SHIO SHANKAR DUBEY & ORS.versusSTATE OF BIHAR

                         [2019] 7 S.C.R. 607                            607


                SHIO SHANKAR DUBEY & ORS.                               A
                                 v.
                        STATE OF BIHAR
                (Criminal Appeal No. 1617 of 2014)
                           MAY 09, 2019                                 B
        [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
       Penal Code 1860: s. 302 – Murder – Accused persons armed
with weapons killed the victim – Informant fled from the scene of
incident and recorded FIR – Conviction of appellant no. 1 to 3 for
                                                                        C
the offence u/ss. 302/149/148, u/ss. 302/149/147 and u/s. 302/147
and 379 respectively – Upheld by the High Court – On appeal held:
Courts below justified in convicting and sentencing the appellants
– Prosecution case fully proved against them – Prosecution witness,
who accompanied the deceased-victim gave the eyewitness account
of the entire incident – Mere fact that witness was related does not    D
lead to inference that such witness was an interested witness – Names
of all the five accused and role attributed to them promptly recorded
by the police officials – Non-mentioning of the name of one of the
accused by the prosecution witness cannot lead to the inference
that he was not involved in the incident – Ocular evidence
                                                                        E
corroborated the medical evidence – Motive for the occurrence was
proved – Witness – Interested witness.
      Dismissing the appeal, the Court
      HELD: 1.1 PW11, brother of the deceased, fully
corroborated the prosecution case in his evidence. In spite of          F
thorough cross-examination, the witnesses could not be shaken.
The submission of the appellant that witnesses PW11 and PW13
being related to the deceased are interested witnesses and should
not be relied, cannot be accepted. The mere fact that deceased
was brother of the informant and PW13 is the husband of the
niece of the deceased, does not impeach their evidence in any           G
manner. The mere fact that witness is related does not lead to
inference that such witness is an interested witness. Thus, it
cannot be said that PW11 and PW13 being related to deceased,
their evidence cannot be relied. [Para 10, 12] [612-C-D; 614-E]
                                                                        H
                                607
608           SUPREME COURT REPORTS                     [2019] 7 S.C.R.


A          Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 :
           [1995] 5 Suppl. SCR 239 ; Namdeo v. State of
           Maharashtra (2007) 14 SCC 150:[2007] 3 SCR 939 –
           referred to.
            1.2 PW5 in his statement stated that at 9 O’clock in the
B     morning, he had gone to place S. where he saw the accused
      persons namely RND, DD, JD and SD fleeing on the road. It is
      true that in his statement, he mentioned names of only four
      persons, who were seen fleeing on the road. The mere fact that
      he did not mention name of RPD cannot lead to the inference
      that RPD was not involved in the incident. There may be several
C     reasons due to which, he could not see RPD. When PW11 and
      PW13, whose evidence has been relied by the trial court as well
      as High Court, have categorically proved the presence of RPD
      and his participation in the occurrence. [Para 13] [614-F-H;
      615-A]
D           1.3 The nature of injuries especially injury in the back of
      head led the officers recording the inquest report to believe that
      bullet entered from back of the head and came out of the mouth.
      The above impression recorded in the inquest report was only
      opinion of person preparing inquest report and due to the above
E     impression recorded in the inquest report and no bullet having
      been found in the post mortem report, it cannot be concluded
      that incident did not happen in a manner as claimed by the
      prosecution. The mention of bullet injury was only an opinion of
      the officer writing the inquest report and in no manner belies the
      prosecution case as proved by eyewitnesses PW11 and PW13.
F     [Para 17] [616-D-G]
            1.4 PW11 in his statement clearly mentioned that as his
      nephew had contested election against the accused SSD for the
      post of Mukhiya, due to which SSD was angry with his deceased
      brother. The trial court held that motive for the occurrence has
G     been proved from the oral evidence of PW11 and the exhibits.
      [Para 18 and 19] [616-H; 617-A, D]
             1.5 Within half an hour of the occurrence, police officials
      from Police Station ‘S’ arrived on the spot, a fardbeyan of the
      informant, PW11 was recorded on the spot itself by the police
H     officials. At 9.30 AM, the fardbeyan has been proved. The inquest
     SHIO SHANKAR DUBEY & ORS. v. STATE OF BIHAR                           609


report and the seizure report were provided at 10.00 AM and                A
10.15 AM respectively on the spot. FIR was sent to the court
the next day. Trial court noticed the entire sequence of the events
and rightly came to the conclusion that there was no opportunity
for the informant to implicate other leaving the real culprits.
[Para 20] [617-D-F]
                                                                           B
      1.6 The prosecution case being fully proved against the
accused, the eyewitness account of PW11, who was accompanying
the deceased has given the eyewitness account of the entire
incident. The names of all the five accused and role attributed to
them have been promptly recorded by the police officials within
half an hour of the incident on the spot. The medical evidence             C
corroborates the ocular evidence. Both the courts below have
not committed any error in convicting the appellants and
sentencing them. [Para 21] [618-B-D]
                        Case Law Reference
                                                                           D
[1995] 5 Suppl. SCR 239          referred to              Para 10
[2007] 3 SCR 939                 referred to              Para 11
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1617 of 2014.
                                                                           E
      From the Judgment and Order dated 16.07.2013 of the High Court
of Judicature at Patna in Criminal Appeal (DB) No. 410 of 1990.
       Akhilesh Kr. Pandey, Rajeev Singh, Prabuddha Sharma, Advs.
for the Appellants.
      Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,      F
Aditya Singala, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J.
       1. This appeal has been filed by the three appellants challenging   G
the judgment of High Court of Patna dated 16.07.2013, by which Criminal
Appeal (DB) No. 410 of 1990 filed by them questioning their conviction
and sentence under Section 302 and some other sections of I.P.C. has
been dismissed.

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610            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A             2. The prosecution case is that on 16.05.1980, one Raj Ballam
      Rai, informant alongwith his brother Raj Keshwar Singh came to Sasaram
      Court. After finishing his work in court informant proceeded with his
      brother to his residence near Dharamshala. Raj Keshwar Singh was on
      rickshaw and the informant was on the bicycle. Raj Keshwar Singh
      was armed with a double barell gun. The further case is that at about
B
      9:00 am when they reached 50 to 60 yards east of Kargahar More, the
      informant saw that Doodnath Dusadh, Jamadar Dusadh and Ram Nandan
      Dusadh stopped the rickshaw. They were armed with Lohbanda. Shio
      Shankar Dubey was armed with Rifle and his brother Ram Pravesh
      Dubey was armed with lathi and they were also alongwith them. They
C     pulled down Raj Keshwar Singh from rickshaw and started assaulting
      with Lohbanda. The Mukhiya that is Shio Shankar Dubey asked them
      to kill in a hurry. The informant fled away. Shio Shankar Dubey opened
      fire but none received any injury. The accused persons thereafter fled
      away towards south.
D           3. At 9:30 am, the police official namely, S.N. Singh of Sasaram
      Police Station arrived at the place of occurrence to whom Raj Ballam
      Rai gave a fardbeyan. On the basis of fardbeyan given at the place of
      occurrence by informant, First Information Report was registered against
      05 accused.
E            4. The prosecution, to prove its case, produced 15 witnesses.
      PW11, informant, fully supported the prosecution case. PW13, Ragho
      Ram Singh, who was also an eyewitness, supported the prosecution
      case. PW5 was another eyewitness, who saw 04 of the accused running
      away from the spot. Formal witnesses were also produced by the
      prosecution. On the spot seizure was also made by one Siddhanath
F     Singh, Inspector of Police, which seizure also contained copy of four
      applications, which were typed at District Court, Sasaram and were
      being carried by the deceased alongwith him in a diary, which applications
      were marked as Ext.3/2 to 3/5.
             5. Inquest Report was also prepared on the spot. Body was sent
G     for post mortem. Post mortem report was prepared as Ext.4. One
      defence witness, DW1, Dasrath Ram was also produced, who brought
      the register of the employees for the period 1961 to 1963 containing the
      signatures of deceased Raj Keshwar Singh.
            6. The trial court vide its judgment and order dated 14.09.1990
H     convicted 04 accused, (one of the accused namely, Doodnath Dusadh
     SHIO SHANKAR DUBEY & ORS. v. STATE OF BIHAR                             611
                [ASHOK BHUSHAN, J.]

having died during the pendency of trial. The appellant No.1 – Shio          A
Shankar Dubey, accused No.3, was convicted for the offence under
Sections 302/149/148 I.P.C. and Section 27 of the Arms Act. The
appellant No.2 – Ram Pravesh Dubey, accused No.4, was convicted
for the offence under Sections 302/149/147 I.P.C. The third appellant,
i.e., Jamadar Dusadh, accused No.1 was convicted under Sections 302/
                                                                             B
147 and 379 I.P.C. Four accused, who were convicted filed criminal
appeal in the High court, which has been dismissed. One Ramnandan
Dusadh also having died during pendency of the appeal before the High
Court, the three surviving accused are in the appeal before this Court.
       7. Learned counsel for the appellant in support of the appeal
submits that PW11 – informant being brother of the appellant and PW13        C
being husband of the niece of the deceased were all close relatives and
interested witnesses, the Courts below committed an error in relying on
the testimony of interested witnesses. There being no independent
witnesses corroborating the charge against the appellants the appellants
ought not to have been convicted and sentenced. It is further submitted      D
that PW5, who claimed to be an eyewitness and deposed before the
courts below that he saw four accused running away from the spot, he
has not taken the name of Ram Pravesh Dubey, the appellant No.2.
PW5 having not taken the name of Ram Pravesh Dubey, the presence
of Ram Pravesh Dubey on the spot is not proved and the Courts below
have ignored this evidence. Ram Pravesh Dubey having not been proved         E
to be on the spot, could not have been convicted. It is further submitted
that inquest report mentioned a bullet injury whereas in the post mortem
report, no bullet injury was found. There being no bullet injury found in
the post mortem report, the entire prosecution theory is inconsistent.
Learned counsel for the appellant further submits that there was no          F
motive for appellants to kill Raj Keshwar Singh.
       8. Learned counsel appearing for the State refuting the submissions
of the learned counsel for the appellant submits that informant PW11
was accompanying the deceased and his evidence was found trustworthy.
The Courts below did not commit an error in relying on his evidence. It      G
is submitted that the mere fact that PW11 and PW13 are related to the
deceased does not in any manner impeach their truthfulness. It is
submitted that the mention of the bullet injury in the inquest report was
due to error of judgment by the person writing inquest report. The skull
being crushed in a manner and bones being fractured, impression was
                                                                             H
612            SUPREME COURT REPORTS                         [2019] 7 S.C.R.


A     drawn that bullet entered from behind the skull and came out of the
      mouth, which in no manner can be said to be fatal to the prosecution
      case. It is submitted that PW5 is a trustworthy witness, who is not
      related to the deceased and saw the accused running away from the
      spot.
B           9. We have considered the submissions of the learned counsel for
      the parties and have perused the records.
             10. PW11, who is a brother of the deceased, has fully corroborated
      the prosecution case in his evidence. In spite of thorough cross-
      examination, the witnesses could not be shaken. The submission of the
C     appellant that witnesses PW11 and PW13 being related to the deceased
      are interested witnesses and should not be relied does not commend us.
      The mere fact that deceased was brother of the informant and PW13 is
      the husband of the niece of the deceased and does not impeach their
      evidence in any manner. The mere fact that witness is related does not
      lead to inference that such witness is an interested witness. This Court
D     has occasion to consider such submission in number of cases. In Kartik
      Malhar Vs. State of Bihar, (1996) 1 SCC 614, this Court held that a
      close relative who is a very natural witness cannot be regarded as an
      interested witness. In paragraph Nos. 15 and 16, following was laid
      down:-
E           “15. As to the contention raised on behalf of the appellant that
            the witness was the widow of the deceased and was, therefore,
            highly interested and her statement be discarded, we may observe
            that a close relative who is a natural witness cannot be regarded
            as an interested witness. The term ‘interested’ postulates that the
F           witness must have some direct interest in having the accused
            somehow or the other convicted for some animus or for some
            other reason. In Dalbir Kaur (Mst) v. State of Punjab, (1976)
            4 SCC 158, it has been observed as under: (SCC pp. 167-68,
            para 11)

G              “Moreover, a close relative who is a very natural witness cannot
               be regarded as an interested witness. The term ‘interested’
               postulates that the person concerned must have some direct
               interest in seeing that the accused person is somehow or the
               other convicted either because he had some animus with the
               accused or for some other reason. Such is not the case here.”
H
     SHIO SHANKAR DUBEY & ORS. v. STATE OF BIHAR                               613
                [ASHOK BHUSHAN, J.]

      16. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has            A
      laid down as under:
          “A witness is normally to be considered independent unless he
          or she springs from sources which are likely to be tainted and
          that usually means unless the witness has cause, such as enmity
          against the accused, to wish to implicate him falsely. Ordinarily,   B
          a close relative would be the last to screen the real culprit and
          falsely implicate an innocent person. It is true, when feelings
          run high and there is personal cause for enmity, that there is
          tendency to drag in an innocent person against whom a witness
          has a grudge along with the guilty, but foundation must be laid
          for such a criticism and the mere fact of relationship far from      C
          being a foundation is often a sure guarantee of truth. However,
          we are not attempting any sweeping generalisation. Each case
          must be judged on its own facts. Our observations are only
          made to combat what is so often put forward in cases before
          us as a general rule of prudence. There is no such general           D
          rule. Each case must be limited to and be governed by its own
          facts.”
       11. Further in Namdeo Vs. State of Maharashtra, (2007) 14
SCC 150, same propositions were reiterated by this court elaborately
referring to the earlier judgments, this Court rejected the same submission    E
in paragraph Nos. 29, 30 and 38, which are to the following effect:-
      “29. It was then contended that the only eyewitness, PW 6 Sopan
      was none other than the son of the deceased. He was, therefore,
      “highly interested” witness and his deposition should, therefore,
      be discarded as it has not been corroborated in material particulars     F
      by other witnesses. We are unable to uphold the contention. In
      our judgment, a witness who is a relative of the deceased or victim
      of a crime cannot be characterised as “interested”. The term
      “interested” postulates that the witness has some direct or indirect
      “interest” in having the accused somehow or the other convicted
      due to animus or for some other oblique motive.                          G
      30. Before more than half a century, in Dalip Singh v. State of
      Punjab, AIR 1953 SC 364, a similar question came up for
      consideration before this Court. In that case, the High Court
      observed that testimony of two eyewitnesses required corroboration
                                                                               H
614            SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A           since they were closely related to the deceased. Commenting on
            the approach of the High Court, this Court held that it was “unable
            to concur” with the said view. Referring to an earlier decision in
            Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC
            54, Their Lordships observed that it was a fallacy common to
            many criminal cases and in spite of endeavours to dispel, “it
B
            unfortunately still persists, if not in the judgments of the courts, at
            any rate in the arguments of counsel” (Dalip Singh case, AIR p.
            366, para 25).
            38. From the above case law, it is clear that a close relative cannot
            be characterised as an “interested” witness. He is a “natural”
C           witness. His evidence, however, must be scrutinised carefully. If
            on such scrutiny, his evidence is found to be intrinsically reliable,
            inherently probable and wholly trustworthy, conviction can be based
            on the “sole” testimony of such witness. Close relationship of
            witness with the deceased or victim is no ground to reject his
D           evidence. On the contrary, close relative of the deceased would
            normally be most reluctant to spare the real culprit and falsely
            implicate an innocent one.”
           12. We, thus, reject the submission of the appellant that PW11
      and PW13 being related to deceased, their evidence cannot be relied.
E            13. Now, the next submission of the learned counsel for the
      appellant that PW5, who is held to be an eyewitness has in his statement
      only taken names of the four accused, who, according to him, were seen
      running away from the spot. It is submitted that PW5 did not take the
      name of Ram Pravesh Dubey, the appellant No.2. The statement of
F     PW5 has been brought on the record. PW5 in his statement stated that
      at 9 O’clock in the morning, he had gone to Sasaram and when he went
      about fifty steps south to Rouza Road from G.T. Road, he saw the
      accused persons namely Ram Nandan Dusadh, Dudnath Dusadh,
      Jamadar Dusadh and Shankar Dubey fleeing on Rouza Road going from
      the west to the east. It is true that in his statement, he mentioned names
G     of only four persons, who were seen fleeing on Rouza Road. The mere
      fact that he did not mention name of Ram Pravesh Dubey cannot lead to
      the inference that Ram Pravesh Dubey was not involved in the incident.
      There may be several reasons due to which, he could not see Ram
      Pravesh Dubey. When PW11 and PW13, whose evidence has been
H     relied by the trial court as well as High Court, have categorically proved
     SHIO SHANKAR DUBEY & ORS. v. STATE OF BIHAR                              615
                [ASHOK BHUSHAN, J.]

the presence of Ram Pravesh Dubey and his participation in the                A
occurrence. The mere fact that PW5 did not see Ram Pravesh Dubey
fleeing is not conclusive nor on that basis, we can come to any inference
that Ram Pravesh Dubey was not involved in the occurrence.
       14. Now, we come to the another submission of the appellants
that in the inquest report, it was mentioned that pellet from back in the     B
head has come out of the mouth, but there was no bullet injury found in
the post mortem report. In column No.5 of the inquest report brought as
Annexure-P42, following was stated:-
      “It appears that the pellet from back in the head has come out of
      the mouth. (illegible) part has been cut. The brow on the eyes are      C
      (illegible). Left elbow has bruise injury. Left had has also bruise
      injury. Lacerated.”
       15. We may further notice other details given in the inquest report
in column No.4, following was noticed:-
      “Head in north-east direction, leg in south direction, felt facing      D
      upward, the back portion of the head heavily damaged, both the
      eye closed. Eye has blackened. Injury in mouth also. Blood is
      oozing from the mouth also.”
      16. Now, we come to the post mortem report. Post mortem report
has been extracted by the High Court in paragraph No.12 of the judgment.      E
The injuries noticed in paragraph No.12 are as follows:-
      “12. XXXXXXXXXXXXXXXXXXXXXX
      (i)   Lacerated wound 2" X 1" with commuted fracture of occipital
            bone in two multiple pieces at back of head. Some fragments
                                                                              F
            of bone had pierced into brain covering. There was collection
            of blood clot outside and inside durameter. Corresponding
            part of the brain was found softened and with lacerated injury.
            There was no blackening of margin of surrounding area or
            no tatooing.
      (ii) Bruise 4" X 2" in front of face involving right eye brow, right    G
           malar bone and bridge of nose with multiple fracture of right
           mallar bone, nosal bone and right maxilla.
      (iii) Bruise 2" x 1" left and below the nose with fracture of left
            maxilla and lacerated cut of cheek from inside 1" X 1/2".
                                                                              H
616             SUPREME COURT REPORTS                             [2019] 7 S.C.R.


A           (iv) Abrasion 1" x ½” of upper lip right to mid-line.
            (v) Lacerated cut ½” x ½” left margin of tongue with blood clot
                in the mouth.
            (vi) Abrasion ½” x ½” at left knee.
B           (vii) Abrasion 1" x ½” at left forearm.
                      Injury Nos. (i), (ii) and (iii) are grievous in nature caused
            by hard blunt substance, may be lathi and Lohbanda.
                      Injury Nos. (iv), (v), (vi), (vii) are simple in nature, caused
            by hard blunt substance, may be lathi and Lohbanda. Time elapsed
C           since death within 12 hours.
                              XXXXXXXXXXXXXXXXXX”
             17. A perusal of the injuries, which have been noticed in the post
      mortem report indicates that there was fracture of occipital bone in two
      multiple pieces at back of the head. Some fragments of bone had pierced
D
      into brain covering. Multiple fracture of right mallar bone, nosal bone
      and right maxilla has also been noticed. The nature of the injuries, which
      were found in the post mortem report indicates that on seeing the injuries,
      the officers recording the inquest report thought that since occipital bone
      in two multiple pieces at back of head have been fractured and some
E     fragments of bone had pierced into brain covering, the bullet entered
      from the back side of the head and came out of the mouth, which is
      noticed in the inquest report and the officer writing the inquest report
      made his opinion by seeing the injury by bare eyes. The nature of injuries
      especially injury in the back of head led him to believe that bullet entered
      from back of the head and came out of the mouth. The above impression
F
      recorded in the inquest report was only opinion of person preparing inquest
      report and due to the above impression recorded in the inquest report
      and no bullet having been found in the post mortem report, it cannot be
      concluded that incident did not happen in a manner as claimed by the
      prosecution. The mention of bullet injury was only an opinion of the
G     officer writing the inquest report and in no manner belies the prosecution
      case as proved by eyewitnesses PW11 and PW13
             18. Learned counsel for the appellant has further contended that
      there was no motive proved. PW11 in his statement clearly mentioned
      that as his nephew had contested election against the accused Shio
H     Shankar Dubey for the post of Mukhiya, due to which Shio Shankar
     SHIO SHANKAR DUBEY & ORS. v. STATE OF BIHAR                              617
                [ASHOK BHUSHAN, J.]

Dubey was angry with his deceased brother. In paragraph No.5 of the           A
statement, following has been stated:-
      “5. Accused Shiv Shankar Dubey was the Mukhiya of my Gram
      Panchayat Gotpar Khatadihri at the time of occurrence. My
      nephew Ram Bachan Singh had contested election against the
      accused Shio Shankar Dubey for the post of Mukhiya. This is             B
      why Shio Shankar Dubey was angry with my deceased brother
      and all the accused jointly murdered him. Bikram Dusadh had
      been jailed three to four days earlier to this occurrence. He was
      full brother of the accused namely Dudnath Dusadh and Jamadaar
      Dusadh and son of the accused Ram Nandan Dusadh. The
      accused were suspicious of the fact that my deceased brother            C
      had got him jailed.”
       19. In paragraph No.58, the trial court has discussed about the
motive and it held that motive for the occurrence has been proved from
the oral evidence of PW11 and Ext. 5 and Ext.5/1.
                                                                              D
       20. There is one more fact, which needs to be noted in the present
case. The occurrence is of 9.00 AM on 16.05.1980 and within half an
hour of the occurrence, police officials from Police Station, Sasaram
arrived on the spot, a fardbeyan of the informant, PW11 was recorded
on the spot itself by the police officials. At 9.30 AM, the fardbeyan has
been proved. The inquest report and the seizure report were provided          E
at 10.00 AM and 10.15 AM respectively on the spot. FIR was sent to
the court on 17.05.1980. Trial court has noticed the entire sequence of
the events and has rightly come to the conclusion that there was no
opportunity for the informant to implicate other leaving the real culprits.
In paragraph Nos. 72, 73 and 74, the trial court records following:-          F
      “72. The salient feature of the present case is that the occurrence
      took place at 9 a.m. on 16-5-80. The Fardbeyan was recorded at
      9-30 a.m. at the place of occurrence. The inquest report and the
      seizure list was prepared at 10 a.m. and 10.15 a.m. respectively
      at the spot. The postmortem was done on the same day at 12.10           G
      p.m. These facts are proved from ext.6 (Fardbeyan) Ext. 7 (inquest
      report), Ext.8 (seizure list) and Ext. 4 (postmortem report).
      73. The F.I.R. was sent to the court on 17-5-80. Admittedly, it
      was morning court and the court closes at 12 noon. So the F.I.R.
      was sent on 17-5-80 in the earliest possible time. One accused
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618                SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A             was also arrested and sent to custody on 17-5-80. This fact is
              proved from the order sheet of the lower court dated 17-5-80
              which is the first order sheet in this case before lower court.
              74. From the facts mentioned in the above para there was no
              opportunity for the informant to implicate other leaving the real
B             culprit. Sot this cannot be a case of false implication.”
              21. The prosecution case in the present case being fully proved
      against the accused, the eyewitness account of PW11, who was
      accompanying the deceased has given the eyewitness account of the
      entire incident. The names of all the five accused and role attributed to
C     them have been promptly recorded by the police officials within half an
      hour of the incident on the spot. The medical evidence corroborates the
      ocular evidence. Both the Courts below have not committed any error
      in convicting the appellants and sentencing them. We do not find any
      error in the judgment of courts below. There is no merit in the appeal.
      The appeal is dismissed.
D

      Nidhi Jain                                                 Appeal dismissed.




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