Chidananda vs State of Karnataka

K.N. Phaneendra, J.—The appellant is the accused before the Principal City Civil and Sessions Judge at Bengaluru in S.C. No. 985 of 2006, being aggrieved by the judgment of conviction and sentence passed against him for the offence punishable under Sections 302 and 397 of Indian Penal Code, 1860, has preferred this appeal on various grounds.

Before adverting to the grounds urged before this Court, it is just and necessary to bear-in-mind the brief factual matrix of the prosecution case. The first information was lodged by P.W. 7-Shantaladevi, who is none other than the daughter of Smt. Parvathamma. ''The FIR discloses, that on 19-7-2006 in the morning at 9.45 a.m., a maidservant by name Vanajamma (P.W. I) working in the house of the deceased Parvathamma, situated at Muthurayaswamy Layout, Hulimavu, Bannerghatta Road, Bengaluru, came to P.W. 7 and informed her that mother of P.W. 7-Parvathamma was lying near a cot in her house at Hulimavu. Immediately P.W. 7 went to her mother''s house, saw the dead body of her mother. She has observed some injuries on the neck of the deceased. She has also observed missing of two golden Bangles and One Golden Chain with a Dollar and one pair of golden ear-studs and two golden finger rings from the house of the deceased. On suspicion that somebody must have murdered her mother, she lodged a complaint seeking investigation by the police. The police after due investigation, submitted the charge-sheet

The charge-sheet papers disclose the factual matrix that the accused was working as a car driver in the house of deceased Smt. Parvathamma. On 18-7-2006, he took the car of Parva Tamma and left the car for repairs. On the same day between 9.15 p.m. to 9.30 p.m., the accused again went to the house of the deceased and demanded for a sum of Rs. 1,000/-. As the deceased refused to pay the amount, the accused committed her murder by throttling her neck and thereafter committed theft of the gold ornaments in the house of the deceased worth Rs. 50,000/-. During the course of investigation, the accused was arrested and those articles were recovered and the police have also seized the motorcycle of the accused. After thorough investigation, as the police found sufficient materials against the accused, laid charge-sheet against him. The accused has been in custody since the date of his arrest. After committal of the proceedings, a case in S.C. No. 985 of 2006 was registered. As the accused pleaded not guilty for the charges framed under Sections 302 and 397 of IPC, he was put on to face the trial.

The prosecution in order to bring home the guilt of the accused, examined as many as 17 witnesses viz., P.Ws. 1 to 17 and got marked the documents-Exs. P.1 to P. 23 and Exs. D.1 and D. 2 and material objects -M.Os. 1 to 16. After conclusion of the prosecution evidence, the accused was also examined under Section 313 of Criminal Procedure Code, 1973 and his statement was recorded. The accused did not choose to lead any defence evidence on his side.

After hearing the detailed arguments and after appreciation of the evidence on record, the Trial Court has come to the conclusion that the prosecution has proved the case beyond all reasonable doubt and accordingly, held the accused guilty for the above said offences and sentenced him accordingly, as noted supra.

The entire case of the prosecution revolves around circumstantial evidence. The prosecution has broadly relied upon the following circumstances:

(i) Homicidal death.

(ii) Motive.

(iii) Last seen of the deceased and the accused together.

(iv) Extrajudicial confession.

(v) Recovery of incriminating articles at the instance of the accused.

(vi) Injuries on the accused and

(vii) Expert''s evidence.

Before adverting to the above said circumstances, we would like to have the brief description of the witnesses examined before the Court.

7.1. P.W. 1-Vanajamma is the maidservant working in the house of the deceased Parvathamma, who gave information to P.W. 7 about the death of the deceased Parvathamma in her house on 19-7-2006, in the morning hours at 9.50 a m. She has identified the accused and the ornaments of the deceased marked at M.Os 1 to 6.

7.2. P.W. 2-Vinay is the son of P.W. 1. He is a witness to the last seen circumstance of the accused going inside the house of the deceased Parvathamma and coming out at 9.30 p.m. on 18-7-2006. He also spoke about seeing the dead body etc.

7.3. P.W. 3-Dakoji Sudeendra Babu is the son of the deceased Parvathamma, who deposed about the conduct of the accused, as informed to him by the deceased during her lifetime. He also identified the jewels of his mother.

7.4. P.W. 4-Sowbhagyamma, the mother-in-law of P.W. 7-Shantaladevi also deposed before the Court about the conduct of the accused as told to her by the deceased Parvathamma during her lifetime. She also identified M.Os. 1 to 6, belongings of the deceased.

7.5. P.W. 5-Ganganna is none other than the father of the accused. Though he turned hostile, he identified the motorcycle used by the accused and he was a witness to seizure mahazar-Ex. P. 2.

7.6. P.W. 6-Dr. K.V. Satish, who conducted the post-mortem examination and furnished the report as per Ex. P. 3. He has stated that the deceased died due to asphyxia and compression of the neck. He also examined the accused and issued wound certificate as per Ex. P. 4 and he speaks about the extrajudicial confession made by the accused before him.

7.7. P.W. 7-Shanthaladevi is the complainant, who lodged the complaint as per Ex. P. 5. She is the daughter of the deceased Parvathamma and she identified the apparels (M.Os. 1 to 6) and the clothes of the deceased as M.Os. 8 to 11 and also the motorcycle of the accused as per M.O. 7.

7.8. P.W. 8-L.S. Murthy is a panch witness to Ex. P. 6, under which M.Os. 1 to 7 were recovered by the police, who turned hostile to the prosecution.

7.9. P.W. 9-Subramanya is the panch witness to inquest panchanama-Ex. P. 7.

7.10. P.W. 10-Pullaiah is the Police Head Constable, who carried the FIR marked at Ex. P. 8 to the jurisdictional Court.

7.11. P.W. 11-Jyothi has identified the accused, as the driver working in the house of the deceased Parvathamma.

7.12. P.W. 12-Nagaraja, the police constable attached to MICO Layout Police Station, who apprehended the accused and produced him before the Investigating Officer on 20-7-2006, with a report-Ex. P. 9.

7.13. P.W. 13-Nagabhushana, the Police Inspector, MICO Layout Police Station, who investigated the matter and submitted the charge-sheet.

7.14. P.W. 14-Dildar is the panch witness to Ex. P. 6, under which M.Os. 1 to 6 were recovered. He also turned hostile to the prosecution.

7.15. P.W. 15-T.S. Krishna Prakash, the Fingerprint Expert, who has examined the thumb impression of the accused and questioned impression and gave a report as per Ex. P. 14.

7.16. P.W. 16-L. Chandrappa, who deposed before the Court that he took the accused to the Victoria Hospital on 20-7-2006 and produced him before the Medical Officer.

The police seized P.W. 17-Roy V.T. who is a panch witness to Ex. P. 6 under which M.Os. 1 to 6 are recovered at the instance of the accused.

The learned Counsel for the accused has strenuously submitted that, when the case said to be revolves around the circumstantial evidence, those circumstances should be unequivocally and conclusively proved to the satisfaction of the Court in order to bring home the guilt of the accused. All the links of the chain of facts should be complete so as to leave no doubt with regard to the complicity of the accused. The proven circumstances should show that there is no alternative hypothesis which can be drawn by the Court. He further argued that in this case, none of the circumstances have been proved beyond all reasonable doubt. Therefore, the Trial Court has not properly appreciated the oral and documentary evidence on record in order to come to a definite conclusion with regard to the complicity of the accused. He also argued with reference to each of the circumstances. We would like to discuss such arguments while dealing with the relevant circumstances.

Per contra, Sri Vijay Kumar Majage, the learned Additional State Public Prosecutor, has contended that the prosecution has established certain circumstances which are sufficient to complete the chain. He further submitted that the Trial Court on appreciating each and every circumstance with reference to the evidence on record has come to the conclusion that the prosecution has proved the case against the accused. The Trial Court has given reasons as to why it has come to such conclusion and that is the only possible view available in the case. Therefore, there is no room for interference with such reasoned judgment of the Trial Court. We would like to discuss the arguments with regard to individual circumstance while dealing with such circumstances.

After reanalysis of the entire material on record and also considering the rival contentions of the parties, the points that would arise for consideration of this Court are:

(i) Whether the prosecution has proved the offences alleged against the accused beyond all reasonable doubt?

(ii) Whether the Trial Court has committed any serious error on facts or law in convicting the accused for the offences alleged against him and whether it needs any interference at the hands of this Court?

Now we would take-up each and every circumstance and discuss whether the prosecution has placed sufficient materials to draw an inference of guilt against the accused.

Homicidal death. - It is the fundamental basic aspect that the prosecution has to prove the homicidal death of deceased Parvathamma so far as it relates to this case and thereafter has to establish who is responsible for such homicidal death of the deceased Parvathamma. There is no much dispute by the defence so far as this aspect is concerned. But the defence has taken up the contention that the accused is not responsible for the death of the deceased Parvathamma. The prosecution has relied upon the evidence of the Dr. K.V. Satish-P.W. 6, post-mortem report-Ex. P. 3, inquest report-Ex. P. 7 and also the evidence of P.Ws. 1, 2 and 7 and also Ex. P. 5-the complaint.

13.1. On perusal of the evidence of P.W. 7-Shantala Devi who is no other than the daughter of the deceased Parvathamma and also Ex. P. 5-complaint itself, it is clear that on 19-7-2006 at about 9.45 a.m., she went to the house of her mother and saw the dead body of her mother and she found some marks and injuries on her throat and nail marks around her throat/neck and also missing of some gold ornaments.

13.2. P.W. 9 has also stated in the same fashion that injuries were found on the neck of the deceased and the same have been incorporated in the inquest report marked at Ex. P. 7. P.Ws. 1 and 2-Vanajamma and Vinay, have stated that they have seen the dead body of the deceased in the house of the deceased on 19-7-2006 in the morning hours at about 9.15 a.m. They have also categorically stated that the dead body of the deceased was lying in the house of the deceased without any movement and they also observed injuries around the neck of the deceased. So far as these aspects are concerned, as we have noted in the course of cross-examination, this particular aspect has not been subjected to cross-examination i.e., with regard to the death of the deceased and also injuries surrounding the neck of the deceased. Though some casual suggestions have been made, the same were denied by these witnesses. Coupled with the evidence of the above said witnesses, P.W. 6-Doctor has categorically stated that he conducted autopsy on the dead body of the deceased and he found as many as nine injuries on the body, particularly surrounding the neck, scratch marks, abrasions and contusions and he gave opinion as per Ex. P. 3 stating that the death was due to asphyxia as a result of abrasion over the neck. During the course of cross-examination of the doctor, much has been concentrated with regard to the time of death so far as the deceased is concerned and there is no suggestion in the course of cross-examination, the death otherwise than the homicidal death.

13.3. Looking to the above said evidence placed before the Court, there is no doubt with regard to the homicidal death of the deceased. Therefore, the prosecution has proved the circumstance beyond all reasonable doubt.

Last seen of the accused going to the house of the deceased and coming out of the house of the deceased:

The prosecution mainly relied upon the evidence of P.W. 2 so far as this aspect is concerned.

14.1. The learned Counsel for the accused has strenuously argued that even if the evidence of this witness is accepted as it is, according to him, he saw the accused on the previous day i.e., on 18-7-2006 at about 9.30 p.m. But he never stated about the source of light. This witness is no other than the son of P.W.1 and in the course of cross-examination, he has stated that he new went out of the house on that day in the night hours. The Doctor has also not stated about the time of death. Therefore, there is no reason to connect the accused to the crime. P.Ws. 1 and 2 are the interested witnesses who are working in the house of the deceased. Therefore, their evidence has to be very carefully scrutinised.

14.2. But on the contrary, learned Additional State Public Prosecutor submitted that these aspects have been considered by the Trial Court in its proper perspective. Merely because P.Ws. 1 and 2 are the persons working in the house of the deceased, their evidence cannot be discarded. In this background, now let me consider whether the prosecution has proved the circumstance beyond all reasonable doubt or not.

14.3. We are also conscious about the circumstance of last seen as to how it should be appreciated, but it all depends upon the nexus between the accused and the deceased and also whether had any opportunity to meet the accused on that day and proximity of his meeting with the deceased and the detection of the crime.

14.4. Bearing in mind these aspects, the evidence of P.W. 2 play an important role. P.W. 2-Vinay is the person who knew the deceased and the accused since long back. He has deposed that he has seen the accused working as a driver of the deceased. He also visiting the house of the deceased for the purpose of watering the plant everyday. And he was also driving the car of the deceased twice in a week and on 19-2-2006 in the morning hours at about 9.15 a.m., he went for his work for the house of the deceased as usual. The house was latched from outside. He went to the ground floor and searched for the deceased. Thereafter, he entered the house by opening the latch from outside. He noticed that the deceased was lying near the cot in the hall. There was no movement. He became panic and came outside, by that time P.W.1 also came there. He informed P.W.1 about what he saw in the hall portion of the house. Thereafter, she also saw the body of the deceased near the cot and they both observed the scratch marks on the neck of the deceased. Thereafter, they went to the house of the daughter of the deceased P.W. 7 situated at Jayanagar and informed her about the same. She also came at about 10.45 to 11.00 a.m., to the house of the deceased. She also observed the dead body.

14.5. P.W. 2 he has further deposed that on 18-7-2006 in the night hours at about 9 to 9.15 p.m., he was proceeding to a shop from his house via., the house of the deceased by that time, he saw the accused entering into the house of the deceased. Thereafter, at about 9.30 p.m., again he saw the accused going on TVS victor motorcycle towards Bannergatta Road, he was standing near the shop at a particular point of time at a distance of half a furlong from the house of the deceased. He also identified the said TVS motorcycle belonging to the accused and the same is marked at M.O. 7.

14.6. During the course of cross-examination, it is elicited that no visitors including the relatives were coming to the house of the deceased which also clarifies that only the persons who are working in the house of the deceased were regularly visiting their house. It is suggested that he has not seen the accused and he was not acquainted with the deceased but it is not denied in the course of cross-examination that he was not at all visiting the house of the deceased. There was a suggestion made, but the said suggestion was denied by this witness that P.W. 1, his mother was not working as a maidservant in the house of the deceased. On the other hand, it is suggested to P.W.1 that she was working in the house of P.W. 7 at Jayanagar. This suggestion was denied and reiterated that P.Ws. 1 and 2 were working in the house of deceased who is no other than the mother of the P.W. 7. He has further stated that he exactly do not know the address of the deceased. It is also elicited that except main road which leads to the house of first floor through which there was no road to one can enter the house of the deceased. The main door of the first floor leads to the hall. Further, he also explains the situation of the hall portion, in the house of the deceased. It is also clarified that he is well-versed about the house of the deceased. Therefore, it cannot be easily said that he was not at all knowing the deceased and not visiting the house of the deceased otherwise he would not have been answered these questions in such a manner.

14.7. It is reiterated by him that everyday he used to go to the house of the deceased between 8 to 8.20 a.m., and returning to the house at 11.30 a.m., to 12.00 noon and he used to work 1 to 1� hours regularly in the house of the accused.

14.8. It is further reiterated that on 18-7-2006, he had gone near the house of the deceased particularly to a provision stores in order to bring mosquito coil. This has been explained during the course of cross-examination and it is nothing but the confirmation of his presence near the shop, i.e., near the house of the deceased.

Learned Counsel has argued that this witness has stated in the cross-examination that he had not gone near the house of the deceased on the evening of 18-7-2006. Further he has reiterated that he returned to the house between 9.45 to 10.00 p.m., and he was near the house for about 30 to 45 minutes on that particular night. Except eliciting these aspects, nothing has been elicited in order to discard the evidence of this witness. No vengeance and no ill-will against the accused is suggested to this witness that he has deposed before the Court in order to falsely implicate the accused.

The learned Counsel for the accused contended that P.W. 2 has not stated in his evidence whether there was any light in the surrounding places or through which light, he was able to see the accused on that day. Secondly, it is contended that when the Doctor has not given the exact time of death, the Court cannot draw any inference that the death occurred in between 9.15 to 9.30 p.m., on that day.

So far as the availability of the light in the surrounding place where P.W. 2 has seen the accused near the house of the deceased is concerned, the evidence of P.W. 2 itself is an answer to the said defence taken up by the accused. During the course of cross-examination of P.W. 2, it is suggested to him at paragraph 26 of his evidence that, P.W. 2 on the night of 18-7-2006 had seen one motorcycle belonging to the neighbour of the deceased and he has not seen the motorcycle of the accused and also he has not seen the accused on that night. It is also suggested that by mistaken identity of some other person with a motorcycle, P.W. 2 has falsely implicated that he has seen the accused coming and going on his motorcycle on that night. The above said elucidation clears the doubt that, P.W. 2 was very much present near a shop situated near the house of the deceased and according to the accused, he has seen some other person on the motorcycle and due to the mistaken identity, he has identified the said man as that of accused. Therefore, it clarifies the situation that there was some light where P.W. 2 was standing near the shop and that he was able to see the vehicle parked near the house of the deceased and the persons who were moving in the vehicles. When P.W. 2 could see the motorcycle and some other person at that place, it is not explained how he could not see the accused and his motorcycle on that day. Therefore, the above said facts clearly shows that P.W. 2 had actually seen the accused and his motorcycle on that day and there cannot be any wrong identity by him. It is also a notable point that there is no suggestion made to P.W. 2 that there was no light at all at that particular point of time, as such, he could not see any vehicle or any person, in particular the accused person and his motorcycle.

So far as the second point is concerned, the Doctor-P.W. 6 in his evidence has categorically stated as to why he could not give the correct time of death at paragraph 9 that he has not given time since death of deceased in Ex. P. 3-post-mortem report, as the body had kept in cold storage. Though the learned Counsel has contended that the doctor has not discharged his duty as he has not ascertained since how long the body was kept in cold storage and thereafter ascertained the time of death and he would have been given. In the absence of time since death is not mentioned in Ex. P. 3, it cannot be said that the incident happened between 9.15 to 9.30 p.m. The above said argument in our opinion, is highly mathematical in nature and it cannot be accepted.

In the evidence of P.Ws. 1 and 2, they have categorically stated that they regularly attend the house of the deceased and in the morning hours on J 9-7-2006 they saw the dead body of the deceased lying in the house. P.W. 7 has categorically stated that on 18-7-2006, her mother had visited the house of P.W. 7 at Jayanagar and in the night hours at about 8 to 8.30 p.m., she left the house of P.W. 7 and went to her house. Thereafter, P.W. 2 has seen the accused between 9.15 to 9.30 p.m., going to the house of the deceased and coming out.

Further added to that, nobody has seen the deceased going out from the house of the deceased after she came back from the house of P.W. 7. This also clearly corroborate that the incident must have happened between 9.15 to 9.30 p.m., as the surrounding circumstance clearly discloses that till 8.30 p.m., on 18-7-2006 she was alive and the dead body was seen on the next day morning. Therefore, from the surrounding circumstances one can draw an inference that the death might have occurred after 8.30 p.m., during the night hours. There is no material to show that any other person has visited the house of the deceased except the accused on that day. Even no suggestions are forthcoming in the evidence of these witnesses. Further added to the above, there is no suggestion to P.W. 2 that there was no light in the surrounding places so that P.W. 2 could not see the accused person on that day. Therefore, that argument in our opinion is also not tenable. Hence, the prosecution in our opinion has proved this last seen of the accused going into the house of the deceased at 9.15 and coming out at 9.30 p.m., is established beyond all reasonable doubt.

Extrajudicial Confession.-It is the case of the prosecution that the accused was arrested in connection with this case on 20-7-2006 and he was sent to the hospital as the police found some injuries on the accused and the accused in fact made an Extrajudicial Confession before the doctor-P.W. 6 while P.W. 6 was giving treatment to the accused. Thereafter, the accused was brought back to the police station and produced before the Judicial Magistrate and there also on enquiry by the learned Magistrate, he has admitted the guilt and before the doctor who treated him, he has admitted the guilt. These two important aspects have been relied upon by the prosecution.

The learned Counsel for the accused strenuously contended that the accused was arrested and he was in custody of police, there is every chance of coercion by the police with a direction to the accused to make such statement before the doctor and as well as before the learned Judicial Magistrate in order to create evidence against him. Therefore, those two contentions alleged to have been made by the accused are hit by Section 25 of the Indian Evidence Act, 1872 as such statements are not amounts to discovery of any fact by the Investigating Officer, the same would also not fall under Section 27 of the Indian Evidence Act.

The learned Additional State Public Prosecutor however canvassed before this Court that the confession made by the accused is voluntary when looked into by the surrounding evidence. It is not disproved by the accused by means of preponderance of probabilities that those statements were made by him due to any coercion made by the police. In this background, the Court has to see whether the statement made before the learned Judicial Magistrate was voluntary by the accused and the same can be treated as Extrajudicial Confession or not.

Injuries on the accused.-There is no dispute that the accused was arrested on 20-7-2006. P.W. 12-Nagaraja, PC-1072 has deposed before the Court that he was working as a Police Constable at Mico Layout Police Station during the relevant period along with C.W. 22. He went in search of die accused and he apprehended the accused on 20-7-2006 at 6.00 a.m., in front of his house 9th Cross, Weaver''s Colony, Bangalore and produced before the Investigating Officer on the same day at 7.00 a.m., along with the report-Ex. P. 9. Of course, this witness has not stated anything about the injuries on the accused.

24.1. P.W. 13-K. Nagabushana, the Investigating Officer has deposed that after the accused being produced before him by P.W. 12, he arrested the accused, interrogated him and recorded the voluntary statement as per Ex. P. II and he has stated that he has observed certain injuries on the person of the accused and the nail marks. Hence, he forwarded to the medical examination and also to take his nail clippings for further investigation. The accused was accordingly taken to Victoria Hospital, Bengaluru and after examination he was brought back to the police station along with the nail clippings of the accused after recovery of the incriminating articles.

24.2. The evidence of the Investigating Officer is not seriously disputed except the recovery of the incriminating articles at the instance of the accused. But at paragraph 33 of his evidence, it is suggested that when the accused was sent to the hospital for his examination, he has addressed a letter to the Medical Officer that letter is shown to him and marked at Ex. D. 2. It is also admitted that he has furnished the history of alleged incident under Ex. D. 2 before seeking opinion from the doctor. Therefore, it is argued by the learned Counsel that the doctor has deposed before the Court perhaps on the ground that he has recorded the history on the basis of Ex. D. 2. Except that nothing contra evidence is available to the effect that the accused has explained about the injuries either in his voluntary statement or before the Investigating Officer. Therefore, the fact remains that the accused has actually sustained some injuries to his neck and face and how he sustained those injuries is the question to be answered by this Court by means of looking into the surrounding circumstances.

24.3. Of course, on seeing Ex. D. 2 which is the letter addressed to the Head of the Department, Victoria Hospital, Bengaluru, wherein it is stated that the accused told before the Investigating Officer that when the accused was committing the murder of the deceased, the deceased has scratched his face, neck etc. Therefore, he has sustained those injuries. Of course, the doctor might have seen this document whether i.e., the sole basis for giving opinion by the doctor as per Ex. P. 4 which is the wound certificate of the accused is to be looked into.

24.4. P.W. 6-the doctor has categorically stated in his evidence so far as this aspect is concerned that on 20-7-2006, the Police Inspector of Mico Layout Police Station produced the accused Chidananda before him with a requisition to examine the said person about the injuries. Thereafter, with the consent of the said person and noting the identification marks he has examined the accused in the hospital. It is stated that at the time of the examination, the accused has given the history that:

"He had joined the house of Parvathamma, at Hulimavu as a driver two months back. On 18-7-2006 at 9.15 to 9.30 p.m., he compressed and applied pressure over her neck which resulted in her death and then he went home along with 80 grams of gold jewelries which were kept on a cloth stand. Incidentally he had asked for a hand loan of Rs. 1,000/- only which Parvathamma had refused."

24.5. The Doctor has further stated that the accused has suffered five injuries which are as follows:

(1) A scratch abrasion measuring 2 cms. x 0.25 cm. present over root and right side of nose.

(2) A scratch abrasion measuring 2 cms. x 0.25 cm. present over left side of upper lip adjacent to left ala of nose.

(3) Six small abrasions each measuring 0.2 cm. x 0.2 cm. present over left side of face situated 1.5 cm. left of left angle of mouth over an area of 3.00 cms. x 3.5 cms.

(4) Scratch abrasions measuring 0.2 cm. x 0.2 cm. present over right side of face just above end of mustache.

(5) Small abrasion measuring 0.2 cm. x 0.2 cm. present over right side of face situated 2.00 cms. below middle of right eye.

He has stated that the above stated injuries (abrasions) found on the accused could have been caused on account of nail scratching by the deceased Parvathamma as per his own statement. In the course of cross-examination, so far as this aspect is concerned, the doctor has admitted that he has not given the time of causing of the injuries prior to the examination. The suggestion was made to him that the injuries on the person of the accused at the time of examination are reflected under Ex. P. 4 were 3 to 4 hours prior to the examination. The said suggestion was denied. But the fact remains that by virtue of the suggestion there is no denial by the accused with regard to the sustaining of the injuries by the accused. In the course of cross-examination, nothing has been suggested to the doctor that whether these injuries could be caused by any other means or whether they could be self-inflicted. There is no other suggestions made as to why this P.W. 6 has to give a false evidence before the Court whether he has got any ill-will or hatredness against the accused. Even it is not suggested that the doctor while examining the accused, the said Police Inspector was very much present in the hospital room and witnessed the Extrajudicial Confession made by the accused before the doctor. In the absence of such material, merely because the accused was not in custody but there is no suggestion that the police forced him to give such statement, it cannot be said that P.W. 6 to that extent is making a false statement before the Court. Moreover, P.W. 6 is responsible doctor, well-educated having concern towards the society and also to the patients, therefore the evidence of the doctor cannot be disbelieved.

Coupled with the evidence of the doctor-P.W. 6 the order of the committal Court shows that accused was produced in the home office of the Judicial Magistrate i.e., 7th ACMM in-charge of the 6th ACMM, Bengaluru. The Magistrate has recorded the proceedings in the home office. It is narrated that - "accused was produced in the Home office at 9.35 p.m., by PC Nos. 1644 and 7102 of Mico Layout Police Station with remand report. He does not complain any sort of ill-treatment by the police. 1 have noticed some abrasions on the neck of the accused, for which he has submitted that during his attempt on the deceased, she has caused such abrasion by her hands. Such suggestion appears to have been made voluntary. Therefore, the same is recorded. The accused submits that he has been provided with the medical treatment by the police. The right of bail is informed to the accused as the alleged offence is punishable with death or life imprisonment and thereafter, the accused is remanded to judicial custody till 3-8-2006".

Even after this, the accused was produced before the Court on several occasions. At no point of time, the accused made any allegations against the police that they have tutored him to give statement before the learned judicial Magistrate. The said portion noted above, does not exactly say that he has committed the murder of the deceased. Therefore, it cannot be considered as a confession statement of the accused. Nevertheless, he has made some admission which is fully supported by the other surrounding '' circumstances. The accused has stated that he was sent to the Hospital and a treatment was given to his injuries and he sustained injuries from the hands of the deceased. Though the commission of the offence as stated by the [ accused cannot be relied upon, but the other portions which are not inculpatory or confessional in nature can be very well relied upon as an admission of the accused as the said statement was recorded by the responsible Judicial Officer while discharging his duty as a public servant. There is no reason to disbelieve the said proceedings taken place before'' the Court. The accused has also not made any statement before the Court while examining under Section 313 of Cr.P.C. Except denying the said portion stated by the Investigating Officer and he has not given any explanation as to whether he has made such statement before the learned Magistrate and he has also not stated as to under what circumstances, he made such statement before the Magistrate. Even he has not given any explanation in his 313 statements as to how he has sustained those injuries on that particular day. Therefore, looking from the above said circumstance, there is no reason to disbelieve the evidence of P.W. 6 and also judicial proceedings taken place before the learned Magistrate.

In this regard, it is worth to refer a decision of the Hon''ble Apex Court between B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85. At paragraphs 43 and 44, the Hon''ble Apex Court has in detail dealt with the Extrajudicial Confession made by the accused before the doctor.

It is observed by the Hon''ble Apex Court that Extrajudicial Confession made before the doctor was accepted upon the rejection of the defence claim that such confession had been made before the doctor or prior to the custody of police. The Court has observed that there is no suggestion in this regard before the police that the appellant made confession before the doctor and it is kept out of consideration.

The Doctor is not an interested person. He is an independent person. He has not only examined the deceased and issued post-mortem examination report but also examined the accused. Unmindful about the consequences he gave such evidence before the Court. There is no suggestion either to the Investigating Officer or to the Doctor that such statement alleged to have been given by the accused, the Police Officer was very much present inside the hospital room. In the absence of such explanation, in our opinion, there is no reason for disbelieving the evidence of the doctor. Though the Extrajudicial Confession itself is a weak piece of evidence, but there is no hard and fast rule that in all circumstances, the same shall be disbelieved. In this case, the surrounding circumstances, in fact corroborate the Extrajudicial Confession made by the accused. Therefore, we are of the opinion that the prosecution has also proved the circumstance of Extrajudicial Confession beyond all reasonable doubt.

Recovery.-It is the case of the prosecution that after arresting the accused or after apprehending the accused on 20-7-2006, the Investigating Officer has recorded the voluntary statement of the accused as per Ex. P. 11 under which he has disclosed some incriminating materials being hidden by him and he would show the said place and the articles. The Investigating Officer on the basis of the voluntary statement prior to recovering some incriminating articles, he subjected the accused of his personal search and recovered a reliance mobile phone, steel wrist watch, Driving licence and cash of Rs. 455/- which are marked at M.Os. 12 to 16, in fact they are not incriminating articles to connect the offence as such against the accused. Therefore, we do not want to burden this judgment by discussing the recovery of those articles.

30.1. It is the specific case of the prosecution that thereafter, the Investigating Officer secured the presence of P.Ws. 8, 14 and 17 and proceeded with the accused. The accused took the Investigating Officer and panchas to his house bearing No. 782 situated at Weavers Colony, Bannerghatta Road and he showed to the Investigating Officer the motorcycle which was parked in front of his house and disclosed that he has kept the other important articles in the tool box of M.O. 7. He himself opened the tool box of the motorcycle and showed a tool packet, which contained M.Os. 1 to 6 which are the articles belonging to the deceased i.e., two gold bangles, one gold chain with saibaba dollar, one gold pearl chain and a pair of gold ear stud and one plain gold finger ring and one finger ring with white stones. The Investigating Officer has seized the same in the presence of the panch witnesses and produced the same before the learned Magistrate under PF No. 136 of 2006. Thereafter, the said articles were identified by the witnesses particularly, P.Ws. 1 to 4 and 7 and P.W. 5 father of the accused has also identified the motorcycle belonging to him which was being used by the accused.

Before adverting to the evidence of these witnesses, whether they are reliable or not, it is just and necessary to bear in mind the submissions made by the learned Counsel for the accused. It is submitted that the Investigating Officer has conducted a defective investigation and he has not stated before the Court as to what exactly stated by the accused as per Ex. P. 11A (portion of the voluntary statement of the accused). The said Ex. P. 11A itself will not constitute any substantial evidence before the Court that should be spoken by the Investigating Officer. Further, it is contended that the key of the motorcycle has not been seized though it is mentioned in the mahazar-Ex. P. 6. The steel box which was in the house of the deceased where the articles M.Os. 1 to 6 were kept was not seized and the articles which were alleged to have been seized under Ex. P. 6 were not sealed packet and sealed by the Investigating Officer. It is also contended that it is a open place where the recovery was made and as such it is not admissible in evidence. The learned Counsel also relied upon several rulings in this regard.

Of course, the Investigating Officer in his evidence has not stated as to what exactly the accused has stated in Ex. P. 11 A. In this regard, the learned Counsel has relied upon a decision of this Court between R. Vijayakumar alias Kumar alias Tailor Kumar v. State by Mahadevapua Police, Bangalore, ILR 1994 Kar. 491, wherein this Court has stated that:

"Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Sections 25 and 26 of the Indian Evidence Act. Therefore, so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take the place of substantive evidence."

But on perusal of the entire judgment, the Court has not discussed as to what is the consequence of the Investigation as the Investigating Officer has not stated the contents of the voluntary statement before the Court. On careful examination, the Investigating Officer has not specifically stated about the same in his evidence. But in the above said decision, it is not discussed whether that itself is sufficient to totally discard the recovery of incriminating articles at the instance of the accused. In this regard, it is just and necessary to refer Section 8 of the Indian Evidence Act, which says that:

"8 The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1.-The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."

On plain reading of the above said provision, the conduct of the accused prior to and subsequent to the incident, is a relevant fact irrespective of any statement made by him. Therefore, it goes without saying that even the Investigating Officer failed to state in his evidence as to what exactly stated by the accused in the voluntary statement, but the Court has to ascertain by means of conduct of the accused and the conduct of the witnesses whether recovery of any incriminating articles has been made at the instance of the accused and whether they connect the accused to the crime are not.

The second part of the argument of the learned Counsel is that recovery was made in the open space which was known to the police is not established by means of evidence. The material discloses that it was recovered from the tool box of the motorcycle of the accused.

In this regard, the Hon''ble Apex Court in a case in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, has observed that:

"There is nothing in Section 27 of the Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". For example, if the article is borrowed in the main road side or if it is concealed beneath dry leaves or lying in the place hidden in a public place, the article would remain out of reach in the normal circumstances."

Therefore, in view of the above said observation of the Hon''ble Apex Court, the argument of the learned Counsel is not tenable. In this background, now let us see whether this recovery at the instance of the accused has been proved or not?

P.Ws. 8 and 14 have turned hostile to the prosecution so far as Ex. P. 6 is concerned. However, P.W. 17 has fully supported the case of the prosecution. Coupled with the evidence of the Investigating Officer, the evidence of P.W. 17 has to be considered. P.W. 17 has stated that on 20-7-2006, he was secured by the police to the police station. The accused laid the Police and the panch witness to his house and there was a motorcycle in the compound of the house of the accused. The accused opened the tool box of the said motorcycle and took out a purse from the tool box and from inside, he took out the gold ornaments and produced the same before him and the Police Inspector has seized the same under mahazar as per Ex. P. 6. He identified the said articles as M.Os. 1 to 6 and the motorcycle as M.O. 7. During the course of cross-examination, it is admitted by him, that he was also a witness in one of the case earlier, he also stated about the presence of other two panch witnesses. It is suggested that other two witnesses did not accompany them. But P.Ws. 2 and 3-Police Officers accompany them. The said suggestion goes to show that this person and P.Ws. 2 and 3-Police Officers went together to the spot. It is elicited that he cannot exactly say as to whether the Weavers'' Colony is at a distance of 1 km., from Bannerghatta Road as suggested to him. It is suggested that the accused never led this witness, but the said suggestion has been denied. There is nothing to indicate that this witness is a regular stock witness to the police. Merely because he was a witness to the police, it is not sufficient to totally discard the evidence of this witness. There should be some strong statement to come to a conclusion that he is a stock witness to the police. Even it is not suggested whether the said case in which he was a witness also belonged to the same police station. In the absence of such material, there is no reason to disbelieve the evidence of these witnesses. The Investigating Officer as also P.W. 14-Nagabhushan categorically stated about the recovery at the instance of the accused. Therefore, we do not find any strong reason to discard the evidence of the Investigating Officer and this witness.

The learned Counsel also cited a decision in Sahib Singh v. State of Punjab, 1997 Cri. L.J. 2978 (SC) , wherein the Hon''ble Apex Court dealing under Section 25 of the Arms Act, 1959 has observed that:

"Seizure of revolver from accused, no attempt by concerned Police Officer to join with him some independent witnesses from locality to witness recovery. Arms and ammunitions seized from accused not packed and sealed. No evidence to indicate as to with whom revolver was, after seizure till it was sent to Arms Expert for testing. Accused was entitled to the benefit of doubt."

In the decision cited by the learned Counsel in Salim Akhtar alias Mota v. State of Uttar Pradesh, 2003 Cri. L.J. 2302 (SC), in the Hon''ble Apex Court has observed that:

"Recovery of a pistol and ammunition made from an open place which was accessible to all and everyone, not possible to hold that the appellant was in possession of the articles alleged to have been recovered from his possession."

In view of the facts noted above and the observations of the Hon''ble Apex Court in the case of Jeet Singh, the argument of the learned Counsel is not acceptable.

The above said rulings in fact is not applicable to the facts and circumstances of this case, because the mahazar-Ex. P. 6 discloses that the Investigating Officer has secured the presence of three witnesses, one is P.W. 17-Roy V.T., P.W. 14-Dildar and P.W. 8-L.S. Murthy. The addresses of those witnesses i.e., P.W. 14-Dildar and P.W. 17-Roy V.T. shows that their residence at Bengaluru which is on the way to Bannerghatta Road. Therefore, it shows that while going to that particular place in order to go along with the accused, the police have secured the presence of these witnesses. Merely because the Investigating Officer has not selected the localites as witnesses.

In the absence of any material to show that P.W. 17 deposed falsehood against the accused and he has got any grievance against the accused and further more, the accused could not able to show that P.W. 17 is a stock witness or interested witness. Merely, the violation of or non-observing of the police manual strictly by the Investigating Officer may not be sufficient to totally discard the evidence of a truthfulness witness. Otherwise it is admissible under Section 8 of the Evidence Act. Section 8 of the Indian Evidence Act reads thus:

"8. Motive, preparation and previous or subsequent conduct.-Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."

The non-seizure of the motorcycle key as well as the steel box from the house of the deceased is also not so strong evidence to totally uproot the case of the prosecution so far as recovery is concerned. P.W. 7 has categorically stated in his evidence, that the accused has opened the tool box of the motorcycle and took out the M.Os. 1 to 6 and handed over the same to the Investigating Officer. When such being the case, the exclusive knowledge of the accused is apparent on the basis of the evidence of the Investigating Officer and P.W. 17. The accused has not explained in his statement recorded under Section 313 of Cr.P.C. as to how those articles came to his motorcycle. In this context, the evidence of P.W. 5 also play some role as P.W. 5 though turned hostile to Ex. P. 20 referred to above, but he is consistent in his evidence that M.O. 1-motorcycle belongs to him and he has been paying the loan amount for having purchased the said motorcycle and the same motorcycle being used by the accused. Therefore, in the absence of any explanation by the accused so far as M.Os. 1 to 6 are concerned, it is very difficult to discard the evidence of P.W. 17 and the Investigating Officer.

There is no suggestion even to the Investigating Officer that what interest he has got to falsely implicate the accused, of course there is some defects in conducting the investigation. Mere deficiencies or defects in the investigation, itself is not sufficient to uproot the case of the prosecution.

It is worth to refer here the decision of the Hon''ble Apex Court in C. Muniappan and Others v. State of Tamil Nadu, (2010) 9 SCC 567 with D.K. Rajendran and Others v. State of Tamil Nadu, wherein the Hon''ble Apex Court at paragraphs 54 and 55 has observed that:

"Irregularities committed in the investigation by the earlier Investigating Officers or defect in the investigation by itself cannot be a ground for acquittal. The investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, eta., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence do hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded."

Therefore, what is to be looked into is whether the act of the investigation is deliberate in conducting such defective investigation.

Now, we proceed to discuss the highlighted defects in the investigation. The Investigating Officer has neither in the mahazar-Ex. P. 27 nor in his evidence has stated that the articles seized (M.Os. 1 to 6) were packed at the spot and sealed. Nevertheless, this defect is of no help to the accused in any manner because immediately after such seizure, the Investigating Officer has produced those articles before the Judicial Magistrate and obtained the order of the Magistrate to keep the said articles with him and the Magistrate has accordingly ordered for the same. That clearly goes to show that the Investigating Officer is prompt in his conduct though has not followed certain procedures. P.W. 7-the daughter of the deceased has also identified the jewels. There is no cross-examination so far as these aspects are concerned and accused also has not claimed that these articles belongs to himself and he has not given any explanation with regard to his possession of these articles with him immediately after the death of the deceased. Therefore, it goes without saying that there is sufficient evidence to connect the accused that he must be a perpetrator of the crime and only after committing the murder of the deceased, he must have possessed those articles and later they were recovered at the instance of the accused. Therefore, the argument of the learned Counsel that the seizure is not proper as also not tenable, as it is not shown that there is any prejudice, which has been caused to the accused. Hence, such argument of the learned Counsel has also not acceptable.

As we have not noticed from the evidence of the Investigating Officer and also the evidence of P.W. 17, the deliberate intention on the part of the Investigating Officer in order to help the accused and such defects have been done by him. May be due to inadvertence or due to lack of knowledge of procedural laws, he might have done that. For such lapses, the Court should not give much importance. Otherwise than such lapses, the evidence of the prosecution is sufficient to draw an inference of guilt against the accused.

P.Ws. 1, 2, 3 and 7 have in fact deposed before the Court that the said items-M.Os. 1 to 6 belonged to the deceased and those items were kept in the house of the deceased. P.W.1 has also stated that the deceased was using and wearing those jewels when she used to go out of the house and thereafter she used to keep them in a box in her house. P.W. 3, son of the deceased has also reiterated the same especially as that of P.W. 1. Therefore, we are of the opinion, the prosecution has also established the recovery of the items M.Os. 1 to 6 at the instance of the accused.

Experts evidence regarding fingerprint of the accused.-The prosecution has made attempts to establish that there was a chance fingerprint found in the house of the deceased belonging to the accused and during the course of the investigation, P.W. 14-the Investigating Officer has concluded that it is the fingerprints of the accused and sent the specimen fingerprints of the accused to the fingerprint Expert-P.W. 15, who tallied the same with that of the chance fingerprints which was taken by P.W. 15 from the spot, and found them tallied with each other.

The evidence of P.W. 14 shows that after arrest of the accused and after recovery of the incriminating articles, he took the specimen fingerprints of the accused and he forwarded the fingerprints of the accused and the chance fingerprint from the spot of occurrence. So far as this particular aspect is concerned, of course, the learned Counsel is right in submitting,that the Investigating Officer has not conducted any mahazar or the fingerprints were not taken from the accused in the presence of the jurisdictional Court or before any witnesses. But the cross-examination of this P.W. 15 probabalises that the Investigating Officer has taken the fingerprint of the accused in the station itself. At paragraph 15, a suggestion has been made to the witness that the fingerprint expert did not collect any chance prints from the spot. It is suggested that the specimen fingerprints of the accused were obtained by the Investigating Officer in the Police Station. Therefore it goes without saying that the investigating Officer has taken the fingerprints of the accused in the Police Station is an admitted fact. In this background, the evidence of P.Ws. 15 and 14 have to be read together. The Investigating Officer has further deposed that he also received a letter from the fingerprint expert stating that the Investigating Officer has to collect the specimen fingerprints of accused and therefore he has collected the same, thereafter, on 20-7-2006, i.e., on the next day, the Investigating Officer has taken the fingerprints of the accused and sent it to the experts.

In corroboration to the evidence of the Investigating Officer-P.W. 15 has stated that on 19-7-2006 at 1.30 p.m., he got a message from the Police Control Room to visit the scene of offence and accordingly he has visited the Mico Layout Police Station and from there he went to the spot (house of the deceased), inspected the same, he scientifically examined the shutters of the front door and a steel container in the hall and found partial palm print and one fingerprint on the front shutter of the door, which had a single shutter. Similarly, he found one fingerprint on the steel container which was on the table, inside the hall and he shifted the said print so found on the shutter and steel box scientifically to the plastic sheet through cellophane tape. He also deposed that on 6-8-2006 the Investigating Officer furnished him the fingerprints and palm prints of one Chidananda (accused). He scanned the said admitted prints of the accused and got transferred to his computer and on comparison, he found that left thumb impression of the said specimen print tallied with items ''C'' that is fingerprint found on the steel box. By giving details, he has given his opinion and issued Ex. P. 14. In the course of cross-examination of this witness, nothing has been elicited to discard the evidence of this expert. It is suggested to this witness that he never visited the scene of offence and not collected any chance prints. He denied the suggestions that he has given a false certificate etc. Being an expert he has no role to give false evidence as to what he has done, what is the report he has given. Based on that, the expert has given the opinion. In view of the above said circumstances, the prosecution has also placed some corroborative materials to show the visit of the accused to the house of the deceased and his specimen fingerprint being tallied with the questioned fingerprint extracted from the articles in the house of the deceased. Therefore, we are of the opinion that this circumstance is also established by the prosecution to connect the accused.

Motive.-Last but not least, the prosecution has also relied upon the motive for robing the articles from the house of the deceased. It is the case of the prosecution that on that day, the accused went to the house of the deceased, demanded for Rs. 1000/-, as the deceased refused for the same, he committed the murder of the deceased and robbed M.Os. 1 to 6 from her. As we have already observed that there is no reason to disbelieve the evidence of P.Ws. 3,4,5 and 7 with regard to the identification of the M.Os. 1 to 6 belong to the deceased and they were recovered from the accused.

48.1. P.Ws. 3, 5 and 7 in their evidence have categorically and consistently deposed that the deceased Parvathamma was telling before them that the accused was working as a driver of her car and his attitude was not good and he was very rude and he was often demanding money etc.

48.2. In addition, P.W. 4-Soubadramma who is no other than the mother-in-law of P.W. 7. She has also deposed in the same manner particularly she deposed that a day prior to the occurrence, deceased contacted this witness and told that the accused was not heeding her his words and behaving in a rude manner with her and he also informed that the accused was demanding money and she has expressed that she is unable to pay money to him.

48.3. The above said evidence with reference to the motive has not been seriously subjected to cross-examination. But as an alternative argument, the learned Counsel for the accused argued that if such being the case, there must be some quarrel taken place between the deceased and the accused person. Nobody knows what exactly happened between the accused and the deceased. Therefore, perhaps that may be the reason the accused might have committed such an act without knowing the consequences. Therefore, the offence committed by the accused may not fall under Section 302 of IPC, but it may fall under Section 304, Para II of IPC.

The evidence of P.Ws. 3, 4, 5 and 7 with regard to the conduct of the accused clearly goes to show that he must have been waiting for the opportunity to extract money from the deceased but as he could not able to extract money he wanted to gain something at the instance of the deceased. He being the driver knew that the deceased was wearing M.Os. 1 to 6 and keeping them in the house. Therefore, in order to rob those articles, he must have entered the house of the deceased on that day and committed robbery as the deceased must have defended herself by protesting the act of the accused, under such context, the accused might have sustained injuries on his face and neck.

When the conduct of the accused clearly goes to show either he wanted to extract money from the deceased or to gain himself by robbing the gold articles from the deceased, such conduct of the accused clearly discloses that he has got sufficient motive to do away with the life of the deceased.

The accused has also not explained in the course of cross-examination or in his statement recorded under Section 313 of Cr.P.C., as to what exactly happened in the house of the deceased on that particular day. The Court cannot draw any inference on the basis of mere imagination or passing its judgment on conjunctures and surmises. The'' Court has to draw the inferences to reach a logical conclusion only on the basis of the evidence on record. Therefore, it is very difficult to draw any inference that there may be a quarrel between the accused and the deceased so as to reduce the offence from Sections 302 to 304-A of IPC.

Looking from any angle, we are of the opinion that the Trial Court has not committed any error in appreciating the evidence on record and convicting the accused for the offence punishable under Section 302 of IPC and sentencing him accordingly as noted above. Hence, we do not want to interfere with such reasoned judgment of the Trial Court. Hence, the appeal fails. Accordingly, we pass the following:

ORDER

The appeal is dismissed.