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2016 DIGILAW 643 (MP)

State of Madhya Pradesh v. Anil

2016-08-02

N.K.GUPTA, VIVEK AGARWAL

body2016
JUDGMENT : N.K. Gupta, J. 1. Since for confirmation of death sentence, a reference has been made by the Additional Sessions Judge, Ambah, District Morena (M.P.) relating to judgment dated 01.07.2015 passed in Sessions Trial No.143/2014 and the appellant/accused has also filed a Criminal Appeal against the conviction and sentence, both the matters are hereby decided by the present common judgment. 2. Vide judgment dated 01.07.2015, the Additional Sessions Judge, Ambah, District Morena (M.P.) in Sessions Trial No.143/2014 convicted the appellant Anil for the offence under Section 302 (two count charges) of IPC and sentenced with death sentence, the trial court has preferred the present reference for confirmation of death sentence. 3. Being aggrieved by the aforesaid judgment, the appellant- Anil has filed the appeal challenging the conviction and sentence passed by the trial court. 4. Facts of the case, in short, are that Rajveer Sakhwar (PW-7), father of the deceased Manisha, had lodged the FIR Ex.P.-11 on 06.02.2014 at about 06:30 am at police station Sihoniya that on 05.02.2014 he along with his brother-in-law, namely, Brajkishore and one Vishram (PW- 8) went to the house of the appellant Anil who was his son-in-law to have talks and to resolve the dispute between Anil and his wife Manisha. The complainant and the witnesses conversed with the appellant Anil for a few hours and thereafter Anil along with deceased Manisha and her daughter Anushka went in a room to sleep in the house and in another room the complainant Rajveer Sakhwar (PW-7) and the witnesses Brajkishore and Vishram slept. On 06.02.2014 at about 04:30 am the complainant and witnesses heard Manisha shouting that the appellant Anil was killing her. They immediately rushed to the room and found that appellant was giving blows of axe to the deceased Manisha and thereafter, he gave a blow of axe to the deceased Anushka. Thereafter, the appellant ran away from the spot. Rajveer Sakhwar (PW-7) took his daughter and grand-daughter in a Marshall vehicle to Police Station Sihoniya where he lodged the FIR. Both the injured were sent to District Hospital Morena (M.P.) for recording of MLC report and treatment. Dr. Aashish Kumar Agrawal (PW-5) examined Anushka and gave his report Ex P-7. According to him, she was brought dead and therefore he referred the dead body of the deceased Anushka for post mortem whereas Dr. Both the injured were sent to District Hospital Morena (M.P.) for recording of MLC report and treatment. Dr. Aashish Kumar Agrawal (PW-5) examined Anushka and gave his report Ex P-7. According to him, she was brought dead and therefore he referred the dead body of the deceased Anushka for post mortem whereas Dr. Lokendra Yadav (PW-4) examined the deceased Manisha at District Hospital, Morena and gave his report Ex.P-6. He found as many as six incised wounds on her right cheek, right head and right ear. There was a fracture of mandible dislocate and teeth were found loosen. She was immediately referred to the Medical College, Gwalior (M.P.), however, she also succumbed to the injuries within 4-5 days. 5. Dr. Aashish Kumar Agrawal (PW-5) performed the post mortem on the body of the deceased Anushka and gave his report Ex.P-9. He found an incised wound on left side of her neck and therefore various blood vessels and ligaments were found cut. The wound was deep up to C-3- C-4 vertebra. She died due to profuse bleeding caused from the injury. One abrasion was also found on her left arm. Dr. Sarthak Juglan (PW-6) performed the post mortem on the body of the deceased Manisha. He found five stitch wounds on right cheek, right eye, right cheek, right face and right head of the deceased whereas on right side of her face there were so many abrasions. On opening that part, he found that right portion of the head was cut. A few pieces of bone were found missing due to injury caused on the head. One depressed wound was found on meninges. On right side of the brain, subdural hemorrhage was found and according to Sarthak Juglan (PW-6) the death of the deceased Manisha was homicidal in nature caused by aforesaid injuries and their complications. The investigating officer, ASI Shri B.N. Upadhyaya (PW-9) went to the spot and prepared a spot map, Ex.P-13 whereas the articles were recovered from the spot and seizure memo Ex.P-24, was prepared. On 07.02.2014, the appellant could be arrested from the township of Sihoniya and a memo Ex.P-15 was prepared. On his intimation, one axe was recovered vide recovery memo Ex.P-17. His blood stained clothes were also recovered on the intimation given by the appellant. Memo under Section 27 of the Evidence Act was recorded as Ex.P-1 and seizure memo as Ex.P-2. On 07.02.2014, the appellant could be arrested from the township of Sihoniya and a memo Ex.P-15 was prepared. On his intimation, one axe was recovered vide recovery memo Ex.P-17. His blood stained clothes were also recovered on the intimation given by the appellant. Memo under Section 27 of the Evidence Act was recorded as Ex.P-1 and seizure memo as Ex.P-2. All the seized articles were sent to the Forensic Science Laboratory and reports of Forensic Science Laboratory were received which were marked as Ex.P-18 and Ex.P-19. The report of FSL relating to viscera, Ex.P-20 was also filed before the trial court. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Ambah, District Morena (M.P.) who committed the case to the Court of Sessions, Morena and ultimately it was transferred to the Additional Sessions Judge, Morena (M.P.). 6. The appellant abjured his guilt in his statement recorded under Section 313 of Cr.P.C. He took a plea that he was falsely implicated in the matter. At the time of incident, he had gone to answer the call of nature to a field near his house. When he came back, he found his wife and daughter injured and therefore with the help of villagers and neighbours he took the victims to the police station Sihoniya and thereafter took them to the District Hospital Morena (M.P.) for treatment and thereafter he took his wife to Medical College, Gwalior (M.P.) for her treatment. He himself informed about the injured to his father in law Rajveer Sakhwar (PW-7) with the help of Siyaram (DW-1) and thereafter Rajveer Sakhwar (PW-7) and his companions reached the spot on 06.02.2015. In defence, Siyaram (DW-1) was examined. 7. The trial court after considering the evidence adduced by the parties, convicted the appellant on two count charges of Section 302 of IPC and recorded the death sentence for the aforesaid offences. 8. We have heard the learned counsel for the parties. 9. In the present case, it is not in dispute that the death of the deceased Manisha and Anushka was homicidal in nature and they died due to injuries caused to them. However, in that respect, statement of Dr. Aashish Kumar Agrawal (PW-5) may be referred who did post mortem on the body of the deceased Anushka and gave his report as Ex.P-9. However, in that respect, statement of Dr. Aashish Kumar Agrawal (PW-5) may be referred who did post mortem on the body of the deceased Anushka and gave his report as Ex.P-9. Only two injuries were found on the body; one was an abrasion on left arm which was simple in nature whereas he found an incised wound of size 7 x 2 x 3cm on left side of the neck of the deceased and due to that injury skin tissues, ligaments, blood vessels and arteries were found cut, that wound was deep upto C3 to C4 vertebra. According to him the deceased died due to that single injury. 10. After considering the evidence given by Dr. Aashish Kumar Agrawal (PW-5), it is clear that the culprit gave a single blow of sharp cutting weapon with such a force that the deceased Anushka died due to that single injury and therefore the opinion given by Dr. Aashish Kumar Agrawal (PW-5) is acceptable that the deceased Anushka died due to that injury caused to her and her death was homicidal in nature. 11. Dr. Lokendra Yadav (PW-4) examined the deceased Manisha and gave his report Ex.P-6 when she was alive. He found injuries on her body as mentioned below: (1) Incised wound size 3x2x2 cm on right cheek; (2) Incised wound size 4x2x2 cm on right cheek; (3) Incised wound size 2x2x1 cm on right cheek; (4) Incised wound size 5x3x2 cm on right parietal region of head; (5) Incised wound size 6x3x2 cm on right parietal region of head; (6) Mandible dislocate was found fractured; (7) Teeth were found loosen; and (8) A simple wound 0.1x0.1cm at right pinna of the ear. 12. Dr. Sarthak Juglan (PW-6), who performed the post moretem on the body of deceased Manisha and gave report Ex.P-10 found the same injuries to the deceased Manisha which were observed by Dr. Lokendra Yadav (PW-4). On various incised wounds he found stitch wounds. On opening of the head, he found that there was a fracture on the right side of the head and subdural haemorrhage was found on brain at its right side. According to him, she died due to head injuries and the complications due to such injuries and such injuries were sufficient to cause her head in the ordinary course of nature. Hence, the death of the deceased Manisha was also homicidal in nature. 13. According to him, she died due to head injuries and the complications due to such injuries and such injuries were sufficient to cause her head in the ordinary course of nature. Hence, the death of the deceased Manisha was also homicidal in nature. 13. The main question is that who killed the deceased Manisha and Anushka. The prosecution has examined two eye-witnesses, namely, Rajveer Sakhwar (PW-7) and Vishram (PW-8) and also proved the timely lodged FIR Ex.P-11 and the trial court has convicted the appellant that the testimony of these witnesses was corroborated by FIR Ex.P-11 and post mortem reports of the deceased persons. Also the investigating officer, ASI, B.N. Upadhyaya (PW-9) had interrogated the appellant and recorded two memos of Section 27 of the Evidence Act. The Memo Ex.P-16 was recorded on 07.02.2014 by which the appellant gave information about the axe whereas memo Ex.P-1 was recorded on 08.02.2014 when appellant gave an information about his blood stained clothes and consequently, seizure memo Ex.P-17 and Ex.P-2 were prepared and axe as well as blood stained clothes were recovered. 14. The learned counsel for the appellant has challenged the entire prosecution's story. According to him, the FIR was not lodged in time and since no compliance under Section 157 of Cr.P.C. was proved, FIR should be presumed to be ante-date and ante-time instrument. It is submitted that after the incident the appellant himself informed the complainant Rajveer Sakhwar (PW-7) to visit his place and thereafter Rajveer Sakhwar (PW-7) came with the witnesses at later stage. In support of this story Siyaram (DW-1) was examined who has stated that he gave a ring on mobile of Rajveer Sakhwar (PW-7) on eight times and informed him about the incident and at about 07:00 am when the witness Siyaram (DW-1) and his companions went to Morena from police station Sihoniya, Rajveer Sakhwar (PW-7) could not come to the Police Station Sihoniya and therefore according to the appellant, the FIR was cooked by the investigating officer as well as Rajveer Sakhwar (PW-7). When Rajveer Sakhwar (PW-7) came to the police station Sihoniya and FIR was written much later than its time which was mentioned on the FIR. 15. However, the testimony of Siyaram (DW-1) was rightly discarded by the trial court. There are several infirmities in his evidence. When Rajveer Sakhwar (PW-7) came to the police station Sihoniya and FIR was written much later than its time which was mentioned on the FIR. 15. However, the testimony of Siyaram (DW-1) was rightly discarded by the trial court. There are several infirmities in his evidence. The appellant had tried to call for the call details of the mobile phone of Rajveer Sakhwar (PW-7) and witness Siyaram (DW-1). Since application was filed after one year of the incident, the concerned mobile company informed that such data were not available after one year and therefore, the appellant failed to prove that an intimation was given by Siyaram (DW-1) to Rajveer Sakhwar (PW-7). Also, it is pertinent to note that if the appellant knew that he had sent a message through the witness Siyaram (DW-1) to Rajveer Sakhwar (PW-7) about the incident then such fact must be in the knowledge of the appellant from the very beginning. If cross-examination of witness Rajveer (PW-7) is perused then it would be clear that the appellant gave a suggestion to that witness that after the incident Harvilas and Ratne who were the neighourers of the appellant came to the spot. Witness Rajveer Sakhwar (PW-7) accepted that soon after the incident Harvilas and Ratne arrived at the spot. An omnibus suggestion was given to this witness that he was informed about the incident by phone but no specific suggestion was given that on behalf of the appellant Siyaram informed him on mobile phone. In the absence of such suggestion, it would be clear that Siyaram was a cooked witness produced much after the conclusion of the prosecution evidence. If he was the actual witness then his presence and activity would have been asked or suggested to the witness Rajveer Sakhwar (PW-7). Also on cross-examination, the witness Siyaram (DW-1) could not tell the mobile number of the appellant or other relatives which indicates that mobile number of Rajveer Sakhwar (PW-7) was informed to him and he got that mobile number mugged up when he was produced as a witness. It would be apparent that witness Siyaram did not claim that he was a neighbourer of the appellant. On the contrary he has accepted that he was the uncle of the appellant in relation. It would be apparent that witness Siyaram did not claim that he was a neighbourer of the appellant. On the contrary he has accepted that he was the uncle of the appellant in relation. Under these circumstances, the testimony of Siyaram (DW- 1) does not attract any attention and he was a cooked witness produced by the appellant before the trial court whereas his evidence is nowhere corroborated by any independent source. 16. The appellant had tried to establish that after the incident he himself took the injured Manisha and Anushka to the police station and District Hospital, Morena. It is also tried to be established that the appellant took the victim Manisha to the Medical College, Gwalior for further treatment. In this connection, evidence of witness Siyaram (DW-1) and Sandeep (PW-3) is referred. Sandeep (PW-3) is the brother of the appellant who was examined for making Panchayatnama Lash of the deceased Anushka and he was examined for the documents Ex.P-3 to P-5. In his cross-examination, in the last line, the question was asked by the appellant that it was the appellant who visited the medical college Gwalior along with injured Manisha. If such a suggestion is given and the public prosecutor could not notice such evidence then it makes no difference if the prosecutor did not declare the witness hostile or reexamined him on that point. Sandeep (PW-3) is the brother of the appellant who can say anything in favour of the appellant. If it is presumed that the appellant took the deceased Manisha and Anushka to the police station Sihoniya or District Hospital Morena as well as he took the deceased Manisha to Medical College, Gwalior when she was alive then before lodging the FIR there must be various entries in the Roznamcha at Police Station Sihoniya and there must be entries at District Hospital, Morena or Medical College, Gwalior relating to the person who brought the victims to the police station or took them to the hospitals. But not a single entry of such documents could be called by the appellant to show that he did not abscond after the incident or he himself took the victims to the police station Sihoniya or District Hospital Morena, hence, the evidence given by Sitaram (DW-1) and Sandeep (PW-3) is not trustworthy. 17. But not a single entry of such documents could be called by the appellant to show that he did not abscond after the incident or he himself took the victims to the police station Sihoniya or District Hospital Morena, hence, the evidence given by Sitaram (DW-1) and Sandeep (PW-3) is not trustworthy. 17. If appellant had taken the victims with the intimation that when he had gone to answer the call of nature in the near forest, someone entered in the house and committed such a homicidal attack then before lodging of FIR, the Head Constable Moharrir of the concerned Police Station must have written the intimation in Rochnamcha and thereafter, the victims would have been referred to the District Hospital Morena. The victims were sent to the District Hospital Morena where their MLC reports Ex.P-6 and Ex.P-7 were recorded. On the back portion of the MLC reports a request is printed sent by Police Station Sihoniya to examine and give the MLC reports of victims Manisha and Anushka. Also from District Hospital, Morena, an intimation, Ex.P-8, was sent to outpost of Police District Hospital, Morena that the patient Anushka was brought by Head Constable No.98, namely, Shri Ashok Choubey and one Ramveer in a dead position and therefore, the factum of death was informed. Such document clearly indicates that the victims were sent to the hospital with the help of police and one Head Constable accompanied the victims. The hospital authorities had no reason to omit the name of the appellant if he had taken the deceased Anushka or victim Manisha to the District Hospital, Morena and in that case instead of one Ramveer, the name of the appellant would have been mentioned. Hence, the statements of Siyaram (DW-1) and Sandeep (PW-3) are not acceptable that the appellant himself accompanied the victims to the police station Sihoniya or District Hospital, Morena. On the contrary, it is established by the various documents of the police and the hospital that after the incident he was not available to anyone i.e. he had absconded soon after the incident. 18. Learned counsel for the appellant has invited the attention of this Court to the evidence of Rajveer Sakhwar (PW-7) and Vishram (PW-8) submitting that there are a lot of contradictions between their statements including the statements under Section 161 of Cr.P.C. and other documents of the police and hospitals. 18. Learned counsel for the appellant has invited the attention of this Court to the evidence of Rajveer Sakhwar (PW-7) and Vishram (PW-8) submitting that there are a lot of contradictions between their statements including the statements under Section 161 of Cr.P.C. and other documents of the police and hospitals. If the contradictions as referred by the learned counsel for the appellant are considered one by one then first objection is that in the spot map Ex.P-13, in the house of the appellant one Chhapara and one room is shown and when there was only one room in the house of the appellant then story that the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) resided with the appellant in the night was not possible. If spot map Ex.P-13 is perused which is proved by the investigating officer, ASI, Mr. B.N. Upadhyaya (PW-9), the house of the appellant is shown near the house of Ratne. He had shown two rooms in the house and one Chhapara. He gave Serial No.2 to the Chhapara and Serial No.1 to that room in which the incident took place but since he did not give any serial number to the front room, it cannot be said that there was only one room in the house. Such submission has been advanced for the first time at the appellate stage because the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) have stated that there were four rooms in the house of the appellant and they were suggested that there were only two rooms in the house. When the suggestion of two rooms was given to the witnesses then at the appellant stage it cannot be argued that there was only a single room in the house. Such submission is contrary to the document Ex.P-13 and the suggestion given by the appellant to the witnesses during cross-examination. 19. Since there were two rooms in the house of the appellant then story regarding stay of witnesses in the house of appellant does not fall on the reason that there was no possibility of the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) to stay in the house of the appellant. A discrepancy is noticed that the witnesses have stated about four rooms in the house of the appellant whereas the investigating officer has proved two rooms and one chhapara in the house of the appellant. A discrepancy is noticed that the witnesses have stated about four rooms in the house of the appellant whereas the investigating officer has proved two rooms and one chhapara in the house of the appellant. The witness Rajveer Sakhwar (PW-7) was the father of the deceased Manisha and father-in-law of the appellant, therefore, it was not possible for him or his companions to inspect the entire house of the appellant and therefore he may not have knowledge about the number of rooms in the house and it makes no difference to believe the testimony of Rajveer Sakhwar (PW-7) and his companions. 20. The appellant has also taken the plea of alibi that at the time of incident he was not present in the house and he had gone to answer the call of nature though such plea could not be proved by any evidence as discussed above. When the evidence of Siyaram (DW-1) is not trustworthy and neighbours Ratne and Harvilas were not examined as defence witnesses then it cannot be said that the appellant could prove his plea of alibi. In this connection, the judgment of the Apex Court in the case of "State of Haryana v. Sher Singh and others" [ AIR 1981 SC 1021 ] was referred in which it is held that if a plea of alibi is taken by the accused then it is for him to prove it. Unfortunately, in the present case, the plea of alibi could not be proved by the appellant. It is also relevant to note that absence of the accused at the time of incident was of much importance in the present case and if it is not proved then the appellant has created a fact against himself. For the sake of arguments, if it is accepted that the appellant had gone to answer the call of nature then a morning pressure can be presumed that restrains the person to go far away from his house and therefore he should have come back to his house within 20 to 25 minutes and within such a short span of time it was not possible for any stranger to enter into the house of the appellant and to do homicidal attack on deceased Manisha and Anushka. If any outsider had entered into the house to commit the crime then he must have some object for such homicidal attack upon a married woman and her girl child. 21. An unknown person can enter into a house for only three purposes; first to commit robbery; secondly to take revenge and thirdly to commit rape upon the woman available in the house. In the present case, there is no allegation of the appellant himself that any valuable article in the house was missing soon after the incident and therefore if there was anybody who could have entered in the house and committed such homicidal attacks on the deceased persons then it was not to commit robbery. The appellant could not inform about his or deceased Manisha's enmity with anyone and if it was a case of enmity with the appellant then it was not necessary for the enemy to kill the wife and daughter of the appellant. On the other hand he would have held the appellant in track when he had gone to answer the call of nature and he would have taken revenge from the appellant. If he had intended to commit any intercourse with the deceased Manisha then he would have started disrobing her. In the early morning if he knew that the appellant would go to answer the call of nature then he could not dare to enter in the house unless the deceased Manisha was a consenting party and if she was a consenting party then certainly she would not have objected for that intercourse and there was no reason for the stranger to kill the deceased Manisha or her daughter. If any person had illicit relations with the deceased Manisha then he had no advantage in killing the deceased Manisha. On the contrary, he would have eliminated the appellant or appellant would have tried to eliminate the deceased Manisha or that person with whom she had illicit relationship. Hence, if aforesaid circumstances are considered simultaneously then there was no possibility that any stranger would have come inside the house to commit murder of deceased Anushka and Manisha. 22. When the appellant could not establish the plea of alibi and there was no possibility that the offence could have been done by any stranger then this is a strong circumstance against the appellant. 22. When the appellant could not establish the plea of alibi and there was no possibility that the offence could have been done by any stranger then this is a strong circumstance against the appellant. According to him, if Rajveer Sakhwar (PW-7) and Vishram (PW-8) did not reside in the night then in the house of the appellant, the appellant was all alone with the deceased persons and therefore it was for him to prove as to how the homicidal attack was caused on the victims in his presence. Otherwise, it will be presumed that the appellant was the culprit. In this connection, the judgment passed by the Apex Court in the case of "Trimukh Maroti Kirkan v. State of Maharashtra" [ (2006)10 SCC 681 ] may be referred. Paragraph 15 of the judgment rendered by the Apex Court in Trimukh Maroti (supra) is reproduced below: "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." Also para 22 of the said judgment may be referred for ready reference which goes as under: "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.......... ." Under these circumstances, where it is an admitted fact that the appellant discarded the presence of Rajveer Sakhwar (PW-7) and Vishram (PW-8) and he accepted that he was alone with the deceased persons in the house in the night then it is a strong circumstance against the appellant that he was the culprit. According to the prosecution's story Rajveer Sakhwar (PW-7), Vishram (PW-8) and Brajkishore were also present in the house in another room but it is not alleged by the appellant that they have tried to kill the deceased Manisha or Anushka. On the contrary, the appellant took the plea that they were not present in the house. Hence, there is no doubt that the appellant was the only person who could kill the deceased Manisha and Anushka in the house and such circumstance also gives corroboration to the evidence of the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8). 23. Learned counsel for the appellant has also invited the attention of this Court to the evidence of Rajveer Sakhwar (PW-7) and Vishram (PW-8) that if they were present at the spot then as to why they did not try to save the deceased Manisha or Anushka. In this connection, if evidence of Rajveer Sakhwar (PW-7) and Vishram (PW-8) is considered then they have stated that after hearing the noise when they tried to enter the room which was the place of incident then the appellant had blown the axe towards them and therefore they could not help the deceased persons untill the appellant left the spot. It is true that these witnesses did not state about this fact in their case diary statements but if such question was not asked by the investigating officer there was no need to tell such a fact by the witnesses on their own. It is true that these witnesses did not state about this fact in their case diary statements but if such question was not asked by the investigating officer there was no need to tell such a fact by the witnesses on their own. When it was asked by the defence counsel in the court such answer was given and the answer appears to be natural reply and hence it makes no difference that the witnesses Rajveer Sakhwar (PW-7), Vishram (PW-8) and Brajkishore did not try to save the deceased persons. 24. The learned counsel for the appellant has also invited the attention of this Court that in para 10 of the cross-examination, Rajveer Sakhwar (PW-7) has accepted that he reached the police station at 08:30 am and he did not visit the District Hospital, Morena, at 07:30 am whereas the FIR was written at about 06:30 am. Initially, Rajveer Sakhwar (PW-7) in his examination in chief has proved the FIR that he lodged the FIR at 06:30 am and thereafter if he has accepted that he reached the police for the first time at 08:30 am then it appears that the witness was confused on the suggestion given by the defence counsel. It was not brought on record that either Rajveer Sakhwar (PW-7) or Vishram (PW-8) was well-educated person and they could understand the difference of time. Hence, if Rajveer Sakhwar (PW-7) has accepted that he visited the police station Sihoniya for the first time at 08:30 am then such acceptance has no value. The judgment passed by the Apex Court in the case of "Ugar Ahir and others v. The State of Bihar" [ AIR 1965 SC 277 ] may be referred in which it is held that there is no person in the world who did not tell any falsehood and it is for the court to pick up the grain of truth from the chaff of falsehood. In this case, such contradictions, which can be caused due to illiteracy of the witnesses, cannot be given much value. 25. In this case, such contradictions, which can be caused due to illiteracy of the witnesses, cannot be given much value. 25. It is also submitted by the learned counsel for the appellant that Rajveer Sakhwar (PW-7) has accepted that from his village he directly reached to the house of the appellant to advise him and the deceased Manisha and to resolve the dispute between them, whereas Vishram (PW 8) has accepted that initially they had visited the house of Radha, niece of Rajveer Sakhwar (PW-7) and they had stayed there for some time and thereafter they went to the house of the appellant. It may be a material contradiction but possibility cannot be ruled out that Rajveer Sakhwar (PW-7) would not have disclosed his visit to the house of Radha before the court. By such contradiction, the testimony of either or Vishram (PW-8) or Rajveer Sakhwar (PW-7) cannot be thrown away. Similarly, it is pointed out by the learned counsel for the appellant that according to the witness Rajveer Sakhwar (PW-7), he took the deceased Manisha to the Medical College, Gwalior and he was accompanied by Vishram (PW-7) and Brajkishore whereas Vishram has stated that he came back to the police station Sihoniya from District Hospital Morena and thereafter he went to the Medical College, Gwalior (M.P.) in the noon. Looking to the severity of the incident, such minor facts cannot be remembered by the witness Rajveer where their statements were recorded in the court after 6-7 months of the incident. When Rajveer Sakhwar (PW-7) was accompanied by Vishram and Brajkishore upto the Police Station Sihoniya and District Hospital, Morena and thereafter in the evening he was assisted by Brajkishore and Vishram at Medical College, Gwalior then the witness Rajveer Sakhwar (PW-7) would have a fact in his mind that witnesses Brajkishore and Vishram have accompanied him throughout whereas looking to the various documents Ex.P-14 and seizure of the articles from the spot, it would be apparent that Rajveer Sakhwar (PW-7) was present at the spot on 06.02.2014 at 11:30 am, hence, if Vishram states that he went back to the police station Sihoniya or the spot and thereafter he went to the Medical College, Gwalior then it cannot be said that he is telling a falsehood. Such contradiction is not a material contradiction. Such contradiction is not a material contradiction. It depends upon the apprehension of the witness Rajveer Sakhwar (PW-7) that Vishram (PW-8) accompanied him when he went to Medical College, Gwalior from District Hospital, Morena. 26. Learned counsel for the appellant has also invited the attention of this Court that Vishram (PW-8) has stated that on 06.02.2014 after his visit to the Medical College, Gwalior, he went back to his house and never visited the police station Sihoniya or the spot, however, according to the investigating officer, ASI, Mr. B.N. Upadhyaya (PW-9) when the documents Ex.P-15, Ex.P-16 and Ex.P-17 were prepared on 07.02.2014 witness Vishram was present at police station on 07.02.2014. Possibility cannot be ruled out that the witness would have visited the police station Sihoniya on the next day to know about the investigation started by the investigating officer, ASI, Shri B.N. Upadhyaya (PW-9). Investigating officer- Shri B.N. Upadhyaya (PW-9) took the different witnesses on the documents Ex.P-1, P-2 which were recorded on 08.02.2014 and 09.02.2014. Then if on 07.02.2014 the witness Vishram was not present then he would have taken other witnesses instead of taking signatures of witness Vishram on these documents, hence, looking to the investigation done by Shri B.N. Upadhyaya (PW-9) it appears that witness Vishram forgot that he again had visited the Police Station Sihoniya on 07.02.2014 and therefore if he has stated before the court that after 06.02.2014 he did not visit the police station Sihoniya then his statement has no value and it makes no difference. 27. On the basis of the aforesaid discussion, prima facie, the evidence of Rajveer Sakhwar (PW-7) and Vishram (PW- 8) cannot be discarded who have stated that they saw the appellant giving blows of axe to deceased Manisha and Anushka. 28. Learned counsel for the appellant has also invited attention of this Court that the important witness Brajkishore was not examined and the adverse inference should be drawn against the prosecution. The attention is also invited to the judgment passed by the Apex Court in the case of "Jang Singh and others v. State of Rajasthan" [(2002) SCC (Cri.) 1027] : (2001) AIR SCW 2322) in which it is laid down that non-examination of natural witness was not proper, however, that judgment is not applicable in the present case due to different factual positions. In this case, there were three eye-witnesses, namely, Rajveer Sakhwar (PW-7), Vishram (PW-8) and Brajkishore whereas Rajveer was the father of the deceased Manisha and Brajkishore was the uncle of deceased Manisha and Vishram was the friend of witness Rajveer. Since Brakishore was also a close relative of the witness Rajveer then to avoid repetition if he was not examined then it would not be fatal to the prosecution. Interestedness of the witness Brajkishore was similar to the witness Rajveer and therefore if the prosecution has chosen the little independent witness Vishram instead of Brajkishore to examine then it cannot be said that the prosecution has committed a fatal mistake. In this connection, the judgment passed by the Apex Court in the case of "Bhagwati and others v. The State of Uttar Pradesh" [ AIR 1976 SC 1449 ] may be referred in which it is held that it would be unsound to lay down a general rule that every witness mentioned in the first information report must be examined by the prosecution in all circumstances and that the failure to do so would lead to the rejection of the evidence of all others. In these circumstances, if the witness Brajkishore was not examined in order to avoid repetition then non-examination of Brajkishore is not fatal to the prosecution's case and evidence of remaining witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) may be examined and believed. 29. Learned counsel for the appellant has also challenged that the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) did not visit the house of the appellant on 05.02.2014 and they were called by the appellant himself after the incident and the FIR was ante-time and ante-date. The compliance of provisions under Section 157 of Cr.P.C. was not made within reasonable time and therefore, the FIR should be discarded as it was written antedate and ante-time. In this connection, attention of this court is invited to the judgment passed by the Apex Court in the case of Jang Singh (supra) in which it is held that delay of three days in sending the counter of FIR to the Magistrate where no explanation is given then it would be fatal to the prosecution's case. In this connection, attention of this court is invited to the judgment passed by the Apex Court in the case of Jang Singh (supra) in which it is held that delay of three days in sending the counter of FIR to the Magistrate where no explanation is given then it would be fatal to the prosecution's case. In the present case, if evidence of the investigating officer, ASI, Shri B.N. Upadhyaya (PW-9) is perused then it would be apparent that he was asked a question as to when the counter of FIR was sent to the concerned Magisterial Court and he replied in para 7 that since it was the duty of investigating officer to send the injured persons to the hospital immediately and thereafter to visit the spot, therefore, after recording of FIR he directed the Head Constable Mohorrir of the Police Station Sihoniya to transmit the counter of FIR to the Court of Magistrate, however, he has explained that hence he could not remain aware of fact that as to why the counter of FIR was not sent to the court of Magistrate on 06.02.2014 but it is not established by the appellant that the counter was not sent on 06.02.2014 itself. The witness Shri B.N. Upadhyaya (PW-9) has shown his ignorance about the date and time when the counter of FIR was sent by the Head Constable Mohorrir to the Judicial Magistrate First Class concerned. However, he has mentioned that he had directed the Head Constable Mohorrir to transmit the counter of FIR immediately to the concerned Magistrate. Hence, it was the duty of the defence to establish that the counter of FIR was not transmitted within time. However, he has mentioned that he had directed the Head Constable Mohorrir to transmit the counter of FIR immediately to the concerned Magistrate. Hence, it was the duty of the defence to establish that the counter of FIR was not transmitted within time. When the counter of FIR is transmitted to the court of Magistrate then it should be kept in the court after making an entry of its receipt by mentioning date and time when the counter of FIR has been received and it was easy for the appellant to requisition that counter of FIR from the concerned Magisterial Court to show that the FIR was transmitted with delay but no such counter of FIR was called by the appellant before the trial court which indicates that he knew that the counter of FIR was received by the Magisterial Court within time and hence, law laid down by the Apex Court in the case of Jang Singh (supra) cannot be applied in the present case. In this connection judgment passed by the Apex Court in the case of "Om Prakash and others etc. v. State of U.P." [ AIR 1983 SC 431 ] may be perused in which it is held that Section 157 of Cr.P.C. only states that the first information report should be dispatched forthwith and it does not say that the time of dispatch must be noted thereon. Also the judgment passed by the Apex Court in the case of "Sarwan Singh and others v. State of Punjab" [ AIR 1976 SC 2304 ] may be referred in which it is held that mere delay in dispatch of the F.I.R. is not a circumstance which can throw out the prosecution case in its entirety. Under these circumstances where it was not established by the appellant that the provision of Section 157 Cr.P.C. was not followed or a delay was caused in transmitting the counter of FIR to the court of Magistrate. It is true that the documents relating to the transmission of the FIR were not produced by the investigating officer along with the charge-sheet but by that non-production it cannot be said that he did not comply with the provisions of Section 157 of Cr.P.C. or the compliance was not made within the reasonable time. Under these circumstances, there is no reason to hold that the FIR was written antedate or antetime. 30. Under these circumstances, there is no reason to hold that the FIR was written antedate or antetime. 30. Learned counsel for the appellant has also raised an objection that if the FIR was registered at 08:30 am then there was no need to register the second FIR by the SHO concerned whereas the second FIR was registered as Ex.P- 12 as Dehati Nalisi. The arguments advanced by the learned counsel for the appellant have no much value because after registration of a case by FIR if concerned doctor informs about the death of anyone then a marg intimation is required to be written. It would be apparent from the document Ex.P-8 that after death of child Anushka an intimation was given by the Medical Officer to the outpost police of District Hospital Morena and in that outpost it was mentioned that the deceased was brought by Head Constable Shri Ashok Choubey. Thereafter, on the basis of that document Head Constable Shri Ashok Choubey wrote the Dehati Nalisi Ex.P-12 within the campus of District Hospital Morena which was related to the information of death of deceased Anushka and it was a mere simply a marg intimation relating to death of the deceased Anushka and it was not the second FIR, however, that Dehati Nalisi Ex.P-12 clearly indicates that Head Constable Shri Ashok Choubey took the deceased Anushka to the District Hospital Morena at the earlier stage and when she was found dead he recorded the Marg Intimation Ex.P-12 at 07:50 am. At that time, he could not know about the facts of the FIR if it was lodged ante-date or ante-time. However, he has mentioned in the Dehati Nalisi Ex.P-12 that Rajveer Sakhwar (PW-7) informed him that Anushka was killed by the appellant Anil by giving a blow of axe on her neck. Hence, that fact was explained by the complainant Rajveer Sakhwar (PW-7) at 07:50 am again in the hospital to Head Constable Shri Ashok Choubey and therefore by the text of FIR Ex.P-12 it is proved beyond doubt that the FIR was written within time and it was not ante-time. 31. On the basis of the aforesaid discussion, it is established that the testimony of the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) is believable and Rajveer Sakhwar (PW-7) had lodged a timely FIR Ex.P-11 at Police Station Sihoniya about the incident. 31. On the basis of the aforesaid discussion, it is established that the testimony of the witnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) is believable and Rajveer Sakhwar (PW-7) had lodged a timely FIR Ex.P-11 at Police Station Sihoniya about the incident. He repeated his information before the Head Constable Ashok Choubey while document Ex.P-12 was recorded. The testimony of the eyewitnesses is further corroborated by the medical evidence. 32. Also investigating officer, ASI, Shri B.N. Upadhyaya (PW-9) has proved the documents Ex.P-1 and Ex.P-2 in which the statement of the appellant was recorded about his clothes and thereafter his clothes were seized by document Ex.P-2. In this connection, Shatrughan Singh (PW-1) and Subhash (PW-2) were examined who have confirmed the proceedings of Ex.P-1 and Ex.P-2. It is true that Shatrughan Singh was a member of the City Security Committee but by that position it cannot be said that the prosecution took the interested witness. A contradiction of date of proceedings had arisen in the evidence of Shatrughan Singh and Subhash but they were not given an opportunity to see the documents and only by memory they could not inform the correct date of the proceedings and therefore if Shatrughan Singh (PW-1) has accepted in the cross-examination, on suggestion of the defence counsel that the entire proceedings were done on 06.02.2014 and nothing was done on 08.02.2014 then it makes no difference. Similarly, if Subhash (PW-2) has accepted that the blood stained earth and the clothes of appellant were recovered in a single day then it will not create any doubt on his testimony because he was not a witness for seizure of blood stained earth and therefore he could state on the basis of his information received from someone else and therefore for such reply, his testimony cannot be discarded. Hence, it was proved beyond doubt that the appellant gave an information about his blood stained clothes and such clothes were seized and transmitted to the FSL. According to the report of FSL Ex.P-18, blood was found on Article G i.e. the track suit of the appellant whereas human blood was found on the his shirt Article B- 1 and pant Article B-2, underwear Article C-2 and Baniyan Article C-3 of the appellant. According to the report of FSL Ex.P-18, blood was found on Article G i.e. the track suit of the appellant whereas human blood was found on the his shirt Article B- 1 and pant Article B-2, underwear Article C-2 and Baniyan Article C-3 of the appellant. Similarly, ASI, Shri B.N. Upadhyaya (PW-9) has proved the documents Ex.P-16 and Ex.P-17 with the help of Vishram (PW-8) that on information given by the appellant one axe was recovered from the appellant. The Forensic Science Laboratory in its report Ex.P-18 has mentioned that the human blood was found on the axe Article "A". If FSL found problem in getting the blood grouping of various articles and it was not proved that the blood stained clothes of the appellant and the axe recovered from the appellant were stained with blood of the deceased persons then it makes no difference because other circumstantial evidence is also available in the case. 33. Learned counsel for the appellant has invited the attention of this Court to the judgment passed by the Apex Court in the case of "Dharam Deo Yadav v. State of Uttar Pradesh" [ (2014)5 SCC 509 ] in which it is held that if ocular evidence vis-à-vis scientific or forensic evidence are compared and discussed by exploring the meaning of science then a conclusion can be drawn on the basis of the circumstantial evidence, however, the factual position of the case in Dharam Deo Yadav (supra) was different. In the present case, other circumstantial evidence is also available to reach upon the conclusion and it would be sufficient when the FSL has established that on the clothes of the appellant and axe recovered from him human blood was found. It was not the case of the appellant that his clothes got blood stained while he lifted up the dead body of the deceased Anushka or he tried to lift up his wife Manisha while they were taken to the Police Station and Hospitals. On the other hand when the underwear and Baniyan of the appellant were found stained with human blood which indicates that profusely oozed blood was found on the clothes of the appellant so that it perforated from the shirt and pant to Baniyan and underwear and such blood could be found only if the appellant was the culprit. On the other hand when the underwear and Baniyan of the appellant were found stained with human blood which indicates that profusely oozed blood was found on the clothes of the appellant so that it perforated from the shirt and pant to Baniyan and underwear and such blood could be found only if the appellant was the culprit. On picking up the injured person such blood cannot be found on Baniyan or underwear. In this connection the judgment passed by the Apex Court in the case of "Kansa Behera v. State of Orissa" [ AIR 1987 SC 1507 ] in which it is mentioned that if the accused has to be convicted only on the basis of blood stained clothes or weapon then grouping is necessary otherwise the availability of blood stains on the clothes of the accused and weapon used is also one of the circumstances to connect the accused with the crime. 34. Learned counsel for the appellant has submitted that the prosecution could not prove the motive of the crime and therefore its entire case is doubtful. However, in this connection, the judgment passed by the Apex Court in the case of "Bipin Kumar Mondal v. The State of West Bengal" [ (2010) 12 SCC 91 ] may be referred in which it is held that motive is of no consequence and pales into insignificance when direct evidence establishes the crime. Motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain it. In cases of circumstantial evidence, motive is insignificant. The evidence about the motive forms chain of evidence in circumstantial evidence and merely a strong motive is not sufficient to convict the accused. If the circumstantial evidence is convincing, reliable and trustworthy then accused can be convicted and absence of motive is insignificant. 35. In this connection, an old judgment of the Apex Court in the case of Atley v. State of Uttar Pradesh [ AIR 1955 SC 807 ] may be referred. In para 6 of the judgment, it is held as under: (6).........That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. ….......... In para 6 of the judgment, it is held as under: (6).........That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. ….......... But the fact that the prosecution has failed to lead such evidence has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined. In short if the motive is proved then it would be an additional piece in chain of circumstantial evidence. At this stage, learned counsel for the State has submitted that it is apparent from the action of the appellant that he killed the girl child Anushka who was youngest in the family that the appellant thought the character of his wife Manisha to be doubtful and he had an apprehension that child Anushka was not his daughter and therefore he killed the girl child Anushka, however, in the absence of any evidence such type of presumption cannot be drawn by the court. Motive was in the knowledge of the appellant and if it could not be brought as an evidence then it cannot be established by presumption and surmises. In the present case, motive of the appellant could not be proved. 36. In the present case, one factual position which is coming out of the entire evidence is that if appellant was settled in his married life which was of 10 years at the time of incident then his father-in-law was not required to visit and solve disputes amongst them. If there was no dispute of the appellant with his wife and if dispute was not within the knowledge of his father-in-law then father-in-law would not have lodged an FIR against the appellant by name. On the contrary, he would have insisted that actual culprit of murder of his daughter may be located. If the appellant had no problem with his wife then he would not have killed his wife and girl child. If circumstantial evidence as proved by the prosecution is considered then it would be apparent that it is proved beyond doubt that the death of the deceased Manisha and Anushka was homicidal in nature. If the appellant had no problem with his wife then he would not have killed his wife and girl child. If circumstantial evidence as proved by the prosecution is considered then it would be apparent that it is proved beyond doubt that the death of the deceased Manisha and Anushka was homicidal in nature. At the time of incident, there was nobody in the house except the appellant and the appellant could not prove his alibi about his absence from the spot and therefore, in the light of the judgment passed by the Apex Court in the case of Trimukh Maroti Kirkan (supra) this is the strongest circumstance against the appellant. Thirdly, he absconded from the spot soon after the incident and he could be arrested on the next day. Fourthly, on his clothes, human blood was found. Fifthly, the weapon was recovered from him on which human blood was found. If all such circumstances are considered simultaneously then the chain of circumstantial evidence is complete and even if the evidence of Rajveer Sakhwar (PW-7) and Vishram (PW- 8) is discarded still crime of the appellant is established. However, the evidence of eyewitnesses Rajveer Sakhwar (PW-7) and Vishram (PW-8) is also available which is duly supported by the aforesaid circumstantial evidence. Hence, their testimony should be believed beyond doubt. If there was no problem in the knowledge of Rajveer Sakhwar (PW-7), father-in-law of the appellant that there was a dispute between the appellant Anil and his wife Manisha then there was no reason for Rajveer Sakhwar (PW-7) to lodge a false FIR against the appellant due to instigation of ASI Shri B.N. Upadhyaya (PW-9). On the contrary, he would have saved his son-in-law. In this connection, the portion of evidence given by Rajveer Sakhwar (PW-7) in para 15 is important. It was suggested to the witness Rajveer that he was annoyed with the appellant because he was harassing his daughter. Though Rajveer Sakhwar (PW-7) did not accept such suggestion but such suggestion indicates that there was a grave problem between appellant Anil and deceased Manisha and it was natural for the witness Rajveer Sakhwar (PW-7) to visit the house of the appellant and to resolve the problem. However, on the basis of the aforesaid discussion, it is proved that the appellant killed his wife Manisha and daughter Anushka. 37. However, on the basis of the aforesaid discussion, it is proved that the appellant killed his wife Manisha and daughter Anushka. 37. Though it is not contended by the learned counsel for the appellant but it is the duty of the court to examine as to whether the offence of murder was committed by the appellant or not. If post-mortem report of deceased Anushka is perused then it would be apparent that a powerful blow of the axe was given on her neck and therefore she could not survive for a few hours and therefore the intention of the appellant is apparent that he wanted to kill deceased Anushka. Similarly, looking to the medical reports of deceased Manisha, it would be apparent that the appellant gave repeated blows on the vital part of her body for three to four times and looking to his intention to repeat blows on vital parts of the body it is clear that he intended to kill the deceased Manisha and therefore the trial court has rightly found the appellant guilty for two count charges of offence under Section 302 of IPC. 38. So far as the sentence is concerned, the learned counsel for the appellant submits that it is not a case of "Rarest of the rare" nature. He cited so many judgments of the Apex Court in this context. The judgments in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [(2009) 2 SCC (Cri) 1150], Machhi Singh and others v. State of Punjab [ AIR 1983 SC 957 ], Gurvail Singh alias Gala and another v. State of Punjab [ (2013) 2 SCC 713 ], Mohinder Singh v. State of Punjab [ (2013) 3 SCC 294 ], Santosh Kumar Singh v. State of Madhya Pradesh [ AIR 2014 SC 2745 ] and Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka [(2009) 3 SCC (Cri.) 113] have been referred. In all of the aforesaid judgments, the Apex Court has recorded the discussion as done by it in the case of "Bachan Singh v. State of Punjab" [ (1980) 2 SCC 684 ]. In all of the aforesaid judgments, the Apex Court has recorded the discussion as done by it in the case of "Bachan Singh v. State of Punjab" [ (1980) 2 SCC 684 ]. The guidelines issued by the Apex Court in the Bacchan Singh (Supra) may be reproduced for ready reference: "(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 39. If on the basis of the aforesaid guidelines, the facts of the present case are considered then it is possible that the appellant who has no criminal past had suspicion of his wife and thereafter when his wife called her father to give some advice to the appellant then the appellant would have killed his wife Manisha and daughter Anushka in repercussion of the aforesaid activities. Hence, it is not a "rarest of the rare" case in which death sentence may be recorded against the appellant. 40. On the basis of the aforesaid discussion, the reference made by the trial court cannot be accepted and hence it is not accepted. Proposed death sentence is not confirmed by this Court. The appeal filed by the appellant is hereby partly allowed. His conviction of two count charges of offence under Section 302 of IPC is maintained but instead of recording of death sentence, a sentence of Life Imprisonment with a fine of Rs.200/- is imposed on each count of charge under Section 302 of IPC. The appeal filed by the appellant is hereby partly allowed. His conviction of two count charges of offence under Section 302 of IPC is maintained but instead of recording of death sentence, a sentence of Life Imprisonment with a fine of Rs.200/- is imposed on each count of charge under Section 302 of IPC. In default of payment of fine, he shall undergo for three months' rigorous imprisonment for each default. Such sentence be got served one by one. 41. The copy of the judgment be sent to the trial court along with its record for information and to prepare a supersession warrant accordingly. Appeal partly allowed.