Kavitha vs State

Arunachalam, J.—Appellant Kavitha was A1 in Sessions Case No.281 of 1985 on the file of the Court of Sessions, Tirunelveli. Her

husband Soundararajan was tried as A2 in the same Sessions Case, on a charge under S.306 I.P.C. He was ultimately acquitted. Appellant was

charged under S.302 I.P.C. on two counts, for having caused the death of her two minor children, Kathiravan aged about 3-1/2 years and Devi

Sangita aged about 2 years, by throwing them inside a well. She was further charged under S.309 I.P.C. for having attempted to commit suicide

by jumping inside the same well.

The learned Sessions Judge, after an elaborate trial, found the appellant guilty of all the charges, convicted and sentenced her to undergo

imprisonment for life under each count of murder and also to undergo simple imprisonment for one year under S.309 I.P.C. The substantive

sentences of imprisonment were directed to run concurrently.

The prosecution case in brief is as follows:

P.W.4 Isakkiammal is a neighbour of Sankaravelu, father of second appellant. Appellant and A2 were living behind the house of Sankaravelu.

P.W.4 had seen the appellant and her husband (A-2) fighting with each other, on some occasions and very affectionate and intimate, on other

occasions, though she had heard noises during fighting, she was not aware, as to the cause for fighting, between the spouses. She had later diluted

it and staled, that only loud noise used to be heard, from the house of the appellant. There is no other oral evidence regarding the manner of

matrimonial life led by the appellant along with her husband (A-2). There is also no evidence to show, that A2 was not a loving father and was in

the habit of ill-treating the children as well. Further there is no evidence of dire poverty, which made it impossible for them even to feed their

children. The statement of A2 under S.313 Cr.P.C. shows that he was working as an Accountant in a hotel. In the above background, we have to

examine the occurrence proper which had taken place at or about 8 a.m. on 13.1.1985 when the appellant jumped inside the well to put an end to

her life, after throwing inside the same well her two children, Kathiravan hereinafter referred to as D-1 and Devi Sangitha, hereinafter referred to as

D-2. The appellant was pulled out from the well, by P.Ws.1 to 3 and others, while both the deceased had died due to drowning Death was a

result of asphyxia. P.W.1 Selvam had gone towards the scene well at or about 8 a.m. on 13.1.1985, to answer calls of nature. As he was nearing

the well, he found the appellant jumping inside the well. P.W.1 rushed towards the well and found the body of a male child floating inside it. He

shouted and brought to the scene P.W.2 Pattamuthu Thevar and P.W.3 Kandaswami. They also belong to Ameenpuram Village, in which the

scene well was situated. All the three of them got inside the well, rescued the appellant and questioned her as to the cause of her action. The

appellant is stated to have replied, that her husband used to beat her daily and hence she had chosen to throw her children and kill herself.

Meanwhile, fire fighting squad arrived at the scene and removed the corpse of D-1 from the well. However, the corpse of D-2 could be removed

only on the next day. P.W.1 thereafter proceeded to Melapalayam Police Station to complain about this occurrence. P.W.11 Shanmughavel, then

Assistant Sub Inspector of Police, Melapalayam, reduced into writing the statement of P.W.1 and in Ex.P-1, the statement so recorded, he

obtained the signature of P.W.1. On Ex.P.1 he registered Cr. No. 13/85 under Ss.302 and 309 I.P.C. and prepared the printed first information

report Ex.P9. He forwarded Exts.P1 and P9 through Police Constable Sundaram (P.W.8) to the concerned Magistrate, while despatching a copy

of Ex.P9 to P.W.12 Mohanlal Daniel, then Inspector of Police, Perumalpuram.

Meanwhile, Jaleel (not examined) neighbour of the appellant, had taken her to the Government Hospital, Tirunelveli. P.W.5 Dr. Ramar,

examined the appellant at 10.20 a.m., on the basis of information furnished by her, that she had fallen into a well from a height of about 15 ft. at or

about 8 a.m. on the same day near Melapalayam shandy. P.W.5 did not find any external injury on her. Water also had not entered into her

internal organs. She found the appellant conscious, and answering to questions. The appellant was admitted in the accident ward. Ex.P2 is the

extract of the accident register. P.W.5 forwarded intimation Ex.P3 to the outpost police station.

P.W.7, Subbulakshmi, a women constable of the outpost Police station, received Ex.P3 at or about 11-45 a.m. on 13.1.1985. Soon thereafter,

she proceeded to the hospital and examined the appellant. The appellant gave out a statement. The statement was recorded and in the statement so

recorded the signature of the appellant was obtained. The statement of the appellant has been marked as Ex.P8. It is not known how Ex.P8 was

marked when it is hit by the provisions of S.25 of the Indian Evidence Act. Since P.W.7 found that the occurrence had taken place, within the

jurisdiction of Melapalayam Police Station, she forwarded Exts.P3 and P8 to the said police station.

P.W.12, Mohanlal Daniel, then Inspector of Police, received a copy of Ex.P9 at 10.40 a.m. on 13.1.1985. He reached the scene of occurrence

at 11-15 a.m. and prepared the observation mahazar Ex.P10 and scene sketch Ex.P11. Between 12 noon and 3 p.m., he conducted inquest on

the corpse of Kathiravan (D-1), during the course of which he examined P.Ws.1 to 3 and others. Ex.P12 is the inquest report, After inquest, he

forwarded the dead body of D-1 through police constable Isakkimulhu (P.W.9) with a requisition Ex.P4 to the Government Hospital, for the

conduct of post mortem. On the same night at 9.30 p.m. P.W.12 arrested the appellant at the Government Hospital. On the next day, after the

appellant was discharged, she was remanded to judicial custody. Inspite of efforts, the corpse of D-2 could not be removed from the well, on 13-

1-1985. On the next morning at or about 6 a.m., corpse of D-2 was found floating in side the well. P.W.12 conducted inquest on the corpse of D-

2 between 7 a.m. and 9 a.m. on 14.1.1985, during the course of which he examined P.W.2 and others. Ex.P13 is the inquest report. After inquest,

the dead body was despatched through police constable Puthumani Michael (P.W.10) with a requisition Ex.P6 to the Government Hospital for the

conduct of post mortem.

P.W.6 Dr. Chandrasekaran, conducted autopsy on the dead body of D-1 at 11-45 a.m. on 14.1.1985. He found the following appearances.

Well nourished male body with cyanosis of finger nails, fine froth at nostrils and mouth seen. No external or internal injuries seen anywhere in the

body. Heart, All chambers contained a little blood. Corollaries Patent. Lungs: Congested and oedametous Trachea and bronchi contained froth.

Stomach, limply. Liver, spleen and kidneys: Congested. Bladder: Empty. Bram. Congested and oedamatous.

In the opinion of the Doctor, the deceased would appear to have died of asphyxia due to drowning. Ex.P5 is the post mortem certificate.

On the same day, P.W.6 conducted autopsy on the dead body of D-2 at-1-15 p.m. He found the following appearances.

Well nourished female body with cyanosis of finger nails, washer women''s hands and feet seen. No external or internal injuries seen anywhere in

the body. Heart: All chambers contained a little blood. Cormorries: Patent. Lungs: Congested, and oedamatous. Trachea and bronchi contained

froth. Stomach: Empty Liver, Spleen and Kidneys, Congested. Bladder, Empty, Brain: Congested and oedamatous.

He offered his opinion that D-2 had also died of asphyxia due to drowning. Ex.P7 is the post mortem certificate.

After completion of investigation, P.W.12 laid the final report against the appellant and her husband before the committal court.

9.A When the appellant was examined under S.313 Cr.P.C, to explain the incriminating circumstances appearing against her in evidence, she

denied her complicity in the crime. She went on to add, that on the fateful morning, she went along with the children to answer calls of nature.

While she was attempting to wash her feet, using a bucket available in the well, she slipped inside the well along with her son, D-1, D-2 who was

standing near her weeping, had also fallen inside the well, after noticing the fate of her mother and brother. She regained consciousness only at the

hospital.

The learned Sessions Judge, on meticulous appreciation of the oral and documentary evidence, accepted the prosecution case, rejected the

defenece plea and dealt with the appellant in the manner indicated above, while acquitting A2 of the charge under S.309 I.P.C.

Mr. S. Kanagasabai, learned counsel appearing on behalf of the appellant, contended that Ex.P1, the complaint of P.W.1, should not have

been acted upon, for it was the outcome of invention by the police, to falsely-implicate the appellant, in the crime. He further contended, that the

extra-judicial confession of the appellant, which forms part of Ex.P1, as well as the oral evidence of P.Ws.1 to 3 should not have been relied upon,

for P.Ws.1 to 3 belong to some other village, and not that of the appellant. They were neither relations nor close friends of the appellant. Extra

judicial confession to a third person was not only improbable, but quite unnatural. He then urged, that the non-examination of Meera, another lady

who was present along with P.Ws.1 to 3, at the time when the appellant is stated to have confessed, would be sufficient to distrust the prosecution

case. He contended that the court cannot overlook the ill-treatment meted out to the appellant by her husband, even on the fateful morning, and

when there was obviously no ill-will against the children, the appellant cannot be found guilty of murder. Finally, he contended that, as claimed by

the appellant, the children might have accidentally fallen inside the wall.

On these contentions, we have heard Mr. S. Shanmughavelayudham, the learned Additional Public Prosecutor. He submitted, that the

evidence of P.W.4 would disclose, that the quarrel between the spouses was something most usually found in any household. On that score, the

appellant cannot choose to kill her children. If she does so, it will be murder simpliciter. He submitted, that P.Ws.1 to 3 were good Samaritans

who had saved the appellant, and it was quite natural, that when questioned the appellant had come out with a confession to them. P.Ws.1 to 3

have no animosity whatever against the appellant to falsely implicate her in this grave crime. The medical evidence was in full conformity with the

prosecution case, projected through P.Ws.1 to 3.

We have carefully considered the contentions urged by Mr. S. Kanagasabai and Mr. S. Shanmughavelayudham. The main submission of Mr.

S. Kanagasabai was, that we are bound to follow the law laid down by David Annoussamy and Janarthanam, JJ. in Suyambukkani v. State of

Tamil Nadu 1989 L.W.(Crl.) 86 . He further-stated, that the decision of a coordinated Bench was binding on us. Before we look into the law laid

down by David Annoussamy, J., speaking for the Bench, in Suyambukkani''s case (supra), over again, we have to at once state, that, accepting the

law laid down in that decision, we have recently dealt with an appeal (C.A. No. 368 of 1986) and by our judgment dated 7.2.1992 we have

exonerated the appellant therein of murder while finding her guilty under S.304(1) I.P.C. The facts in that case were so revealing, that we had no

hesitation in applying the law laid down in Suyambukkani''s case (supra), while adding our own reasons, which prompted us to arrive at the

conclusion, that the offence committed by the appellant therein, was not murder. It cannot be gainsaid that application of a principle of law, will

depend upon the facts unfurled in each case. Irrespective of facts, a rigid principle of law cannot be applied.

In Suyambukkani''s case (supra), the Division Bench was concerned with a case, where the husband was addicted to drinks, who would not

take care of his wife and children. Poverty and destitution were the lot of the mother and the children. To crown them all the husband engaged

himself in constant quarrels with his wife. The accused therein wanted to go back to her parent''s house, but the husband obstinately opposed that

course. He even ordered his wife not to meet her mother or brother and further directed that they should also not visit his wife. However,

whenever the situation became unbearable, the appellant therein used to go to her parents, who after keeping her for some time, would send her

back to her husband''s house, with some money. She was unable, however, to swallow the total absence of love, care and affection of the

husband, towards the children. Even when they were sick, she would have to carry both of them herself and the husband would not even oblige by

carrying one of them. The younger child had fallen sick for about a month. With permission, she went over to her parents'' house for ten days and

on her return she was scolded for having remained for such a long time with her parents. The husband beat her, on her return from her parents''

house, even when the younger child was still sick. The facts in that case, presented a picture of total despair, continuous and longstanding, and,

while appreciating such facts, learned Judges arrived at the conclusion, that the offence committed by the appellant therein, would not be murder,

but would fall under S.304 (1), I.P.C. While discussing the evidence as a whole learned Judges pointed out, the effect of premeditation and or ill

will, towards the victim, vis-a-vis applicability of any one of the exceptions to S.300, I.P.C. It is not known, why the learned counsel should

submit, that the decision rendered by a Division Bench of this Court, must necessarily be followed, even if dicta is not applicable to the facts in yet

another case. It only shows, that the counsel for the appellant, is under a phobia and does not want to discern the facts in the instant prosecution.

We reiterate, that we have already accepted the principle laid down in Suyambukkani''s case. However, we are constrained to add, that the law

laid down in Suyambukkani''s case and the enunciation of law, in a similar pattern by us, in C.A. No. 388 of 1986, will be applicable only if the

facts in any particular case would attract the principles expressed in both those cases.

Here is a case, where we do not have any material whatever, about the nature of matrimonial life led by the appellant along with her husband,

and we do not even have evidence that the husband of the appellant (A-2) was not an affectionate father and that he was ill-treating the children

also. Even about the ill-treatment meted out to the appellant by her husband, we do not have any acceptable evidence. The evidence of P.W.4, a

neighbour of the appellant, shows, that the appellant and her husband used to be intimate and affectionate on some occasions, while they used to

fight on certain other occasions. He was not even aware as to the nature of fight, since only shouting could be heard. As rightly pointed out by the

learned Additional Public Prosecutor, quarrel and reunion is a common feature in every household. There is no evidence whatsoever of ill-

treatment meted out by A-2 to his wife, the appellant. It is not even the case of the appellant, when examined under S.313, Cr.P.C. that her

husband had ill-treated her, which led her to a desperate end, to kill herself and her children. On the contrary, she would take a defence that she as

well as her children fell inside the well, purely due to an accident. Her case is that while washing her feet, she and D-1 fell inside the well

accidentally, while not being able to bear it, D-2 also fell inside the well.

A glimpse is available, about the quarrel between the spouses, from Ex.P8, the statement of the appellant recorded by P.W.7, the women

police constable, at the Government Hospital, Tirunelveli. We have already stated, that Ex.P8, not having led to any discovery, will not be

admissible in evidence. Even if we hold, that Ex.P8 can be taken in favour of the accused and not against her, all that can be culled out from Ex.P8

is that, on that particular morning, her husband wanted her to obtain a loan from the neighbour and further found fault with her, for not keeping

ready water for him, to wash his face. When she answered, that loan cold be obtained a little later and not such early hours, she was beaten. Even

in Ex.P8 there is nothing whatever, to show the mentality of A2, the husband of the appellant, towards the children. It will be too difficult to accede

to the defence argument, that due to spouses quarrel children could be made scape goats.

Now we will proceed to consider the oral evidence of P.Ws.1 to 3 and the extra judicial confession about which they have spoken, and which

extra judicial confession forms part of Ex.P1 as well. P.Ws.1 to 3 belong to Ameenpuram village, a hamlet of Melapalayam. Appellant was a

resident of Melapalayam village and, therefore, it is not surprising, that all the witnesses (P.Ws.1 to 3) knew even earlier, the appellant and her

husband. P.W.1 had gone towards the scene well to answer calls of nature and taking note of the time of occurrence, the possibility of his

presence near the well, cannot at all be doubted. He happened to notice a lady jumping inside the well and, when he rushed to the scene well, he

found the corpse of a boy floating inside it, while the appellant was struggling for life, inside the well. As one would expect, P.W.1 had not only

shouted for help, but had also procured P.Ws.2 and 3, who were nearby and all the three of them had joined together and pulled out the appellant,

who was struggling inside the well. The normal course of human conduct of P.Ws.1 to 3, would naturally have been to question the appellant as to

why she had involved herself in such an atrocious act. P.Ws.1 to 3 did only what one would expect of them, and it is not surprising, that

immediately the appellant came out with a version that her husband used to beat her daily prompting her to the and that was the reason why she fell

inside the well, after throwing D1 and D2 inside it. Meanwhile, a crowd, which had gathered, had passed on information to fire fighting squad,

which promptly arrived and removed the floating corpse of Dl, from inside the well. P.W.1 so conscious of his duty, had proceeded thereafter to

Melapalayam Police Station and preferred Ex.P1, the first information report. Ex.P1 contains clear narration of events. In Ex.P1, P.W.1 has

specifically stated that the appellant made an extra judicial confession, of having thrown her children (D1 and D2) inside the well, before jumping

herself into it, in an attempt to commit suicide. The complaint preferred by P.W.1 was so spontaneous that there was no rhyme or reason for

P.W.1, much less P.Ws.2 and 3, to falsely implicate the appellant in this crime. Ex.P1 has been received by the Magistrate at 7 p.m. It was

pointed out by the learned defence counsel that there was delay in the receipt of Ex.P1 by the concerned Magistrate. We have evidence of the

registration of this crime, at or about 9 a.m., and thereafter copies of Exts.P1 and P9 were forwarded to the concerned Magistrate. Every delay in

the despatch of the first information report cannot be suspected. We are unable to find any material, which can cast any suspicion, that Ex.P1

could not have come into existence, at the time and in the manner projected by the prosecution. Nobody was interested in falsely implicating the

appellant in the crime of killing her children and attempting to commit suicide. The evidence of P.Ws.2 and 3, who had arrived at the scene, to help

P.W.1, to rescue the appellant from the well, fully corroborates the testimony of P.W.1. The evidence of P.Ws.2 and 3 corroborates the version

of P.W.1, even in minute details, thereby showing that these witnesses have spoken the entire truth. P.Ws.2 and 3 who have also spoken about the

extra judicial confession made by the appellant to them, have no axe to grind against her. Lengthy cross-examination of these witnesses, has not

yielded any material to cast doubt on their credibility. Nature of extra judicial confession made by the appellant to them, has been spoken

consistently by each one of them, and we are unable to find any variation, which could tend to cast a doubt on the acceptability of their evidence.

In Ex.P1, though P.W.1 has not stated the case which led to the appellant jumping inside the well along with her children, the cause being ill-

treatment meted out by the husband. The fact remains, that the extrajudicial confession of the appellant, that she threw the children inside the well

and jumped herself inside it, to commit suicide, is so clearly stated in Ex.P1. The contents of Ex.P1 and the oral evidence are fully in conformity

with each other. No valid ground has been pointed out, to discard both these pieces of apparently credible evidence.

Mr. S. Kanakasabai would strenuously contend, that an extra judicial confession is not normally made to a third person and usually such

confessions are made only to close relations or friends. A person who seeks to make a confession undoubtedly chooses a person in whom he had

confidence. But the rule, cannot exclude extra judicial confessions, which on the face of it, proclaim themselves to be true and more so when

surrounding circumstances further affirm, the truth of such extrajudicial confessions. P.Ws.1 to 3 were neither total strangers nor bosm friends. We

have to visualise the circumstances under which the appellant had come out with the extra judicial confession. It was the saving hands of P.Ws.1 to

3, that had rescued her from a watery grave. Her children were inside the well and obviously dead. As one would rightly expect, P.Ws.1 to 3 had

questioned the appellant as to what had happened and it was neither surprising nor unnatural, that the appellant had come out with what had

happened, spontaneously, without a second thought. Obviously, truth had come out and P.W.1 had chosen to set the law in motion. Principles of

law enunciated, as we had stated a little earlier, can be made applicable depending on the facts available, and if law were to be applied irrespective

of facts rigidly, it would not only be a wooden approach, but even may lead to ridicule. We are unable to comprehend, how Ex.P.11 could be

rejected, on the basis, that the narration therein was the outcome of police invention or intervention. There was no reason whatever for policemen

to invent some cause to falsely prosecute the appellant, taking two dead bodies, as the pirot for the same.

Sequence of events and totality of circumstances will have to be taken as a whole and the evidence appreciated in its entirety. A little bit here

and a little bit there out of context cannot enure in favour of the appellant when the evidence is overwhelming, clinching and credible.

We are unable to accede to the contention, that non-examination of another, lady Meera, who was present with P.Ws.1 to 3 would put an end

to the prosecution case. Courts have often said, that quality and not quantity is the criterion. P.Ws.1 to 3 are independent and the non-examination

of Meera, redundant as it looks, cannot alter the position. At this stage Mr. S. Kanakasabai submitted that, since Meera was a lady, the appellant

could have confided in her and hence her-examination was essential. There was nothing confidential, when we have a case of the appellant being

pulled out from the well and saved from drowning by three goodwilled persons, who had dived into the well, and brought her out. The reason for

the fall given out by the appellant needs no confiding and hence it will not be possible to accept, that the appellant would have confided only to one

of her sex and not to others.

It was then pointed out by the learned defence counsel, that the police had commenced action, only on receipt of Ex.P3 from the hospital and

that would show, that Ex.P1 could not have been available, earlier to Ex.P3. This argument totally overlooks the available evidence. P.W.1 had left

the scene to set the law in motion. He had gone over to Melapalayam Police Station to prefer Ex.P1. A neighbour of the appellant had taken her to

the hospital, being fully aware, that she was removed from the well. P.W.5, Medical Officer had examined A3 or about 10.20 a.m. and naturally

being aware that it was a medico-legal case, had forwarded Ex.P3 intimation of accidents, to the outpost police station. Outpost police station is

attached to the hospital, whereas jurisdiction police station was Melapalayam Police Station. P.W.7, a women constable attached to the outpost

had done her duty promptly and she had forwarded Exs.P3 and P8 to the concerned Melapalayam Police Station. Meanwhile, on receipt of Ex.P9

at 10.40 A.M. P.W.12 had reached at 11.15 A.M., the scene of occurrence and had conducted inquest apart from preparing the scene sketch

and observation mahazar. It would not, therefore, be possible to hold that Ex.P1 could not have come into existence, because of forwarding of

Ex.P3. One relates to the victim in a case of attempt to suicide, being removed to the hospital for treatment and the other relates to investigation of

the crime proper, of murder and an attempt to commit suicide. Ex.P1 was recorded at 9 A.M. Ex.P3 was forwarded at 10.30 A.M. and Ex.P.8

came into existence at 12 noon.

The next contention of Mr. S. Kanakasabai is, that since there was a quarrel on the very day between A1 and her husband, her agitated mental

make up has to be taken into account and on that score she should not be held liable for murder. This argument, we cannot accept. In every

murder, there is bound to be some agitation in the mind, which leads to the final act of killing. Law has provided clear and categoric exceptions and

as has been pointed out in Suyambukkani''s case (supra) and Vijayalakshmi''s case C.A. No. 388 of 1986, it may be possible, in certain set of

circumstances to find the accused guilty under S.304, I.P.C. and not under S.302 I.P.C., be it on the basis of exceptions or otherwise. If we were

to hold, that all killings by a parent of their children, either by drowning or otherwise due to family quarrels or ill-treatment, would not be murder,

that would only amount to issuing passports, for merciless killing. Merely because the spouses were disunited, the unfortunate children cannot be

made dawns purely on the basis of lack of amity in the life of the parents.

The hesitant argument of an accidental fall inside the well, on the basis of the statement of the appellant under S.313 Cr.P.C, does not merit

serious consideration. The evidence, both oral and documentary, clearly shows that the well had a parapet all round and even in the place where

there was some damage in the parapet wall it could not have facilitated accidental fall, not merely of one but three individuals. It appears to be a

rather incredible story. It is again argued, that no water was found in the internal organs of the appellant and hence she could not have attempted to

commit suicide. This argument totally overlooks, the speedy action taken by P.W.1 who had seen the appellant jumping inside the well, and her

immediate removal by P.W.1 with the help of P.Ws.2 and 3. Naturally a person who falls inside the well, struggles for some time, the instinct being

spontaneous and it will certainly take a little more time, for water to enter inside the internal organs. The short duration during which the appellant

was inside the well, had necessarily not led to her consuming water or even water getting inside her organs otherwise. Therefore, the nonfinding of

water in the internal organs of the appellant can be practically of no consequence.

The credible extra judicial confession, if at all, needs only general corroboration, and more as a matter of prudence and not a rule of law. Extra

judicial confession to P.Ws.1 to 3 is corroborated by the medical evidence, showing that the death of D1 and D2, was due to asphyxia, coupled

with the fact of the appellant having fallen inside the well, confirmed by the Medical Officer, P. W.5 who had questioned the appellant when she

was taken to the hospital by her neighbour. The contents of the observation mahazar also, in effect lend assurance, along with the oral evidence of

the Investigating Officer, negativing the theory of accidental fall and proving the deliberate act on the part if the appellant. In State of U.P. Vs.

M.K. Anthony, , the Apex Court has held that, if the evidence of extra judicial confession is found to be reliable and trustworthy, conviction on that

basis would be proper and corroboration was not necessary. We hold, that the extra judicial confession is not only true and trustworthy, but also

has corroboration, though seeking corroboration in the instant case will be unnecessary and redundant. We entirely agree with the verdict

pronounced by the learned Sessions Judge. The appellant is guilty not only of murder (two counts) but also of the offence under S.309 I.P.C. This

appeal, which has no merit, shall stand dismissed.