Karnataka High Court
State Of Karnataka, vs Jafer @ Mohammed Jafer, on 19 August, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.100203 OF 2016
BETWEEN
STATE OF KARNATAKA,
REPRESENTED BY
CIRCLE POLICE-INSPECTOR,
RURAL POLICE STATION, BALLARI,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI. V. M. BANAKAR, ADDL SPP)
AND
JAFER @ MOHAMMED JAFER,
S/O SHAIKHASAB,
AGE: 48 YEARS,
CARPENTER WORK,
R/O. URAVAKONDA IN
ANANTHAPUR DISTRICT,
PRESENTLY RESIDING NEAR
ANJINEYA SWAMY TEMPLE,
BEHIND MARKKENDAIAH COLONY,
BALLARI.
... RESPONDENT
(BY SRI. T HANUMAREDDY, ADV.,)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 08.12.2015 PASSED IN SESSIONS CASE
NO.10 OF 2013 BY THE II ADDITIONAL SESSIONS JUDGE,
BALLARI, TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 08.12.2015 PASSED IN SESSIONS CASE
NO.10 OF 2013 BY THE II ADDITIONAL SESSIONS JUDGE,
BALLARI AND TO CONVICT THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC AND SECTION 27 OF ARMS ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THIS DAY, V. SRISHANANDA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the State impugning the judgment dated 08th December 2015 in Sessions Case No.10 of 2013 on the file of the II Additional Sessions Judge, Ballari, (for short 'the Sessions Court'). The Sessions Court by the impugned judgment has acquitted the respondent herein of the offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and section 27 of the Arms Act.
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2. The prosecution's case against the respondent is as follows:
2.1 In a sawmill belonging to Prasad @ Shinganmal Prasad situated behind B.S.R.M factory on Ananthpur road within the jurisdiction of Rural Police Station limits, the accused along with Achari @ Veerappa Badiger, Nabirasool and Rahamatulla were working. Accused sought financial assistance from Venumadhav for performing the marriage of his daughter. Venumadhav refused to lend money. As such accused nurtured enmity against Venumadhav. Accused with an intention to commit murder of Venumadhav, went near his house on 20.09.2012 at 2.00 a.m. stating that Achari @ Veerappa Badiger is suffering from dysentery and took Venumadhav with him to Sawmill shed. Thereafter, between 2.00 a.m. to 3.30 a.m. he murdered Venumadhav and Achari @ Veerappa Badigera by firing with unlicensed Pistol.
2.2 Smt. Vasantha, wife of deceased-
Venumadhava filed a complaint with rural police Bellary stating that somebody has murdered her husband and 4 Achari @ Veerappa Badigera. Based on it, case came to be registered in Crime No.0232/2012 at 14:00: on 20.09.2012. The jurisdictional police after completing the detailed investigation filed charge sheet against the respondent on 02.01.2013.
3. The learned jurisdictional Magistrate on receipt of charge sheet secured presence of the respondent and committed the case for trial to the District & Sessions Judge, Ballari, after complying required Procedure.
4. The Sessions Court after hearing the prosecution and accused framed charge against the accused for the offences punishable under Section 302 of IPC and section 27 of the Arms Act. Accused did not plead guilty. As such trial was held.
5. The prosecution examined 41 witnesses as P.W.1 to P.W.41 to prove case against accused. Among them:
• P.W.1: Smt. Vasantha Kumari is the wife of deceased Venumadhav, who filed Ex.P.1 5 complaint. She has supported the case of the prosecution.
• P.W.2: K. Jnaneshwar is the father of the deceased Venumadhav, who is circumstantial witness and he has supported the case of the prosecution.
• P.W.3: J. Subrahmanyam & P.W.15: Ravi are the panch witnesses to inquest mahazar (Ex.P.2) in respect of the dead body of deceased Venumadhav. They have not supported the case of the prosecution and have completely turned hostile.
• P.W.4: Gouse and P.W.12:Sharmas are panch witnesses to the seizure mahazars (Ex.P.3 & 4) under which motorcycle and mobile sim card were seized. These witnesses have also not supported the case of the prosecution and have completely turned hostile.
• P.W.5: Hanumanth and P.W.11:Shankar are the panch witnesses to Ex.P.5-seizure mahazar under which clothes of deceased-
Venumadhav were seized. These witnesses have also not supported the case of the prosecution and have turned hostile.6
• P.W.6: Govind and P.W.10:Yerrappa are the panch witnesses to Ex.P.6-seizure mahazar under which the clothes of deceased-Achari were seized. These witnesses have also not supported the case of the prosecution and turned hostile.
• P.W.7: Bhasha is a pancha witness to Ex.P.7 seizure mahazar, under which a mobile sim card was seized. This witness has also not supported the case of the prosecution and turned hostile.
• P.W.8: Yerriswamy and P.W.9: Ravi Karmench are the panch witnesses to inquest mahazar (Ex.P.8) in respect of the dead body of deceased-Achari. These witnesses have also not supported the case of the prosecution and turned hostile.
• P.W.13: Narendra, P.W.16: Jaffar, P.W.17:
Sangamesh, P.W.18:Shankar Kalaga- nnavar, P.W.19: Kalappa Badiger, P.W.20:
Dyamanna Badiger, P.W.22:Murali, P.W.23: Rahamath Ulla, P.W.24: Nabi Rasool, P.W.29: Ramudu are all circumstantial witnesses. These witnesses have also not supported the case of the prosecution and turned hostile.7
• P.W.14: Bajjanna is a panch witness to recovery mahazar Ex.P.12 under which a pistol and six bullets are seized. This witness has been treated as partly hostile to the case of the prosecution.
• P.W.21: B.Venkatesh and P.W.30: Venkatesh @ Srinivas are the witnesses to Ex.P.19-spot mahazar. These witnesses have also not supported the case of the prosecution and have turned hostile.
• P.W.25:Vishwateja is the son of deceased Venumadhav. This witness has supported the case of the prosecution.
• P.W.26: Prasad is the owner of the shed. He has given his statement before the police vide Ex.P.26 but he has not supported the case of the prosecution and has turned hostile.
• P.W.27: Eramma is the owner of the house where Pistol and bullets were kept. She has given her statement before the police as per Ex.P.27 but has not supported the case of the prosecution and has turned hostile.8
• P.W.28: Dawood is a relative of the accused in whose house pistol and bullets were recovered. He has given his statement before the police vide Ex.P.28 but he has not supported the case of the prosecution and has turned hostile.
• P.W.31: Dr. P. Yogiraj is the autopsy surgeon, who conducted postmortem on both the dead bodies and issued postmortem reports vide Ex.P.30 and 31.
• P.W.32: R. Virupakshi is the revenue officer of municipality, who issued property extract of the spot of incident vide Ex.P.33. His evidence is formal in nature.
• P.W.33: Sheik Shafiulla is the engineer, who drawn the sketch of the spot of incident as per Ex.P.34 and he has supported the case of the prosecution. The evidence of this witness is formal in nature.
• P.W.34: Basvanth Chouhan is the fingerprint expert, who issued his opinion and report vide Ex.P.35 and 36. The evidence of this witness is formal in nature.9
• P.W.35: F. Mabu is the investigation officer who conducted inquest mahazar (Ex.P.8) and recorded the statements of the witnesses.
• P.W.36: Goni Basappa is carrier of FIR (Ex.P.37) and complaint (Ex.P.1) and he is a formal witness.
• P.W.37: K. Nagaiah is police constable, who took the dead body of deceased Achari to VIMS hospital for conducting postmortem and took the clothes of the deceased and submitted them before the higher authority. He is also a formal witness.
• P.W.38: Somashekhar is the PSI, who received the complaint and registered the FIR (Ex.P.37) and handed over the further investigation to the P.W.41.
• P.W.39: Mohammed Rafiq is the police constable, who took the dead body of deceased Venumadhav for postmortem and took the clothes of the deceased and submitted them before the higher authority.10
• P.W.40: B. C. Ravichandra is the ballistic expert, who examined the pistol, bullets, one bloodstained baniyan and bloodstained lining shirt and has issued ballistic report vide Ex.P.38. This witness has supported the case of the prosecution.
• P.W.41: Suleman Tahsildar is the CPI, who conducted the further investigation. He conducted inquest mahazar of both the deceased, recorded statements of the witnesses, seized the pistol, bullets and clothes of both the deceased, sent the dead bodies for postmortem, recorded voluntary statement of accused, arrested the accused and after completion of investigation has filed the charge sheet against the accused.
6. The prosecution has relied upon 40 documents which were exhibited and marked as Ex.P.1 to Ex.P.40 which include the complaint (Ex.P.1), inquest mahazars (Ex.P.2 and Ex.P.8), Seizure mahazars (Ex.P.3 to Ex.P.7 and Ex.P.12), spot mahazars (Ex.P.9 and Ex.P.19), statements of the witnesses (Ex.P.10, Ex.P.11, Ex.P.13 to 18 and Ex.P.20 to 29), Postmortem reports 11 (Ex.P.30 and 31), Expert opinions and examination report (Ex.P.32, Ex.P35 and Ex.P.36), property extract (Ex.P.33), Sketch (Ex.P.34), FIR (Ex.P.37), Ex.P.38 (FSL report), voluntary statement of the accused (Ex.P.39) and RTO report (Ex.P.40).
7. On conclusion of trial, as contemplated under section 313 of Cr.P.C accused statement was recorded wherein accused denied all the incriminatory materials against him found in prosecution evidence. He did not lead any evidence.
8. The Sessions Court, on appreciation of the evidence on record, acquitted the accused of the offences punishable under Section 302 of IPC and Section 27 of the Arms Act. It is that judgment, which is under challenge in this appeal.
9. The learned Additional State Public Prosecutor vehemently contended that the Sessions court did not properly appreciate the evidence on record and erroneously acquitted the accused. He further contended that P.W.1, who is wife of deceased Venumadhav, has 12 supported the case of the prosecution in toto. But her evidence is ignored by the Sessions Court while recording the order of acquittal. He also pointed out that P.W.14 is the mahazar witness to recovery of M.O.12, under Ex.P.12-mahazar, wherein the investigation agency is able to recover the pistol as well as six live bullets at the instance of the accused in pursuant to the voluntary statement. The Sessions Court has totally ignored these materials.
10. He further pointed out that the autopsy reports (Ex.P.30 and 31), the bullet-M.O.10 separated from the body of deceased Venumadhav (preserved by the autopsy surgeon (P.W.31) and identified by him), and the ballistic report (Ex.P.38) issued by P.W.40 clearly establish that the bullet taken out from the dead body of deceased Venumadhav was fired from M.O.12-Pistol and these aspects clearly indicate that it is the accused, who is responsible for the murder of Venumadhav and same has been ignored by the Sessions Court while recording the order of acquittal.
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11. He further contended that even though P.W.3 to 13, P.W.15 to P.W.24 and P.W.27 to P.W.30 have turned hostile to the case of the prosecution, the available material on record itself is sufficient to convict the accused and therefore, prayed for allowing the appeal.
12. Per contra, the learned counsel appearing for the respondent (hereinafter referred to as "accused") contended that there is no dispute as to the homicidal death of Venumadhav and Achari @ Veerappa Badiger, but the prosecution has miserably failed to establish the nexus between the accused and the homicidal death of both the deceased. He pointed out that the entire case of the prosecution rests on circumstantial evidence and there is no circumstance which would prove the culpability of the accused and therefore, the judgment of the Sessions Court is to be maintained by dismissing the appeal.
13. In the light of the rival submissions, the point that would arise for our consideration is as follows: 14
"Whether the appellant/state establishes the nexus between the homicidal death of Venumadhav and Achari @ Veerappa Badiger and accused and thus impugned judgment calls for interference?
14. The above point is answered in the negative for the reasons discussed hereinafter.
REASONS
15. From the material available on record, especially postmortem reports marked at Ex.P.30 and 31 coupled with the ballistic report marked at Ex.P.38 and the recovery mahazar Ex.P.12 under which bullet from the body of Venumadhav was recovered, establish the fact that Venumadhav and Achari @ Veerappa Badiger died on account of bullet injuries sustained by them. Therefore, the finding that Venumadhav and Achari @ Veerappa Badiger died homicidal death is well founded.
16. The Sessions Court in the impugned judgment has come to the conclusion that the prosecution has not been able to establish the nexus 15 between the homicidal death of Venumadhav and Achari @ Veerappa Badiger and the accused.
17. As could be seen from the records, P.W.4 to 13, 15 to 24 and 26 to 30 have turned hostile to the case of the prosecution. Though they were cross examined by prosecution, no useful materials are elicited in such cross examination. As such, the available evidence on record are the testimonies of complainant-PW1, autopsy surgeon-P.W.31, Ballistic expert-P.W.40, one of the panch witnesses (P.W.14) to Ex.P.12 under which M.O.12 pistol and six live bullets were recovered, the son of the deceased - P.W.25, and the investigation officer.
18. The prosecution has relied on the evidence of P.W.1 for the purpose of last seen theory. She deposed that one of the deceased i.e. Venumadhav is her husband and they were residing in a house situated behind B.S.R.M Factory; there was a vacant plot in front of their house which was let out to P.W.26 for carpentry work, and Jaffar (accused), Sadiqbasha, Nabi, Ramachadra Achari and yet another were working in the said shed. 16 She further deposed that among them one Gadag Achari used to stay in the shed itself and Jaffar used to attend the carpenter shop in the morning and return in the evening. It is her further case that on 19.09.2012 at about 7.45 p.m. her husband has attended birthday function at Sadiq basha's house and returned around 10.45 p.m. Later, when she and her sons were sleeping and her husband was watching T.V. in another room, at about 2.00 a.m., she heard somebody knocking the door and her husband opened the door and Jaffar was found there. He told them that Gadag Achari is suffering from dysentery and he wanted salt. She further deposed that after taking salt, her husband and Jaffar went near the shed; at about 2.30 a.m. Jaffar alone again visited their house and she gave a cloth and slept. Later, though she heard a loud screaming, she did not go out of the house thinking that it may be Achari, who is screaming and she slept.
19. It is her case that next day morning at around 6.30 a.m. to 7.00 a.m., she woke up and found that her husband had not returned and she went near the shed, 17 but it was locked. She thought that her husband must have accompanied Achari to hospital. As her husband left his mobile telephone in the house itself she called Achari through mobile telephone of her neighbour and it was switched off. Then she sent her son to the shed and he saw from a hole and reported that her husband and Achari both are sleeping in the shed; she intimated the same to neighbour Shahji. As such, Shahji went inside the shed by removing another door and intimated her that both of them have been murdered and there are bullet injuries. Accordingly, she visited Ballari Rural Police Station and lodged a complaint vide Ex.P.1. She identified the accused before the Court.
20. In her cross-examination, it is elicited that she is working as a teacher in Sai Lower School and her working hours are 9.00 a.m. to 3.30 p.m. She has admitted that a number of houses are situated in and around her house and if any sound emanates from her house, the neighbour can hear.
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21. Father of deceased-Venumadhav is P.W.2. He deposed that on 19.09.2012 he had been to Hyderabad on account of Vinayak Chathurthi festival and on 20.09.2012 he received a telephone call from his younger sister intimating the death of Venumadhav and accordingly, he returned to Ballari and he identified the dead body of Venumadhav in hospital. He deposed that he was present and participated in inquest mahazar. In his cross-examination, no useful material is elicited by the defence.
22. In the present case P.W.4 to P.W.13 P.W.15 to 24 and P.W.26 to P.W.30 did not support the case of the prosecution to any extent. Though the learned public prosecutor treated them as hostile witnesses and cross- examined them by confronting the statements said to have been given by them before the investigation officer, no useful materials were elicited in such cross- examination.
23. The doctor, who conducted postmortem on the dead bodies of the deceased, is examined as P.W.31. 19 He deposed about conducting postmortem examination on 20th September 2012 and issuing reports vide Ex.P.30 and Ex.P.31. From the dead body of Venumadhav, he has taken out the fired bullet and he identified the same as M.O.7. In his cross-examination, he has denied the suggestion that the wounds as is found in Ex.P.30 and Ex.P.31 are not fired from the pistol-M.O.12 but it could be from a gun. He admits that he has not mentioned the time since death in Ex.P.30 and Ex.P.31. He denied that M.O.7 is not removed from the dead body of deceased Venumadhav.
24. The fingerprint expert is examined as P.W.34. He deposed that on 20.09.2012 as per the request of Ballari Rural Police, he visited the place of incident and searched for accidental fingerprints, if any, but he could not find any fingerprints and as such, he gave report vide Ex.P.35.
25. The Ballistic Expert is examined as P.W.40. He deposed that he has received nine articles for examination in a sealed condition and on opening the 20 seal, he found a country made pistol of 7.65mm and six live bullets of 7.65mm and another bullet of 7.65mm. In article No.5 and 6, he found two cartridges of 7.65mm caliber. He has also found a bloodstained baniyan and a yellow colour baniyan in article No.7 and 8 and in article No.9 he has seen a shirt. On examination, he has given a report as per Ex.P.38.
26. On confrontation with Ex.P.31-Postmortem report, he has stated that if the bullet is fired from pistol with a close contact, the injury noted in Ex.P.31 could be caused. He also answered that the injury noted in Ex.P.30 could be caused by firing from 2 feet distance. He further answered that the injuries found in Ex.P.30 and Ex.P.31 could have been caused by the use of one and the same pistol. He also identified M.O.12-pistol and M.O.13 to M.O.15-bullets. He identified the cartridges vide M.O.16 and 17.
27. In his cross-examination, he answered that there is a difference between gun and pistol. He answered 21 that before furnishing the opinion vide Ex.P.38, he had not seen the postmortem report.
28. P.W.38 and P.W.41 are the investigation officers. P.W.38 deposed that on receipt of a complaint by P.W.1-complainant, he registered the case in Crime No.232/2012 and FIR vide Ex.P.37. Further he deposed that he has assisted P.W.41 along with other sub-staff in arresting the accused on 04.10.2012 at about 6.00 a.m.
29. P.W.41 has conducted the further investigation based on Ex.P.1 and Ex.P.37, and conducted inquest mahazar, spot mahazar, arrested the accused, recorded his voluntary statement and recovered the pistol-M.O.12 and live bullets from the house of P.W.28-Dawood, who is the relative of the accused. Thereafter, he has collected the postmortem report, ballistic report and filed charge-sheet against the accused. In his cross-examination, he denies having not conducted the investigation in proper manner. 22
30. On perusal of the material on record, the oral testimony of P.W.1 is relied upon by the appellant to prove the last seen theory.
31. From the complaint averments and oral testimony of PW1, prosecution is able to establish the circumstance that the accused and deceased Venumadhav were seen for the last time at about 2.00 a.m. on 20.09.2012 and later Venumadhav was found dead at the place of incident. But PW1 did not testify about the presence of another deceased-Achari in the company of accused.
32. PW1 has stated that even after hearing loud scream around 2.30 A.M. she did not care to find out what happened to her husband especially when husband did not return home that too in the odd hours. This conduct of PW1 is unnatural as is rightly observed by the Sessions Court in the impugned judgment.
33. P.W.2 is the father of Venumadhav, who was far away at Hyderabad on account of Ganesh Festival and returns to Ballari on he being informed by his 23 younger sister about the death of his son Venumadhav. His evidence would not improve the case of the prosecution to any extent. So also oral testimony of son of Venumadhav (PW25) is not helpful in proving the case of prosecution.
34. P.W.14-Bajjanna is the pancha witness to Ex.P.12-mahazar, whereunder police seized the M.O.12- pistol and six live bullets. His evidence would only establish that police have seized M.O.12-pistol and M.O.13 to M.O.15-bullets. P.W.14 has failed to identify M.O.12-pistol and live bullets before the Court.
35. Except the evidence of P.W.1-wife of the deceased-Venumadhav, P.W.2-father of the deceased- Venumadhav, P.W.14-panch witness to seizure of M.O.12-pistol and bullets, P.W.25-the son of deceased- Venumadhav and the official witnesses viz., P.W.38, P.W.40 and P.W.41 there is no evidence on record, which would tend to establish the guilt of the accused beyond all reasonable doubt. What happened after the accused 24 and Venumadhav left from the house of P.W.1 at 2.00 a.m. is not even spoken to by P.W.1.
36. On judicious consideration of material on record, it is found that the prosecution is able to establish the circumstance viz., accused and Venumadhav being seen by PW1 at @ 2.00AM on 20.09.2012, but there is nothing on record to establish what happened which would be necessary to connect the accused to the homicidal death.
37. According to the prosecution, motive for the incident is that the accused had requested for a loan from Venumadhav to perform his daughter's marriage but Venumadhav did not lent loan and the co-workers of accused were teasing him that he could not perform the marriage of his daughter properly, which resulted in accused nurturing enmity against Venumadhav and in order to take revenge, he had planned to take away the life of Venumadhav and took his life, and to take his wealth along with him. No evidence whatsoever is placed in this regard. Even if accused had any enmity against 25 Venumadhav, what prompted the accused to take the life of Achari @ Veerappa Badiger is not forthcoming on record.
38. The death of Venumadhav and Achari @ Veerappa Badiger on account of bullet injuries is proved by postmortem reports. The dead bodies were found in the wood factory belonging to Prasad as is shown in spot mahazar-Ex.P.9, is proved by the prosecution through the evidence of P.W.25-Vishwateja, the son of deceased- Venumadhav and investigating officer.
39. The next circumstance, which is proved by the prosecution, is the recovery of M.O.12-pistol and six bullets at the instance of voluntary statement recorded by P.W.41 through the evidence of P.W.14.
40. Mere recovery of M.O.12-Pistol and autopsy surgeon taking out a bullet from the dead body of deceased Venumadhav at the time of conducting postmortem and sending it for ballistic examination does not help the prosecution's case. The ballistic expert- P.W.40 has stated that the bullet recovered from the 26 body of Venumadhav and other cartridges seized under seizure mahazar Ex.P.7 are fired from M.O.12-pistol. The evidence of autopsy surgeon and the ballistic expert cannot be disbelieved as they are official witnesses, who did not possess any enmity or animosity against the accused, but P.W.34- finger print expert has clearly answered that there were no fingerprints available on the magazine of the M.O.12. Therefore, even their evidence does not help the prosecution's case.
41. On careful consideration of above evidence, there is no cogent and connecting evidence that the accused used M.O.12 to fire bullets at Venumadhav and Achari @ Veerappa Badiger, the deceased persons. As such, finding recorded by Sessions Court that the prosecution has not established the guilt of the accused cannot be termed as perverse or suffering from legal infirmities.
42. Thus, even after reappreciation of the entire evidence on record, we are of the opinion that the prosecution is unable to place such evidence on record, 27 which would impel us to take a different view. It is well settled principle of law that any amount of suspicion cannot take the seat of proof.
43. It is now well settled that a conviction can be on the basis of placed on the circumstantial evidence as is held catena of cases. But the prosecution evidence, in the case on hand, is hardly sufficient to hold that accused nurtured enmity against deceased persons and as such he took away their lives by firing with MO12 and thus guilty of the charges leveled against him.
44. Accordingly, invariable conclusion that we can reach is that appeal is without merit and we pass following order.
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE yan