JUDGMENT : Umesh A. Trivedi, J. 1. Learned APP Ms. Jirga Jhaveri appearing for the appellant – State produces on record the statement of Gugabhai Bhagwanbhai Kakrecha recorded by police Head Constable, Halvad Police Station stating therein that Jesang Bhagwan, respondent No. 1 – accused no. 1, who happens to be elder brother of the person whose statement was recorded, has expired on 03.12.2017 and produced the xerox copy of death certificate. Alongwith the said statement and certificate, xerox copy of death certificate in respect of Gagjibhai Vitthalbhai, who happens to be respondent no. 3 – accused no. 3 who has expired on 25.11.2011 is also produced. The said fact is also confirmed by learned advocate Mr. Ashish Dagli who represents both of them. In view thereof, the present Appeal abates for the death of those two respondents qua them and it remains only against respondent no. 2 – accused no. 2 – Koli Kamuben w/o Jesang Bhagwan. 2. This Appeal is filed by the State of Gujarat under section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) challenging the judgment and order of acquittal recorded by Additional Sessions Judge, Dhrangadhra dated 07.11.2001 rendered in Sessions Case No. 12 of 1998 against the respondents – accused. However, as order passed today, pursuant to statement recorded by Police Head Constable, Halvad Police Station of Gugabhai Ghagwanbhai Kakrecha, who happens to be younger brother of respondent no. 1 – accused no. 1 - Koli Jesangbhai Bhagwanbhai, who has died on 03.12.2017 and pursuant to xerox copy of death certificate in respect of respondent no. 3 – accused no. 3 Koli Gagjibhai Vitthalbhai, the appeal is ordered to be abated qua them. Therefore, this Appeal, that too, at the instance of the State, is heard against respondent no. 2 – accused no. 2 Koli Kamuben w/o Jesangbhai Bhagwanbhai only. 3. Heard Ms. Jirga Jhaveri, learned APP for the State. 4. According to her submission, prosecution examined 19 witnesses and produced and proved certain documents to bring home the charge against the respondents – accused. 2 – accused no. 2 Koli Kamuben w/o Jesangbhai Bhagwanbhai only. 3. Heard Ms. Jirga Jhaveri, learned APP for the State. 4. According to her submission, prosecution examined 19 witnesses and produced and proved certain documents to bring home the charge against the respondents – accused. She has further submitted that considering the depositions of eye-witnesses, PW 13 – Jadubhai Devashibhai, PW 14 – Dhiru Amarshi, PW15 – Dilu Amthubhai, PW16 – Bhoja Karamshi Bharvad, PW17 – Mahavirsinh Mahobatsinh, the prosecution has successfully brought home the charge against the respondents – accused and since the order of acquittal recorded by the learned Sessions Judge is erroneous and perverse not considering the relevant evidence in its true perspective, this Appeal requires to be entertained and allowed. She has further submitted that this is a case of ghastly murder committed by the accused and they are said to have beheaded deceased Lakhubha and buried him in the forest area. 5. After reading the evidence of aforesaid five witnesses, she has submitted that they were the eye witnesses and they had seen the incident, though it was not immediately reported to the police, their evidence in respect of involvement of the respondents – accused, proved the charge against them and accused are required to be convicted for the offence of murder of deceased Lakhubha and suitably punished. 6. We would have heard further in detail, though reading of evidence is almost over, but since all the male accused who are said to be armed with deadly weapons and assaulted the deceased as per the case of prosecution, though evidence in respect thereof lacking, have died and respondent no. 2 – accused no. 2 - Kamuben herein is the only surviving accused, against whom this Appeal is now heard. However, while going through the charge, as also considering the evidence in detail, there appears no active participation of the surviving accused – respondent though all the accused have been charged for destruction of evidence under section 201 and sharing common intention under section 34 of the Indian Penal Code (hereinafter referred to as ‘the IPC’ for short). Considering the charge Exh. 18 at page 59, it is clear that how and in what manner, she has participated in the crime or she had shared a common intention to commit murder of deceased, is clearly lacking in the charge. Considering the charge Exh. 18 at page 59, it is clear that how and in what manner, she has participated in the crime or she had shared a common intention to commit murder of deceased, is clearly lacking in the charge. Not only that, out of 19 witnesses, neither of them is involving present surviving respondent – accused into the crime. If the evidence is considered of PW13 – Jadubhai Devshibhai, who is the prosecution witness before whom accused no. 3 Gagjibhai Vitthalbhai is said to have made extra judicial confession, but he did not support the prosecution case and declared hostile at the trial. Though appeal against respondent no. 3 – accused no. 3 Gagjibhai is also abated, the said evidence is of no use against the surviving accused. 7. PW 14 – Dhiru Amarshi also claimed to be an eyewitness to the incident, but he is also a witness to the so called extra judicial confession of accused no. 3 – Gagjibhai Vitthalbhai, who under the influence of alcohol claimed that he killed deceased Lakhubha, though the very said witness, in the cross-examination, turned the table and claimed that he did not have any talk with accused no. 3 – Gagjibhai Vitthalbhai nor accused no. 3 – Gagjibhai Vitthalbhai told him anything. So again there is no evidence against surviving accused Kamuben, and therefore, his evidence is also not of any use. 8. PW 15 – Dilabhai Amthubhai is a witness, who claimed that accused no. 1 Jesangbhai Bhagwanbhai and his wife accused no. 2 – Kamuben were quarreling against each other and accused no. 1 – Jesangbhai armed with dhariya and surviving accused Kamuben was having some domestic goods with her. Though the said witness does not throw light on the real incident, he projects only the fight or quarrel between the husband and wife against each other, without anything further mentioned therein. Therefore also, his evidence is of no use for the purpose of determining this appeal against surviving accused Kamuben. 9. PW 16 – Bhojabhai Karamshi also claims to be an eye-witness to the incident. He has in his deposition stated that he alongwith Mahavirsinh went in search of cow of Mahavirsinh, then they saw Koli Karshan Prabhu passed them running and despite their attempt to know why he is running, he did not stop. 9. PW 16 – Bhojabhai Karamshi also claims to be an eye-witness to the incident. He has in his deposition stated that he alongwith Mahavirsinh went in search of cow of Mahavirsinh, then they saw Koli Karshan Prabhu passed them running and despite their attempt to know why he is running, he did not stop. Surprisingly, PW 17 Mahavirsinh also refers about the presence of Koli Karshan Prabhu, who is not examined by the prosecution to prove the case against any of the accused. However, PW 16 Bhojabhai Karamshi refers that accused no. 1 – Raysang Manga who died during the trial and case against him was abated during it and therefore, his name is not reflected in the copy of the judgment and present respondents were re-numbered as accused no. 1 to 3. Though he also deposes with regard to some disputes in between the accused, though he named accused no. 1, 2, 4 i.e. male accused but for lady accused, he has not named her but one lady/woman was also there. However, witness Bhojabhai has further deposed that PW 17 Mahavirsinh asked him to run and therefore, both had returned back towards village. His deposition further asserts that three accused and one woman were quarreling with whom is not known as he could not witness the same because he was frightened. Though the said witness claims that after two days, they met Akhubha, father of deceased Lakhubha and regretted that what has happened, is not good. He claims that after complainant Chandubha arrived, an FIR came to be filed. He has further in his examinationin- chief, despite he witnessed some quarrel in between accused and one woman, they did not utter anything for a pretty long time of approximately one month from the missing of deceased Lakhubha and atleast 14 days after the dead body of deceased Lakhubha found, which is unbelievable. Further, he has asserted in his examination-inchief that three male accused and one woman seen who else was there when asked, he candidly admitted that he along with Mahavirsinh did not see anything at that time. In short, the said witness is also neither naming the surviving accused Kamuben nor even identifying her even before the Court, so his evidence is also not helpful to the prosecution to bring home the charge against her. 10. In short, the said witness is also neither naming the surviving accused Kamuben nor even identifying her even before the Court, so his evidence is also not helpful to the prosecution to bring home the charge against her. 10. Next is the witness PW 17 Mahavirsinh Bhagwatsinh, whose deposition refers surviving accused respondent no. 2 – accused no. 2 as wife of Jesang standing along with other accused near Lakhubha, who was lying at the liquor den of accused Jesang Bhagwan. The said witness has further attributed weapons in the hands of Jesang Bhagwanbhai and Raysang Manga. However, the said witness has not stated anything about even accused armed with weapons attacked deceased Lakhubha, who was lying there in the pool of blood. He has further not stated in his deposition that any of the accused carried even blood stained weapons at that time. Most importantly this witness though attributes presence of the wife of the accused Jesang Bhagwan, he did not attribute anything against her, therefore, from his examination-in-chief alone, there appears no material evidence against the surviving accused Kamuben, so as to convict her for any of the offences, that too, for the death of deceased Lakhubha. Surprisingly, this very witness in his cross-examination admitted in clear terms that he did not go to the father of deceased Lakhubha to inform that Lakhubha is murdered. He has also further admitted that he has not even informed anyone in the village about the same. He has gone to an extent that he did not part with the said information to his own father who is staying with him. Such conduct of the witness whose statement is recorded after about a month of deceased Lakhubha went missing and 14 days after his dead body found from the place, where witness claims to be present on that day. Such unnatural conduct of the witness throws great doubt on his version stated before the Court. At the sametime, the said witness is not material so far as surviving accused is concerned, as he does not involve her in the crime and her presence at the spot is quiet natural being liquor den of her deceased husband and nothing more. 11. At the sametime, the said witness is not material so far as surviving accused is concerned, as he does not involve her in the crime and her presence at the spot is quiet natural being liquor den of her deceased husband and nothing more. 11. As coming out from the case of the prosecution through Akhubha Bhuvabha P.W. 6, who happens to be the father of deceased Lakhubha, who is not an Eye Witness to the incident claim that accused Kamuben caught hold legs of the deceased and one Jadia severed the head of Lakhubha with dharia. Though the said assertion in the examination-inchief is admitted by the witness himself to have not stated before the police and has not witnessed the incident himself, the said witness derived knowledge from P.W 16 Bhojabhai Karamshi Bharvad, whose evidence is already referred to hereinabove. As per the claim of the witness - Akhubha after killing deceased Lakhubha, he was buried then and there and salt was also sprinkled. Though he is not an Eye Witness, he has gone to depose to that incident. However, as per the prosecution case, the dead body of the deceased was taken out on 12.11.1992 i.e. after about 16 days of deceased Lakhubha went missing. Very surprisingly, not only the present witness Akhubha, his other brothers never cared to know and ascertain where deceased Lakhubha has gone. Most surprisingly, despite the claim that head of the deceased Lakhuba was severed from his body and it was taken out in that position knowing full well the homicidal death of the deceased, police was not informed and cremation was performed, as if nothing has happened. Still however after witness Chandubha – son of P.W. 6 Akhubha who was staying at Mumbai came back to the village, an FIR has come to be filed on 26.11.1992 i.e. exactly after one month of the deceased Lakhubha went missing and 14 days after the dead body was found and cremated directly by the witness. Still however after witness Chandubha – son of P.W. 6 Akhubha who was staying at Mumbai came back to the village, an FIR has come to be filed on 26.11.1992 i.e. exactly after one month of the deceased Lakhubha went missing and 14 days after the dead body was found and cremated directly by the witness. Therefore, the witness have deprived even the prosecution to have the dead body examined by Doctor and Postmortem performed over the same to establish the offence committed by the accused in absence of that corroborative material and in view of the evidence examined and recorded in earlier process, it is clear that no view other than view taken by the learned Judge can be taken by this Court that too in Appeal arising from an order of acquittal. 12. Considering the charge, surviving accused asked to face, absence of any evidence against her from the deposition of any of the witnesses, we see no reason to interfere with the order of acquittal so far as it relates to surviving accused Kamuben. After detailed scrutiny of the evidence, learned Sessions Judge has passed an order of acquittal in their favour. Therefore, we do not find any compelling reasons to interfere with the order of acquittal in respect of surviving lady accused Kamuben as the view taken by the learned Judge is probable and does not call for any interference. The view taken by the learned Judge is the only view which could have been taken on the material evidence available and re-appreciated by us. Even if two views are possible, the Appellate Court cannot substitute its own view and in that circumstances, the view taken by the learned Judge appears to be the only view which could have been taken and therefore, we see no substance in this acquittal appeal. Hence, we dismiss the same. 13. The Criminal Appeal is dismissed accordingly. Bail bonds stand cancelled. Record and proceedings be sent back to the concerned Court forthwith.