JUDGMENT : Sanjay K. Agrawal, J. 1. This Criminal Appeal under Section 374 (2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 13.07.2012 delivered by learned Sessions Judge, Rajnandgaon, District-Rajnandgaon (C.G.) in Sessions Trial No. 63/2011 whereby the appellant/accused has been convicted for the offence punishable under Section 302 of the IPC and sentenced to life imprisonment and fine of Rs.5,000/-, in default of payment of fine, additional R.I. for one year. 2. Case of the prosecution, in brief, is that between 28.03.2011 to 31.03.2011 at village Kahgaon, the appellant strangulated deceased Ku. Kuleshwari Bai and caused her death thereby he committed offence punishable under Section 302 of IPC. Further case of the prosecution is that on the date of offence, deceased Ku. Kuleshwari Bai, aged about 16 years, was staying with her mother Sulochani Bai (PW/1) and father Sujani Ram (PW/2). On 28.03.2011, at night, she went outside the house to answer the call of nature all alone but could not reach home in time and then Sulochani Bai (PW/1) having not noticed her, started tracing around but could not trace her. At that time, the deceased was already engaged with Gajendra Singh (PW/13) and her father had went to other village to invite the guests for their marriage. On the next day, Sujani Ram (PW/2) father of the deceased, reached back to the village and started searching the deceased and ultimately her dead body was recovered on 31.03.2011 under the sand of Kotri River where some parts of the body were visible and accordingly, mother of the deceased, Sulochani Bai (PW/1) informed the police vide Ex.P/1. Thereafter, A.S.I. B.L. Nagvanshi (PW/11) on 01.04.2011 reached to the spot and conducted panchnama in presence Panchas vide Ex.P/2-A and the dead body of the deceased was in decomposed condition. Pursuant to the Panchas recommendation, the dead body was sent for postmortem to the Bhimrao Ambedkar Hospital, Raipur, where postmortem was conducted by Dr. R. K. Singh (PW/14) and he prepared postmortem report (Ex.P/25), in which cause of death could not be ascertained on account of decomposed condition of the body, however, the doctor noticed ligature mark on the neck and injuries near ears of the deceased. 3. R. K. Singh (PW/14) and he prepared postmortem report (Ex.P/25), in which cause of death could not be ascertained on account of decomposed condition of the body, however, the doctor noticed ligature mark on the neck and injuries near ears of the deceased. 3. It is also the case of the prosecution that during merg, it was revealed that the appellant, who was neighbour of the deceased, had illicit relationship with the deceased though she was engaged with Gajendra Singh (PW/13) and the appellant had threatened Gajendra Singh (PW/13) and his family members not to marry deceased Ku. Kuleshwari Bai on which, village meeting was convened, in which the appellant is said to have admitted his mistake and promised not to repeat such act in future and executed Ex.P/3. Thereafter, the First Information Report (Ex.P/1-A) was registered against the appellant, he was taken into custody and during interrogation his memorandum statement was recorded vide Ex.P/6. Pursuant to his memorandum statement, from the spot, Article-C (Plastic Box) and appellant’s shirt in which blood like stains were recovered vide Ex.P/10 and two broken buttons were recovered on the way to the spot, vide Ex.P/11. Investigating Officer obtained certificate vide Ex.P/17 from the tailor namely, Sanat Kumar (PW/10) who said that the seized buttons are similar to the shirt of the appellant which was seized. Thereafter, all the seized articles were sent for chemical analysis and the F.S.L. report has been filed as Ex.P/24, in which blood was found on Articles-C1, C2, C4, D and E. However, in the viscera preserved, no poison was found on Articles-A, B and C vide Ex.P/23. 4. After due investigation, the appellant/accused was chargesheeted before the jurisdictional criminal Court and it was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence. However, one document was marked as Ex.D/1. 5. In order to bring home the offence, prosecution examined 14 witnesses and brought into record 25 documents including Art-A/1 and Art-A/2 which are the photographs. 6. The trial Court, after appreciating oral and documentary evidence on record, convicted the appellant/accused and awarded sentence as mentioned herein-above against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence. 7. 6. The trial Court, after appreciating oral and documentary evidence on record, convicted the appellant/accused and awarded sentence as mentioned herein-above against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence. 7. Shri Ashutosh Trivedi, learned counsel for the appellant/accused, would submit that the trial Court is absolutely unjustified in convicting the appellant on the basis of conclusion drawn in para-22 of its judgment holding the circumstances found proved and the circumstances which are said to be found proved are not made out, thus the prosecution failed to prove the case beyond all reasonable doubt and on such finding, conviction recorded by the trial Court is liable to be set-aside. 8. Shri Avinash Singh, learned State counsel, would support the impugned judgment of conviction and submit that the trial Court has rightly concluded the circumstances against the appellant in para-22 and rightly proceeded in convicting the appellant for the aforesaid offence. Therefore, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. The first question for consideration would be, whether the death of the deceased-Ku. Kuleshwari Bai was homicidal in nature? Dr. R.K. Singh, in his postmortem report (Ex. P/25) could not conclude the cause of death and left it open to be considered by the trial Court, but the trial Court taking into consideration the postmortem report (Ex.P/25), proved by Dr. R. K. Singh (PW/14), rightly came to the conclusion that the death of the deceased- Ku. Kuleshwari Bai was homicidal in nature, which is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and we affirm the said findings. 11. Now, the next question would be whether the appellant is perpetrator of the crime. Kuleshwari Bai was homicidal in nature, which is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and we affirm the said findings. 11. Now, the next question would be whether the appellant is perpetrator of the crime. The trial Court has relied upon the circumstances that have been mentioned in paragraph No.22 of the impugned judgment which read as under: ^^vfHk;kstu }kjk izLrqr lk{; ls fuEu ifjfLFkfr;ka lansg ls ijs izekf.kr gksrh gS%& ¼,½ vkjksih ds e`rdk dqys'ojh ls izse&laca/k FksA ¼ch½ vkjksih }kjk e`rdk dqys'ojh dh lxkbZ gkus ij mlds eaxsrj xtsUnz ¼v-lk-13½ dks /kedh nh x;h Fkh rFkk dqys'ojh ls fookg djus ls euk fd;k x;k FkkA ¼lh½ e`rdk ds firk }kjk mDr ckrksa dks ysdj vkjksih dks tgj nsus dh ckr dh x;h Fkh] ftlls vkjksih {kqC/k FkkA ¼Mh½ vkjksih }kjk crk;s x;s ?kVuk LFky ls tIr feV~Vh esa jDr ik;k x;k Fkk rFkk mDr ?kVuk LFky ds ikl e`rdk dqys'ojh dk IykfLVd dk fMCck feyk FkkA ¼bZ½ ?kVuk ds ckn vkjksih ls mldk 'kVZ tIr fd;k x;k Fkk rFkk mlds nks cVu VwVs gksuk ik;s x;s Fks tks vkjksih }kjk crk;s x;s jkLrs esa feys FksA mDr cVu e`rdk dqys'ojh dks mBkdj ys tkus esa VwV ldrs FksA ¼,Q½ vkjksih ls tIr mDr 'kVZ ij jDr ik;k x;k FkkA ¼th½ vkjksih ds xys esa iqjkus [kjksap ds fu'kku ik;s x;s Fks tks ?kVuk ds le; dkfjr gks ldrs FksA** 12. We deal with all incriminating circumstances of the trial Court one by one. 13. With regard to the circumstance No.(A), the appellant had love affair with deceased Ku. Kuleshwari Bai. In order to prove the said fact, the prosecution examined mother and father of the deceased Sulochani Bai (PW/1) & Sujani Ram (PW/2). PW/1-Sulochani Bai in her cross-examination particularly in para-7 has clearly stated that the deceased and the appellant had no love affair between them. Similarly PW/2 Sujani Ram, also clearly stated that he has no information about the relationship of the appellant & the deceased and he heard nothing about the same. In para-6 he refuted that deceased and the appellant had any such love affair. As such, the said circumstance proved by the trial Court runs contrary to the oral evidence of the father and mother of the deceased available on record. 14. In para-6 he refuted that deceased and the appellant had any such love affair. As such, the said circumstance proved by the trial Court runs contrary to the oral evidence of the father and mother of the deceased available on record. 14. The next two circumstances No. B & C are that the appellant threatened Gajendra Singh (PW/13) after his engagement with the deceased and also told him not to marry the deceased and over this matter, father of the deceased has tried to give poison to the appellant by which the appellant was aggrieved. A careful perusal of the statement of Sujani Ram (PW/2), father of the deceased, clearly shows in para-6 that they never tried to kill the appellant by administering poison. Similarly, PW/13 Gajendra Singh with whom the deceased was supposed to marry, explains the facts stating that though the appellant was in drunken condition, he asked him not to marry the deceased, otherwise he will kill him. He further stated that he narrated the deceased about the same thereafter, one social meeting was convened where the appellant sought for apology on the ground that on the particular date, he was in drunken condition and furthermore, no such report was lodged neither by Gajendra Singh (PW/13) nor by father of the deceased Sujani Ram (PW/2) for the said threatening allegedly given by the appellant to Gajendra Singh (PW/13). The question of giving poison is also not established, as such, in these circumstances, circumstances No. B & C are also not established. 15. So far as circumstances No. D and F are concerned, the question of presence of blood on seized soil sample from the spot and from the shirt of the appellant has no relevance as it is not established to be the human blood and even neither origin of the blood or blood group is established, therefore, mere seizure of shirt with stained blood would not take the prosecution case any further, particularly to prove the guilt of appellant/accused. 16. The next circumstance that has been heavily relied upon by the trial Court is circumstance No.E that shirt was recovered from the possession of the appellant pursuant to his memorandum statement and in which two buttons were broken and the broken buttons were found on the way indicated by the appellant and that has been broken while the deceased was being taken by the appellant. In this regard, two broken buttons recovered on the instance of the appellant in an open place were shown to the Tailor- Sanat Kumar (PW/ 10) and he has stated in his certificate (Ex.P/17) that two seized buttons shown to him which were said to have been seized from the seized shirt of the appellant, are similar, but in his cross-examination he has clearly admitted that he has not stitched the shirt with the button, which was shown to him by the police and further he said that usually the tailor brought one box of buttons, which contains 60-70 buttons. At this stage, it is appropriate to notice the decision of the Supreme Court in the matter of Digamber Vaishnav and Anr. Vs. State of Chhattisgarh, (2019) 4 SCC 522 with reference to recovery of buttons and held at para-37 as under:- “37.The shirt of appellant No.2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act is allegedly matched with the small broken button found at the scene of crime. This has been relied upon by the Courts below as another circumstances to corroborate the presence of the appellants at the scene of crime. However, there is nothing on record to show that the shirt is unique and cannot be matched with the shirt of any other person. PW/13 has admitted in his testimony that shirts of the same kind are easily available in the market. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the ‘appellants’ shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper.” 17. Reverting to the facts of the present case in the light of the this observation made by their Lordships of the Supreme Court in Digamber Vaishnav (supra), it is quite vivid that in the instant case, the prosecution has not shown that shirt recovered from the possession of the appellant herein is a unique and cannot be matched with the shirt of any other person. The buttons which have been recovered at the instance of the appellant from his shirt are not shown that it cannot be easily available in the market, therefore, it is not established by the prosecution that the buttons in question are any way unique to the appellant’s shirt to the exclusion of everyone else. Thus, recovery of buttons and resemblance of the appellant’s shirt button and thereby holding one of such circumstances against the appellant are wholly illegal. 18. Last circumstance No.G, that has been pointed out by the trial Court is that on the neck of the appellant there was some abrasion and the same could have been caused at the time of incident. This lead to assumption, without going through the other evidence by the trial Court which cannot be held to be incriminating circumstance. The abrasion mark can be caused in the body of person for various reasons and it cannot be connected to the offence in question. 19. In sum and substance, none of the circumstances, which have been held by the trial Court to be conclusive in pointing out the guilt of the accused are proved beyond reasonable doubt. Furthermore, the incident took place on 28.03.2011 and the dead body was recovered on 31.03.2011, memorandum statement of the appellant was recorded on 03.04.2011 and police recovered shirt from the accused which was wore by the appellant at that time on 03.04.2011. It is completely unbelievable that after committing murder, the accused remained wearing same shirt for 4-5 days so that police can recover shirt for matching the button recovered from the spot, which makes the case of the prosecution quite suspicious. Therefore, the trial Court is absolutely unjustified in convicting the appellant under Section 302 of IPC. As such, we are unable to convince ourselves to affirm the impugned judgment and we have no option except to set-aside the judgment of conviction and order of sentence dated 13.07.2012. 20. Accordingly, the impugned judgment of conviction recorded and sentence awarded dated 13.07.2012 is hereby set-aside. The appellant is acquitted of the charge under Section 302 of IPC. Since he is already on bail, his bail bonds shall remain in operation for a period of six months in view of provision contained in Section 437-A of CrPC. 21. The instant criminal appeal is allowed to the extent indicated herein-above.