Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 890 (GUJ)

State of Gujarat v. Patel Dalsukhbhai Devshibhai

2015-09-09

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Present appeals are directed against the judgment and order dated 12/12/2006 passed by the learned Principal Sessions Judge, Mahesana in Sessions Case No. 40 of 2006, whereby, the respondent herein - original accused came to be convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced to undergo rigorous imprisonment for six years and a fine of Rs. 20,000/- and in default of payment of fine, to undergo further simple imprisonment for one year. The accused was also convicted for the offence punishable under Section 324 of the IPC to undergo rigorous imprisonment for three months and a fine of Rs. 1,000/- in default of payment of fine, to undergo simple imprisonment for 15 days. Accordingly, Criminal Appeal No. 393 of 2007 has been filed by the State for enhancement of sentence, whereas, Criminal Appeal No. 141 of 2007 has been filed by the original accused against conviction. 2. The brief facts of the prosecution case are that the prosecutrix, along with her husband, who was serving in a factory named Hari PVC Pipes and resided in the factory compound itself in the small room. On 16/09/2005, the day of incident, the husband of the prosecutrix had gone on duty and after completing petty household works, the prosecutrix went to the bathroom for washing the clothes and bathing. At that time, the accused, the owner of the factory, came there and when the prosecutrix asked him as to why he had come there, he closed the door of the bathroom and hence, the prosecutrix shouted, however, the accused shut her mouth with hands and thereafter, committed rape against her will. When the prosecutrix tried to rescue herself, the accused also bite her on her small finger of left hand. Thus, the accused committed the alleged offence for which, complaint came to be lodged against the accused for the offence punishable under Sections 376, 324 and 506(2) of the IPC. 2.1. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, camp at Mahesana. 2.2. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.1. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, camp at Mahesana. 2.2. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3. In order to bring home the charge against the respondent - original accused, the prosecution has examined as many as 09 witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1. Dr. Kantibhai Dosabhai Patel, Medical Officer 5 2. Dr. Tusharbhai Mohanbhai Shetalwad, Medical Officer 8 3. Surviving complainant 11 4. Dilipbhai Nathji 15 5. Prajapati Govindbhai Nanjibhai 16 6. Amarsinh Bhupatsinh Dabhi 19 7. Dashrathbhai Gangaram Patel 22 8. Dashrathji Punjaji Thakor 23 9. Visabhai Vashrambhai Desai 25 DOCUMENTARY EVIDENCE S/n. Document Exh. 1. Medical Certificate of the victim 7 2. Medical Certificate of the accused 9 3. Complaint 12 4. Panchnama of clothes of the victim 17 5. Panchnama of place of offence 20 6. Panchnama of physical condition of the victim 24 7. Panchnama of clothes of the accused 26 8. Panchnama of physical condition of the accused 27 9. Forwarding Note – Ravangi Nodh 28 10. FSL Report 29 2.4. At the end of the trial, Further Statement of the accused under Section 313 of Code was recorded in which he denied the evidence forthcoming on the record and stated that because of business rivalry with him, false case has been filed against him. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused as aforesaid by impugned judgment and order. 2.5. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State as well as the accused have preferred the present appeals for enhancement of sentence and against conviction, respectively. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor, for the State and Mr. Yogesh Lakhani, learned senior advocate, assisted by learned advocates Mr. Jay Thakkar and Mr. Nisarg Shah for learned advocate Mr. Devnani for the original accused. 3.1. Mr. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor, for the State and Mr. Yogesh Lakhani, learned senior advocate, assisted by learned advocates Mr. Jay Thakkar and Mr. Nisarg Shah for learned advocate Mr. Devnani for the original accused. 3.1. Mr. Lakhani, learned senior advocate for the accused, took us to the evidence of the victim/prosecutrix, her husband, Investigating Officer, Medical officers and contended that the incident in question in bathroom is not possible in a small space of 4.75'. He further contended that if at all the alleged incident in question had occurred, there might have medical evidence so as to substantiate the said fact viz. injury on the private part of the prosecutrix, other marks on the body of the victim, however, there is nothing on record to show either external or internal injury on the private part of the prosecutrix and/or any other injury marks on the body of the prosecutrix. Further, there found nothing from the place of incident to show that such an incident had occurred. He also contended that the FSL report also does not support the case of the prosecution and even from the panchnama, nothing is established against the accused. He contended that the trial Court, relying only on the evidence of the prosecutrix and the evidence of her husband, has convicted the accused for the alleged offence against him, which is contrary to law and the evidence on record. Moreover, the prosecution examined only interested witnesses even though there were independent witnesses available which degrades the entire credibility of the case of the prosecution. He contended that this appears to be a case of business rivalry and entire story is nothing but a got up story initiated at the instance of some competitors and the accused has wrongly been implicated in the incident. In support of his submissions, Mr. Lakhani, learned senior advocate for the accused, relied upon following decisions: i) Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another, reported in AIR 2003 SC 818 (1), more particularly, para 18 and 21, which read as under: "18. However, the evidence of the prosecutrix does not inspire confidence. The occurrence took place at about 12.30 p.m. on a Sunday. Lakhani, learned senior advocate for the accused, relied upon following decisions: i) Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another, reported in AIR 2003 SC 818 (1), more particularly, para 18 and 21, which read as under: "18. However, the evidence of the prosecutrix does not inspire confidence. The occurrence took place at about 12.30 p.m. on a Sunday. The High Court has observed that on a Sunday, if the prosecutrix had raised an alarm it would have been heard by many persons who would have immediately come to her rescue, particularly in such a society where the respondent No. 1 resided. On a Sunday most of the residents are at home at about 12.30 p.m. and, therefore, it was surprising that no one heard the cries of the appellant when she was raped by respondent No. 1. Thereafter also the conduct of the prosecutrix is rather surprising. She was loitering in the locality till about 2.30 p.m. i.e. for about 2 hours after the incident. She again went to the flat of respondent No. 1 on the second floor after having come down immediately after the occurrence. The reason given by her is that she wanted to return the keys to respondent No. 1. At one stage she stated she had decided to handover the keys to one of the neighbours, but actually she did not handover the keys to anyone. When she went up to the flat of respondent No. 1 she met P.W. 2 and his wife. But she did not tell them about the incident. She then came back home and went to sleep. In the evening when her husband came she did not report the incident to him. At night, as usual, she cooked food for the family and went to sleep. Next morning she came to the society and attended to her routine work. Admittedly she worked in four flats on that day but she did not report the matter to anyone. Later in the afternoon she went to the house of her brother. It is there for the first time that she reported the matter to her sister-in-law Smt. Tarabai, who has not been examined. Only thereafter they went to the police station and lodged the report at about 3.00 p.m. 19. xxx 20. xxx 21. Later in the afternoon she went to the house of her brother. It is there for the first time that she reported the matter to her sister-in-law Smt. Tarabai, who has not been examined. Only thereafter they went to the police station and lodged the report at about 3.00 p.m. 19. xxx 20. xxx 21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that P.W. 1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed." ii) Bibhishan Vs. State of Maharashtra, reported in AIR 2007 SC (Supp) 1436, more particularly, para 6, which reads as under: "6. We have gone through the judgment of both the Courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial Court has not correctly appreciated the evidence and has wrongly convicted the accused-appellant. The accused who has been charged under Section 376 read with Section 511, IPC is entitled to benefit of doubt." iii) Tameezuddin alias Tammu Vs. In view of this evidence, we are of the opinion that the High Court as well as the trial Court has not correctly appreciated the evidence and has wrongly convicted the accused-appellant. The accused who has been charged under Section 376 read with Section 511, IPC is entitled to benefit of doubt." iii) Tameezuddin alias Tammu Vs. State of (NCT) of Delhi, reported in AIR 2009 SC (Supp) 2519 (1), more particularly, para 3 and 7, which read as under: "3. In order to support its case the prosecution examined PW. 1 the prosecutrix; PW. 2, Dinesh Chand Mishra, her husband; PW. 9 Dr. Charu Lata who had examined the prosecutrix but had found no evidence of rape or any injury on her person and PW. 10 Dr. R. Dayal, who had medically examined the appellant and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. Dr. Charu Lata also took the vaginal swabs of the prosecutrix and removed the salwar that she was wearing at that time and sent both these articles for examination to the FSL. The report of the Laboratory revealed the presence of semen on the vaginal swabs as well as on the salwar. 4. xxx 5. xxx 6. xxx 7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. We note from the evidence that PW. 1 had narrated the sordid story to PW. 2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by the PW. 2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. 2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the Police Station. In this view of the matter, some supporting evidence was essential for the prosecution's case. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in Court as witnesses though their statements had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken. In this background the evidence of the defence witness, Mohd. Zaki becomes very relevant. This witness testified that there was no occasion for PW. 2 to have come to the factory as no payment was due to him on any account. The Courts below were to our mind remiss in holding that as no written accounts had been maintained by Mohd. Zaki and no receipt relating to any earlier payment to PW. 2 had been produced by him, his testimony was not acceptable; the more so, as the factory was a small one and Mohd. Zaki was a petty factory owner." iv) Bhaiyamiyan @ Jardar Khan and Another Vs. State of M.P., reported in AIR 2011 SC 2218 , more particularly, para 2, 6 and 7, which read as under: "2. On the completion of the investigation the accused were charged under Section 376(2)(g) of the IPC for having committed gang rape on PW-1. Zaki was a petty factory owner." iv) Bhaiyamiyan @ Jardar Khan and Another Vs. State of M.P., reported in AIR 2011 SC 2218 , more particularly, para 2, 6 and 7, which read as under: "2. On the completion of the investigation the accused were charged under Section 376(2)(g) of the IPC for having committed gang rape on PW-1. The Trial Court, vide its judgment dated the 6th January, 1992 observed that in the light of the fact that the FIR had been lodged after a delay of about 60 hours and that the statement of the prosecutrix was full of contradictions and as the statements of her father and mother (PW-2 and PW-3) were based on the information given by her to them, no reliance could be placed on their evidence as well. The Court also found that in the light of the fact that the prosecutrix had declined to be medically examined at Sironj, where the First Information Report had been lodged, and had insisted that she be examined at Vasoda which was 55 kms. away, cast a doubt on the prosecution story. The court further observed that as per the medical evidence no injury had been found on her person though she had been raped by two persons and as such there was no evidence to suggest that rape had been committed. On a cumulative assessment of the prosecution evidence the Trial Court acquitted the accused. 3. xxx 4. xxx 5. xxx 6. We have examined the evidence in the light of the above principle. We first see that the First Information Report had been lodged after about 60 hours of the incident. The prosecution case is that PW-1 accompanied by her parents had gone to police post Patharia attached to Police Station Unarasital immediately after the incident but had found no police official present therein and had then gone to police station Sironj and lodged a report at 12 noon the next day. We find that the explanation for this delay is somewhat difficult to believe. A police post may have a few police officials posted in it, but police station Unarasital was a full-fledged police station which would invariably be manned. We find that the explanation for this delay is somewhat difficult to believe. A police post may have a few police officials posted in it, but police station Unarasital was a full-fledged police station which would invariably be manned. Moreover, even if no one was found in the police post on the first day, at that particular point of time the effort of the prosecutrix ought to have been to lodge a report later at Police Station Unarasital, but she chose to go to police Station Sironj and recorded her statement and the investigation was thereafter referred to police station Unarasital. We are also indeed surprised that the High Court has made light of the fact that the prosecutrix had declined to undergo her medical examination at Sironj and had insisted for her medical examination at Vasoda, 55 kms. away. The prosecution has not been able to furnish any explanation as to why the prosecutrix had insisted on being examined at Vasoda." 7. We have also examined the medical report. Dr. Mamta Sthapak-PW-7 found no injury on her genitalia and deposed that there was no evidence to show that she had been raped as the tear in her hymen was an old one. The prosecutrix also stated that at the time of her medical examination at Vasoda her vagina had been stitched. The doctor found no stitch on her person. v) State of Rajasthan Vs. Babu Meena, reported in AIR 2013 SC 2207 , more particularly, para 8 and 9, which read as under: "8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused. 9. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused. 9. In the background of the aforesaid legal position, when we consider the case in hand we are of the opinion that the statement of the prosecutrix is not at all reliable or in other words wholly unreliable. No other evidence has been led to support the allegation of rape. Hence, it shall be unsafe to base the conviction on her sole testimony. In her evidence she had stated that she was subjected to rape at 12.00 noon when her sister Jitendra, the wife of the accused had gone to purchase milk. However, during the course of investigation she alleged that she was subjected to rape at 06.30 A.M. When confronted with the aforesaid contradiction in the cross-examination, she could not explain the aforesaid discrepancy. Her statement that she shouted for help when she was subjected to rape also does not find support from the evidence of Ramchandra Salvi (PW-11), the owner of the house where the incident is alleged to have taken place. Dr. Smt. Sushila (PW-12), has also not supported the allegation of rape as also the Forensic Science Laboratory Report. In the face of what we have observed above, the evidence of the prosecutrix cannot be said to be wholly reliable." 3.2. Relying upon the aforesaid decisions, the learned senior advocate for the accused submitted that the evidence of the victim is not trustworthy inasmuch as if the application for adjournment, given by the complainant/prosecutrix at exh. 14 is perused, the application was tendered on 30/01/2006 in the midst of the trial which clearly indicates that the complaint was filed with ulterior motive and in that view of the matter, he contended that benefit of doubt is required to be given to the accused. 3.3. Mr. 14 is perused, the application was tendered on 30/01/2006 in the midst of the trial which clearly indicates that the complaint was filed with ulterior motive and in that view of the matter, he contended that benefit of doubt is required to be given to the accused. 3.3. Mr. Lakhani, learned senior advocate for the accused, further contended that the complaint was not filed immediately after the incident and in spite of the prosecutrix had two or three chances to inform and disclose to her husband about the incident, she did not disclose, at the first meeting in the noon, then in the evening and even at the time of dinner at night and for the first time she disclosed the same when her husband returned in late night and therefore, the version of the prosecutrix is not trustworthy. He also contended that if at all the incident had occurred, it might be the case of consent since no injury was found on the private part of the prosecutrix nor any other injury and/or marks were found on the body of the prosecutrix except one scratch mark on the back of the prosecutrix, moreover, even no glass bangles were broken and in the circumstances, the trial Court has committed a serious error in convicting the accused without any basis, mainly taking into consideration the evidence of the prosecutrix and her husband. Eventually, he requested to allow the appeal against conviction and to dismiss the appeal filed by the State for enhancement of sentence. 4. Whereas, Ms. Shah, learned Additional Public Prosecutor, for the State contended that if the evidence of the complainant/prosecutrix is referred, she has narrated the facts completely. She further submitted that the place of incident was the bathroom where, in the normal circumstance, the accused ought not to have gone. Further, she submitted that from the cross-examination of the victim it is clear that it was not with consent and this defence of consent is also not accepted by the trial Court. She submitted that the evidence of the victim is required to be accepted inasmuch as she has narrated the whole fact and merely because she being 21 years old, did not disclose the incident at first instance, her case may not be doubted and on that ground, the complete story put forward by the prosecution may not be rejected. Ms. She submitted that the evidence of the victim is required to be accepted inasmuch as she has narrated the whole fact and merely because she being 21 years old, did not disclose the incident at first instance, her case may not be doubted and on that ground, the complete story put forward by the prosecution may not be rejected. Ms. Shah, learned Additional Public Prosecutor, took us to the cross-examination of the prosecutrix, which clearly suggests that the defence put forward by the accused of consent was categorically denied by the prosecutrix. In support of her submissions, she relied upon the following decisions: i) Vijay alias Chinee Vs. State of Madhya Pradesh, reported in (2010) 8 SCC 191 , more particularly, para 14, which reads as under: "14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." ii) Tarjubhai Narsingbhai Rathwa Vs. State of Gujarat, reported in 2014 (1) GLH 781 , more particularly, para 24, which reads as under: "24. On overall re-appreciation and assessment of the oral evidence on record, we are convinced that the version of the three eye witnesses is absolutely trustworthy and consistent with each other and corroborating further with the medical evidence on record. In our opinion, even the suggestions put by the defence counsel in the cross-examination of the eye witnesses, referred to above, establishes the presence of the accused at the time of the incident with a knife. Once the accused admits his presence at the time of the incident the onus would shift upon him to explain as to what had brought him at the house of the deceased with a knife." 4.1. Last but not least, Ms. Shah, learned Additional Public Prosecutor, submitted that the State has filed the appeal for enhancement of sentence and the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere so far as conviction is concerned. Last but not least, Ms. Shah, learned Additional Public Prosecutor, submitted that the State has filed the appeal for enhancement of sentence and the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere so far as conviction is concerned. However, so far as sentence imposed by the trial Court upon the accused is concerned, the minimum sentence provided for the offence punishable under Section 376 of the IPC is seven years and accordingly, the learned trial Judge has erred in imposing lesser punishment and this Court may accordingly allow the appeal and sentence may suitably be enhanced. 5. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. Considering the evidence of the prosecutrix and her husband respectively recorded at exhs. 11 and 15, we are of the opinion that for the sake of argument, the story put forward by the victim may not possible but looking to the status of both victim and the accused, the incident cannot be ruled out. Moreover, so far as the argument of the learned senior advocate for the accused that the accused has wrongly been implicated in view of the business rivalry as has been pleaded by the accused in his Further Statement under Section 313 of the Code, the same would also be of no help to the accused inasmuch as, there appears material contradiction in the version of the accused as on one hand business rivalry is claimed to be the reason for false implication of the accused and on the other side the case of consent is pleaded and hence, we have no reason to believe the said defence or story put forward by the accused. The question is that, whether the incident can be said to be occurred with consent or without consent of the prosecutrix. The question is that, whether the incident can be said to be occurred with consent or without consent of the prosecutrix. In our view, the defence of consent is not acceptable inasmuch as though the victim belonged to the poor strata of society, the courage and determination showed by her by filing the complaint, require to be appreciated and in view of the decision of the Hon'ble Apex Court, relied upon by the learned Additional Public Prosecutor, we believe her version to be trustworthy. We accordingly, find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned senior advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and we are in complete agreement with the reasonings given and the findings arrived at by the trial Court and therefore, we are not inclined to disturb the same. We have also carefully perused the decisions which have been relied upon by the learned senior advocate for the accused and in our opinion, in the facts and circumstances of the case, the same would be of no help to him. Now, so far as aspect of sentence imposed by the trial Court of six years rigorous imprisonment is concerned, looking to the provision of law, in our opinion, the same is inadequate and is required to be enhanced, as minimum sentence prescribed for the offence is seven years and to that extent, the impugned judgment and order of the trial Court is required to be modified. 6. In view of the aforesaid discussion, Criminal Appeal No. 393 of 2007 for enhancement of sentence succeeds and the impugned judgment and order dated 12/12/2006 passed by the learned Principal Sessions Judge, Mahesana in Sessions Case No. 40 of 2006 is modified to the aforesaid extent and it is held that the accused shall have to undergo 07 (seven) years' rigorous imprisonment instead of 06 (six) years as has been awarded by the trial Court. Accordingly, Criminal Appeal No. 141 of 2007 against conviction fails and is dismissed. The accused, if on bail, is directed to surrender before the concerned jail authority within a period of 10 (ten) weeks from today to undergo the remaining sentence and his bail bond shall accordingly, stand cancelled. Registry to return the R&P to the trial Court forthwith.