JUDGMENT : Mr. G.K. Vyas, J. In this cr. appeal filed under Section 378(iii) and (i) of the Cr.P.C. the State of Rajasthan is challenging the validity of the judgment dated 31.7.1995 passed by the Addl. Sessions Judge, Badli in Cr. Case No. 21/1992 by which the learned trial court acquitted the respondent Shaitan Singh from the charge levelled against him under Section 302 IPC. 2. As per brief facts of the case a written complaint (Ex.P/5) was filed by the complainant Narpat Singh PW-9 at Police Station Bali, District Pali in which it was alleged that today on 11.12.1991 at about 8.30 pm my younger brother Tej Singh came at home while taking maize grass and put behind the house, at that time, respondent Shaitan Singh came there and gave 2-3 slaps by hand to him and asked why you have put this maize grass here. At that time, the complainant immediately went near Tej Singh and asked him to go home and after inconveniencing Shaitan Singh take him to his house and closed the door. Upon hearing noise my father Peer Singh aged about 60 years who was sitting in the Shiv Temple came in front of the house and made inquiry. My father went to the house of Shaitan Singh and ask him not to make quarrel, but Shaitan Singh with intention to kill my father Peer Singh fired upon him from small window of his house and due to the said injury my father fell down, I, my wife Puran Kanwar, mother Sayar Kanwar and brother Tej Singh immediately went on spot for rescue and taking care of my father, at that time, again Shaitan Singh come out from the house and made fire due to the said fire injuries were sustained to my wife Puran Kanwar, due to said injury she fell down and Shaitan Singh run away from the place of occurrence. The complainant Narpat Singh further stated that my father Peer Singh died on spot and his dead body is lying on the place of occurrence and my wife in injured condition is also there and therefore, immediately action may be taken against Shaitan Singh. The written report was submitted by the Narpat Singh complainant at about 5.30 pm before SHO Police Station Bali upon which FIR no. 186 (Ex.P/20) was registered under Section 307 and 302 IPC. 3. The written report was submitted by the Narpat Singh complainant at about 5.30 pm before SHO Police Station Bali upon which FIR no. 186 (Ex.P/20) was registered under Section 307 and 302 IPC. 3. The investigating officer immediately went on spot and prepared site plan (Ex.P/6) where dead body of Peer Singh was lying and took the body of deceased Peer Singh to the hospital. The blood stained clothes of injured Puran Kanwar were taken in possession for investigation vide Ex. P/8. During investigation respondent Shaitan Singh was arrested on 16.12.1991 vide Ex.P/9. Upon information given by respondent under Section 27 of the Evidence Act one rifle was recovered vide Ex.P/10 in front of 2 witnesses Chain Singh and Man Dan and upon completion of investigation, the police filed charge-sheet against Shaitan Singh in the court of Addl. Chief Judicial Magistrate, Bali from where the case was committed to, the learned Addl. Sessions Judge, Bali for trial. 4. In the trial after framing charge, the learned trial court recorded statements of 25 prosecution witnesses and, thereafter, recorded statement of respondent Shaitan Singh under Section 313 Cr.P.C. in which he denied all the charges levelled against him but the prosecution witnesses and said that I have been falsely implicated in this case. The learned trial court after providing an opportunity to lead evidence in defence finally heard the case and vide judgment dated 31.7.1995 acquitted the respondent Shaitan Singh from the charge levelled against him under Section 302 and 307 IPC but convicted for offence under Section 324 IPC and for offence under Section 25(1)(b) and 27 of the Arms Act. The respondent remained in custody from 16.12.1991 to 18.10.1994, therefore, passed sentence of already undergo which was two and half years for offence under Section 324 IPC along with fine of Rs. 2,000/- and in default of payment of fine to further undergo three months RI and for offence under Section 25(1)(b) of the Arms Act passed sentence of one year RI along with Rs. 500/- and in default of payment of fine to further undergo one month RI and for offence under Section 27 of the Arms Act punished the respondent for one and half year along with Rs. 500/- fine. Further, the learned trial court passed an order that all the sentences run concurrently. 5. 500/- and in default of payment of fine to further undergo one month RI and for offence under Section 27 of the Arms Act punished the respondent for one and half year along with Rs. 500/- fine. Further, the learned trial court passed an order that all the sentences run concurrently. 5. In this appeal filed by the State of Rajasthan, the learned Public Prosecutor submits that finding arrived at by the learned trial court for acquittal of respondent Shaitan Singh from the charge under Section 302 and 307 IPC is totally erroneous because there is ample evidence, which proves the allegation of murder, therefore, the finding given by the learned trial court for acquittal under Section 302 and 307 IPC deserves to be quashed and respondent is liable to be punished for the offence of murder and attempt of murder. 6. Learned Public Prosecutor argued that the learned trial court gravely erred in not appreciating the report given by the FSL that gun was serviceable, which was recovered upon information given by the respondent under Section 27 of the Evidence Act and there is no contradiction in the statement of prosecution witnesses to prove the fact of recovery of gun, therefore, it cannot be said that the prosecution has not proved recovery of gun beyond reasonable doubt. The crux of the argument of the learned Public Prosecutor is that as per statement of eye witnesses respondent inflicted injury by fire arm and gun was recovered by the police upon information given by the respondent. Therefore, it is a case in which trial judge has seriously erred in not appreciating the statement of PW-2 Tej Singh, PW-12 Narayan Singh and PW-3 Dariyav Kanwar so as to convict the respondent. The learned Public Prosecutor prayed that instant appeal may kindly be accepted and the finding given by the leaned trial court for acquittal of respondent from the charge levelled against him under Section 302 and 307 IPC may kindly be set aside and the respondent may be punished for committing offence of murder and attempt of murder on the basis of evidence on record. 7. 7. Per contra, learned counsel appearing for the respondent submits that as per settled principle of law prosecution is required to prove its case beyond reasonable doubt, but upon appreciation of entire evidence, the learned trial court gave finding that in this case prosecution has miserably failed to prove its case beyond reasonable doubt for offence under Section 302 and 307 IPC, therefore, no interference is warranted in the impugned judgment. 8. While inviting attention towards the fact that learned trial court has convicted the respondent for offence under Section 324 of the IPC and under Section 25 and 27 of the Arms Act, it is submitted that the finding arrived at by the learned trial court for acquittal does not suffer from any infirmity, illegality or perversity because the learned trial court has taken care of entire evidence and appreciated the evidence of eye witnesses and on the basis of major contradiction held that there is no reliability and truth in the statement of the eye witnesses upon which conviction can be passed, therefore, the instant appeal may kindly be dismissed. 9. Learned counsel for the respondent further argued that the learned trial court considered very important fact that out of the 25 prosecution witnesses, 9 witnesses are close relatives of deceased Peer Singh and except those other independent witnesses turned hostile therefore, upon assessment of their statement, the learned trial court held that prosecution story is not trustworthy. The learned trial court further held that allegation of extra judicial confession has not been proved because the witness PW-18 Dhanna Ram and PW-20 Mahaveer Singh before whom the extra judicial confession was alleged to be made by the accused appellant turned hostile and did not support the prosecution case. In the trial other 3 independent witnesses PW-19 Bheem Singh, PW-16 Smt. Hawa Kanwar and PW-17 Ratan Kanwar turned hostile and did not support the allegation of prosecution, therefore, the evidence of prosecution has rightly been appreciated by the trial court so as to acquit the respondent from the charge levelled against him under Section 302 IPC and to punish him for other offences. 10. 10. While inviting attention towards the fact that prosecution has fabricated the story it is' submitted that upon assessment of entire evidence, the learned trial court come to the conclusion that PW-2 Tej Singh son of deceased stated before the court that till the police reached on spot, his brother Narpat Singh was on spot and his another brother Narayan Singh went to the police check post Siwadi on 4th and filed written report and said fact is also corroborated by PW-3 Dariyav Kanwar and PW-12 Narayan Singh but said written report is not placed on record by the prosecution. PW-12 Narayan Singh admitted in the cross-examination that on the date of occurrence one Chain Singh was working as Munshi upon Siwadi police check post to whom information with regard to incident was given by him and he went Siwadi by car and gave written report. Meaning thereby there is major contradiction in the statement of prosecution witnesses because as per prosecution case FIR (Ex.P/5) was registered upon written complaint filed by Narpat Singh at Police Station Bali, which is said to be written by Nihal Singh, therefore, the learned trial court gave its finding that prosecution has hide very important aspect of the matter that before registration of the FIR (Ex.P/5) at Police station Bali another report was submitted soon after the occurrence at Siwadi police check post by other son Narayan Singh of deceased Peer Singh which is not available on record. It is a case in which prosecution has not come before the court with clean hands. Therefore, the judgment is perfectly in consonance with law because finding of the learned trial court does not suffer from any illegality. 11. Learned counsel for the respondent submits that 9 prosecution witnesses are close relatives of the deceased and upon assessment of their testimony, which is not supported by independent witnesses the learned trial court held that none of the witnesses saw Shaitan Singh to inflict fire arm injury to the deceased Peer Singh, therefore, the finding given in the judgment impugned based upon proper appreciation does not require any interference. The crux of the argument of the learned counsel for the respondent that prosecution has failed to prove the fact that fire arm injury was caused to the deceased Peer Singh was inflicted by the respondent, therefore, the instant appeal may kindly be dismissed. The crux of the argument of the learned counsel for the respondent that prosecution has failed to prove the fact that fire arm injury was caused to the deceased Peer Singh was inflicted by the respondent, therefore, the instant appeal may kindly be dismissed. In support of his argument, the learned counsel for the respondent inviting our attention towards the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan v. Raja Ram reported in 2003(2) WLC (SC) Cri. 302 : 2003(8) SCC 180 in which it is held by the Hon'ble Supreme Court that on the basis of evidence two views are possible the view favourable to the accused should be adopted, therefore, this appeal may be dismissed. 12. After hearing the learned counsel for the parties, we have perused the finding given by the learned trial court in the light of evidence on record. Admittedly, for the allegation of extra judicial confession, statements of 2 witnesses PW-18 Dhanna Ram and PW-20 Mahaveer Singh were recorded, but both these witnesses turned hostile and did not support the prosecution case with regard to the allegation of extra judicial confession. It is also important fact that independent witnesses PW-16 Smt. Hawa Kanwar, PW-17 Ratan Kanwar, PW-18 Dhanna Ram, PW-19 Bheem Singh and PW-20 Mahaveer Singh turned hostile and did not support the prosecution case. The learned trial court minutely considered the very important aspect of the matter with regard to information other than FIR (Ex.P/5) and gave finding that prosecution has not come before the court with clean hands. 13. Admittedly, the challan was filed by the SHO Police Station Bali upon investigation conducted by him in pursuance of the FIR (Ex.P/5) which is said to be registered upon written complaint submitted by PW-9 Narpat Singh. 13. Admittedly, the challan was filed by the SHO Police Station Bali upon investigation conducted by him in pursuance of the FIR (Ex.P/5) which is said to be registered upon written complaint submitted by PW-9 Narpat Singh. The said FIR was registered at 5.30 pm at Bali but PW-15 Bahadur Singh, father of Nihal Singh who has written FIR (Ex.P/5) stated before the court in his cross-examination that: ^^esjs ekSds ij tkus ls igys iqfyl Fkkuk ckyh dks ?kVuk dh dksbZ lwpuk ugha nh FkhA ?kVuk LFky ij esjs igqapus ds vk/kk ?kaVk ckn esa eSa o ujirflag ?kVuk dh lwpuk nsus gsrq iknjyk xkWao vk, o ogkWa ls ckyh Fkkus esa VsfyQksu fd;k ysfdu Qksu yxk ugha fQj ogkWa ls ge iknjyk ls cl ds }kjk ge nksuksa cl esa cSBdj lsokM+h vk,A lsokM+h esa cl ftlds }kjk ge vk, og cl gekjs :V dh cl gS tks fi.MokM+k ls ckyh pyrh gSA ml cl esa cSBdj lsokM+h vk, FksA cl iknjyk cl LVs.M ij 'kke dks lk<+s ikWap cts vkrh gSA ml fnu lk<+s ikWap cts iknjyk cl LVs.M ls eSa o ujirflag cl esa cSBs o 15&20 esa lsokM+h vk,A djhc vk/kk ?kaVk ge lsokM+h :ds mlds ckn esa lsokM+h ls gh VsDlh ysdj eSa o ujirflag ckyh Fkkus vk, cl LVs.M lsokM+h esa iqfyl ds flikgh [kM+s FksA mudks lwpuk nh FkhA lsokM+h ls ckyh vkus esa djhc ikSus ?kaVs dk le; yxk FkkA ge Fkkus vk, ml le; Fkkusnkj tksxflag o Mh0okbZ0,l0ih0 lkgc ckyh Fkkus esa ekStwn FksA ,0,l0vkbZ0 Fks ;k ugha mudk uke /;ku ughaA Fkkus esa eSaus ;k ujirflag ml oDr ?kVuk dh fyf[kr lwpuk ugha nh tqckuh dgk FkkA djhc ikWap feuV gh Fkkus esa :ds Fks o ge VsDlh ls o iqfyl okys viuh Lo;a dh thi ls ?kVukLFky igqaps rc rd iwj.kdaoj ?kVuk LFky ij gh FkhA ogkWa ls lk<+s lkr o vkB cts ds chp jkf= dks iwj.kdaoj dks eSa ujirflag o iqfyl okys VsDlh esa ysdj ckyh vLirky vk, FksA esjk iq= fugkyflag Hkh lkFk gh FkkA ftl le; ge iwj.kadoj dks ysdj vLirky vk, ml le; ujirflag gekjs lkFk esa ugha FkkA iqfyl okyksa ds lkFk ekSds ij gh :dk gqvk FkkA eSa jkf= dks lk<+s vkB ukS cts rd vLirky :dk Fkk ml chp ujirflag vLirky ugha vk;kA eSa jkf= dks djhc ukS cts vLirky ls Fkkus x;k rks ogkWa ujirflag ekStwn FkkA o esjk iq= fugky flag Hkh ekStwn FkkA rc ujirflag ds dgus ij esjs iq= fugkyflag us fjiksVZ fy[kdj Fkkus esa nh Fkh ml le; fMIVh lkgc ogkWa ij ugha FksA b,Dlih&5 fjiksVZ eSaus vkt vnkyr esa ns[khA tks esjs iq= fugkyflag ds }kjk fy[kkoV igpkurk gwaA ;g xyr gS fd b,Dlih&5 fjiksVZ Fkkusnkj o ,0,l0vkbZ0 ds funsZ'ku ij fugkyflag us fy[kh gksA eSa rks Fkkus ls vius ?kj pyk x;k rFkk ujirflag o fugkyflag nksuksa Fkkus ij gh FksA** 14. PW-9 Narpat Singh, author of the FIR (Ex.P/5) in his examination-in-chief stated that: ^^eSaus bl ?kVuk dh fjiksVZ iqfyl Fkkuk ckyh esa fy[kdj is'k dh Fkh fjiksVZ b,Dlih&5 gS ftl ij , ls ch gLrk{kj esjs gSaA iqfyl us dk;Zokgh dj esjs gLrk{kj djk;s Fks tks , ls ch gSaA** 15. In the cross-examination, the said witness stated that: ^^fjiksVZ b,Dlih&5 eSaus Fkkus esa fy[kh Fkh tks esjs gkFk dh fy[kh gqbZ ugha gSA b,Dlih&5 fjiksVZ eSaus cksyh o fugkyflag us fy[kh FkhA o eSaus bl ij gLrk{kj fd;s FksA fugkyflag iq= cgknqj gS tks NksVkxqM+k fuoklh gSA NksVk xqM+k dks xqM+k nsohflag Hkh dgrs gSaA bl fjiksVZ ds igys esjk Fkkus tkus dk dke ugha iM+k u eSaus dHkh fjiksVZ fy[kh FkhA fugkyflag iwj.kdaoj dks ckyh vLirky bykt ysdj vk, Fks tks xksyh yxus ds ckn esa yk, Fks rFkk mls vLirky ls Fkkus cqyk;k Fkk fQj Fkkus esa fjiksVZ b,Dlih&5 fugkyflag us fy[kh FkhA ;g fjiksVZ eSaus i<+h FkhA o i<+us ds ckn esa gLrk{kj fd, FksA** 16. It is very strange that Nihal Singh has not been produced before the court who wrote the FIR by his hand. More so, PW-15 Bahadur Singh father of Nihal Singh has categorically stated before the court that an information was given at police check post Siwadi but no written complaint was filed and in the night at about 9’ O clock my son Nihal Singh and Narpat Singh submitted the written report (Ex.P/5) before the Police Station, Bali. Meaning thereby, if report was submitted at 9'0 clock, how FIR was registered at 5.30 pm. 17. Meaning thereby, if report was submitted at 9'0 clock, how FIR was registered at 5.30 pm. 17. We have perused the cross-examination of PW-2 Tej Singh in which he said that: ^^eq>s 10&15 feuV ckn esa gks'k vk x;k FkkA eq>s gks'k vk;k ml le; mij tks uke crk, gSa ogh O;fDr ogkWa ij Fks rFkk esjs gks'k vkus ds 5&10 feuV ckn esa Hkxokuflag o ukjk;.kflag Hkh ?kVukLFky ij vk x, FksA ml le; Ldwy ds cPps Hkh 4&5 ?kVuk LFky ij vk, FksA esjs HkkbZ ujirflag Hkh ?kVukLFky ij gh Fks rFkk tc rd iqfyl vkbZ rc rd ujirflag iwjs le; rd ?kVuk LFky ij gh FksA iqfyl us ujirflag ls iwNrkN dh FkhA ?kVuk ds djhc Ms<+ ?kaVs ckn esa iqfyl ekSds ij vkbZ FkhA iqfyl vkbZ rc ujirflag us fjiksVZ esjs lkeus ugha nh FkhA ?kVuk dh lwpuk nsus ds fy, esjk HkkbZ ukjk;.k flag iSny gh lokM+h iqfyl pkSdh x;k FkkA ukjk;.kflag iqfyl pkSdh lsoM+h esa ?kVuk dh lwpuk ekSf[kd nsdj vk;k FkkA mlds FkksM+h nsj ckn esa lsokM+h pkSdh o iqfyl Fkkuk okyh iqfyl okys thi esa ?kVuk LFky ij vk x;s FksA ukjk;.kflag us ?kVuk dh lwpuk fyf[kr esa lsokM+h iqfyl pkSdh esa nh FkhA ukjk;.kflag dks esjs HkkbZ ujirflag us ?kVuk dh fjiksVZ nsus ds fy, lsokM+h pkSdh Hkstk FkkA iqfyl okys ?kVuk LFky ij vk, ml le; rd iknjyk ;k vkl&ikl ds dksbZ yksx ?kVukLFky ij ugha vk, FksA HkwrukFk dk eafnj gekjs edku ls djhc 100 ehVj nwjh ij gSA iqfyl ds Fkkusnkj o vU; flikgh jkr Hkj ogha jgs FksA iqfyl okyksa us esjs ls ml fnu dksbZ iwNrkN ugha dhA esjs ifjokj ds vU; lnL;ksa ls dh gksxh rks eq>s irk ughaA rFkk iqfyl okys vk, ml le; o ml jkf= dks ?kVuk ds ckjs esa eSaus iqfyl okyksa dks dqN ugha crk;k FkkA ?kVuk ds nwljs fnu iqfyl okyksa us 10 cts cqyk;k Fkk rFkk esjs ls ?kVuk ds ckjs esa iwNk rFkk esjs c;ku fy;s FksA esjs c;ku Fkkusnkjth us fy, FksA** 18. We have perused the testimony of all the prosecution witnesses and find that before registration of FIR upon written complaint filed by Narpat Singh PW-9 the incident was also reported by other son of deceased Narayan Singh at Siwadi police check post and police came on spot upon information received at Siwadi police check post till then no written FIR was submitted by Narpat Singh PW-9. Subsequently, in the evening written report (Ex.P/5) was submitted, but at the time of registration of the FIR time "5.30 pm" was mentioned in the FIR. It creates serious doubt, therefore, the learned trial court gave finding that prosecution has not come with clean hands before the court to prove case against the respondent. The learned trial court categorically considered the testimony of statements of PW-2 Tej Singh, PW-3 Dariyav Kanwar, PW-4 Pushp Kanwar, PW-7 Sayar Kanwar, PW-8 Puran Kanwar and PW- 9 Narpat Singh held that due to major contradiction in the statement of all the eye witnesses it is obvious that none of the eye witnesses seen the incident of inflicting fire arm injury upon deceased peer Singh by the respondent Shaitan Singh. Upon careful consideration of statement of these witnesses and finding, we are of the view that in the statements of all the close relatives there are major contradiction and other independent witnesses PW-16 Hawa Kanwar, PW-17 Ratan Kanwar, PW-18 Dhanna Ram, PW-19 Bheem Singh and PW-20 Mahaveer Singh turned hostile, therefore, in absence of any independent evidence and major contradiction in the statement of close relative eye witnesses net error has been committed by the trial court to acquit the respondent because prosecution has not proved its case beyond reasonable doubt, so also, has not come in the court with clean hands. 19. We have also considered the question whether prosecution has proved its case that fire arm injury caused to the deceased Peer Singh was caused by the gun recovered from the respondent or not. In this regard, we have perused the finding given in para no. 15 of the judgment by the learned trial court in which trial court elaborately discussed the entire evidence and held that neither ballistic expert is produced before the court nor the bullet or any other material evidence is placed on record to prove the fact that fire arm injury was caused by the same gun which is covered from the respondent. The learned trial court specifically observed that although gun article-8 which is said to be recovered upon information given by the respondent was sent to the FSL, but in the report of the FSL dated 26.5.1995 it is nowhere observed that when last bullet was found from the said gun although it is observed that the said gun was serviceable. In our opinion, the learned trial court has rightly considered the argument of the respondent that prosecution is required to prove by leading evidence of ballistic expert before the court that injury caused to the deceased was caused by gun recovered from the respondent. 20. We are in full agreement with the finding given by the learned trial court in para no. 15 of the judgment impugned that prosecution has failed to connect the injury with the gun recovered from the accused appellant. It is settled principle of law that if any injury is caused by the fire arm then prosecution is required to produce evidence of ballistic expert so as to prove that injury was caused by the gun which is recovered from the respondent. Therefore, the finding for not accepting prosecution case to connect the respondent with the crime on the basis of so called recovery of gun does not require any interference. 21. The learned trial court acquitted the respondent from the charge levelled against him under Section 302 and 307 IPC but held guilty for offence under Section 324 IPC read with Section 25(1)(b) and 27 of the Arms Act. In our opinion, the finding given by the learned trial court in the judgment cannot be termed as illegal or perverse. More so, the learned trial court minutely discussed the entire evidence to so as to acquit the respondent Shaitan Singh from the charge levelled against him under Section 302 and 307 IPC. 22. In case of State of Rajasthan v. Raja Ram (supra) the Hon'ble Supreme Court gave following verdict, which reads as under: "7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based, generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based, generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden threat which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh], The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Haryana." 23. We have examined the entire evidence in the light of the adjudication made by the Hon'ble Supreme Court. The golden principle of criminal jurisprudence is that prosecution is to prove its case beyond reasonable doubt, but here in this case, upon examining the finding of the learned trial court in conjunction with the evidence and other material available on record, we are of the view that it is a case of real doubt which is founded upon the reasons so as to prove case against the respondents for commission of offence. This being the position, we fully concur the finding given by the learned trial court and therefore, not persuaded to interfere in the impugned judgment. 24. Consequently, this appeal fails and the same is hereby dismissed.