Salim Zia Vs. State of U.P  INSC
240 (24 November 1978)
SINGH, JASWANT SINGH, JASWANT REDDY, O.
CITATION: 1979 AIR 391 1979 SCR (2) 394 1979
SCC (2) 648
Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970,. Sec. 2(a) & Indian Penal Code, 1860
(Act 45 of 1860), Sec. 302-Accused firing at the deceased resulting in instant
death-Accused claiming right of private defence of person, property-Onus 15 on
accused may be discharged 'by establishing a mere preponderance of
probabilities either in the cross-examination of prosecution witnesses or by
adducing defence evidence.
Appeal against. acquittal-Reversing the order
of acquittal Principles, criteria and guidelines.
The appellant's father one Jaffar Ali leased
out an acre of paddy growing land to the deceased. The prosecution alleged that
while the deceased was harvesting the crop, the appellant and his brothers went
to the field armed with a gun. There had Been some exchange of words between
the appellant and the deceased as regards the share of the produce as agreed to
between the deceased and the appellant's father. The appellant was alleged to
at the deceased killing him on the spot.
Accepting the appellant's version contained
in a report stated to have been lodged by him at the police station ten minutes
before the First Information Report was lodged, the Sessions Judge acquitted
the appellant. The report stated that on the day of the occurrence the deceased
was stealing paddy bags from the appellant's field and on seeing him (the
appellant) the deceased fired from a revolver which hit the appellant on the
right thigh and that finding that the deceased was determined to kill him the
appellant fired two or three rounds with his gun which hit the deceased.
On appeal by the State, the High Court set
aside the acquittal of the appellant and convicted and sentenced him to
imprisonment for life.
On Further appeal to this Court under s. 2
(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970 it was contended on behalf of the appellant that the High Court had acted
with material irregularity in ignoring the guidelines laid down by this Court
for interfering 'with the judgment and order of acquittal and convicting the
appellant without referring to the conclusions correctly arrived at by the
Sessions Judge and secondly the appellant was fully justified in opening fire
in exercise of the right of private defence.
Dismissing the appeal, ^
HELD: 1 (a) The High Court was fully
justified in reversing the order of acquittal of the appellant which was
erroneously made by the Sessions Judge on the basis of surmises, and
conjectures and in convicting him specially 395 when the prosecution story that
the appellant fired at the deceased without any justifiable provocation was
established to the hilt by the evidence of a number of prosecution witnesses
who even according to the Sessions Judge gave a true account of the occurrence.
[404D] (b) The legal position emerging from a long line of decisions starting
with Sheo Swarup v. king Emperor. 61 I.A.
"The High Court in an appeal against an
order of acquittal under s. 417 of the Code of Criminal Procedure, 1898 has
full power to review at large, the evidence on which the order of acquittal was
founded and to reach the conclusion that upon the evidence, the order of
acquittal should be reversed." [403B-D]
2. The different pharaseology used in the
judgments of this Court such as (a) substantial and compelling reasons;
(b) good and sufficiently cogent reasons; (c)
strong reasons; are not intended to curtail or place any limitation on the
undoubted power of an appellate court in an appeal against acquittal to review
the entire evidence and to come to its own conclusion as stated above but in
doing so it should give proper consideration to such matters as (i) the views
of the trial judge as to the credibility of the witnesses (ii) the presumption
of innocence in favour of the accused, a presumption certainly not weakened by
the fact that he had been acquitted at his trial, (iii) the right of the
accused to the benefit of any real and reasonable doubt and (iv) the slowness
of an appellate court in disturbing la finding of fact arrived at by a judge
who had the advantage, of seeing the witnesses. [403E-404A] Nur Mohammad v.
Emperor. AIR 1945 PC 151; Sanwat Singh v. State of Rajasthan,  3 SCR 120,
Ramaphupala Reddy & Ors. v. State of A.P.,  3 SCC 474; Gopi Nath
Ganga Ram Ram Surve & Ors. v. State of 11 Maharashtra,  3 SCC 627;
Dharam Das & Ors. v.
State of U.P.,  2 SCC 216: Lekha Yadav
v. State of Bihar,  2 SCC 424: Samson Hyam Kemkar v.
State of Maharashtra,  3 SCC 494;
Barati v. State of U.P.,  4 SCC 258; referred to.
(c) In the present case it cannot be said
that the High Court has lost sight of the principles laid down by this Court
with regard to the disposal of appeals against acquittal. [404A] 2.(a) on the
basis of expert medical evidence the High Court come to the conclusion that the
injuries on the person of the appellant were not gunshot injuries and could not
be caused with a revolver but were fabricated to look like gunshot wounds for
the purpose of creating a defence.  (b) The burden on the accused to
establish the plea of self-defence is not as onerous as the one which lies on
the prosecution. It is the prosecution which is required to prove its case
beyond reasonable doubt and the accused need not establish the plea to the hilt
and may discharge his onus by establishing a mere preponderance of probability
either by laying basis for that plea in cross-examination of prosecution
witnesses or by adducing defence evidence [401H-402B] 396 In the instant case,
however the appellant has not discharged that burden either by adducing any
defence evidence or by eliciting from the prosecution witnesses the existence
of facts and circumstances satisfying the requisite test of preponderance of
probability entitling him to exercise the right of private defence either of
person or property. [402C] Pratap v. State of U.P., AIR 1976 SC 966. Munshi Ram
& Ors. v. Delhi Administration,  2 SCR 455;
(c) The appellant has not been able to
establish that the paddy field belonged to him or that it had not been leased
out by him to the deceased on 'Ahdhiya ghalla batai' basis or that the deceased
committed theft or attempted to commit theft of paddy, to which he i.e. the
appellant was lawfully entitled. [402D] (d) The appellant has also not established
that it was the deceased who fired any shot at him from the revolver and it was
only in self-defence that he fired the shots from the gun in his possession
which resulted in the death of the deceased. [402E]
CRIMINAL APPELLATE JURISDICTION : Criminal
213, 237 and 238 of 1977.
Appeal under Section 2(a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and by Special
Leave from the Judgment and order dated 13-4- 77 of the Allahabad High Court in
Govt. Appeal Nos. 637/71 and Cr. A. No. 14/71 and Govt. A. No. 621/71.
Frank Anthony, B. P. Maheshwari, P. Basu and
Suresh Sethi for the Appellant.
O. P. Rana for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. The above noted three appeals, the first two out of which
viz. Criminal Appeal No. 213 of 1977 under section 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Criminal Appeal
No. 237 of 1977 by special leave challenge the reversal of acquittal and
conviction of Salim Zia alias Fodi, appellant under section 302 of the Indian
Penal Code and section 27 of the Arms Act and the last one whereof viz.
Criminal Appeal No. 238 of 1977 by special
leave challenges the affirmance of conviction of the appellant under section 25
of the Arms Act will be disposed of by this judgment as they are all directed
against the judgment and order dated April 13, 1977 of the Allahabad High
Briefly stated, the case as put forth by the
prosecution was that Jaffar Ali, the father of the appellant who migrated to
Pakistan and is now a Pakistani national, owned a big farm measuring
approximately 397 250 acres in villages Hamid Nagar and Parbatbans within the
jurisdiction of Police Station, Bilaspur, District Rampur.
Out of the said area of the farm, Jaffar Ali
had leased out one acre of paddy growing land to Habib, deceased, the son of
Bandu (P.W. 17) who was a Mistri or Mechanic by profession on 'Ahdhiya ghalla
batai' basis in lieu of his services for maintaining in working order the hand
pumps installed by the former for irrigating the farm. On November 11, 1969,
the appellant armed himself with a 12 bore double barrel gun belonging to his
uncle, Hamid Ali, and accompanied by his younger brothers, Mohd. Jaffar and
Salim Jaffar who have since been acquitted, went to the aforesaid field where
the deceased was harvesting and thrashing the crop raised by him and told the
latter that this time he would be allowed only one third and not one half of
the produce. Thereupon the deceased protested asserting that he was entitled to
half of the produce as agreed to between him and the appellant's father and
that cruelty and injustice should not be perpetrated on him. Annoyed at the
audacity of the deceased, the appellant's aforesaid brothers started hurling
abuses at the deceased and exhorted the appellant to finish the deceased
without being deterred by the consequences which they right have to face
Thereupon, the appellant fired four shots at the deceased from his aforesaid
gun as a result whereof the deceased fell down and died on the spot. Intimation
of the incident was sent by Azmat Ali (P.W. 1) to Bandu (P.W. 17), the father
of the deceased through Muzammil (P.W. 7). On his return after apprising Bandu
of the incident, Mozammil was deputed by Azmat Ali to carry the report (Exh.
Ka. 1) which he got written by Abrar Hussain (P.W. 11 ) to the Police Station,
Bilaspur where it was lodged at 5.10 P.M. When Muzammil reached the Police
Station, he found the appellant already present over there. On receipt of
Exhibit Ka. 1,S.I. Narain Singh Negi (P.W. 18) registered a case under section
302 of the Penal Code and repaired to the scene of occurrence after sending the
appellant to the Government Dispensary at Bilaspur for examination of the
injuries on his person and recording his statement. On arrival at the place of
occurrence, Narain Singh Negi prepared the inquest report and sent the dead
body of the deceased for postmortem examination to the District Hospital at
Rampur where Dr. R.
K. Misra, M. O. In-charge of the Hospital
conducted the autopsy and found the following injuries on the body of the
deceased:- "1. Multiple lacerated gunshot wounds of entry in an area
2"x1/2" on front and outer side of right thigh lower part. The wounds
are oval and congested and margins are inverted. Size 1/2x1/2x depth to wounds
of exit near hip.
2. Multiple lacerated gunshot wounds of exit
in an area 2 1/2"x2"" on back of right thigh lower part and back
of right knee joint. The margins of wound are averted. Size 1/2x1/2, There is
fracture of thigh bone in its lower part in injuries 1 and 2.
3. Lacerated gunshot wound of entry with inverted
and tattooed margins 1 1/4"x1 1/4" x depth wound of exist in
abdominal wall near it right side upper joint abdominal wall.
4. Lacerated gunshot wound of entry
1/2"x1/4"x depth upper from abdominal wall 1 1/2" to margin
injury No. 3. Inverted and tattooed margins.
5. Lacerated gun-shot wound of exit with
averted margins right side of abdominal wall 1 1/4" to injury No. 4 with a
loop of small intestine coming out.
6. Lacerated gunshot wound exit with averted
margins on right side abdominal wall 11 above and behind injury No. 5 size
1/4"x1/4"x abdominal vacity deep.
7. Lacerated gun-shot would 4 1/4"x2
1/4"x thickness of right palm. Entry palmer side with inverted margins and
exit on back of hand with averted margins with fractures of matacarpals of little
and ring fingers.
8. Multiple gun-shot wounds in an area 7
1/2x4" on front and outer side of right shoulder and right arms, wounds of
entry. With a central wound 1 1/4"x1/4"x2" surrounded by many
small wounds 1/10"x1/10" and varying depths. 16 shots recovered.
9. Lacerated gun-shot wound of entry 1
1/4"x1"x cranial cavity deep on right side back of head 11"
behind right ear brain flowing out".
On internal examination of the dead body, the
Doctor found all bones of the vault and base of skull fractured. He also found
not only the brain membranes but the brain itself lacerated and flowing out of
the surface injury. He took out 15 pellets and one piece of wad out of the
brain. He also found the membrane of the abdomen ruptured. According to the
Doctor, the death of the deceased was due to coma as a result of gun-shot
injury on the head. On the basis of dispersal of shot and tattooing and the
shape of wounds the Doctor opined that the aforesaid injuries were not caused
from a distance of 15 to 20 paces but were caused from a close distance.
399 After usual investigation, the appellant
and his aforesaid two brothers were proceeded against in the Court of
Additional District Magistrate (J), Rampur, who committed them to the Court of
Section to stand their trial under section 32 and section 302 read with section
34 of the Indian Penal Code respectively. At the said trial, the prosecution
examined 18 witnesses including Azmat Ali, Abrar Hussain, Muzammil, Dulah Khan,
Mst. Altafi and Khairati who claimed to be the eye witnesses of the occurrence.
By his judgment and order dated December 23, 1970, the Sessions Judge while
observing that he was inclined to think that the prosecution story was true
accepted the appellant's version contained in Exhibit Ka-13 said to have been
lodged by him at the Police Station, Bilaspur about ten minutes prior to the
report (Exh. Ka 1) to the effect that he had gone on a round of his Father's
farm at about 4.00 P.M. carrying with him his uncle's double barrel 12 bore
gun; that on reaching his field in Parbatbans, he saw Hahib deceased and Asmat
Ali stealing his paddy bags; that at that time Shabban of Rampur, Bhonda alias
Anis and Amir Daulat of village Koela were working in the vicinity of that
place; that seeing this, he challenged Habib and Azmat Ali whereupon Habib
fired at him from a revolver hitting him on the right thigh;
that he remonstrated with Habib who fired
another shot at him which grazed past his left thigh and that finding that
Habib was determined to kill him and there was no hope of escape, he fired two
or three shots from his uncle's gun which he was carrying in consequence
whereof Habib fell down and Azmat Ali ran away and that taking away the revolver
from Habib's hand, he had reached the Police Station in the tractor driven by
his brother, Jaffar. The Sessions Judge acquitted the appellant and his
brothers giving them the benefit of doubt observing that the prosecution had
failed to adequately demolish the defence version which left a reasonable doubt
that the prosecution might have suppressed the revolver used by Habib and that
the appellant had fired in the exercise of the right of private defence. On
appeal, the High Court set aside the acquittal of the appellant rejecting the
defence version and convicted him as stated above and sentenced him to life
imprisonment under section 302 of them. Indian Penal Code and three years rigorous
imprisonment under section 27 of the Arms Act maintaining his conviction and
sentence of one year's rigorous imprisonment under section 25 of the Arms Act.
It is against this judgment and order of the High Court that the present
appeals are directed Appearing in support of the appeals, Mr. Frank Anthony has
vehemently urged that the High Court has acted with material irregularity in
ignoring the guidelines repeatedly laid down by this Court for interfering with
the judgment and order of acquittal and convicting the appel- 400 lant without
referring to the conclusions, which in the proved circumstances of the case,
had been correctly arrived at by the Sessions Judge. He has further urged that
the genesis of the prosecution story not having been established and the
deceased who was seen stealing the bags of paddy having opened fire at the
appellant, the latter was full justified in firing back at the deceased in
exercise of the right of private defence. He has also urged that the F.I.R.
(Exh. Ka. 1) which was unduly delayed (and
could not have reached the Police Station at 5.10 P.M. as sought to be made out
by the prosecution) threw a grave doubt on the veracity of the prosecution
We have given our anxious consideration to
the submissions of the counsel for the appellant but find ourselves unable to
accede to the same. Two inextricably linked up questions that fall for
consideration in this case in view of the stand of the appellant are whether
the two in juries viz. (1) lacerated wound 1 cm x 1 cm x muscle deep on medial
side of left thigh in its middle with inverted margins but without any
scorching, tattooing or blackening and (2) lacerated wound 1/4cmx1/4cm x muscle
deep on the middle and back of left thigh, inner side with averted margins but
without any scorching, tattooing or blackening stated by D.W. 1, Dr. K. L.
Verma. Medical officer, I/C Bilaspur Dispensary, to have been observed by him
on the person of the appellant at 6.00 P.M. On November 11,1969 were caused as
a result of shots fired from revolver (Exh.
4) in the course of the same occurrence which
resulted in the death of the deceased and whether the appellant was protected
by the right of private defence of person or property.
In regard to the first question, the High
Court has after careful scrutiny of the, depositions of D.W. 1, Dr. K.
L. Verma, and Dr. B. C. Joshi, Chief Medical
officer, Lucknow whom it examined as an expert under section 391 of the Code of
Criminal Procedure come to the conclusion that the above noted injuries were
not gunshot injuries and could not be caused with revolver (Exh. 4) and were
fabricated to look like gunshot wounds for the purpose of creating a defence.
It has rightly pointed out that there is no mention in the injury report (Ex.
Kha. II) prepared by Dr. Verma after examination of the person of the appellant
that the said injuries were through and through or communicating wounds and
that since Dr. Verma admittedly did not try to ascertain by use of probe
whether they were communicating injuries or not, he could not be expected to
give a categoric opinion about their character merely on the basis of the
condition of their margins or edges. The High Court has also correctly pointed
out that the aforesaid injuries on the person of the appellant were not gunshot
wounds as usually the 401 entrance wound in fire arm injuries is smaller and
the exit wound is bigger but curiously enough this was not the case here. The
High Court has also rightly found that the aforesaid injuries on the person of
the appellant could not be gunshot wounds as the exit wound was not only
smaller in dimension than the entry wound but was also smaller in dimension
than the size of the cartridge (Exh. 7) taken out of the revolver (Exh. 4)
which according to the appellant was used by the deceased for causing injuries
on his person.
The observations of the High Court receive
ample confirmation from the statement of Dr. B. C. Joshi which appears to have
been based on his personal experience and notable works on Medical Jurisprudence
and Toxicology by celebrated authors like Sydney Smith, John Gallister, Taylor
and others that in case of a bullet injury except where the bullet gets
fragmented after entering the body and only a portion thereof passes out of the
exit wound or the bullet remains embedded in the body and does not pass out in
the normal course and is subsequently taken out or except in case of a point
blank wound (which is not the case of defence), it is practically and usually
not possible that the size of the wound of exit may be smaller than the
diameter of the bullet. On being shown the aforesaid bullet (exh. 7) Dr. Joshi
stated that if the diameter of the bullet is .8 cm it could not usually cause
the exit wound described as injury No. 2 in Exhibit Kha. II unless the bullet
got fragmented inside the body or only a small length thereof pierced and made
the exit wound. Dr. Joshi has also expressly stated that considering the data
as given in Exhibit Kha. II it is doubtful that the aforesaid two injuries
claimed by Dr. Verma to have been observed by him on the person of the
appellant were bullet injuries. Thus the forensic medicine expert evidence in
respect of the characteristics of the wounds said to have been observed on the
person of the appellant rules out the case of the infliction of the injuries on
the person of the appellant by revolver (Exh. 4).
That these injuries were caused in the course
of the same incident which resulted in the death of the deceased also seems to
be highly improbable in view of the statement of Narayan Singh Negi,
Investigating Officer, who reached the scene of occurrence within an hour of
the lodging of the report (Exh. Ka. I) that he did not even on search find any
blood at any place except in front of or underneath the body of the deceased.
This takes us to the consideration of the
other crucial question viz. whether the appellant was protected by the right of
private defence of person or property. It is true that the burden on all
accused person to establish the plea of self defence is not as onerous as the
one which lies 402 on the prosecution and that while the prosecution is
required to prove its case beyond reasonable doubt, the accused need not
establish the plea to the hilt and may discharge his onus by establishing a
mere preponderance of probabilities either by laying a basis for that plea in
the cross-examination of prosecution witnesses or by adducing defence evidence.
(See Partap v. The State of Uttar Pradesh(1) and Munshi Ram & Ors. v. Delhi
In the instant case, however, the appellant
has not discharged that burden either by adducing any defence evidence or by
eliciting from the persecution witnesses the existence of facts and
circumstances satisfying the requisite test of preponderance of probabilities
entitling him to exercise the right of private defence either of person or of
In relation to the right of private defence
of property, it may be observed that the appellant has not been able to
establish by producing any witness in defence or by eliciting from the
prosecution witnesses the aforesaid paddy field belonged to him or that it had
not, as stated by Bandu (P.W.17), Azmat Ali (P.W.1) and Muzammil (P.W.7), been
leased out by the appellant's father to the deceased on 'Ahdhiya ghalla batai'
basis or that the deceased and Azmat Ali (P.W.1) committed theft or attempted
to commit theft of the paddy to which he was lawfully entitled.
The appellant has also not established by
examining any of the three witnesses alleged by him in his report (Exh. Ka. 13)
to be working in the vicinity of the place of occurrence or by eliciting from
the eye witnesses produced by the prosecution or summoned and examined by the
Court that Habib deceased-fired any shot at him from revolver (Exh. 4) and that
it was only in self defence that he fired the shots from the gun in his
possession which resulted in the death of the deceased. Muzammil (P.W.7) has in
answer to a question put to him in cross-examination emphatically denied that
Habib deceased was armed with a revolver or that he fired any shot in the
course of the incident which resulted in his death. Azmat Ali (P.W.1) has also
unequivocally stated in cross-examination that Habib deceased did not use any
revolver at the spot and that neither he nor Habib committed any theft of the
paddy as alleged by the appellant. Even Athar Ali and Mst. Shafiqan who were
examined as Court witnesses have clearly stated that Habib did not fire any
pistol at the spot. It is, therefore, crystal clear that the Sessions Judge
grossly erred in assuming that the appellant was fired at by Habib and that it
was in exercise of the right of private defence that he in turn fired at Habib
to save his own life.
(1) A.I.R. 1976 S.C. 966.
(2)  2 S.C.R. 455.
403 Let us now examine the contention of
counsel for the appellant that in reversing the order of acquittal and
convicting the appellant under section 302 at the Indian Penal Code and section
27 of the Arms Act, the High Court ignored the principles laid down by this
Court for interference with the orders of acquittal. The scope and powers of
the appellate court in an appeal against acquittal were clearly defined by the
Privy Council in Sheo Swarup v. King Emperor(1) and Nur Mohammed v. Emperor(2)
which received the stamp of approval of this Court in Sarlwat Singh v. State of
Rajasthan(3) Ramaphupala Reddy & Ors. v. The State of Andhra Pradesh(4)
Gopi Nath Ganga Ram Surve & Ors. v. State of Maharashtra(5) Dharam Das
& Ors. v. State of U.P.(6) Lakha Yadav v. State of Bihar(7) Samson Hyam
Kemkar v. State of Maharashtra(5) and Barati v. State of U.P.(9). The legal
position emerging from these decisions may be summarised thus:
"1. The High Court in an appeal against
an order of acquittal under section 417 of the Code of Criminal Code, 1898 has
full power to review at large the evidence on which the order of acquittal was
founded and to reach the conclusion that upon the evidence, the order of
acquittal should be reversed.
2. The different phraseology used in the
judgments of this Court such as- (a) 'substantial and compelling reasons';
(b) 'good and sufficiently cogent reasons';
(c) 'strong reasons', are not intended to
curtail or place any limitation on the undoubted power of an appellate court in
an appeal against acquittal to review the entire evidence and to come to its
own conclusion as stated above but in doing so it should give proper
consideration to such matters as (i) the views of the trial Judge as to the
credibility of the witnesses; (ii) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the fact that he: has been
acquitted at his trial, (iii) the (1) 61 I.A.398.
(2) A.I.R.1945 P.C.151.
(3)  3 S.C.R.120.
(4)  3 S.C.C.474.
(5)  3 S.C.C.627.
(6)  2 S.C.C.216.
(7)  2 S.C.C.424.
(8)  3 S.C.C.494.
(9)  4 S.C.C.258.
404 right of the accused to the benefit of any
real and reasonable doubt; and (iv) the slowness of an appellate Court in
disturbing a finding of fact arrived at by a Judge who had the advantage of
seeing the witnesses." We have perused the impugned judgment with care but
do not think that the principles laid down by this Court in the above mentioned
decisions with regard to disposal of acquittal appeals were lost sight of by
the High Court The appellant's version that the injuries observed on his person
by Dr. K. L. Verma on November 11, 1969 were the result of shots fired by the
deceased from revolver (Exh. 4) not having been established and the appellant
having admitted that he fired two or three shots at the deceased, the High
Court was fully justified in reversing the trial court's order of acquittal of
the appellant which was erroneously made by the Sessions Judge on the basis of
surmises and conjectures and convicting him specially when the prosecution
story that the appellant fired at the deceased without any justifiable
provocation was established to the hilt by the evidence of a number of
prosecution witnesses who even according to the Sessions Judge gave a true
account of the occurrence.
In the result, we do not find any merit in
these appeals which are dismissed. As the appellant appears to be on bail, he
will surrender himself to his bail bond to undergo the unexpired portion of his
Before parting with the file,, we would like
to observe that since the appellant's statement under section 342 of the Code
of Criminal Procedure shows that he is a novelist and has made valuable
contribution to enrich the Urdu literature, the Government may consider the
desirability of giving him a special class and entrusting such work to him
during his incarceration as may help sustain his aforesaid interest, promote
his creative genius and result in his emancipation.
N.V.K. Appeal dismissed.