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2019 DIGILAW 601 (RAJ)

Jagdish v. State of Rajasthan

2019-02-20

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Sandeep Mehta, J. - The instant appeal has been preferred by the accused appellants Jagdish and Rahul who stand convicted and sentenced vide judgment dated 28.02.2013 passed by learned Addl. Sessions Judge, Salumber, District Udaipur in Sessions Case No.20/2012 as below:- Sec.302 & 302/34 IPC Imprisonment for Life and to pay a fine of Rs.3,000/-. In default of payment of fine to further undergo three months Rigorous imprisonment. Sec.201 IPC Three years rigorous imprisonment and to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo one months rigorous imprisonment. Sec.397 IPC Seven years rigorous imprisonment and to pay a fine of Rs.2,000/-. In default of payment of fine to further undergo two months rigorous imprisonment. (All the sentences were ordered to run concurrently) 2. Being aggrieved of their conviction and sentences the appellants have, preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Facts relevant and essential for decision of the instant appeal are noted hereinbelow:- 4. Pw-1 Fateh Mohammed lodged an oral report at the place of occurrence (Kalla Mandir, Rishabhdeo) to the SHO Police Station Rishabhdeo on 14.10.2010 alleging inter alia that he was engaged with Jaipur Golden Transport to drive its Truck Trailer bearing Registration No.RJ 14 GB 1906. Sarabjeet being the owner of the said vehicle had assigned another Truck Trailer No. RJ 14 GB 0655 to his brother Sahun. One Rahish was the co-driver with Sahun. The first informant collected grocery items for transportation from Daman on 12.10.2010 and started for Delhi in his Trailer. Sahun loaded copper in his trailer from Jamnagar and started for Haryana. The first informant reached Udaipur by-pass in his truck trailer in the night intervening 13-14.10.2010 at about 1:30 pm. He got stuck in a traffic jam and took a diversion from inside Udaipur city and went towards Chirwa. He reached Kailashpuri on 14.10.2010 at 2:30 am. His Trailer was being followed by another Trailer No.RJ 06 GA 0509 of the same Company, which was being driven by Mubarik who told the informant on his mobile phone that the Trailer No. RJ 14 GB 0655 was lying abandoned at Kailashpuri Udaipur By-pass causing a traffic jam and his brother Sahun and the co-driver Rahish were missing. Upon hearing this, first informant went back to Udaipur with his Trailer. Upon hearing this, first informant went back to Udaipur with his Trailer. In the meantime, Mubarik also drove his Trailer to Udaipur of Jaipur Golden near the by-pass. The truck drivers passing-by, informed him that two dead bodies had been found lying near the Highway at Rishabhdeo and the police had already reached there. Upon this, the first informant and Mubarik left their trucks at Udaipur and proceeded to Rishabhdeo. When they reached Kalla Ji Temple, they came to know that the police was trying to get the two dead bodies identified. The informant looked and immediately identified the dead bodies to be of Sahun and Rahish. He suspected that some unknown assailants had killed his brother and co-driver Rahish and had looted the truck which was loaded with copper. The informant further alleged that he had lastly talked to his brother Sahun on 13.10.2010 at 7 O' Clock who told him that he had crossed Keshariya Ji Toll Plaza. On the basis of this report, an FIR No. 499/2010 was registered at Police Station Rishabhdeo against unknown persons for the offences under Sections 302, 397 & 201 IPC. Investigation was commenced and assigned to Mr.Manak Ram Bishnoi, Officer-in-Charge, PS Rishabhdeo. The prosecution claims that one Irfan having Trailer No.RJ 14 GB 4741 also loaded copper in his Trailer simultaneously with Sahun whose consignment was designed for Ambala whereas Irfan was scheduled to go to Delhi. They reached Rajkot together. At Rajkot, Jagdish Jat and Rahul Jat were standing at the crossing with Vehicle No.RJ 14 GA 3171, which was also engaged with the Jaipur Golden Transport Company. All the three vehicles started together from Rajkot. Irfan went further and lost contact with other two trucks. He went to sleep at a hotel at Kailashpuri, Udaipur. Fateh Mohammed also came to the Hotel. While both were together, Mubarik called Fateh Mohammand and told him about the Subject vehicle lying abandoned at Kailashpuri, Udaipur By-pass and that Sahun and Rahish were missing. Thereafter, the witness accompanied Fateh Mohammed to Keshariyaji where the dead bodies were reported to be lying. The witness further stated about marks of violence, blood etc. noticeable at the scene of occurrence. On the basis of statement of these witnesses, the investigating officer seems to have zeroed down upon the third truck's drivers Jagdish and Rahul as prime suspects. Thereafter, the witness accompanied Fateh Mohammed to Keshariyaji where the dead bodies were reported to be lying. The witness further stated about marks of violence, blood etc. noticeable at the scene of occurrence. On the basis of statement of these witnesses, the investigating officer seems to have zeroed down upon the third truck's drivers Jagdish and Rahul as prime suspects. Accordingly, ASI Bhanwar Singh Rathore was assigned the job of looking out and apprehending these two suspects. In pursuance thereof, he proceeded towards the Village Jat Ka Siswana District Nooh, Haryana. He took aid of police authorities at Police Station Nagina and searched for the accused. However, they were not found at their known addresses. Search was continued and finally, Shri Bhanwar Singh zeored down on the accused Jagdish and Rahul while they were sitting at Alwar Bus Stand. They were detained and brought to PS Rishabhdeo and they allegedly confessed to have committed the murder of Rahish and Sahun when questioned. Both the accused i.e., Rahul and Jagdish were arrested vide arrest memos dated 17.10.2010 (Ex.P/18 & Ex.P/19). Nails clippings of both the arrested accused were collected vide seizure memos (Ex.P/20 & Ex.P/21) and were preserved for FSL examination. During the course of investigation, the accused Jagdish allegedly gave an information to the investigating officer under Section 27 of Indian Evidence Act on 21.10.2010 (Ex.P/39) to the effect that after committing the murder of Sahun, he cleaned his blood stained hands with the t-shirt of the deceased and also took away the mobile phone of Sahun which he had concealed in the shrubs near NH-08. The accused Rahul allegedly gave an information to the IO under Section 27 of the Indian Evidence Act on 21.10.2010 (Ex.P/40) in which he divulged that he had used a Punch in the incident and concealed it under a stone near the Kalla Ji Temple. In furtherance of these informations, the IO proceeded to effect recovery of the blood stained t-shirt & the mobile phone alleged to be of the deceased Sahun underneath stones near NH-08 at the instance of accused Jagdish vide recovery memo (Ex.P/10) dated 21.10.2010 and a Punch concealed underneath a stone near NH-08 vide recovery memo Ex.P/12 dated 21.10.2010 at the instance of accused Rahul. 5. 5. The prosecution also claims that a pertinent information was received about the truck No. RJ 14 GA 3171 on which the two accused were allegedly engaged by Jaipur Golden Transport Company and in furtherance of such information, the PW-5 Vijay Singh, SI seized the said truck from the Police Station Dudu (where it was lying detained) and brought the same to Police Station Rishabhdeo on 16.10.2010 vide seizure memo Ex.P/17. The blood spots collected in cotton swabs from the body of Truck No.RJ 14 GA 3171 and the articles recovered at the instance of the accused were forwarded to FSL for serological examination. The owners of the trucks No. RJ 14 GA 3171 and RJ 14 GB 0655 were given notice under Section 133 of the M.V. Act and their replies were received. After completion of investigation, the IO proceeded to file a charge sheet against the accused appellants for offences under Sections 302, 201 & 397 IPC. Since the offences were exclusively triable by sessions, the case was committed to the court of Addl. Sessions Judge, Fast Track No.3, Salumber, Udaipur. The trial court framed charges against the accused for the above offence. Both of them pleaded not guilty and claimed trial. 6. The prosecution examined as many as 19 witnesses in support of its case. Upon being questioned and confronted with the prosecution allegations in their statements recorded by the trial Court under Section 313 Cr.P.C., the accused denied the same and claimed to have been falsely implicated. Four witnesses were examined in defence. After appreciating the arguments of the prosecution and the defence and evaluating the evidence available on record, the learned trial Judge proceeded to convict and sentence the appellants as above, hence, this appeal. 7. Learned counsel Shri Mridul Jain representing the appellants vehemently and fervently urged that there is no material worth the name on the entire record so as to connect the appellants with the alleged crime. He urged that the case is based on a theory that the accused, committed the murder for gain i.e. with the intention of looting the copper loaded in the trailer/truck. However as per Shri Jain, the entire quantity of copper loaded in the trailer/truck from Jamnagar was recovered from therein; thereby vitiating the charge of the prosecution that murders were committed for gain. 8. However as per Shri Jain, the entire quantity of copper loaded in the trailer/truck from Jamnagar was recovered from therein; thereby vitiating the charge of the prosecution that murders were committed for gain. 8. He further contended that the links of the circumstantial evidence, relied upon by the prosecution so as to bring home the guilt of the accused, were not established by plausible, cogent and reliable evidence and thus, the accused deserve to be acquitted while giving them benefit of doubt. He contended that the T-shirt and mobile phone recovered in furtherance of the information allegedly supplied by the accused Jagdish to the Investigating Officer under Section 27 of the Evidence Act were neither got exhibited nor identified by the material prosecution witness PW-1 Fateh Mohammad. Thus, as per Shri Jain, this circumstance is of no avail to the prosecution whatsoever so as to establish complicity of the accused Jagdish in the crime. He further contended that though the Investigating Officer had collected the foot prints and foot moulds etc. from the place of occurrence during investigation, yet no corresponding report of the Forensic Laboratory was presented or got exhibited during trial. Shri Jain further urged that since the two witnesses PW-15 Jasmeet Kaur, the owner of trucks in question and PW-16 Manpreet, the office bearer of the Jaipur Golden Transport Company, did not support the prosecution case in their testimony and were declared hostile, manifestly, there is no evidence on the entire record so as to prove and establish that the Trailer/Truck No.RJ 14 GA 3171 was either assigned or was in control of the two accused appellants. He further contended that the recoveries of the blood stained Tshirt and mobile alleged to be of the deceased made at the instance of accused Jagdish and recovery of Punch made at the instance of the accused Rahul are totally false, fabricated and immaterial for the reason that the Investigating Officer did not associate two independent Motbirs of the locality to attest these recovery proceedings. Furthermore, the recovered T-shirt and mobile phone were never subjected to identification at the hands of concerned witness (PW-1 Fateh Mohammad being the brother of the deceased) and thus, the recoveries are rendered otiose. Furthermore, the recovered T-shirt and mobile phone were never subjected to identification at the hands of concerned witness (PW-1 Fateh Mohammad being the brother of the deceased) and thus, the recoveries are rendered otiose. As regards the blood of human origin found in the nail clippings of the accused, the contention of Shri Jain was that the very recovery and seizure of these nail clippings is under a grave cloud of doubt. In this regard, Shri Jain referred to the seizure memos of the nail clippings viz. Ex.P-20 and Ex.P-21 which were prepared on 17.10.2010. He drew the Court's attention towards the deposition of the Malkhana Incharge Balwant Singh (PW-13) who, affirmatively stated in his examination-in-chief that the packets of nail clippings were got deposited in the Malkhana on 16.10.2010 and thus, as per Shri Jain, the recoveries of nail clippings is fabricated. Referring to these glaring shortcomings and loopholes existing in the prosecution evidence and branding them to be crucial and going to the root of the matter, Shri Jain urged that the entire edifice of the prosecution case falls flat on the face and both the accused appellants deserve to be acquitted while giving them the benefit of doubt. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. Drawing the Court's attention towards the statements of PW-1 Fateh Mohammad being the first informant; PW-2 Irfan, a close relative of the deceased; PW-10 Dr.Kamlesh Bamniya who conducted postmortem upon the dead bodies of deceased Sahun and Rahish and the evidence of other material prosecution witnesses including the Investigating Officer, the learned Public Prosecutor vehemently and fervently contended that the prosecution has proved its case against the appellants beyond all manner of doubt by establishing all the links so as to form a complete and unbroken chain of circumstances which comprehensively points towards the guilt of the accused. He submits that the mobile phone of the deceased Sahun and his blood stained T-shirt which were concealed under a stone in the shrubs nearby the place of occurrence were recovered in furtherance of the information supplied by the accused Jagdish to the Investigating Officer under Section 27 of the Indian Evidence Act. He submits that the mobile phone of the deceased Sahun and his blood stained T-shirt which were concealed under a stone in the shrubs nearby the place of occurrence were recovered in furtherance of the information supplied by the accused Jagdish to the Investigating Officer under Section 27 of the Indian Evidence Act. The Punch used for inflicting injuries to the deceased was recovered in furtherance of the information supplied by the accused Rahul to the Investigating Officer under Section 27 of the Evidence Act. He referred to the FSL report Ex.P-42 which verifies presence of 'B' group human blood on all the recovered articles and human blood in the nail clippings of the two accused and thus, as per learned Public Prosecutor the circumstances, as proved and relied upon by the prosecution, are sufficient, clinching and complete in all aspects for upholding the conviction of the two accused. 10. We have given our thoughtful consideration to the submissions advanced at bar and have threadbare re-appreciated and sifted the evidence available on record and have carefully gone through the impugned judgment. The prosecution case hinges entirely on circumstantial evidence. The links of circumstantial evidence which the prosecution proposed to bring home guilt of the accused-appellants are summarized below for the sake of ready reference:- (1) That the accused and the deceased were driving their respective Trailer/Trucks in the same direction from Rajkot and were to proceed towards Delhi/Haryana via Udaipur using the National Highway No.8. Truck No.RJ 14 0655 loaded with copper was assigned to deceased Sahun and Rahish and it was found abandoned on Chirwa Ghat. The dead bodies of Sahun and Rahish were found lying near Keshariyaji. The direct implication of these two facts is that someone looted the truck and after murdering the two deceased drivers near Keshariyaji, threw their bodies besides the NH-8; the truck trailer was driven off and was abandoned near Udaipur from where the same was recovered. (2) That the Truck Trailer No. RJ 14 GA 3171 assigned to the two accused-appellants was recovered by PW-5 Vijay Singh while the same was detained at the Police Station Dudu. (3) That the two accused were apprehended from Alwar bus stand by ASI Bhanwar Singh. (4) That the nail clippings of both the accused appellants were collected and forwarded to the FSL from where a report was received establishing the presence of human blood thereupon. (3) That the two accused were apprehended from Alwar bus stand by ASI Bhanwar Singh. (4) That the nail clippings of both the accused appellants were collected and forwarded to the FSL from where a report was received establishing the presence of human blood thereupon. (5) That the accused-appellant Jagdish got recovered a T-shirt and a cell phone alleged to be of deceased Sahun; (6) That the T-shirt tested positive for presence of human blood when the same were subjected to serelogical examination; (7) That the accused-appellant Rahul got recovered a Punch allegedly used by him for committing the murders; (8) That the swabs collected from the truck trailer tested positive for blood when the same were subjected to serelogical examination; 11. Now we proceed to assess & re-evaluate the evidence relied upon by the prosecution to prove these circumstances and the implication thereof. The witness PW-2 Irfan Mohammad claimed that all the three vehicles which, he; Sahun and the two accused appellants were driving, left Rajkot together. Even if, this allegation is accepted, it cannot be recorded with any degree of satisfaction that the truck trailers allegedly being driven by the accused-appellants and the deceased persons were near to each other at Keshariyaji where the murders and looting took place. Irfan Mohammad neither stated about the parentage nor place of residence of the two accused in his investigational statement nor does his sworn testimony indicate that he was made to identify the accused in the Court. Irfan also admitted in his cross examination that the police recovered a punch from the place of occurrence. Thus from the evidence of Irfan Mohammad (PW-2), no conclusion can be drawn that while naming Jagdish Jat and Rahul Jat as being the persons who were the occupants of the Vehicle No. RJ 14 GA 3171, he was referring to the two appellants herein. The other two material witnesses who were examined by the prosecution so as to prove the fact that the vehicle No.RJ 14 GA 3171 was assigned to the appellants herein were PW-15 Jasmeet Kaur being the owner of the vehicle and Manpreet being the office bearer of the Jaipur Golden Transport Company. The other two material witnesses who were examined by the prosecution so as to prove the fact that the vehicle No.RJ 14 GA 3171 was assigned to the appellants herein were PW-15 Jasmeet Kaur being the owner of the vehicle and Manpreet being the office bearer of the Jaipur Golden Transport Company. While Jasmeet Kaur even could not correctly state details of the vehicles owned by her, she also refused to affirm to the prosecution case that the appellants Jagdish or Rahul had been employed as drivers on the vehicle No. RJ 14 GA 3171 on the fateful day. Manpreet totally denied the prosecution allegations and was declared hostile. Thus, manifestly, there is no evidence worth the name on record of the case so as to convince the Court with any degree of certainty that the accused-appellants had ever been employed on Truck No. RJ.3171 affiliated with Jaipur Golden Transport Company for transporting material or that they were driving the same on the fateful day. The two accused were allegedly detained by ASI Bhanwar Singh from the Alwar Bus Stand on the premise that they were wanted in this case. However as has been mentioned above, none of the prosecution witnesses examined till then, had given any clue that the two accused-appellants were involved in the incident. The appellants are residents of Village Jat-kaSiswana, District Nooh, Haryana whereas the ASI Bhanwar Singh apprehended them from Alwar bus stand. When cross examined, the witness admitted that he did not have any written order of the Circle Officer, Rishabhdeo to apprehend these two accused. He had never seen them before . Thus, it is indeed the matter of wonderment as to how the witness managed to detain these two accused and that too from Alwar which is not their place of residence. Thus, the entire exercise of detention of the accused from Alwar Bus Stand is surrounded in a mystery and casts a grave doubt on the bonafides of the investigating agency. Be that as it may. The two accused were allegedly brought from Alwar to the Police Station Rishabhdeo and were arrested on 17.10.2010 vide arrest memos Ex.P-18 and Ex.P-19. The prosecution has tried to take much leverage out of the fact that the nail clippings of the accused were collected on 17.10.2010 and the same tested positive for human blood when serelogically examined at the Forensic Science Laboratory. The prosecution has tried to take much leverage out of the fact that the nail clippings of the accused were collected on 17.10.2010 and the same tested positive for human blood when serelogically examined at the Forensic Science Laboratory. The nail clippings of the two accused collected on 17.10.2010 vide seizure memos Ex.P-20 and Ex.P-21 were sealed in Packets 'J' and 'K' respectively. However, this circumstance sought to be portrayed as an incriminating one against the accused, is totally destroyed when we examine the testimony of the Malkhana Incharge Balwant Singh (PW-13) who categorically stated that these two packets marked 'J' and 'K' were deposited in the Malkhana on 16.10.2010. We have carefully scrutinized the Malkhana register Ex.P-30 and find that no corresponding date of deposition of any of articles of the present case in the malkhana is mentioned therein. Thus, there looms a grave doubt on the sanctity of the link evidence essential to make the FSL report admissible in evidence. Thus, the seizure of the nail clippings of the accused is totally falsified by this major loophole in the prosecution evidence. 12. As the case is based entirely on circumstantial evidence, a lion's share of the prosecution case is based on the evidence of the IO PW/17 Manak Ram. In his evidence, the witness claimed that after arresting the two accused vide arrest memos Ex.P/18 & Ex.P/19, he took their nail clippings on 17.10.2010. Thereafter, the accused Jagdish gave him a voluntary information under Section 27 of the Evidence Act (Ex.P/39) and the accused Rahul gave him a voluntary information under Section 27 of the Evidence Act (Ex.P/40). In furtherance of the informations, Jagdish got recovered a T-shirt and Mobile Phone vide seizure memo Ex.P/10 whereas the accused Rahul got recovered a Punch vide seizure memo Ex.P/12. All these three articles were allegedly concealed and hidden under the stones lying in the shrubs growing nearby the scene of occurrence besides the NH-08. The IO further claims that he took foot moulds of Jagdish and Rahul and also lifted the blood spots in cotton swabs from the bodies of the Truck No.RJ 14 GA 3171 as well as the truck No.RJ 14 0655. The corresponding FSL reports have been proved as Ex.P/42 and Ex.P/43 respectively. The IO further claims that he took foot moulds of Jagdish and Rahul and also lifted the blood spots in cotton swabs from the bodies of the Truck No.RJ 14 GA 3171 as well as the truck No.RJ 14 0655. The corresponding FSL reports have been proved as Ex.P/42 and Ex.P/43 respectively. Strangely enough, the Malkhana Incharge PW-13 Balwant Singh only claims that he forwarded the articles handed over to him for being sent to the FSL with the Constable Vijendra Singh on 13.12.2010. Whilst the FSL report Ex.P/2 refers to the receipt of 17 articles with Carrier Ct. Vinod vide letter dated 13.12.2010 issued from the Office of Superintendent of Police, Udaipur; the second FSL report Ex.P/43 refers to receipt of nine packets forwarded vide letter dated 03.02.2011 issued from the office of Superintendent of Police, Udaipur with Constable Naresh. Neither the Constable Naresh was examined in evidence for proving the transmission of the second lot of samples to the FSL nor did Balwant Singh (PW-13) being the Incharge of Malkhana of PS Rishabhdeo state that a second lot of samples was actually forwarded to the FSL. Even the IO Shri Manak Ram/PW-17 did not state that a second lot of samples was forwarded to the FSL at a later date after transmission of the first lot. Thus, on account of the failure of the prosecution to lead any evidence regarding the transit of the second lot of samples, the FSL report (Ex.P/43) becomes inadmissible in evidence. The first report Ex.P-42 is not incriminating against the accused because as per this report, neither the nail clippings of the two accused (the seizure whereof otherwise also has been held to be false and fabricated) nor the t-shirt, the mobile phone or the punch sent for examination tested positive for the blood group of any of the two deceased persons. The doctor who conducted postmortem upon the dead bodies of the Sahun and Rahish being PW-10 Dr Kamlesh Bamniya specifically opined that the both the deceased were killed by sharp weapon injuries. However, no sharp-edged weapon was recovered at the instance of accused appellants so as to affirmatively connect them with the alleged murders. The doctor who conducted postmortem upon the dead bodies of the Sahun and Rahish being PW-10 Dr Kamlesh Bamniya specifically opined that the both the deceased were killed by sharp weapon injuries. However, no sharp-edged weapon was recovered at the instance of accused appellants so as to affirmatively connect them with the alleged murders. So far as the recovery of the T-shirt and the mobile phone made at the instance of the accused Jagdish is concerned, suffice it to say that apart from the fact that the independent Panch witness PW-4 Lal Singh did not support the prosecution case and was declared hostile, is an admitted position that both these articles were not got identified by Fateh Mohammad/PW-1 (brother of the deceased) in his evidence so as to draw an inference that the same belong to the deceased. 13. In view of the discussion made hereinabove, we are of the firm opinion that the links in the chain of circumstances relied upon by the prosecution so as to bring home the charges against the two accused fall well short of expectation and the degree of satisfaction required to prove a charge of murder purely on the strength of circumstantial evidence. Rather, we feel that the prosecution failed to prove even a single of the so called links forming the chain of incriminating circumstances so as to point towards the guilt of the accused what to talk of proving a complete and unbroken chain. Law is well settled that even if one link in the chain of the circumstances is snapped, the prosecution in a case based purely on circumstantial evidence would have to fail. Having concluded that the prosecution has miserably failed to lead even a semblance of evidence so as to establish the culpability of the accused appellants in the crime involving murders of Sahun and Rahish and the looting of the truck, we are of the firm opinion that the conclusions drawn by the learned trial court in the impugned judgment recording the findings of guilt against the accused appellants are not based on apposite appreciation and marshelling of the facts and evidence available on record and are rather perverse, illegal and contrary to record. We are thus, not inclined to agree with these findings. Hence, the impugned judgment dated 28.02.2013 passed by learned Addl. We are thus, not inclined to agree with these findings. Hence, the impugned judgment dated 28.02.2013 passed by learned Addl. Sessions Judge, Salumber, District Udaipur in Sessions Case No.20/2012 is hereby quashed and set aside. 14. The accused appellants are acquitted of the charges. They are in custody and shall be released from prison forthwith if not wanted in any other case. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellants are directed to furnish a personal bond in the sum of Rs.15,000/- each and a surety bond in the like amount before the learned trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 15. The appeal is allowed in these terms.