JUDGMENT PRASHANT KUMAR, J. 1. This appeal is directed against the judgment of conviction dated 28th May, 2007 and order of sentence dated 29th May, 2007 respectively by Sessions Judge, Bokaro passed in Sessions Trial No. 264 of 2004, whereby and whereunder the appellant, Mantu Manda @ Mahendra Kumar Mandal was convicted under Sections 302, 149 and 120B of the I.P.C and death sentence was awarded against him for the offence under Section 302 I.P.C. read with Section 149 I.P.C. 2. It is relevant to mention that learned Sessions Judge, Bokaro vide his letter no. 467 dated 5th May, 2007, referred the matter to this Court for confirmation of death sentence as per the provision contained under Section 366 of the Cr. P. C., which was numbered as Death Reference No. 4/07. 3. The case of the prosecution, in brief, as per the self recorded statement of P.W.12 (Ext.-12) is that on 8.10.2002 at about 9.10 P.M. he received a telephonic message that firing is going on in Quarter no. 2 of Sector III/E of B.S City. That information was entered in Station Diary (Ext.-26) and thereafter the Officer-in-charge went to the place of occurrence along with P.W. 14, P.W.15 and other police personnel mentioned in self recorded statement. It is further stated that when they reached at the place of occurrence and entered inside the house they saw dead body of a boy, lying on the ground. It is further stated that at that time itself two constables of T.O.P.-III, namely, Rana Umesh Singh (P.W.2) and Nagendra Kumar Singh (P.W.13) came there and they stated that after hearing the sound of firing, they came at that place. They further disclosed that in the way they saw the appellant, Mantu Mandal @ Mahendra Kumar Mandal and co-accused, Subash, Bablu and Pankaj, who were fleeing towards south from Mahila College. Thereafter P.W. 12 directed P.Ws. 14 and 15 and aforesaid two constables to chase the appellant and others. It is further stated that thereafter two persons, namely, Masum Khan (P.W.3) and Taj Ali also arrived at the place of occurrence and in their presence the entire house was searched. During the said search aforesaid two persons identified the dead body lying on the ground in first room as of Munna alias Vijendra Kumar Mishra. It is further stated that from near the dead body two empty cartridges recovered. During the said search aforesaid two persons identified the dead body lying on the ground in first room as of Munna alias Vijendra Kumar Mishra. It is further stated that from near the dead body two empty cartridges recovered. It is also stated that thereafter P.W. 12 entered in another room and there he found the dead body of a girl, who was identified as of Rinki Kumari. It is stated that from near the dead body of Rinki Kumari one black purse recovered on which M.T.V music television and Charanjit printed in yellow colour. It is also stated that when the said purse was opened a visiting card recovered on which M.K. Mandal (Mantu) LIC Commission Agent Code 0332330/566/6215 Sector III E, Quarter no. 1 Bokaro Steel City printed and phone no. 488577 was written by pen. It is also stated that from the said purse a Cheque of Rs. 1,000 of Allahabad Bank of A/c. no. 8512515 was found and in the back of said Cheque M.K.Mandal 9.8.2001 written. It is stated that thereafter on the search of entire house dead bodies of Abhishek Kumar Mishra, Ravindra Prasad Mishra and Vanita Devi also recovered. Thereafter, the inquest report of all the above 5 deceased prepared and the articles mentioned above were seized and seizure-list prepared. Thereafter, on the basis of aforesaid self statement B. S. City P.S. Case No. 226 of 2002 instituted under Sections 302, 120B, 34 of the Indian Penal Code and 27 of the Arms Act and police took up investigation. 4. It appears that at the initial stage, the investigation was conducted by Mr. Neeraj (P.W.15). Thereafter P.W. 14 , Mr. Madhav Ram Bhargava was made Incharge of the investigation. Thereafter he was also removed and P.W. 10, Sudhir Chandra Choudhary was made Incharge of the investigation. It further appears that thereafter P.W. 16, Sheo Prakash Singh took charge of the investigation and he submitted charge-sheet against the appellant. On receipt of the said charge-sheet, learned Magistrate took cognizance of the offence and thereafter committed the case to the court of sessions, as the offence under Section 302 I.P.C. is exclusively triable by a court of sessions. 5. It appears that the appellant surrendered in the court below on 26.3.2004. On receipt of the said charge-sheet, learned Magistrate took cognizance of the offence and thereafter committed the case to the court of sessions, as the offence under Section 302 I.P.C. is exclusively triable by a court of sessions. 5. It appears that the appellant surrendered in the court below on 26.3.2004. Thereafter charges framed against him on 8.9.2004 under Sections 302/149 I.P.C. and 27 of the Arms Act and also under Sections 302/120B of the Indian Penal Code. The said charges read over to the accused appellant and explained in Hindi, to which he pleaded not guilty and claimed to be tried. 6. Thereafter the prosecution examined altogether 16 witnesses. The prosecution had also brought on record some documents in support of its case and also produced material exhibits through P.W. 11. It also appears that one court witness, namely, Sushant Bhatachary, the Branch Manager, Sales, Life Insurance Corporation, examined, who proved Ext.-A and Ext. 25 . Thereafter, the case of prosecution closed and accused/appellant examined under Section 313 of the Cr. P. C. on 25th January, 2007. The record further reveals that thereafter the case was placed for argument and during the argument some objection raised on behalf of defence regarding the admissibility of the self recorded statement of P.W.-12. Thereafter the learned trial court ordered for production a Station Diary entries, which were marked as Exts.-26 and 27 on 28.3.2007. It is relevant to mention that after marking Exts.- 26 and 27, the appellant was not examined under Section 313 Cr. P. C. Thereafter the learned court below heard the argument of both sides and convicted and sentenced the appellant as stated above by the impugned judgment against which present appeal filed and reference was made by learned Sessions Judge for confirmation of death sentence. 7. While assailing the impugned judgment of the learned court below, Sri V.P.Singh, learned Senior Advocate, appearing for the appellant, submits that the entire case of prosecution hinges on circumstantial evidence, as there is no eye witness of the occurrence. Mr. Singh further submits that in the instant case the prosecution mainly relied upon three circumstances. First circumstance is the recovery of purse containing a visiting card and cheque alleging that the same belong to the appellant. Second circumstance is that the appellant was seen running away in suspicious condition, just after the occurrence near Mahila College by P.Ws. Mr. Singh further submits that in the instant case the prosecution mainly relied upon three circumstances. First circumstance is the recovery of purse containing a visiting card and cheque alleging that the same belong to the appellant. Second circumstance is that the appellant was seen running away in suspicious condition, just after the occurrence near Mahila College by P.Ws. 2 and 13, and third circumstance is that prior to one month of this occurrence an altercation took place in between the appellant and deceased, Abhishek Kumar Mishra, for which a case was lodged bearing Bokaro Steel P.S. Case No. 200 of 2002. Sri Singh further submits that it is well settled that a person can be convicted on the basis of circumstantial evidence, but in that case it is incumbent upon the prosecution to prove all the circumstances beyond the shadow of all reasonable doubt and prosecution further required to show that the chain of circumstances are linked with each other in such a way that from which it can be presumed that only the appellant and none else had committed the present crime. Mr. Singh further submits that in the instant case the prosecution had not proved any of the circumstances beyond the shadow of reasonable doubt. Thus, the appellant does not deserve to be convicted in the instant case. Mr. Singh further submits that the alleged recovery of purse containing the visiting card , Cheque and cash money appears to have been fabricated only with a view to implicate this appellant. It is submitted that according to the seizure-list one purse seized on which M.T.V music television and Charanjit printed in yellow colour, but P.W.11, who is Incharge of Malkhana of Bokaro Steel City Police Station had produced a purse on which only M.T.V printed. He then submits that as per seizure-list on the visiting card LIC Code No. 6215 mentioned, but on the visiting card produced in the court. The LIC Agent Code no. 6815 mentioned. Sri Singh further submits that from perusal of evidence of Court witness No. 1, it is clear that Agency no. 6215 belongs to one Sanjay Sachdeo whereas 6815 is the Agency number of appellant. Sri Singh further submits that since visiting card seized in this case does not belong to the appellant therefore recovery of said visiting card can not be used as a circumstance against the present appellant. 6215 belongs to one Sanjay Sachdeo whereas 6815 is the Agency number of appellant. Sri Singh further submits that since visiting card seized in this case does not belong to the appellant therefore recovery of said visiting card can not be used as a circumstance against the present appellant. He then submits that in the seizure-list, it was mentioned that a Cheque of Rs. 1,000 of Allahabad Bank recovered, but P.W. 11 produced a withdrawal form of Allahabad Bank. He further submits that in the seizure-list, it was mentioned that from the purse five currency notes of Rs. 10 and one coin of Rs. 5 and and one coin of Rs. 2 recovered, but P.W. 11 produced five currency notes of Rs. 10 and two coins of Rs. 2 and 3 coins of Rs. 1. Shri Singh further submits that there is nothing on record to show that who seized those articles and the author of seizure-list, namely, Mahesh Singh has not been examined. He further submits that one of the seizure-list witnesses (P.W.3) has not supported the case of seizure. Another seizure-list witnesses, namely, Taj Ali has not been examined. It is also submitted that the said seizure-list appears to be antedated because P.W. 12 claims that the seizure-list prepared at the place of occurrence itself at 20.55 P.M., but on the seizure-list P.S. Case no. was mentioned. He further submits that the F.I.R. was instituted at 23.55, thus, if the seizure-list prepared at the place of occurrence at 22.55 then in that case the P. S. Case number should not have have been written on it. Accordingly, he submits that the entire story of seizure had been concocted and fabricated with a view to falsely implicate the appellant. He then submits that the evidence of P.Ws. 2 and 13 cannot be believed. He then submits that P.W. 12 stated that P.Ws. 2 and 13 disclosed that the appellant along with Subash, Bablu and Pankaj were running away in suspicious condition near Mahila College, but from perusal of the statements of P.Ws. 2 and 13, it is clear that they have not disclosed the name of Subash, Bablu and Pankaj. They also stated that on seeing the appellant they did not suspect anything. Sri Singh further submits that P.W. 13 has belied the statement of P.W. 12 that while he was inspecting the place of occurrence P.Ws. 2 and 13, it is clear that they have not disclosed the name of Subash, Bablu and Pankaj. They also stated that on seeing the appellant they did not suspect anything. Sri Singh further submits that P.W. 13 has belied the statement of P.W. 12 that while he was inspecting the place of occurrence P.Ws. 2 and 13 came running at the place of occurrence because P.W. 13 stated that he and P.W.2 came at the place of occurrence along with P.W. 12 on a jeep which was driven by P.W. 12. He further submits that P.W. 13 had admitted that he does not know the appellant from before. Under the said circumstance, how he identified the appellant at about 9 P.M. in the night when there was raining. Mr. Singh submits that P.W. 12 at paragraph 21 had stated that distance of Mahila College from the place of occurrence is about 200 to 300 yards, under the said circumstance if any person was found running at that distance when there was raining nothing is unusual. Thus, the said circumstance has no linked with the present occurrence. Accordingly, Sri Singh submits that there is no source of light, thus claim of P.Ws. 2 and 13 that they saw appellant near Mahila College is doubtful. Accordingly, he submits that second circumstance also not proved beyond shadow of reasonable doubt. So far third circumstance is concerned, Sri Singh submits that even it is assumed that appellant has inimical relation with deceased persons then also it cannot be presumed that the appellant had committed the murder of aforesaid five deceased persons. Accordingly, he submits that the prosecution had not proved the charges levelled against the appellant beyond the shadow of all reasonable doubt. 8. Sri Sanjay Kumar Srivastava, APP, appearing for the prosecution submitted that entire case rests on the circumstantial evidence. He further submits that recovery of purse of appellant and its content from near the dead body of deceased, Rinki Kumari and the circumstance that P.Ws. 2 and 13 had seen him while he was running away from near Mahila College, couple with the fact that the appellant had inimical relation with the deceased family from before goes to show that the appellant and none else had committed the present crime. He further submitted that the seizure-list has been proved in the instant case and the seized articles were produced. He further submitted that the seizure-list has been proved in the instant case and the seized articles were produced. He further submits that P.Ws. 2 and 13 had been examined and they have proved that they saw appellant while he was running away from near the place of occurrence. He then submits that the F.I.R. of Bokaro Steel P. S. Case No. 200 of 2002, has been filed and proved in this case as Ext.-21. Accordingly, Sri Srivastava submits that in the instant case the prosecution proved the charges levelled against the appellant beyond the shadow of all reasonable doubt, hence the court has rightly convicted him under Sections 302/149 and 120B of the Indian Penal Code. He then submits that in the instant case five persons had been murdered brutally, thus, the learned court below rightly awarded death sentence against the appellant which does not require any interference by this Court. 9. Having heard the submission of the parties, we have gone through the record and carefully scrutinized the evidence available on record. From perusal of evidence of P.W. 1 postmortem reports Ext.-1 series and inquest reports Ext.-17 series, it is clear that deceased, Munna @ Vijendra Kumar Mishra, Rinki Kumari, Abhishek Kumar Mishra, Ravindra Prasad Mishra and Vinita Devi had died a homicidal death. Learned counsel for the appellant also not challenged the homicidal death of aforesaid deceased. Thus, the question arose in this case as to whether appellant has any hand in the commission of present crime. This bring us to consider the entire evidence available on record. 10. On perusal of the evidence available on record, we find that the entire case of prosecution rests upon the circumstantial evidence as there is no eye witness of the occurrence. In this case the prosecution had tried to prove the charges levelled against the appellant on the basis of three circumstances (i) recovery/seizure of a purse which contains visiting card and cheque from near the dead body of deceased Rinki Kumari alleged to be of the appellant (ii) the evidences of P.Ws. In this case the prosecution had tried to prove the charges levelled against the appellant on the basis of three circumstances (i) recovery/seizure of a purse which contains visiting card and cheque from near the dead body of deceased Rinki Kumari alleged to be of the appellant (ii) the evidences of P.Ws. 2 and 13 in which they claimed that they saw appellant and others near Mahila College while they were running away and (iii) one month prior to the occurrence some quarrel took place in between the appellant and the deceased, Abhishekh Kumar Mishra, for which a case was instituted namely Bokaro Steel P. S. Case No. 200 of 2002. 11. It is well settled that in a case of circumstantial evidence, it is imperative upon the prosecution to prove all the circumstances beyond the shadow of all reasonable doubt and it is also incumbent upon it to show that the circumstances are so linked with each other that it forms a chain which indicates that only the accused had committed the crime and none else. Keeping in view the aforesaid settled principle of law we are proceeding to consider whether the prosecution had proved all the circumstances mentioned above beyond the shadow of all reasonable doubts. 12. The prosecution had mainly relied upon the statement of P.W. 12 to prove the first circumstance. He stated that from near the dead body of Rinki Kumari a black purse found on which M.T.V music television and Charanjit printed in yellow colour. He further deposed that when said purse opened one visiting card of M. K. Mandal (Mantu) was found on which the address of Mantu was mentioned as Sector IIIE Quarter No. 1 Bokaro Steel City, Bokaro. He further deposed that in the said purse a Cheque of Allahabad Bank, Bokaro Steel City Branch was also found and on the back of it M. K. Mandal was written. He deposed that the said purse was seized and a seizure-list prepared. However, he stated that he could not remember who prepared said seizure-list. P.W. 14 has stated that the said seizure-list was prepared by Mahesh Singh. It is relevant to mention that aforesaid Mahesh Singh had not been examined. From perusal of Ext. 13/1 (seizurelist), it appears that the same was prepared in presence of P.W. 3 and one Taj Ali. However, he stated that he could not remember who prepared said seizure-list. P.W. 14 has stated that the said seizure-list was prepared by Mahesh Singh. It is relevant to mention that aforesaid Mahesh Singh had not been examined. From perusal of Ext. 13/1 (seizurelist), it appears that the same was prepared in presence of P.W. 3 and one Taj Ali. Though, P.W.3 had been examined in this case, but he has not said anything regarding the seizure of articles. He only proved his signature on seizure-list, which was marked as Ext.-6, But from perusal of his statement, at paragraph no. 9, it appears that he made signature on seizure-list at his home and that too in the night at about 2 A.M. i.e. much after the seizure as claimed by P.W. 12. Thus non-examination of Mahesh Singh and non-examination of Taj Ali creates a doubt on the seizure of said article. Moreover, from perusal of the evidence of evidence of P.W. 11, the said seizure further becomes doubtful, because P.W. 11 had produced various articles seized as per the seizure-list. He has produced one live cartridge, which was marked as material Ext. (VII), but from perusal of seizure-list, it is clear that no live cartridge was seized from near the place of occurrence. P.W.11 then produced a black purse on which only MTV printed. From perusal of seizure-list, it appears that on the seized purse MTV music television and charanjit printed in yellow colour. P.W.11 at paragraph 25, of his deposition, has admitted that in the Malkhana Register, it is not mentioned that on the seized purse Charnanjit written. P.W. 11 further produced a visiting card in which LIC code of Mantu Mandal was mentioned as 6815, whereas from perusal of seizure-list, it is clear that on the seized visiting card LIC Code No. 6215 written. Thus, it appears that a different visiting card produced. It further appears from the evidence of C.W. 1 that LIC code 6215 belongs to one Sanjay Sachdeo, whereas the LIC code of this appellant is 6815. Thus, we find force in the argument of the learned counsel for the appellant that a different visiting card prepared and produced in the court, with a view to implicate the appellant. It further appears from the seizure-list that a Cheque of Rs. Thus, we find force in the argument of the learned counsel for the appellant that a different visiting card prepared and produced in the court, with a view to implicate the appellant. It further appears from the seizure-list that a Cheque of Rs. 1,000/- of Allahabad Bank, Bokaro Steel City Branch was found in the purse, but P.W. 11 produced a withdrawal form of Allahabad Bank, which is also different from the seized article. It also appears that in the purse five currency notes of Rs. 10 and 1 coin of Rs. 5 and 1 coin of Rs. 2 found, but in the court P.W. 11 produced 5 currency of notes of Rs. 10, 2 coins of Rs. 2 and 3 coins of Rs. 1, which is also different from the seized article. The funniest part of the deposition of P.W. 11 is paragraph no. 13 of his deposition, where he admits that the material exhibit produced in the court are different from the articles mentioned in the seizure-list. 13. In view of the aforesaid discrepancy i.e. non-examination of the seizure-list witnesses and non examination of the officers, who prepared seizure-list and production of other article in court caste serious doubt on the seizure of any articles from near the place of occurrence. In that view of the matter we are of the definite view that the first circumstance relied upon by the prosecution has not been proved beyond the shadow of all reasonable doubt. 14. Now coming to the second circumstance, it is relevant to mention that P.W. 12, in his self statement (Ext. 12) as well as in his deposition, had categorically stated that P.Ws. 2 and 13 came running to the place of occurrence and disclosed that after hearing the sound of firing, they were coming towards the place of occurrence during that period, they saw Mantu Mandal (appellant), Subash, Bablu and Pankaj near Mahila College, while they were running away. But from perusal of evidence of P.W. 13, we find that he completely belied the statement of P.W. 12. He categorically stated that he went to the place of occurrence along with P.W. 12 and other police personnel on a jeep. This witness further stated that he did not stated anything to P.W. 12. But from perusal of evidence of P.W. 13, we find that he completely belied the statement of P.W. 12. He categorically stated that he went to the place of occurrence along with P.W. 12 and other police personnel on a jeep. This witness further stated that he did not stated anything to P.W. 12. He further stated that for the first time he has been examined by the Investigating Officer on 10th October, 2002, which appears to be correct on perusal of case diary. This fact is also admitted by Investigating Officer (P.W. 15). 15. Thus, if P.W. 13 has not stated before the Officer Incharge (P.W. 12) regarding fleeing of appellant on the date of occurrence then how aforesaid fact mentioned in the self written statement, it is mystery. This shows that the I.O. and Officer Incharge planned to implicate this appellant later on and made a table work and because of that the first information report sent in the court after more than 24 hours i.e. on 10th October. There is absolutely no explanation why such delay took place when the distance of police station from the Court is not far away. 16. In this connection, it is worth mentioning that P.W. 13, in his deposition, at paragraph 10, stated that he is not the friend of appellant. He also states that he never sat with the appellant nor he used to go his house frequently. There is nothing on the record to show that at the relevant time there was any source of light near Mahila College. P.W. 13 admitted that there was raining when they reached near Mahila College. Under the aforesaid circumstance, when the appellant is not so familiar with P.Ws. 2 and 13 the identification of appellant becomes doubtful. 17. Moreover, P.W. 12 admitted that the distance of place of occurrence from Mahila College is 200 to 300 yards. It has also come in the evidence of P.W. 13 that while he was coming to the place of occurrence in the way he saw so many persons from whom he asked about the location of occurrence. Thus, it is clear that at the relevant time so many persons were going here and there through that lane. It has also come in the evidence of P.W. 13 that while he was coming to the place of occurrence in the way he saw so many persons from whom he asked about the location of occurrence. Thus, it is clear that at the relevant time so many persons were going here and there through that lane. Under the said circumstance during the rainy time if appellant was seen going from near the Mahila College then it cannot be presumed that he was coming from the place of occurrence. Moreover, there is no evidence on record that any person saw that appellant was coming out of the house of deceased just after the occurrence. Learned APP, however, submits that P.W. 3 had said so, but from perusal statement of P.W. 3, it is clear that he has been declared hostile by the prosecution as he has not supported the case of prosecution. Under the aforesaid circumstance, his statement made before I.O. under section 161 of the Cr. P. C. cannot be looked into for proving this fact. In that view of the matter, even if it is presumed that P.Ws. 2 and 13 had seen the appellant at a distance of 300 yard form the place of occurrence, it cannot be presumed that the appellant was fleeing from the place of occurrence after committing the present crime. P.W. 2 specifically stated that while he saw Mantu and others he did not suspect that they might have made the firing, nor he made any query from them. In that view of the matter, we find that second circumstance has also not been proved beyond the shadow of all reasonable doubt. 18. So far the third circumstance is concerned, the same has been proved by producing F.I.R. of Bokaro Steel P. S Case No. 200 of 2002. From perusal of the same, it appears that some altercation took place between the appellant and the deceased, Abhishekh Kumar Mishra one month before the occurrence. Thus, if third circumstance is taken to be true, then it only suggests that the appellant had some motive for committing the present crime. It is well settled that only because some person has motive to commit a crime, he cannot be convicted and held guilty of the charges in the absence of any positive evidence. 19. Thus, if third circumstance is taken to be true, then it only suggests that the appellant had some motive for committing the present crime. It is well settled that only because some person has motive to commit a crime, he cannot be convicted and held guilty of the charges in the absence of any positive evidence. 19. In view of aforesaid finding we conclude that the prosecution has failed to prove the charges levelled against the appellant beyond the shadow of all reasonable doubt. Accordingly, we find material illegality and irregularity in the impugned judgment of conviction and order of sentence passed by the learned court below. Thus, the same cannot be sustained in this appeal. 20. In view of the discussions made above, this appeal is allowed and the impugned judgment of conviction dated 28th May, 2007 and order of sentence dated 29th May, 2007 are set aside. The appellant, Mantu Mandal @ Mahendra Kumar Mandal, is acquitted from the charges levelled against him. The appellant, who is in jail, is directed to be released forthwith, if not wanted in any other case(s). The death reference is accordingly answered in negative.