JUDGMENT : 1. This appeal is by the accused appellant Ompal challenging the judgment and order of conviction and sentence, dated 27.03.1990, passed by the Ist Additional Session Judge, Bijnor in Session Trial No. 459 of 1987 (State vs. Ompal) arising out of Case Crime No.69 of 1987, Police Station Sherkot, District Bijnor, whereby he has been convicted and sentenced to life imprisonment under section 302 IPC and seven years’ imprisonment under section 376/511 IPC with fine of Rs.1,000/- and in default of fine he is to undergo six months’ additional rigorous imprisonment. All the sentences are to run concurrently. 2. The basis of prosecution case is the written report (Ex.Ka.1) of first informant Chain Sukh (PW-1), brother of the deceased, stating that his sister Geeta Devi aged 27 years got married about 4 months back and at around 09.00 AM she had gone on bullock cart (Bailgadi) alongwith his younger brother Hetram to offer morning meal to his father who was in the agricultural field. She returned around 11.00 AM. When informant came to fetch grass at 02.00 PM in the fields his father said that the deceased has not brought his afternoon meal. Informant told his father that she has not returned home after serving food. Informant’s father stated that the deceased returned saying that she would return for cutting grass alongwith sister-in-law (Bhabhi). The informant was occupied with agricultural work and when he returned home around 04.00 PM it was found that his sister (deceased) had not returned. Her disappearance was disclosed to Suresh Singh, Hari Singh, Chunnu Singh, Ram Chandra Singh, Leela Singh, Tejpal Singh etc. who joined the informant to locate his sister. While searching her (deceased) in the sugarcane field it was found that at a distance of 100 meter in the field of Jaidev (father of accused appellant) beneath rosewood (shisam tree) naked body of deceased was lying and her petticoat was tied to rosewood and her saree was in three parts, one of which was tied to sugarcane crop. There were injuries on head, neck and cheek of the deceased and she has been intentionally killed. 3. On the basis of aforesaid written report the First Information Report (Ex.Ka.4) got registered as Case Crime No.69 of 1987, under Sections 302 IPC, Police Station Sherkot, District Bijnor on 22.08.1987 at 09.30 PM. There were injuries on head, neck and cheek of the deceased and she has been intentionally killed. 3. On the basis of aforesaid written report the First Information Report (Ex.Ka.4) got registered as Case Crime No.69 of 1987, under Sections 302 IPC, Police Station Sherkot, District Bijnor on 22.08.1987 at 09.30 PM. Inquest (Ex.Ka.2) was conducted on the next day as there was no source of light at the place of occurrence. Inquest proceedings commenced at 06.30 AM on 23.08.1987 and concluded at 08.00 PM. The inquest witnesses found that there were injuries on cheek of deceased apart from injuries on her head and other parts of body. In the opinion of inquest witnesses the deceased Geeta died due to injuries caused to her and postmortem be got conducted to ascertain the cause of death. The dead body was consequently sealed and sent for postmortem. 4. The postmortem (Ex.Ka.3) was got conducted on 23.08.1987 at 02.30 PM, which contains following particulars:- Age- 17 years External Examination A young lady of average built. Rigor mortis passed from upper extremity in passing out stage in lower extremity. Both eyes closed P.M. staining seen over left side of elbow lower part left thigh upper third. Antemortem Injuries (1) Incised wound on front of lateral aspect (both side) neck measuring 8’’ x 3’’ x soft tissue deep. (2) Incised wound 1’’ x ¼’’ x muscle deep on left side of face. (3) 3 Incised wound each ½’’ x ¼’’ x muscle deep on dorsum of left hand. (4) Incised wound 1’’ x ½’’ x muscle deep on left iliac fossa. (5) Abrasion 4’’ x ½’’ on deltoid prominence left upper arm. (6) Incised wound 1’’ x ¼’’ x muscle deep on the back right side lumber region. Cause of death Shock and haemorrhage due to antemortem injuries. Duration - About one day old. 5. The Investigating Officer recorded the statement of witnesses under section 161 Cr.P.C., including Ramesh Singh (PW-2) and Chhote Singh (PW-3), who have stated that soon after the incident they saw the accused appellant in perplexed state and on being asked he said nothing. The dead body of deceased was later found in the area. The statement of these two witnesses were recorded on the date of incident itself i.e. 22.08.1987. 6. The dead body of deceased was later found in the area. The statement of these two witnesses were recorded on the date of incident itself i.e. 22.08.1987. 6. The accused appellant was arrested on 24.08.1987 and medically examined on 25.08.1987, at 01.30 PM, wherein following injuries were found on him:- “(1) Abrasion 1.5cm x 1cm left side of chest 8 cm above nipple at 10 O’clock position with scab is presents. (2) Abrasion 1cm x ½cm on the front of neck near the adam’s apple, scab is present, hard. (3) Abrasion 1.5 cm x 1cm on the right side of top of shoulder joint, scab is present, hard.” 7. On the pointing out of the accused appellant a bloodstained sickle (Daranti) [Ex.Ka.3] was also recovered on 24.08.1987. The Investigating Officer also collected bloodstained earth & plain earth (Ex.Ka.12) from the place of occurrence. A shirt button as well as clothes, bangle pieces etc. were recovered vide recovery memo (Ex.Ka.13) and the shirt worn by the accused appellant was also recovered vide recovery memo (Ex.Ka.15) in which one of the buttons was missing. The recovered items were sent for forensic report. As per the forensic report (Ex.Ka.17) the sickle had human blood and human hair on it. Blood was also found on the clothes worn by the deceased. The bloodstained and plain earth was found disintegrated. No blood was, however, found on the shirt worn by the accused appellant. 8. On the basis of evidence collected during investigation a charge sheet (Ex.Ka.16) came to be filed against the accused appellant on 29.08.1987 under section 302, 376/511 IPC. The concerned Magistrate took cognizance and committed the case to the court of Sessions where charges were framed against the accused appellant. The charges were read out to the accused appellant, who claimed himself to be not guilty and demanded trial. 9. During the course of trial the prosecution has adduced oral testimony of PW-1 (first informant Chain Sukh), who has supported the prosecution case by stating that the accused appellant is son of Jaidev and is resident of his village. The deceased was his sister who got married about 3-4 months back. As per him the agricultural field of Jaidev falls between his plots and for reaching his agricultural land he has to necessarily cross the field of Jaidev. The deceased was his sister who got married about 3-4 months back. As per him the agricultural field of Jaidev falls between his plots and for reaching his agricultural land he has to necessarily cross the field of Jaidev. PW-1 has also stated that as and when they go to work in the field their ladies or children came to serve them food at the field. He has explained that the deceased left the field for home around 1111½ after serving morning meals to her father. His sister, however, never reached home. In the afternoon he came to the field around 02.00 for cutting grass when his father informed that the deceased has not brought his afternoon meal. PW-1 has supported the prosecution version that the deceased did not return home after serving morning meals to her father. PW-1 has then narrated the manner in which others were informed about disappearance of the deceased and the fact that the dead body of deceased was found naked in the field of Jaidev with multiple marks of injuries. The saree of deceased was torned in three parts and her petticoat was hanged on the rosewood (shisam tree). It is also stated that one side of saree was tied around the deceased while other part was below her head. The recovery of clothes worn by the deceased was also proved by this witness. In the cross-examination PW-1 has largely remained intact. 10. PW-2 is one Ramesh Singh, who has stated that he knows the accused appellant and he is son of Jaidev. He has asserted that while going towards jungle from his house when he reached the field of Jaidev, wherein sugarcane crops were standing, he saw the accused appellant coming out in perplexed state and on being asked the accused said nothing and left towards the village. This incident occurred around 12 to 12.15 PM. PW-2 also stated that when he returned around 5-5.30 PM he came to know that the deceased has been done to death. This witness is also an inquest witness and has verified it. In the cross examination not much could be extracted by the defence as he remained intact on his statement made in the examination-in-chief. 11. PW-2 also stated that when he returned around 5-5.30 PM he came to know that the deceased has been done to death. This witness is also an inquest witness and has verified it. In the cross examination not much could be extracted by the defence as he remained intact on his statement made in the examination-in-chief. 11. PW-3 is Chhote Singh, who has stated that he knows the accused appellant and that at around 12 – 12.15 PM on the date of incident he saw the accused appellant at trisection, coming from east, in perplexed state and he was moving fast. On being asked he said nothing and left towards his house. He claims that in the evening he came to know that the deceased has been done to death. In the cross examination of this witness his testimony could not be effectively challenged. 12. PW-4 is one Benami Singh, who has verified the recovery of sickle (Daranti) from the field of the father of accused near the bund (Medh). He has stated that he was with the police party and had gone to the field alongwith accused who had already been arrested by then. It is also stated that the accused appellant brought them to the field of his father where sugarcane crops were standing and having a rosewood (sisham tree). The sickle (Daranti) was taken out from the bund (Medh). In the cross examination this witness has stated that from a distance the recovered item was not visible as the sugarcane crop was standing and the sickle (Daranti) was taken out from the bund (Medh) by the accused appellant and was given to police. 13. PW-5 is Dr. U.S. Fauzdar, who has proved the postmortem report. He has also stated that injuries on the deceased could have been caused by sickle (Daranti) and that Daranti could have been used for causing injury nos.1 to 4 and 6. The doctor has been specifically asked about the nature of weapon from which injuries could have been caused to the deceased and in his opinion the nature of injuries on the deceased could have been caused by sickle (Daranti). 14. PW-6 (Ram Bhagwan) is the Head Constable, who has proved the chik FIR and G.D. entry. 15. PW-7 is Dr. V. K. Narula, who has examined the accused on 25.08.1987 and has proved the injuries on him. 14. PW-6 (Ram Bhagwan) is the Head Constable, who has proved the chik FIR and G.D. entry. 15. PW-7 is Dr. V. K. Narula, who has examined the accused on 25.08.1987 and has proved the injuries on him. In his opinion the injuries on accused could be caused by finger nails while struggling on 22.8.1987, at any time between 11 AM and 4 PM. In the cross-examination this witness has stated that he cannot differentiate between scabbing caused between 8 hours to 10 hours and he can only point out the difference of scabbing between 24 hours and fresh scabbing. He further stated that colour of scabbing would be same after 24 hours to three days. He also denied the suggestion that period of scabbing can be ascertained by touching the scab. 16. PW-8 (Mohan Singh) is the Constable, who took the dead body for postmortem. 17. PW-9 (Ram Singh) is the father of deceased and has verified in his statement that the bloodstained sickle (Daranti) was recovered from the agricultural field of Jaidev on the pointing out of accused appellant which was of his daughter. He has supported the prosecution case and not much could be extracted from him either during the cross examination. 18. PW-10 (Ravi Chaturvedi) is the Investigating Officer, who has verified the police papers and has also stated that the accused was arrested on 24.08.1987 at about 04.00 PM. He has also proved the recovery made on the pointing out of the accused. In the cross examination he has admitted that there was no blood on the shirt of accused and the button (Ex.Ka.9) is otherwise available in the market. 19. On the basis of incriminating material adduced during the course of trial the statement of accused has been recorded under Section 313 Cr.P.C., in which he has claimed ignorance about the incident. He has only admitted that the dead body was in the field of his father. In reply to question no.8 he has stated that he was at home and does not know as to how PW-2 saw him. He has also stated that while returning home he has been arrested. He has also stated that he was at Sherkot. He claimed that he has been falsely implicated. 20. In reply to question no.8 he has stated that he was at home and does not know as to how PW-2 saw him. He has also stated that while returning home he has been arrested. He has also stated that he was at Sherkot. He claimed that he has been falsely implicated. 20. On the basis of evidence so led in the matter the trial court has come to the conclusion that the prosecution has proved its case beyond reasonable doubt, and that the accused attempted rape on the deceased and later fled after killing her. 21. The judgment of conviction and sentence is assailed in the present appeal on behalf of accused appellant primarily on the ground that this being a case of circumstantial evidence the chain of events pointing exclusively to the hypothesis of guilt on part of the accused has not been joined and that an alternate hypothesis consistent with the innocence of the accused cannot be ruled out. It is also contended that the evidence collected by the prosecution does not establish that the offence of rape has been committed upon the deceased and the prosecution case that an attempt was made to commit offence under Section 376 IPC is based purely on conjectures and surmises. 22. Sri Apul Mishra, learned counsel for the appellant, emphatically contends that the evidence on record suggests that the motive for the crime was not the commissioning of rape but was to eliminate the deceased for which apparently no motive could be attributed to the accused appellant. It is also urged that the injuries on the accused could have been caused while he was in custody of police, as the villagers apparently were enraged on seeing the incident and suspecting it to have been done by the accused appellant he was assaulted, thereby causing injuries to him. Submission is that the accused appellant has been falsely implicated and as the passage leading to the field of informant passes through the field of father of accused appellant, the possibility of some discord between them cannot be ruled out, which might be cause of false implication. 23. Mrs. Archana Singh, learned AGA, on the other hand, contends that the chain of events in this case has clearly been connected by the prosecution, which leads to an inescapable conclusion that it was the accused appellant alone, who committed the offence. 23. Mrs. Archana Singh, learned AGA, on the other hand, contends that the chain of events in this case has clearly been connected by the prosecution, which leads to an inescapable conclusion that it was the accused appellant alone, who committed the offence. It is pointed out that the circumstances on record clearly show that there was an attempt to commit rape and when the deceased objected to it, the accused assaulted her, apparently by using her Daranti, which has been recovered on the pointing out of the accused. She further submits that the judgment and order of conviction and sentence contains elaborate reasons for conviction of the accused appellant, which is neither perverse nor any relevant aspect has been omitted from consideration and, therefore, the appeal merits no interference. 24. We have heard learned counsel for the parties and carefully examined the records. 25. The prosecution case is based on the information given by PW-1, as per which his sister had gone to the agricultural field and had not returned after serving morning meal to her father, though she was to come back again in the afternoon for cutting the grass. The fact with regard to the deceased going to the agricultural field in the morning and then not returning home is established. The records further show that since the deceased had not returned there was an attempt to search her in which her dead body was found in the agricultural field of Jaidev, father of the accused appellant. The accused appellant in his statement under Section 313 Cr.P.C. has also admitted that the dead body was recovered from the agricultural field of his father. 26. The medical evidence on record clearly shows that the death of deceased was homicidal. The postmortem report has been proved by the Autopsy Surgeon, who has clearly stated that the ante-mortem injuries on the body of the deceased were the cause of her death. The injuries include incised wound on front and lateral aspect both side of neck; incised wound on left side face, and three incised wounds on dorsum of left hand. The injuries clearly show that the deceased was assaulted with a serrated sickle and in the opinion of the doctor also her injuries could have been caused by the serrated sickle (Daranti). The injuries clearly show that the deceased was assaulted with a serrated sickle and in the opinion of the doctor also her injuries could have been caused by the serrated sickle (Daranti). In the facts of this case it is on record that a serrated sickle (Daranti) was recovered on the pointing out of the accused appellant. The prosecution witnesses have asserted that the serrated sickle (Daranti) recovered on the pointing out of the accused appellant actually belonged to the deceased. 27. So far as recovery of serrated sickle (Daranti) is concerned, the same has been proved by an independent witness, namely Benami Singh. He has clearly explained the circumstances in which the sickle was recovered on the pointing out of the accused appellant. Though the recovery is from an open field near the bund (Medh) of the accused appellant but it has clearly been stated by the witness that the serrated sickle (Daranti) was not visible from a distance on account of standing crops in the field. He has stated that it was the accused appellant who took out the serrated sickle (Daranti) and gave it to the Investigating Officer. The recovery of sickle (Daranti), therefore, has been proved. There is no credible challenge to this recovery. 28. The prosecution in order to prove its case has also produced the forensic report in which it is found that the Daranti recovered at the pointing out of the accused appellant had human blood and hairs. The other important circumstance against the accused is the recovery of a button from the place of occurrence on the very next day of the incident. It has also been found that the shirt worn by the accused appellant had a missing button, which exactly was the button found at the place of occurrence. 29. The next circumstance against the accused appellant is in the form of statement of witnesses PW-2 and PW-3, who have stated that they saw the accused appellant coming out from the place of occurrence in a perplexed state, and on being asked no coherent reply was given by him and he left. This circumstance is also relied upon by the prosecution against the accused appellant. It is on the basis of aforesaid materials that the trial court has convicted the accused appellant. 30. This circumstance is also relied upon by the prosecution against the accused appellant. It is on the basis of aforesaid materials that the trial court has convicted the accused appellant. 30. The question that arises for consideration in the facts of the present appeal is as to whether the prosecution has been able to establish the guilt of accused appellant beyond reasonable doubt on the basis of evidence led by it. It has also to be seen as to whether the court below was justified in imposing the punishment as has been done vide the impugned judgment. 31. This admittedly is a case based on circumstantial evidence. None has actually seen the commissioning of the offence. It is by now well-settled that a conviction based on circumstantial evidence can be ordered only if the prosecution establishes the chain of events pointing exclusively to the hypothesis of guilt on part of the accused appellant and that no hypothesis consistent with innocence of accused is otherwise available. Law in that regard stands crystallized in the judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , which has consistently been followed since then. In paragraphs 152 to 154, the Supreme Court in Sharad Birdhichand Sarda (supra) observed as under:- “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 32. It is in light of the principles laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) that this Court is required to examine the prosecution evidence led in the facts of the present case. 33. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 32. It is in light of the principles laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) that this Court is required to examine the prosecution evidence led in the facts of the present case. 33. The records clearly reveal that the accused is a resident of same village and his house adjoins that of the informant. It is also on record that agricultural field of the informant passes through the field of the father of accused appellant. The dead body in the present case has been found in the field of the accused appellant. The evidence on record also shows that it was through the field of the accused appellant that the deceased had gone to serve meals to her father and was to return from the same passage. The deceased admittedly did not return home, and therefore it is apparent that the incident leading to her death occurred while she was returning from her own field by passing through the field of the accused appellant. The fact that her dead body has been found in the field of the accused appellant clearly shows that while on her return she was apparently dragged from this passage into the fields, wherein the incident occurred. 34. The postmortem report clearly shows that there were multiple wounds on her body. These wounds could have been caused by a serrated sickle (Daranti) in the opinion of the doctor. There are three distinct circumstances emerging on record against the accused appellant, which may be noticed at this stage. The first circumstance is that weapon of assault, which apparently has been used for causing injuries, leading to death of the deceased has been recovered on the pointing out of the accused appellant. The recovery of weapon of assault has been made promptly, on the very second day of the incident. The recovered serrated sickle (Daranti) had human blood and hairs. Though attempt has been made to question the recovery on the ground that it was recovered from an open field but the argument in that regard does not appear to be convincing, inasmuch as there was an independent witness apart from formal witnesses to prove the recovery. The recovered serrated sickle (Daranti) had human blood and hairs. Though attempt has been made to question the recovery on the ground that it was recovered from an open field but the argument in that regard does not appear to be convincing, inasmuch as there was an independent witness apart from formal witnesses to prove the recovery. It has clearly been stated that serrated sickle (Daranti) was not visible from a distance on account of crops standing nearby and that the accused took the police personnel on the spot and took out the serrated sickle (Daranti) and gave it to the Investigating Officer. 35. The other important circumstance is the injury found on the accused appellant. Though it is sought to be urged that the injuries could have been caused on account of assault made by villagers, once they came to know that the appellant is accused of committing the offence, but we do not find much substance in such contention. Admittedly, the injuries on the accused are not caused by any blunt or sharp object as would have been expected, if the villagers were to react in such circumstances. The injuries are primarily scab marks, which could have been caused in an scuffle between two persons. The inquest papers also show that broken bangles were found at the place of occurrence and the manner of injuries caused to the deceased shows that there was some resistance on part of the deceased while she was being assaulted by the accused. It is quite possible that the deceased in order to save herself caused scratches by nail etc. resulting in scab marks on the accused appellant. There is otherwise no cogent explanation furnished by the accused for existence of such injuries. The doctor, who has examined the accused appellant, has clearly stated that the injuries could have been caused to the accused appellant more than 24 hours before the examination and less than 03 days before it. The time of occurrence, therefore, matches the possible time of injury on the accused. This is a very important circumstance which links the accused appellant with commissioning of the offence. 36. Coupled with it, it is to be observed that the shirt worn by the accused appellant had a missing button, which has been recovered from the place of occurrence. The time of occurrence, therefore, matches the possible time of injury on the accused. This is a very important circumstance which links the accused appellant with commissioning of the offence. 36. Coupled with it, it is to be observed that the shirt worn by the accused appellant had a missing button, which has been recovered from the place of occurrence. It may be noticed that the recovery of button and shirt worn by the accused is proximate in terms of time to the incident. This is a circumstance which strongly implicates the accused appellant. We may also notice, at this stage, that the defence has not come forward with any specific plea or ground of false implication. 37. It is in the context of the above deliberations that we may refer to the testimony of PW-2 and PW-3, who are independent persons and have clearly stated that soon after the incident they saw the accused coming from the place of occurrence in a perplexed state and no cogent reason of such conduct was explained by the accused appellant. This is a very strong circumstance, which has not been properly explained by the defence. 38. The chain of events pointing exclusively to the hypothesis of guilt on part of the accused is thus complete, inasmuch as the facts have been established beyond reasonable doubt by the prosecution to connect the accused appellant with the commissioning of offence. No alternate hypothesis consistent with innocence of accused appellant is shown to exist. We have examined the judgment of the trial court, which also takes notes of the fact that there was no enmity between the parties and there existed no reason of false implication of accused appellant. The trial court has also taken note of the fact that the injuries on the accused appellant caused almost at the time of incident remains unexplained. The recovery of button from the spot is also a definite circumstance which implicates the accused appellant with the commissioning of offence. On the basis of elaborate analysis of evidence led in the matter we find no reason to disagree with the conclusion drawn by the court below that prosecution has established its case beyond reasonable doubt. 39. The recovery of button from the spot is also a definite circumstance which implicates the accused appellant with the commissioning of offence. On the basis of elaborate analysis of evidence led in the matter we find no reason to disagree with the conclusion drawn by the court below that prosecution has established its case beyond reasonable doubt. 39. So far as the punishment imposed upon the accused appellant is concerned, we find that the offence is brutal in nature in which deceased has been done to death by the accused appellant. The punishment imposed by the trial court for transportation of life, therefore, is found appropriate. 40. From the above discussions and deliberations, we find that this appeal lacks merit and is, accordingly, dismissed.