JUDGMENT : Pankaj Purohit, J. This Appeal is preferred by the appellants from Jail assailing the judgment and order dated 12.08.2013, passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No.27 of 2012, “State Vs. Hukam Singh@Hukma”, whereby the appellant no.1-Hukam Singh@Hukma has been convicted under Sections 302 and 120-B r/w 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.10,000/- and, in default of fine, he was sentenced to undergo two years’ additional simple imprisonment; and appellant no.2 Lakshmi Devi has been convicted under Section 120-B r/w 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.10,000/- and, in default of fine, she was sentenced to undergo two years’ additional simple imprisonment. 2. The facts of the case in brief are that on 13.04.2012, an FIR was lodged by Harendra Singh, who is brother of the deceased, with the allegations that his brother Lakhan Singh (Lakhpat) lived with his wife and children in a room in village Udayrampur and used to work as a labourer and take care of his children. Last night, he was sleeping with his daughters Rakhi and Shivani in the inner room, and three other daughters and wife Lakshmi Devi had gone to Jagran taking place in the house of Bharat Singh. At around 02.30 hrs. in the night, when her daughter Priyanka came back from the Jagran, she saw Hukam Singh@Hukma coming out of her house with a small axe in his hand. On entering the room, she found blood coming out of her father’s neck and throat slit and clothes stained with blood. Then, in the night itself, she told this to her grandfather-Vasudev Singh, who told Gram Pradhan and other people and saw that Lakhan’s throat was slit, his head was lying on bed and the clothes were smeared with blood. His brother deceased-Lakhan Singh was deaf by birth and could not make proper sound from his throat. He further stated that his deceased brother’s wife Lakshmi Devi had love affair with Hukam Singh@Hukma, S/o Manik Singh, R/o Udayrampur for a long time and in enmity, Hukam Singh had killed his brother. Because of these illicit relations, Gram Pradhan had settled their fights several times earlier. 3. On the basis of this First Information Report, a chick FIR was registered on 13.04.2012 at 07:00 hrs. Because of these illicit relations, Gram Pradhan had settled their fights several times earlier. 3. On the basis of this First Information Report, a chick FIR was registered on 13.04.2012 at 07:00 hrs. in Police Station Kotdwar, District Pauri Garhwal, against the appellant Hukam Singh@Hukma and a Case Crime No. 81 of 2012 under Section 302 IPC was registered. The investigation ensued after the registration of the crime, the Investigating Officer drawn Inquest Report on the deceased and sent the dead body of deceased Lakhan Singh@Lakhpat for post-mortem. 4. The Investigating Officer had taken the blood stain and plain soil in possession from the place of incident and prepared fard Ext. Ka-11, one bed-sheet and a pillow were taken in possession from the spot and prepared fard Ext. Ka-12. On the pointing of the appellant Hukam Singh@Hukma, an axe (which was used in murder) was recovered, on which fard Ext. Ka-13 is prepared. Investigating Officer had sent the recovered axe and bed sheet for forensic examination. The report given by the concerned FSL is on record as (Ext.Ka-2). After conducting the investigation of the case and after doing necessary formalities and arresting the appellants, Investigating Officer submitted a charge-sheet (Ext.Ka-20) against the accused persons (appellants herein). 5. The appellants pleaded not guilty, hence claimed for trial. 6. The learned Sessions Judge took cognizance against the appellants under Sections 302/120-B IPC and committed the appellants for trial. The learned Sessions Judge, finding sufficient grounds, framed charges on 12.08.2013, against the accused-appellant no.1 Hukam Singh@Hukma under Sections 302 and 120-B r/w 34 of IPC and accused-appellant no.2 Lakshmi Devi under Section 120-B r/w 34 of IPC. 7. As many as fourteen witnesses were produced by the prosecution to prove its case against the appellant to the hilt. They are PW1-Harendra Singh, PW2-Km. Rakhi, PW3-SI Arvind Kumar, PW4-Vikram Singh, PW5-Mahendra Singh, PW6-Smt. Godambari Devi, PW7-Km. Priyanka, PW8-Km. Pooja, PW9-Dharm Singh Negi, PW10-CP 101 Vikram Brijwal, PW11-Dr. Vinod Kumar, PW12-Ramesh Bisht, PW13-Anil Kumar & PW14-SI Mohd. Yunas. 8. Thereafter, the statements of accused-appellants were recorded under Section 313 Cr.P.C. in which they denied the allegations levelled against them. 9. The trial court on conclusion of trial, found the case to be proved against the accused-appellants beyond all reasonable doubt and it accordingly proceeded to convict and sentence the accused-appellants as mentioned in paragraph no.1 of this judgment. 10. Thereafter, the statements of accused-appellants were recorded under Section 313 Cr.P.C. in which they denied the allegations levelled against them. 9. The trial court on conclusion of trial, found the case to be proved against the accused-appellants beyond all reasonable doubt and it accordingly proceeded to convict and sentence the accused-appellants as mentioned in paragraph no.1 of this judgment. 10. We have heard learned counsels for the parties and perused the entire oral and documentary evidence available on record. 11. To prove its case, the prosecution produced Harendra Singh as PW1 in the court. He deposed that appellant Laxmi Devi is his brother’s wife and appellant Hukam Singh@Hukma was known to him and stated in his statement that he was regularly in contact with his family after knowing about the murder of deceased, when he left Delhi, his father had told him immediately that his brother Lakhan Singh’s throat was slit by an axe and it was done by accused Hukam Singh and the time of incident was 02:30 hrs at night. He further made a statement that Priyanka is Lakhan’s daughter, who feeling sleepy, she came back home from Jagran and she saw accused Hukam Singh coming out of the house with an axe in his hand and when she went inside the room and saw her father soaked in blood, she went to her grandfather’s room crying and told him about the incident, her grandfather also went to Lakhan’s room, he also found Lakhan’s throat slit. Her grandfather informed Pradhanpati Mahendra Singh. He deposed that his brother’s wife and Hukam Singh had illicit relations, about which the family members cautioned them many times, but they did not. They keep on meeting each other. The matter was once reported to Pradhan and a compromise was entered. The copy of compromise was given in Police Station, which is exhibited as Ext. Ka-10. He proved the FIR as Ext. Ka-1. In cross-examination, nothing substantial was elicited from the PW-1, who was simply an informant. 12. PW-2 Km. Rakhi, who was 11 yrs. old deposed, that when her father was murdered, she had gone with her mother to Bhagwat along with Priyanka, Baby and Pooja, she had returned home and had slept with her father. Her sister Shivani was also sleeping with her father, Shivani was sleeping on the side of father's head and she on the side of feet. old deposed, that when her father was murdered, she had gone with her mother to Bhagwat along with Priyanka, Baby and Pooja, she had returned home and had slept with her father. Her sister Shivani was also sleeping with her father, Shivani was sleeping on the side of father's head and she on the side of feet. When she was awaken, she saw her father dead. In the cross-examination, she deposed that she got up in the morning, when sun was up. When she came for sleeping in the room of his father, the room was open and his father was sleeping. Shivani was already sleeping on the head side of her father. She came her room for sleeping, from Bhagwat alone and she did not latch the door, but simply closed it. 13. PW3-SI Arvind Kumar is a formal witness, who had drawn inquest over the dead body of the deceased-Lakhan Singh @ Lakhpat and he proved the Inquest Report Ext. Ka-4. In cross-examination, he said that on the neck of the deceased, the marks of injuries were found, which were written in the Inquest Report. 14. PW-4 Vikram Singh was the witness of the fact that a compromise was entered into between Hukam Singh@Hukma and Lakhan Singh on 21.03.2011, on the complaint of deceased Lakhan Singh, i.e. paper no. 20-Ka, which was exhibited as Ext.Ka-10 in the record. 15. PW-5 Mahendra Singh, husband of Pradhan, is the witness of the compromise entered on the complaint of deceased Lakhan Singh against appellant Hukam Singh@Hukma. He also witnessed the recovery of axe from the pointing out of the appellant Hukam Singh@Hukma, from the bottom of box kept in the room of Hukam Singh@Hukma, but he turned hostile. PW-6 Smt. Godambari Devi is mother of the deceased, who deposed about the existence of illicit relations between the appellants, who was also declared hostile. 16. PW-7 Km. Priyanka is the star witness of this entire case, who was 14 years of age at the time of incident. It was PW-7 Priyanka, who had seen appellant Hukam Singh@Hukma coming out of the room with an axe in his hand, when Priyanka reached to her house from Jagran. After going inside the room, PW-7 Priyanka found her father Lakhan Singh dead with injuries on neck and informed immediately about the incident to her grandfather Vasudev Singh. It was PW-7 Priyanka, who had seen appellant Hukam Singh@Hukma coming out of the room with an axe in his hand, when Priyanka reached to her house from Jagran. After going inside the room, PW-7 Priyanka found her father Lakhan Singh dead with injuries on neck and informed immediately about the incident to her grandfather Vasudev Singh. In her cross-examination, she remained unimpeachable to the material particulars. She identified the axe, which she saw in the hand of the appellant Hukam Singh@Hukma, in the Court. 17. On 25.02.2013, PW-8 Km. Pooja in her statement stated that she was of 15 years old, appellant Laksmi Devi is her mother and appellant Hukam Singh is her uncle (Mausa). Uncle (mausa) Hukam Singh used to come to their house; her grandparents did not like it, her mother used to give food to uncle (Mausa) secretly. Uncle (mausa) Hukam Singh had illicit relations with her mother. On 12.04.2012, there was Jagran in the neighbourhood. She alongwith her sisters, grandmother and mother had gone to Jagran. She further stated that her uncle (mausa) also had come in Jagran, first, he was dancing, and then, he said something in her mother’s ear, after that uncle (mausa) went away from Jagran and came back after a while. After coming back home with her grandmother, she came to know about her father’s murder. There used to be fights between her mother and grandparents, her mother used to tell her grandmother that she would kill her. 18. PW-9 Dharm Singh Negi had deposed that police had taken a silver coloured pillow and blood samples into possession, an axe which was recovered from the house of Hukam Singh, was also taken in possession. 19. PW-10 Constable Vikram Brijwal had given a statement that the accused was arrested on 13.04.2012 at 11.30 hrs. in the morning. For recovery of the axe, interrogated the accused and on the pointing of the accused, went to the house of appellant-Hukam Singh, where from the appellant took out the axe from the bottom of the box at his house and gave it to the Inspector. 20. PW11-Dr. Vinod Kumar has conducted post-mortem of the deceased on 13.04.2015 at about 01.30 hrs. and has stated about the injuries which he found on the person of the deceased, as follows. 20. PW11-Dr. Vinod Kumar has conducted post-mortem of the deceased on 13.04.2015 at about 01.30 hrs. and has stated about the injuries which he found on the person of the deceased, as follows. He has proved post-mortem report (Ext.-Ka-14), he found following two injuries on the person of the deceased Lakhan Singh : “1. A cut on the neck of the deceased which was above the Adam’s Apple measuring 3cm X 1cm deep into larynx. 2. The wound was on the neck below Adam’s Apple measuring 5cm X 2cm deep into larynx, the blood vessels of the neck were also severed in this wound.” On internal examination, the larynx of the deceased was found to be severed due to injury no. 1&2. He has opined that the deceased died due to shock and profuse bleeding due to the injuries received before death. He has further proved that the death of the deceased took place about 12 to 16 hours ago, possibly about 02.30 AM on 13.04.2012 and has stated that these injuries are possible to come from a sharpened axe. 21. PW12 - Ramesh Bisht had deposed that on 12.04.2012 Anil Singh and Hukam Singh had threshed wheat and also had dinner, at his house, after that, at about 08:30 PM, both had gone from his house. PW13-Anil Kumar had also deposed the same and he further deposed that due to the lock in his house, he had also gone to the Jagran at about 09:00 PM, where Hukam Singh was already present. He came back after about two hours, but Hukam Singh did not come back with him. 22. PW14 - SI Mohd. Yunas is the IO of the case. He has proved the chik FIR (Ext.-Ka-21), extract of General Diary (Ext.-Ka-22) and other documents. He prepared site plan (Ext.-Ka-16). He had taken the blood sample and soil of the deceased, one bed-sheet and a pillow in possession from the spot and an axe (which was used in murder) was recovered from the pointing of the accused Hukam Singh and had sent it for forensic examination. The report given by the concerned FSL is on record as (Ext.Ka-2). After conducting the investigation of the case and after doing necessary formalities and arresting the accused persons, Investigating Officer submitted a charge-sheet (Ext.Ka-20) against the accused persons (appellants herein) in the court. 23. Mr. The report given by the concerned FSL is on record as (Ext.Ka-2). After conducting the investigation of the case and after doing necessary formalities and arresting the accused persons, Investigating Officer submitted a charge-sheet (Ext.Ka-20) against the accused persons (appellants herein) in the court. 23. Mr. B.S. Negi, learned Amicus Curiae would submit that this is the case of no evidence. The appellants have been roped in the alleged murder of the deceased Lakhan Singh, only on the basis of conjectures and surmises, though a motive had been assigned by the prosecution to nail the appellants with the murder of Lakhan Singh by suggesting that the appellants were in illicit relations, but the same has not been proved by any cogent evidence and he also disputed the recovery of the axe, at the pointing out of the appellant Hukam Singh, from a box inside his room, saying that the axe is a common weapon found in every household in the village. He strenuously argued that only the witness, that too against the appellant Hukam Singh is PW-7 Priyanka, who deposed during trial that when she reached her house from Jagran, she saw appellant Hukam Singh coming out of the house, with a small axe in his hand. It is a weak evidence and moreover, PW-7 Priyanka did not see Hukam Singh inflicting any injuries on the deceased Lakhan Singh. The learned Amicus Curiae on the strength of these submissions vehemently submitted that it was not safe to convict Hukam Singh only on this solitary evidence. So far as, case against the appellant Smt. Laksmi Devi is concerned, it is argued by the learned Amicus Curiae that against her there is no witness at all in the entire record. The learned Amicus Curiae strenuously argued that the impugned judgment and order in the present appeal deserved to be set aside and the appellants be acquitted of the charges because the prosecution could not prove the charges against the appellants beyond all reasonable doubts. 24. We have considered the arguments advanced by the learned Amicus Curiae for the appellants and have given a very thoughtful consideration to it after going through the entire evidence on record and the documentary evidence available. 25. From perusal of the record and the evidence of the prosecution witnesses an irresistible conclusion comes that both the appellants were in illicit relations. 25. From perusal of the record and the evidence of the prosecution witnesses an irresistible conclusion comes that both the appellants were in illicit relations. This fact of illicit relationship between the appellants has been proved not only by the evidence of prosecution witness of facts, but, from the Ext. Ka-10, a compromise which was entered into between appellant Hukam Singh and deceased Lakhan Singh, on 21.03.2011, much before the incident. Ext.Ka-10, paper no. 20-Ka on the record contained the compromise which speaks has under : ^^------ ge nksuksa i{kksa dk vkil es le>kSrk gks x;k gSA le>kSrs eas ;g r; gqvk gS fd Hkfo"; eas gqde flag dHkh Hkh y[ku flag ds ?kj ugha tk;sxk] rFkk uk gh dgh jkLrs esa y[ku flag dh ?kjokyh ls ckrphr ugha djsxkA Hkfo"; esa ;fn bl izdkj dh iqujko`fRr dh tkrh gS] rks eSa f}rh; i{k dkuwuh dk;Zokgh dk gdnkj jgw¡xkA** 26. The existence of illicit relations, which was proved in record, was a motive attached to the appellant Hukam Singh to commit the crime. It has also been proved on record by the prosecution that Hukam Singh was present there in the Jagran and was dancing on the tune of some Bhajans, in between, something was spoken by him in the ears of appellant Lakshmi Devi and he left the site of the Jagran and came after a while. His presence was noted by PW-7 Priyanka, while he was coming out of the house of hers, with a small axe on his hand and Priyanka, who immediately went inside the house, only to find dead body of father Lakhan Singh lying on the bed, soaked with blood and with his throat slit. It has also been proved on record that after recording of the disclosure statement of the appellant Hukam Singh, who was arrested on 13.04.2012, the weapon of crime was recovered at the pointing out of the appellant Hukam Singh from his room from a box. 27. During the investigation, the axe recovered was also sent for chemical examination to the Forensic Science Laboratory, Panditwari, Dehradun and by this FSL report (Ext. Ka-2), it is proved that blood was found on the material object-7 i.e. axe, though the same was in disintegrated form. 28. 27. During the investigation, the axe recovered was also sent for chemical examination to the Forensic Science Laboratory, Panditwari, Dehradun and by this FSL report (Ext. Ka-2), it is proved that blood was found on the material object-7 i.e. axe, though the same was in disintegrated form. 28. We have also considered the argument of the learned Amicus Curiae on the evidence of PW-7 Priyanka, on this aspect too, whereby he submitted that Priyanka did not see the appellant Hukam Singh inflicting the blow or committing the murder of her father by the appellant Hukam Singh. If we look into the evidence adduced by PW-7 Priyanka, it is demonstrated that when she reached home, she saw uncle (mausa) Hukam Singh@Hukma, in whose hand there was an axe and he was running out from her house, the lights outside the house were on and in that light, she saw her uncle (mausa) Hukam Singh@Hukma running with an axe in his hand. She thereafter went into the room, she found her father dead, in whose neck there was blood. In the sequence of event, the evidence of PW-7 Priyanka is part of the same transaction and, therefore, is admissible under Section 6 of the Evidence Act as res gestae, which is relevant under the Evidence Act and is considered an exception to the here say evidence. 29. In the view of the aforesaid discussions, we are of the considered opinion that the prosecution has proved the charges under Section 302 IPC, against the appellant Hukam Singh@Hukma, beyond all reasonable doubts. 30. So far as the co-appellant Lakshmi Devi is concerned, we have gone through the evidence, in order to find out, as to whether the appellant Lakshmi Devi could be convicted in the given set of evidence available on record. The mere existence of the illicit relations of appellant Lakshmi Devi, cannot simply attach her with the killing of her husband. 31. From the entire prosecution evidence only these two facts have been proved that there was illicit relationship between the appellants and prosecution witness PW-8 Km. Pooja deposed that appellant Hukam Singh said something in the ear of appellant Lakshmi Devi and went away from Jagran and came back after a while. 31. From the entire prosecution evidence only these two facts have been proved that there was illicit relationship between the appellants and prosecution witness PW-8 Km. Pooja deposed that appellant Hukam Singh said something in the ear of appellant Lakshmi Devi and went away from Jagran and came back after a while. There is no evidence on record as such, which would even suggest, what to say of proving a conspiracy between the appellants as defined under Section 120(A) of the IPC. There is no whisper of evidence available on record even to prior meeting of mind between the appellants to prove the criminal conspiracy between the appellants. Mere saying something into the ear of Lakshmi Devi cannot be stretched to such an extent, to implicate her with gory crime with the aid of criminal conspiracy. 32. The Hon’ble Apex Court very recently in a judgment reported in the case of Praveen @ Sonu vs. State of Haryana; reported in (2021) SCC Online SC 1184 has reiterated the ingredients to bring home a charge of criminal conspiracy against an accused; the same is quoted hereinbelow:- “12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.” 33. In the background of the fact and situation that deceased Lakhan Singh and appellant Lakshmi Devi had 5 daughters (one-Vani died during the trial) both were living with their parents in the village Udayrampur. Mere existence of illicit relations would not drag appellant Lakshmi Devi for committing the murder of her husband. From this consideration, this cannot be inferred that there was a meeting of mind of the appellants to commit the crime. 34. Mere existence of illicit relations would not drag appellant Lakshmi Devi for committing the murder of her husband. From this consideration, this cannot be inferred that there was a meeting of mind of the appellants to commit the crime. 34. In this view of the matter, we are of considered opinion that the conspiracy angle and the common intention to kill Lakhan Singh cannot be said to have been proved beyond all reasonable doubts. Consequently, the appeal in respect of appellant Hukam Singh@Hukma is partly allowed, he is absolved of the charge under Section 120-B IPC and is convicted under Section 302 of IPC and sentenced to life imprisonment with fine of Rs.10,000/- and, in default of fine, he is sentenced to undergo two years’ additional simple imprisonment. 35. The appeal is allowed in respect of appellant Lakshmi Devi. She is acquitted of the charges under Section 120-B IPC. She shall be released immediately, if not wanted in any other criminal case. 36. Registry is direct to send a copy of this judgment along with the LCR to the court concerned for information and compliance.