : (i) Accused was seen near the place of occurrence on the same date, few hours before the dead body of Devalia was recovered. (ii) Devalia had worn ornaments when she left her home, but those were found missing from the dead body. (iii) One item of the ornaments, namely, the pair of Chudas (bangles) was recovered from P.W. 9 at the instance of the accused pursuant to his statement made under Section 27 of the evidence Act ; and (iv) A day earlier, another item of the ornaments, namely, the pair of Painjana (anklets) was recovered (after four days of the occurrence) from possession of the accused himself. 5. However, before appreciating the rival contentions and the evidence, we may profitably note the law bearing on the value and use of circumstantial evidence. 5. However, before appreciating the rival contentions and the evidence, we may profitably note the law bearing on the value and use of circumstantial evidence. Sharad's case AIR 1984 SC 1622 is the latest authoritative pronouncement laying down "five golden principles", by which their Lordships meant to "constitute the panchsheel of the proof of a case based on circumstantial evidence". These may be summed up as follows in the language used, more or less, by their Lordships :- 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3. The circumstances should be of a conclusive nature and tendency. 4. They should exclude every possible hypothesis except the one to be proved, and 5. There must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 6. Still, a few earlier decisions may also be referred to trace the history of development of judicial opinion in this matter. Indeed, as early as in 1952 in Palvinder Kaur AIR 1952 SC 354 . the Supreme Court took the view that "vague and indefinite" circumstantial evidence cannot be basis of conviction in a criminal case, adding that to return the verdict of guilty against accused charged under Section 302, I.P.C. circumstances proved must be "of a character which are wholly incompatible with the innocence of the appellant" . 7. In Bakshish Singh AIR 1971 SC 2016 their Lordships observed even then that the law was "well-settled" that "there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". Stress on "complete chain" as a pre-requisite to sustain a conviction on circumstantial evidence was reiterated in Rahman AIR 1972 SC 110 . Stress on "complete chain" as a pre-requisite to sustain a conviction on circumstantial evidence was reiterated in Rahman AIR 1972 SC 110 . and more later also in Umedbhai AIR 1978 SC 424 wherein another classic statement Was made that "any missing link may be fatal to the prosecution case" and, therefore, "the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole". 8. Although Government Advocate Shri Govind Singh has cited Sunderlal AIR 1954 SC 28 we do not think if we can read therein anything which detracts from the statement of law which we have read in the decisions of their Lordships afore-cited. Considering cumulative affect of the relevant circumstances, such as of the accused and the deceased being "last seen together" and recovery of ornaments with identity thereof duly established, read in conjunction of medical evidence, of the manner of commission of the offence, the conviction entered by the High Court under Section 302, I.P.C. against the accused was upheld. Counsel's reliance, in our opinion, on a Bench decision of this Court in the case of State of Madhya Pradesh v. Murarilal 1973 JLJ 706 . would also not avail him for the simple reason that at para 29 of the Report, the complete chain of circumstances are itemised categorically, as large as 14 in number. True, there is some similarity between the facts of the instant case and those of Sunderlal (supra) and Murarilal (supra), but that would not persuade us to shut our eyes to the facts and circumstances of the instant case and to ignore the guidelines laid down by the Apex Court in appreciating the evidence of the case in hand to reach a conclusion in this case on the validity of the conviction rendered against the accused under Sections 302 and 394 I.P.C. 9. In the light of the aforesaid guidelines, we may now examine the circumstances enumerated by Shri Govind Singh carefully. We may first read, the evidence of P.W. 2 concerning movement of the accused few hours before the occurrence. She deposed that on the date of occurrence, she went out at daybreak with some women to cut grass from the field of one Ramratan. She met accused in Ramratan's field when her party was engaged in cutting grass there. We may first read, the evidence of P.W. 2 concerning movement of the accused few hours before the occurrence. She deposed that on the date of occurrence, she went out at daybreak with some women to cut grass from the field of one Ramratan. She met accused in Ramratan's field when her party was engaged in cutting grass there. The accused asked her if she had seen a red cow and she told him that she had not. She also deposed that Devalia had gone to cut grass in the field of Laxman Patwari which was at a distance of 1½ miles from Ramratan's field. She admitted that she knew the accused and also that he had a red cow. The least we can say about this evidence is that it establishes no link at all between the accused and the offence. Indeed, this evidence is not of the type or character which is described at legal parlance as evidence of "last seen together". In no sense, the evidence of P.W. 2 established any incriminating circumstance against the accused. Indeed, it has also not been established that the accused knew the deceased or her whereabouts on the date and time of occurrence. There is no evidence that the deceased was seen anywhere near the place where the accused was seen and indeed the accused had not even made any enquiry of the witness of the whereabouts of the deceased or had followed her. In this connection, the evidence of P.W. 4 may also be noted that he had been to the well in Patwari's field (where the dead body was found) but he had not seen the accused there. 10. Because we are required to examine microscopically also the other circumstances (concerning the ornaments) is it necessary to note first the basic infirmities afflicting them. The first thing to be noted is that no mention about theft of the ornaments is to be read in Ex. P/14 though P.W. 4 deposed that he was living with his brother P.W. 1 and he also deposed that when deceased went out on the date of occurrence to cut grass, she was wearing the ornaments. He also deposed that when the dead body was seen, the ornaments were missing and yet, this fact was not mentioned by him in lodging the information Ex. P/14. He also deposed that when the dead body was seen, the ornaments were missing and yet, this fact was not mentioned by him in lodging the information Ex. P/14. This crucial omission must be considered a circumstance to the advantage of the accused as it would make doubtful the prosecution case of missing ornaments. 1 I. True, in F.I.R. (Ex. P/18), the factum of the missing ornaments finds mention, but that would not lend credence to the prosecution case for the simple reason that the F.I.R. having been recorded during the course of investigation, it would be hit by Section 162, Cr. P. C. On the other hand, we are disposed to treat Ex. P/14 as the F.I.R. because it contains the essential ingredients of an F.I.R., namely, information, relating to commission of a cognizable offence without naming, albeit, the author of the offence. The statement of P.W. 4 recorded in Ex. P/14 is not only that a dead body was seen by him, but that he had also seen marks of violence on the dead body. 12. In Tapinder Singh 1970(2) SCC 113 . the Apex Court has held that whether or not a particular document constitutes F.I.R. has to be determined on the relevant facts and circumstances of each case though the mere fact that information was the first in point of time would not be decisive of the character of document. The very fact that within a few hours of her leaving her house, the deceased was found dead with injuries on her body raised presumption of commission of a cognizable offence. Indeed, the information contained in Ex. P/14 was given by P.W. 4, a named person, personally present himself at the Police Station; and it was not indefinite or vague so as to exclude it from the purview of Section 154, Cr. P. C. The mere fact that P.W. 11, who recorded it, labelled it under Section 174 Cr. P. C. would not make it so. Because he did not comply with the requirement of sub-section (2) of Section 154 by giving a copy thereof to P.W. 4 would also not exclude Ex. P/14 from the purview of Section 154 Cr. P. C. Indeed, by lodging Ex. P. C. would not make it so. Because he did not comply with the requirement of sub-section (2) of Section 154 by giving a copy thereof to P.W. 4 would also not exclude Ex. P/14 from the purview of Section 154 Cr. P. C. Indeed, by lodging Ex. P/14, P.W. 4 also categorically requested an investigation to be made on it and the fact is that he was a close relative of the deceased who had narrated also the suspicious circumstances of the incident. The statements made by P.W.4 in Ex. P/14 and the fact that he was a close relative of the deceased who could approach Court and claim to be heard by the Court if the Police took no action on his report determined the character of the document as an F. I. R. (See, Bhaghwant Singh AIR 1985 SC 1285 ) 13. The other important fact which impairs seriously prosecution's story of missing ornaments is the evidence of Investigating Officer (P.W. 13) who admitted that when he held inquest over the dead body of Devalia, he found two "Gilt Chudis" besides thirteen rubber Chudis on her wrist. Indeed, he also deposed that he did not notice any other ornaments in the wearing of the deceased except that but the important point is that these facts were not mentioned in the inquest report (Ex. P/3) and indeed no seizure memo was prepared of the "gilt chudis". If this evidence is accepted, then evidence of other witnesses becomes doubtful as P.Ws. 1 and 4 both deposed that the deceased was wearing only one pair of Chudis when she left her house for cutting grass on the date of occurrence. There is no evidence that the deceased was wearing two pairs of bangles (Chudis) on the date of occurrence before she left her house. 14. The other serious infirmity afflicting the story of missing ornaments is that of discrepant identity of the ornaments recovered and those said to have been lost. While P.Ws. l and 4 both deposed that the deceased used to wear and was wearing on the date of occurrence Chudis or Chudas (bangles) made of silver, what was recovered was alloyed bangles as deposed by the goldsmith Ramdin (P.W. 9) who said that the bangles were made of alloy composed of only six annas of silver, the rest ten annas being of inferior metal. About the pair of anklets also, there is a similar discrepancy. P.W. 5 Shanker deposed that the accused had come to him to sell anklets made of silver, but what was recovered was a pair of alloyed anklets. Indeed, when he was shown the seized anklets, he admitted that those were not made of silver. 15. Indeed, even the identification of the seized articles as missing articles cannot be accepted as flawless. No explanation has come as to why the identification proceeding was deferred for about three weeks. In Matru's case 1971 (2) SCC 75 , it was held that an early identification test only lends assurance to the genuineness of recovery as "such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation of the offence is proceeding on right lines". That apart, it was also held that the identification test ought to be conducted in such manner that it serves the purpose of a "disintererted and dependable source" of corroboration. If seized articles are not mixed with other articles of the same type, it would detract from the value of the identification made by witnesses as there would be no scope to pick and choose the incriminating articles from others of the similar type. 16. In the instant case, the Tahsildar P.W. 11 deposed that he had got the seized anklets mixed up with other six anklets which were made of silver and he also deposed that he did not remember if those six anklets were new or old. In the instant case, the seized anklets, according to both witnesses, P.W. 1 and 2, being old and not of silver, but of alloy (according to P.W. 4 of mixed copper), it was hardly difficult for the witnesses to pick out the seized anklets from the other six anklets made of silver. Indeed, it has also not been established on the evidence of P.W. 11 or any other witness as to whether the bangles or the anklets which were mixed with the seized articles were new or old. P.W. 1 who had identified the ornaments, admitted that he could pick out and recognise the seized anklets as those were worn by his wife, deceased Devalia, on account of distinctive marks they carried. P.W. 1 who had identified the ornaments, admitted that he could pick out and recognise the seized anklets as those were worn by his wife, deceased Devalia, on account of distinctive marks they carried. However, he admitted in his evidence that he did not disclose earlier to the Tahsildar that the missing ornaments of his deceased wife had any distinctive marks like dents on the bangles and etched pattern on the anklets. 17. The only record of the identification test conducted by the Tahsildar (P.W. 11) is to be read in Ex. P/13, the significant features thereof must be noticed. In the remarks column, Note No. 3 is that the seized articles, though brought in a sealed condition, the sealed cover did not bear any signature or endorsement. This omission must seriously impair the validity of the identification as the possibility of those articles being shown to P.W. 1 could not be excluded. Another thing to be noted is that the reason which P.W. 1 gave at the time of identification belies the evidence he gave in the Court. He did not tell the Tahsildar that the bangles were dented or the anklets had any pattern etched on them by which he was able to identify those. Instead, the only reason he gave and is recorded in Ex. P 13 is that the ornaments were worn by his wife and, therefore, he could recognise them. 18. In support of the recovery of the anklets, the main piece of evidence has come from P.W. 5 Shankar who has already been read in part though the material part of his evidence remains yet to be read. Indeed, he figures, in a sense, as the king-pin of the prosecution case being instrumental in causing the alleged recovery of the anklets and arrest of the accused. We have already noted the material discrepancy in his evidence relating to the identity of the stolen, seized and recovered anklets as those recovered were not of silver and his evidence was that accused had gone to him at village Pipra on 23-4-1980 with a pair of anklets made of silver. He deposed that having become suspicious on account of low price claimed for them by the accused, he sent one Balchand Lodhi to Bamore Police Station. It is also his evidence that when the anklets were recovered from the accused one Jugraj Singh was present. He deposed that having become suspicious on account of low price claimed for them by the accused, he sent one Balchand Lodhi to Bamore Police Station. It is also his evidence that when the anklets were recovered from the accused one Jugraj Singh was present. But neither the said Balchand Lodhi nor Jugraj Singh were examined who would have supplied the vital links of that part of the chain of the circumstances s related to recovery of anklets and arrest of the accused. Indeed, P.W. 5 also deposed that during night, the accused stayed in that village at the house of one Toran Kori but surprisingly that man even has also not been examined. 19. In a case which rests on purely circumstantial evidence, the duty of the Court to consider the question of missing link stressed by the Apex Court has been noted earlier and, therefore, non-examination of these witnesses, in our view, assumes grave importance in this case. Indeed, as to the events leading to the accused's arrest, other missing links are also there, projected in the evidence of I.O. (P.W. 13) and P.W. 12. Officer in-charge of Bamore Police Station who had gone to Pipra village and had arrested accused and also seized anklets from him. Both these witnesses have not given any clue in their evidence as to source of their information leading to the crucial event of the arrest of the accused. Both P.Ws. 12 and 13 deposed that from some informer (Mukbeir) they got information about the accused. Indeed, although P.W. 5 deposed of sending Balchand Lodhi (not examined), P.W. 13 does not name anybody and speaks only of "informer". 20. Whether it is an investigation or trial for criminal offence what is constitutionally envisaged is an open affair and such reasonable procedure to be followed by the Court as also the investigation agency as may not jeopardise liberty of any person. That is the mandate of Article 21 of the Constitution. No procedure, whether prescribed in the Code of Criminal Procedure or in the Evidence Act gives room for any secretive investigation as would sanction shielding of "informers." Such persons may have a role in arrests and detentions made under the law of Preventive Detention as constitutional sanction and not prohibition for that may be read in clauses (3), (4) and (5) of Article 22. The role of "informers", persons not named not examined and not cited as witnesses, is repugnant to the letter and spirit of clauses (1) and (2) of Article 22 of the Constitution as also indeed of Sections 172 and 173 of the Code of Criminal Procedure. On the object, purpose and manner of maintaining case Diary Bhagwant Singh (supra) is eloquent authority. All material witnesses must be produced to satisfy the Court that the investigation was fair and indeed, it is the requirement of fair trial that material witnesses are not withheld, but are produced so that the accused is not put at a disadvantage. By holding back the "Informer", or even the link witnesses Jugraj Singh and Balchand Lodhi, the prosecution case does not only suffer missing links in the chain of circumstances, but fairness of the trial and investigation is also seriously impaired entailing a Constitutional disqualification. 21. Indeed it is considered as "the bounden duty of the prosecution to examine material witness, particularly when no allegation has been made that, if produced, he would not speak the truth". In Habeeb Mohammad AIR 1954 SC 51 , this view was taken and it was held that "not only does adverse inference arise against the prosecution from the non-production of witness in view of illustration (g) to Section 114 of the Evidence Act, but circumstances of his being withheld from Court casts a serious reflection on the fairness of the trial". In Sardul Singh v. State of Bombay AIR 1957 SC 747 , what was highlighted was that "the duty of a fair prosecutor extends only to examine such of the witnesses who are necessary for the purpose of unfolding the prosecution story in its essentials". In the instant case, the true circumstances of recovery of bangles and the anklets cannot be held to have been conclusively established because solid links in the chain of circumstances. in the form of material witnesses like the two unnamed "informers" at two places as also Jugraj Singh and Balchand Lodhi of village Pipra where really the story of recovery of ornaments unfolds, are significantly missing. 22. There is, however, other serious infirmities also which afflict the prosecution story of recovery of the anklets from the shop of P.W. 9 Ramdin. 22. There is, however, other serious infirmities also which afflict the prosecution story of recovery of the anklets from the shop of P.W. 9 Ramdin. This was made, as the prosecution case goes, at the instance of the accused who is alleged to have made statement under Section 27 of the Evidence Act, which is Ex. P/8. Ramesh. P.W. 8, and another person are witnesses named in Ex. P. The question is, what value Ex. P/8 and the recovery made on that basis could have in law because the statement of the accused, though alleged to have been recorded ipsissima verba has not been proved by any of the witnesses. This Court has held in Bhagirarh 1958 JLJ 9 = AIR 1959 MP 17 , that whatever statement is attributed to an accused person in Police custody giving information under Section 27 of the Evidence Act leading to the discovery of any object must be proved by witnesses like any other fact. Indeed, one of us (Dr. T.N. Singh, J.) speaking for the Court in the Bench decision in Phusu Koiri 1986 Cri. LJ 1057, has expressed the same opinion in holding that statement of an accused made under Section 27 of the Evidence Act, because of the pronouncement in Jogeshwar's case AIR 1983 SC 349 must be proved ipsissimav erba and duty rests on Court to ensure that the prosecution does so because fake discoveries are not contemplated and authorship of the discovery must be attributed to the accused conclusively. In the instant case, P.W. 6 has merely deposed that he had signed Ex. P/8 and that the accused had given the statement that he had sold a pair of bangles to a goldsmith of Bamore. He did not prove anything more than that and, therefore, it is difficult to accept, as alleged in Ex. P/8, that the accused undertook to accompany anybody from Chanderi to Bamore to the shop of the said goldsmith for the purpose of recovery of the pair of bangles. True, I.O. (P.W. 13) has stated that the accused undertook the journey with him to Bamore for the alleged recovery but he is not supported in that regard by P.W. 8. Indeed, at Bamore also, the seizure Memo Ex. P/9 and in Ex. P/l2, account book of the goldsmith P.W. 9, the accused's name appears as Kisan of Nayagaon. True, I.O. (P.W. 13) has stated that the accused undertook the journey with him to Bamore for the alleged recovery but he is not supported in that regard by P.W. 8. Indeed, at Bamore also, the seizure Memo Ex. P/9 and in Ex. P/l2, account book of the goldsmith P.W. 9, the accused's name appears as Kisan of Nayagaon. Although P.W. 9 deposed that it was accused who had given his name like that and had sold him the bangles, he also admitted that the entries in the account book contained overwriting. It is also his evidence that usually, in the account - book, the signature of seller is not obtained though in the instant case, he had obtained accused's signature on Ex. P/12. In his cross-examination, he deposed that one Ragga was present when the accused had sold him the bangles. Yet, though accused's signature was obtained because he was not known to him, signature of the witness Ragga was not obtained and indeed, the prosecution did not examine that witness Ragga to prove the identity of the accused. Indeed, it was necessary to do so to establish conclusively that the accused had given a false name and that he was the person who had sold the bangles to P.W. 8. 23. It is necessary also to note another serious infirmity which taints the discovery made as per Ex. P/8. When the accused was examined under Section 313, Cr. P.C. his statement recorded in Ex. P/8, on which his signature was obtained, was not put to him and indeed, although P.W. 6 Ramesh did not prove accused's statement ipsissima verba, it was put to him that P.W 6 as also P.W. 13 had deposed to the Court in that regard. Indeed, the infirmity of accused's examination under Section 313, Cr. P.C. must be deemed serious because of what was recorded in Ex. P/8 was not put to him ipsissima verba and the trial Court did not even put to him what was stated by I.O. (P.W. 13) in his deposition in Court in relation to that statement. In Phusu Koiri (supra), it was observed that the accused must have a real opportunity to explain any particular circumstance under Section 313, Cr. P. C. appearing in Evidence which is to be used against him. In Phusu Koiri (supra), it was observed that the accused must have a real opportunity to explain any particular circumstance under Section 313, Cr. P. C. appearing in Evidence which is to be used against him. This view was taken on the basis of what was stated in Sharad (supra) that consistently since 1953 the Apex Court has been holding that unless any circumstance appearing in evidence against accused was put to him that cannot be used against him. 24. For all the foregoing reasons, we have no hesitation to hold that the prosecution have failed to establish a complete chain of incriminating circumstances against the accused and also that the circumstances relied on by the prosecution have not been conclusively proved. We are of the view that on the basis of tenuous and half-proved circumstances the offences, with which the accused/appellant is charged for the murder of deceased Devalia, and robbery of ornaments cannot be brought home to him. 25. In the result, the appeal succeeds and is allowed. The accused, who is in Jail, shall be set at liberty forthwith.