JUDGMENT I. P. Singh, J. 1. This is Government criminal appeal against the judgment and order of Sri Sachidanand, Sessions Judge, Shahajahanpur, dated 29-4-1977, passed in S.T. No. 218 of 1976, State v. Bhimpal Singh alias Bhikari Singh, acquitting the accused of the charge under Section 302 IPC. 2. The prosecution case is that on 20-10-1975 at about sun set in village Hasanpur, P. S. Khudaganj, Distt.Shahjahanpur, Ram Kumar Singh deceased had gone to the house of Jagdish labourer to call him to work as labourer with him the following day. Just then Bhimpal Singh alias Bhikari Singh accused respondent holding his double barrel gun also arrived there and asked Jagdish Labourer to work with him as labourer the following day. Both Ram Kumar Singh deceased and Bhimpal Singh accused respondent were on strained relations for some time past. Thus on the point as to with whom Jagdish labourer should work, there arose a dispute between the two. Ram Kumar Singh deceased told the accused respondent Bhimpal Singh that as he had advanced money to Jagdish so he would work with him. The things became hot and the accused respondent Bhimpal Singh told Ram Kumar Singh deceased to go away otherwise he would be shot at. Ram Kumar Singh deceased challenged by him as to why he would shot him ? It is alleged that on hearing the exchange of hot words between Ram Kumar Singh deceased and the accused respondent Bhimpal Singh, Ram Bahadur Singh complainant PW 1 s/o Ram Kumar Singh deceased and his uncle Ram Pal Singh PW 5 reached the spot. The accused respondent in the end threatened Ram Kumar Singh deceased that if he would insist on taking Jagdish labourer then he would surely shoot him. Saying so he fired at him, hitting him on the left fore-arm. Ram Kumar Singh deceased fell down in injured condition. The accused respondent went away towards north threatening that if any body would lodge the report at police station he would be killed. Just then Nathu Lal PW 6 and Krishna Pal arrived at the spot and asked Ram Kumar Singh deceased as to what had happened. The latter told them (to the hearing of Ram Bahadur complainant PW 1 and Ram Pal Singh PW 5) that Bhimpal Singh accused respondent had fired at him. Just then Nathu Lal PW 6 and Krishna Pal arrived at the spot and asked Ram Kumar Singh deceased as to what had happened. The latter told them (to the hearing of Ram Bahadur complainant PW 1 and Ram Pal Singh PW 5) that Bhimpal Singh accused respondent had fired at him. Ram Kumar Singh deceased in injured condition was brought by his son Ram Bahadur Singh complainant PW 1 and Ram Pal Singh PW 5 to nearby house of Ram Kumar Singh deceased and after arranging a bullock cart took him to Police Station Katra. On the way, Ram Kumar Singh died. The dead body was taken to P. S. Katra. Ram Bahadur Singh complainant PW 1 dictated the report of the incident to Raman Pal Singh PW 5 and then handed it over at Police Station Katra at 1.00 in the night i. e. on 21-10-1975. As village Hasanpur, where the murder took place, fell within Police Station Khudaganj, so after recording the FIR, that Police Station forwarded the papers to Police Station Khudaganj. Investigation was conducted by Karan Pal Singh PW 9, S. I. Khudaganj. 3. The post-mortem examination on the dead body of Ram Kumar Singh was conducted by Dr. N. S. Chandel Medical Officer, Police Hospital, Shahjahanpur, on 22-10-1975 at .11.45 A.M. The probable time since death was noted as about "1 1/2 days". This would take the death back to about mid night between 20/21 of October, 1975. The doctor in his statement confirmed that this death could take place in the night between 20/21-10-1975 at about 9.00. (According to Raman Pal Singh PW 5, Ram Kumar Singh deceased had breathed his last on way to Thana at about 8.30 P.M.). The deceased had following ante-mortem injuries on his person :- (1) Lacerated gun shot wound of entry with inverted margins 15 cm x 4 1/2 cm x bone deep, in upper half of left arm ; outer and front side fractured bones are visible. All the soft tissues are somewhat charred and the skin has blackening on its margins due to gun powder. (2) Lacerated gun shot wound of exit with averted margins 18 cm x 3 cm x bone deep back of left forearm upper 2/3 corresponding to injury no. 1 through and through. All the soft tissues are somewhat charred and the skin has blackening on its margins due to gun powder. (2) Lacerated gun shot wound of exit with averted margins 18 cm x 3 cm x bone deep back of left forearm upper 2/3 corresponding to injury no. 1 through and through. (3) Lacerated wound of gun shot exist with averted margins 10 cm x 2.3 cm bone deep in the left forearm upper part inner side. It also corresponds to injury no. 1. 4. The internal examination revealed that about 8 Oz. of partially digested bread and dal was present in the stomach. In the opinion of the Doctor death was due to shock and haemorrhage caused by above ante-mortem gun shot injuries. The accused respondent denied his participation in the alleged murder and pleaded that he was falsely implicated in this case by Meharban Singh and Jamadar Singh due to enmity. According to him, the witnesses had deposed against him at the instance of Meharban Singh and Jamadar Singh. The accused respondent did not lead any evidence in defence. 5. The prosecution in order to establish their case, in all, examined 9 witnesses including two eye witnesses namely Ram Bahadur Singh complainant PW 1 and Raman Pal Singh PW 5 Nathu Lal PW 6 has been produced to depose about the oral dying declaration of the deceased and to corroborate the above named two witnesses on the said point. 6. Ram Bahadur Singh complainant PW 1 has proved the following pedigree:- Nathu Singh, Badshah Singh, Meharban Singh and Puttu were real brothers. Ram Kumar Singh deceased was the son of Nathu Singh and Ram Bahadur Singh complainant PW 2 is son of Ram Kumar Singh deceased. Bhimpal Singh alias Bhikari Singh accused respondent, and Harpal Singh are sons of Badshah Singh. Shishpal Singh, Brij Pal Singh and Raman Pal Singh PW 5 are the sons of Meharban Singh. Brij Pal Singh was murdered some time ago. Puttu died leaving a daughter and a widow. Ram Bahadur Singh complainant PW 1 stated that after the death of Puttu his widow started living with Badshah Singh as his wife. Badshah Singh took possession over the land of Puttu. However Nathu Singh and Meharban Singh filed suit against Badshah Singh and recovered their respective shares in the said land. Puttu died leaving a daughter and a widow. Ram Bahadur Singh complainant PW 1 stated that after the death of Puttu his widow started living with Badshah Singh as his wife. Badshah Singh took possession over the land of Puttu. However Nathu Singh and Meharban Singh filed suit against Badshah Singh and recovered their respective shares in the said land. According to him, Badshah Singh and his sons including Bhim Pal Singh accused respondent started bearing grudge against the descendant of Nathu Singh namely Ram Kumar Singh deceased. In this way this enmity is said to be at the back of murder of Ram Kumar Singh deceased by Bhimpal Singh accused respondent, 7. The immediate event which resulted in the murder of Ram Kumar Singh deceased is said to be that at the time of alleged occurrence, at about sun set of 20-1-1975, both Ram Kumar Singh deceased and Bhimpal Singh accused respondent happened to reach the house of Jagdish labourer and each one of them wanted him to work as a labourer for him, the following day. According to Ram Bahadur Singh complainant PW 1, Ram Kumar Singh deceased had told Bhimpal Singh accused respondent that since Jagdish owned money to him so he would be working with him and not with the accused respondent. However, the latter also advanced the same plea that Jagdish owned money to him and so he would work with him. This difference developed into exchange of hot words and threat by accused respondent that if Ram Kumar Singh deceased insisted any more that Jagdish would work for him, then he would be shot at with the gun which he was carrying with him. When Ram Kumar Singh deceased shouted as to how he would shoot him the accused respondent actually shot at him. The incident is claimed to have been witnessed by Ram Bahadur Singh PW 1 a nd Raman Pal Singh PW 5. We have to see whether these two witnesses can be relied upon or not. 8. A look at the site plan shows that the spot of occurrence is on left side of Rasta-Aam running north south. The said place lies in front of the house of Jagdish. Towards east of the Rasta lies a Talab. At the southern end the said Rasta-Aam takes a turn towards east along south of the said Talab. 8. A look at the site plan shows that the spot of occurrence is on left side of Rasta-Aam running north south. The said place lies in front of the house of Jagdish. Towards east of the Rasta lies a Talab. At the southern end the said Rasta-Aam takes a turn towards east along south of the said Talab. The house of Ram Kumar Singh deceased lies adjoining towards south of the said Rasta going towards east. It is in evidence that this house of Ram Kumar Singh deceased is about 100 paces away from the place of occurrence. There is a Chabutra adjoining towards east of the house of Ram Kumar Singh deceased. Both Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5, who according to the above pedigree are related as nephew and uncle claim that at the time of incident they were sitting together talking to each other on the north-east corner of the said Chabutra and from that particular corner, the place of occurrence was visible and as the distance was short the exchange of hot words etc. between the deceased and the accused respondent was audible. Both of them have stated that on seeing and hearing the dispute going on between the deceased Ram Kumar Singh and the accused respondent they proceeded to the spot. They further stated that when they were only a few paces away from the spot they heard that each one of them was insisting that Jagdish labourer would work for him the following morning. As a result, threat was extended by the accused respondent and he actually shot the deceased with his gun. Ram Bahadur Singh complainant PW 1 has admitted in the cross- examination that in the year 1974 there was a case under Section 107 CrPC between said Jagdish on one side and Ram Kumar Singh deceased and Bhimpal Singh accused respondent on the other side. He also admitted that in the year, 1974 said Jagdish had also filed a complaint against the deceased and the accused Bhimpal Singh. It follows that said Jagdish was on inimical terms with both the deceased and the accused respondent. In this background it does not stand to reason that on 20-10-1975 both deceased and the accused respondent would be keen to have said Jagdish as one's labourer to work for him. It follows that said Jagdish was on inimical terms with both the deceased and the accused respondent. In this background it does not stand to reason that on 20-10-1975 both deceased and the accused respondent would be keen to have said Jagdish as one's labourer to work for him. We have our doubts that they would go to the house of Jagdish labourer and insist that he would work only for one of them and not for other. There is nothing in the evidence to suggest that he was the only labourer in the village and none else could be engaged as a labourer by any of the two namely the deceased and the accused respondent. It is significant to note that this Jagdish has not been examined. Ram Bahadur Singh complainant PW 1 very conveniently stated in his examination-in-chief that Jagdish would not give evidence in the trial court. To our mind, Jagdish was a most important witness of the alleged occurrence and we feel that the prosecution ought to have produced him and left for the Court to determine the value of his evidence whatever it might have been. We are of the opinion that non-production of Jagdish by itself is fatal to the prosecution and an adverse presumption can be drawn that had he been produced, he would not have supported the prosecution. 9. Ram Bahadur Singh PW 1 has admitted in his cross-examination that in the year 1974, Meharban Singh father of Raman Pal Singh PW 5 had filed a complaint case under Section 107 CrPC against Ram Kumar Singh deceased and Bhimpal Singh accused respondent. He also stated that Meharban Singh had also filed a case under Section 307 IPC against the deceased and the accused respondent. All this could show that the relations between Raman Pal Singh PW 5, the son of Meharban Singh, could not be cordial with Ram Bahadur Singh complainant PW 1, son of Ram Kumar Singh deceased. He, no doubt, has stated that the parties had come to compromise in the above case under Section 107 CrPC prior to the present murder of the deceased. But we have our reservations in this regard. He, no doubt, has stated that the parties had come to compromise in the above case under Section 107 CrPC prior to the present murder of the deceased. But we have our reservations in this regard. We do not think that in the background of above criminal litigation relations between Raman Pal Singh PW 5 and Ram Bahadur Singh PW 1 would have been friendly so that they would, on the day and time of the present occurrence, be sitting together and talking to each other on the Chabutra of Ram Kumar Singh deceased. We, therefore, hold the presence of Raman Pal Singh PW 5 at that Chabutra at the relevant time very doubtful. Of course, Ram Bahadur Singh, who is son of the deceased could be present at the house of his father. The question is as to whether he was sitting on the Chabutra at that time or not. As there was no other reason for him to sit at that Chabutra other than to sit and talk with Raman Pal Singh PW 5 and when the presence of Raman Pal Singh PW 5 has been held to be doubtful, then the presence of Ram Bahadur Singh complainant PW 1 of that Chabura at the relevant time also becomes doubtful. Moreover, there appears to be no apparent reason why they had choosen the north eastern corner of the Chabutra to sit there from where the frontage of the house of Jagdish labourer was visible, when the entire Chabutra was there to occupy. Their insistence that they were sitting at northeastern corner of the Chabutra seems to us to have been incorporated for the purpose of the present case only. 10. Ram Bahadur Singh PW 1 has stated that on hearing the exchange of hot words between the deceased and the accused respondent he and Raman Pal Singh got up from the Chabutra and advanced towards the place of occurrence. However, Raman Pal Singh PW 5 has stated that they had run to the spot. Apparently the discrepancy seems irrelevant, but if viewed in the set of circumstances of this particular case it assumes importance and is a pointer to the fact that perhaps both Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5 were not present there at that time. Apparently the discrepancy seems irrelevant, but if viewed in the set of circumstances of this particular case it assumes importance and is a pointer to the fact that perhaps both Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5 were not present there at that time. According to the prosecution the deceased was shot at by the accused respondent in presence of Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5. According to them, soon after the occurrence, when deceased injured had fallen down and the accused-respondent had run away, two other persons namely Nathu Lal PW 6 and Krishna Pal Singh had arrived there and on their bidding Ram Kumar Singh deceased injured had told them that Bhimpal Singh accused respondent had shot him. This part of evidence was most relevant under Section 9 of the Indian Evidence Act, to establish the identity of the present accused respondent, whose identity was relevant in connection with this incident. Again this part of evidence assumed all the more importance after Ram Kumar Singh injured died subsequently because then his alleged statement legally became " dying declaration ". It would, therefore be necessary to come to a finding as to whether Ram Kumar Singh had mentioned to Nathu Lal Singh PW 6 and Krishna Pal Singh in the hearing of the complainant Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5 that the accused respondent had fired at him. One thing necessary for this part of the evidence to become credible, is that it should have been disclosed at the earliest point of time. In the set up of the present case, earliest opportunity for disclosure of this fact was when the FIR was written and lodged at the Police Station. There is no mention in the FIR of the arrival of Nathu Lal PW 6 and Krishna Pal Singh when Ram Kumar Singh was still lying injured on the spot. F.I.R. is silent that Ram Kumar Singh had told Nathu Lal PW 6 and Krishna Pal Singh to the hearing of Ram Bahadur Singh complainant PW 1 and Raman Pal Singh PW 5 that Bhim Pal Singh accused respondent had fiired at him. 11. F.I.R. is silent that Ram Kumar Singh had told Nathu Lal PW 6 and Krishna Pal Singh to the hearing of Ram Bahadur Singh complainant PW 1 and Raman Pal Singh PW 5 that Bhim Pal Singh accused respondent had fiired at him. 11. Again Ram Bahadur Singh complainant PW 1 has stated in his examination-in-chief that the accused respondent after firing at the deceased had gone away towards north in the direction of his Crusher, then from that side Nathu Lal PW 6 and Krishna Pal Singh came to the place where he was lying injured and asked him as to what had happened. The injured told them that Bhim Pal had run away after firing at him. According to Ram Bahadur Singh complainant PW 1 only this much talk had taken place with the injured there. Raman Pal Singh PW 5 has stated that soon after the occurrence Nathu Lal PW 6 and Krishna Pal Singh had arrived there and they had asked the injured as to who had fired at him and it was then that he told them that Bhim Pal had fired at him. The contradiction is obvious even though the conversation was a brief one. Nathu Lal PW 6 has stated that when he and Krishna Pal Singh arrived there they saw Ram Kumar Singh lying injured. His querry was as to why he was fired upon and then Ram Kumar injured told them that he had come to call Jagdish Sweeper to work as his labourer; that Bhim Pal Singh accused respondent had said that Jagdish would go and work for him; that on this dispute Bhim Pal Singh accused respondent had fired at him. The version of conversation given by Nathu Lal PW 6 is at variance with the version as deposed to by Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5. All this shows that perhaps Nathu Lal PW 6 and Krishna Pal Singh had not arrived there and no conversation of the type had ever taken place. Besides, it is significant to note that no mention of such a conversation was made by Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5 in their statements under Section 161 CrPC before the I. O. Nathu Lal PW 6 has stated in his cross-examination that Gokul and Teeka are real brothers. Besides, it is significant to note that no mention of such a conversation was made by Ram Bahadur Singh PW 1 and Raman Pal Singh PW 5 in their statements under Section 161 CrPC before the I. O. Nathu Lal PW 6 has stated in his cross-examination that Gokul and Teeka are real brothers. Teeka died, so his wife had to file a suit about the land of Teeka against Gokul. He bad given evidence for Teeka's wife while Bhimpal Singh accused respondent had given evidence for Gokul It is, therefore, argued that Nathu Lal PW 6 and Bhimpal Singh appellant belonged to rival camp and as such Nathu Lal PW 6 cannot be said to be an independent witness. To our mind, there cannot be two opinions about this. 12. In view of the above discussion, no reliance can be placed on the said "oral dying declaration. " Learned counsel for the appellant has pointed out that had the occurrence taken place in presence of Ram Bahadur Singh complainant PW 1 and Raman Pal PW 5 and had they really brought the injured from the spot to his house, then certainly all efforts would have been made in the form of first aid atleast to stop bleeding from his wounds. Least that could be accepted was that a piece of cloth, could have been tied around wounds tightly to stop free flow of blood. It is pointed out that Raman Pal Singh in his cross-examination first admitted that they had not applied any medicine or tied any cloth on the wounds of Ram Kumar Singh injured. However, he immediately added thereafter that they had tied a piece of cloth around the wounds. He further stated that the said piece of cloth had remained tied on the wounds till his dead body arrived at the Police Station and it was untied by the Police only at the time of preparing Panchayatnama of the dead body. He has further stated that the said piece of death had been thrown away by the Police. However, Karan Pal Singh I. O.P.W.9 has stated that when he arrived at the Thana and saw the dead body he did not find any piece of cloth tied around the wounds of the deceased. He has further stated that the said piece of death had been thrown away by the Police. However, Karan Pal Singh I. O.P.W.9 has stated that when he arrived at the Thana and saw the dead body he did not find any piece of cloth tied around the wounds of the deceased. The argument is that the incident had not taken place at the frontage of the house of Jagdish at the alleged hour and as such neither Ram Bahadur Singh, nor Raman Pal Singh, nor Nathu Lal had arrived at the spot. It is argued that had the injured received injuries there in presence of Ram Bahadur Singh and Raman Pal Singh then atleast a piece of cloth would have been tied around the injuries to stem the flow and loss of blood. Since this was not done, it was a very strong circumstance that the incident did not take place as alleged by the prosecution. Well this circumstance cannot be lightly brushed aside. The defence suggestion is that the deceased had received his injuries some where else and at some other time and he himself had come walking to the village and dropped dead in front of the house of Jagdish and false case was cooked up against the accused respondent. It is pointed out that Dr. N. S. Chandel PW 2 has stated in his cross-examination that after receiving injuries in question the injured (deceased) could survive for 2 to 5 hours. He further stated that the said injuries, which were on arm could not have caused any hindrance in his walking so long as he remained conscious. The above probabilities cannot altogether be ruled out. 13. Village Hasanapur where, according to the prosecution the incident took place falls within Police Station Khudaganj. In normal circumstance the complainant would have taken the injured to P. S. Khudaganj and lodged the FlR there. However, he had from the very beginning decided to take the injured to P. S. Katra and lodge the report there. It has come in evidence of am Bahadur Singh complainant PW 1 that from village Hasanapur they first reached Puliya of Kamlapur 1-1/2 miles away. He further stated that his father had breathed his last at Kamlapur one furlong away from the said Puliya on the road to Katra. It has come in evidence of am Bahadur Singh complainant PW 1 that from village Hasanapur they first reached Puliya of Kamlapur 1-1/2 miles away. He further stated that his father had breathed his last at Kamlapur one furlong away from the said Puliya on the road to Katra. Constable Parmeshwar Dayal PW 7 and Ram Bahadur Singh complainant PW 1 have stated that Puliya of Kamlapur is equidistant from Khudaganj and Katra. The argument is that this would show that from village Hasnapur both Thanas Khudaganj and Katra are equi-distant. When they had brought the injured up to Kamlapur before he died then they could very easily proceed to Police Station Khudaganj and lodge the report there. It is argued that having once ventured out of their village, there was no question of fear from the side of the appellant and the explanation that they had not gone to Police Station Khudaganj out of the fear of the accused respondent is baseless. We feel inclined to agree with this argument. It is significant to note that in the FIR it is mentioned that the accused respondent had threatened that if they would go to Thana to lodge the report, then they too would be killed. In the face of general threat, the complainant could not have discriminated between P. S. Khudaganj and Police Station Katra. The said threat, if real, could be equally applicable whether they proceeded to P. S. Katra or P. S. Khudaganj. This difficulty was tried to be overcome through the statement of Raman Pal Singh PW 5 and he stated in the end of his examination in-chief that Bhimpal Singh accused respondent had threatened to kill them if they went to lodge the report at P. S. Khudaganj. In this way the argument on behalf of the prosecution is that they were free to go to Katra Police Station and were under no fear to proceed to P. S. Katra. But we do not find this explanation satisfactory. In the first place the statement of Raman Pal Singh PW 5 on this point is clearly an after thought. Moreover, the way upto Puliya of Kamlapur was common for about 1-1/2 miles. Obviously there could be no apparent reason for the complainant and his party to decide not to go to P. S. Khudaganj and instead to proceed to P. S. Katra. Moreover, the way upto Puliya of Kamlapur was common for about 1-1/2 miles. Obviously there could be no apparent reason for the complainant and his party to decide not to go to P. S. Khudaganj and instead to proceed to P. S. Katra. The suggestion given is that since the complainant and his party were to cook up a false case against the accused respondent, so they decided to take help in the matter of one Sri Om Prakash M.L.A. of Katra, who was quite intimate with Raman Pal Singh PW 5.The suggestion further is that it was with his help that a false FIR could be lodged at P. S. Katra against the accused respondent. Whatever be the facts one thing stands out that the complainant had no apparent justification for not lodging the report at P. S. Khudaganj. The circumstances appearing as such do not exclude the probability as suggested on behalf of the accused respondent. 14. The post mortem examination report shows that soft tissue at the place of gun shot wound of entry were some what charred and the skin had blackening on its margins due to gun powder. The wound of entry was 15 cm x 4-1/2 cm x bone deep. It is the prosecution case and it is also mentioned in the FIR that the accused respondent had used his licenced gun in shooting the deceased. The presence of charring and blackening would indicate that the said licenced gun was fired from a close range i.e. from a distance within 2 to 6 feet as deposed by Dr. N. S. Chandel PW 2. If it was so then to our mind the dispersal of the pellets could not be there and in all probability they would have entered the wound en masse. However, the wound of entry in question presents a dispersal to cover an area of 15 cm x 4-1/2 cm. This much dispersal was not possible from a licenced gun, even if we may assume for the sake of argument that a hand filled cartridge was used. In this connection reference with advantage be made to a decision of this court in the case of Shiv Kumar v. State. This much dispersal was not possible from a licenced gun, even if we may assume for the sake of argument that a hand filled cartridge was used. In this connection reference with advantage be made to a decision of this court in the case of Shiv Kumar v. State. 1985 ACrR 75, in which it was held that "if a standard gun is fired from a distance of 4 to 6 paces on the object, the dispersal of pellets to the extent of 15 cm x 13 cm in area is not probable and also there would be no dispersal of pellets possible from a standard gun if the weapon is fired from a distance of one foot, the pellets then will enter the object en masse. If there is dispersal of pellets in an area of 15 cm x 13 cm with blackening and singing around the wound, it is probable that a country made pistol would have caused such a wound fired from a distance of 4 to 6 paces on the object''. Thus the medical evidence wholly falsifies the prosecution assertion that a licenced gun was used in causing injuries to the deceased. It rather supports the defence contention that the deceased had received fire arm injuries probably from a country made pistol at some other place and some other time in different circumstances and not as alleged by the prosecution. As a result of the above discussions. We are of the firm opinion that the prosecution has miserably failed to prove their case against the accused respondent. The acquittal recorded by the learned Sessions Judge, Shahjahanpur is confirmed. 15. The appeal must fail and it is hereby dismissed. Appeal dismissed.