JUDGMENT : MALASRI NANDI, J. 1. Heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State of Assam. 2. This appeal is directed against the judgment and order dated 24.09.2012, passed by the learned Sessions Judge, Nagaon in Sessions Case No. 207/2000, whereby, the accused/appellant was convicted under Section 304 Part-II of IPC and sentenced him to undergo rigorous imprisonment for 3(three) years and to pay a fine of Rs. 5,000/- (Rupees Five thousand) in default of payment of fine further rigorous imprisonment for 6(six) months. 3. The prosecution case in brief is that on 08.05.1998, at around 8:30 AM, the accused/appellant along with some other persons trespassed into the land of the informant and as per direction of one Bhola Kalita and Rabiram Kalita, the accused/appellant and co-accused Upen Kalita gave blows to Ratulmoni Bora causing grievous injuries on his person. Due to the alleged assault, Khagen Bora also sustained injuries. 4. On the same day, an FIR has been lodged by PW-4, brother of the deceased before the Officer-In-Charge, Nagaon Police Station and a case was registered vide Nagaon Police Station Case No. 356/1998, and the investigation was initiated. After completion of investigation, charge-sheet has been laid against the accused/appellant Santosh Kalita, Rabiram Kalita, Upen Kalita and some other accused who were acquitted by the trial Court under Section 302/34 of IPC. As the offence under Section 302 of IPC, is exclusively triable by the Court of Sessions, the case was committed accordingly. 5. It is pertinent to say here that during trial Rabiram Kalita died. On receipt of the information and the documents regarding his death, the case was abated against Rabiram Kalita. 6. During trial charge was framed against the accused/appellant and co-accused Upen Kalita and Rabiram Kalita under Section 302/34 of IPC and other co-accused Tagarbala Kalita, Beauti Kalita, Bivamoni Kalita and Junmoni Kalita was framed under Section 323 of IPC, which was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate the case, 10(ten) witnesses were examined by the trial Court. After closure of the evidence, the statement of the accused/appellant and other co-accused were recorded under Section 313 of Cr.P.C. wherein, incriminating material found in the evidence of the witnesses were put to them to which they denied the same. According to them, they have been falsely implicated in the case. After closure of the evidence, the statement of the accused/appellant and other co-accused were recorded under Section 313 of Cr.P.C. wherein, incriminating material found in the evidence of the witnesses were put to them to which they denied the same. According to them, they have been falsely implicated in the case. On the other hand, the accused persons did not adduce any evidence in support of their case. 8. After hearing the arguments advanced by the learned counsel for the parties, the trial Court convicted the accused/appellant and the co-accused Upen Kalita as aforesaid. The other co-accused persons were acquitted by the trial Court. 9. Though, none has appeared to make the submission regarding the appeal preferred by the appellant, however, in the grounds of appeal, it is mentioned that the ingredients of Section 304 Part-II of IPC or any other Section has not been established in the instant case. The learned Session Court has committed manifest error in convicting the appellant under Section 304 Part-II of IPC. 10. It was also alleged that the prosecution has failed to prove as to how the injury was caused to the deceased and who had inflicted the injuries. The prosecution also failed to explain what weapons were used as because no any weapon of offence was seized in connection with the case, as such, the impugned judgment is liable to be set aside. 11. The learned counsel for the appellant has mentioned in the memo of appeal that the learned Sessions judge while convicting the appellant relied mainly on the evidence of PW-1, PW-4, PW-5 and PW-8, and they are closely related with the deceased, as such, the evidence of such witnesses did not inspire any confidence and are not trustworthy and are not corroborated with each other. Though, the learned trial Court opined that there are some contradiction in the evidence on record, however, without giving any such plausible explanation, the appellant was convicted under Section 304 Part- II of IPC, which is not tenable in the eye of law. 12. It is also mentioned in the memo of appeal that the evidence on record goes to show that the accused persons had no intention to kill the deceased and as there was no any common intention to assault the deceased, however, the learned trial Court convicted the appellant under Section 304 Part-II of IPC which amounts to miscarriage of justice. It is also mentioned in the memo of appeal that the evidence on record goes to show that the accused persons had no intention to kill the deceased and as there was no any common intention to assault the deceased, however, the learned trial Court convicted the appellant under Section 304 Part-II of IPC which amounts to miscarriage of justice. 13. It is also mentioned that the PW-1 father of the deceased, in his examination-in-chief, stated that the accused Bhola struck a blow to him by means of a Dao. Bhola also assaulted Khagen Bora but PW-2 the Medical Officer who examined Khagen in his cross-examination opined that the injury of Khagen was not only simple but it was very insignificant. According to the learned counsel for the appellant, the trail Court has committed illegality by convicting the appellant relying those witnesses which is liable to be set aside. 14. Per contra, the learned Additional Public Prosecutor has argued that the learned trial Court after going through the evidence of the witnesses as well as the facts and circumstances of the case and on the basis of the medical evidence, convicted the accused/appellant under Section 304 Part-II of IPC, which needs no interference by this Court and has prayed for dismissal of the appeal. 15. I have gone through the judgment of the trial Court, memo of appeal and I have also heard the submission of the learned Additional Public Prosecutor. 16. Before going further into the discussion on the matter, it is apt to define the evidence of the witnesses recorded by the trial Court. 17. PW-1 is Mohendra Bora, who is the father of the deceased. He deposed in his evidence that, on the date of incident, his deceased son was called by Rabiram Kalita, Santosh Kalita and Upen Kalita from the road side and they inflicted injuries to him by means of Dao. According to PW-1, he has seen the incident. When he, Khagen and Subha chased the accused, then the accused persons wrongfully restrained them. The accused Bhola assaulted him by a lathi. He also assaulted Khagen. Thereafter, PW-1 brought his son to his house and thereafter, the injured was taken to the hospital and subsequently, he was shifted to Guwahati for better treatment but on the way his son died. The accused Bhola assaulted him by a lathi. He also assaulted Khagen. Thereafter, PW-1 brought his son to his house and thereafter, the injured was taken to the hospital and subsequently, he was shifted to Guwahati for better treatment but on the way his son died. His deceased son Ratulmoni sustained injuries on his abdomen, head and other parts of his body. 18. In his cross-examination, PW-1 replied that the accused Rabiram belongs to their village, the accused Smti. Tagarbala Kalita is the wife of Rabiram Kalita and Bivamoni Kalita and Akonmoni Kalita are his daughters, the accused Beauti is the daughter of Bhola. There was no talking terms with the family of the accused and the informant since 22/23 years, as the land dispute was prevailing between them at the relevant time of incident. 19. PW-2 is the Medical Officer Dr. Mukut Goswami. He deposed in his evidence on 08.05.1998, he was serving at Nagaon Civil Hospital as Medical and Health Officer. On that day he examined one Khagen Bora on police requisition and found lacerated injury size 2 cm x 1 cm x 1 cm to the right side of his forehead. The injury was caused by blunt impact but simple in nature. In his cross-examination, PW-2 replied that the injury was not only simple but it was insignificant. 20. PW-3 is Dr. Rubi Bhuyan, from her deposition it reveals that on 08.05.1998, she was posted at Nagaon Civil Hospital and on that day, she examined one Mohendra Nath Bora on police requisition and found one lacerated injury over right leg dorsal aspect measuring 1” x 1/2” x 1/8th” inch. The injury was fresh, simple in nature and caused by blunt object. 21. PW-4 deposed in his evidence that on the date of incident in the morning hour he was in his house, his brother Khagen put his cow in his land for grazing. Subsequently, an altercation took place due to damaging of bamboo leaves with Rabiram Kalita, Santosh Kalita, Upen Kalita and their family members. As a result of which his brother Ratulmoni came to the spot and Santosh, Upen and Rabiram dragged Ratulmoni towards their house and assaulted him with Dao, Axe and Lathi for which, he sustained grievous injuries on his person. As a result of which his brother Ratulmoni came to the spot and Santosh, Upen and Rabiram dragged Ratulmoni towards their house and assaulted him with Dao, Axe and Lathi for which, he sustained grievous injuries on his person. Though, he was brought to the police station and then to the hospital but subsequently, he died on the way to Guwahati for better treatment. Thereafter, he lodged the FIR vide Exhibit No. 2. 22. In his cross-examination, PW-4 replied that when there was commotion between the parties, his father Mohendra Bora, his brother Khagen Bora and the deceased Ratulmoni were present. He had noticed cut injury on the head of Khagen. 23. PW-5 is one of the injured, Khagen Bora, from his deposition it reveals that on 08.05.1998, the incident occurred. On that day, at about 8:00 AM, he put his cow in his land for grazing. At that time, Santosh Kalita abused him with filthy languages. When he came out he had seen Santosh Kalita dragged Ratulmoni towards their land and inflicted injury towards him with Dao and Axe. Accused Upen and Rabiram also assaulted him. The other accused persons restrained their way. Though he was also assaulted by them but he could not recognize the person who assaulted him. He sustained injury on his forehead due to alleged assault. After the incident, the accused persons left the place. The injured Ratulmoni was taken to the police station and subsequently, he was shifted to hospital but on the way to Guwahati Ratulmoni died. 24. PW- 6, is not an eye witness to the incident, from his deposition it discloses that on the date of the incident one Ratulmoni died due to the assault caused by the accused persons including the appellant. The incident occurred due to land dispute between the parties. According to PW-6, when he reached the spot, he found the deceased was lying on the land of one Moheswar in injured condition with profuse bleeding. Thereafter, the injured was taken to the hospital. In connection with the alleged incident, the police seized one Dao and Axe. He came to know that Ratulmoni died at GNRC Hospital, Guwahati after some days of the incident. 25. Thereafter, the injured was taken to the hospital. In connection with the alleged incident, the police seized one Dao and Axe. He came to know that Ratulmoni died at GNRC Hospital, Guwahati after some days of the incident. 25. PW-7 also stated in the same tune that, on the date of the incident, there was a quarrel between Mohendra Bora and Bhola and subsequently, he came to know that Ratulmoni died due to the alleged incident. He found Ratulmoni in injured condition in the house of Mohendra Bora. Though he was taken to hospital but he died. PW-7 specifically stated in his cross-examination that he did not see the quarrel or the assault with his own eyes. 26. PW-8 has claimed to be the eye witness to the incident. According to him, on the date of incident when he came out from his house, he saw a quarrel was going on between Rabiram and Mohendra Bora in the land of Mohendra Bora. He went forward and saw Ratulmoni coming towards the spot. As soon as Ratulmoni came to the spot, the accused Rabiram, Upen and Santosh started to assault him by means of Dao and Axe. Ratulmoni was taken to the house of Mohendra Bora. He noticed injuries on the head, cheek, fingers of the hand and other parts of the body of Ratulmoni. Subsequently, Ratulmoni died at Guwahati. 27. In his cross-examination PW-8 replied that the quarrel took place between Mohendra Bora and Rabiram in the betel nut garden of Mohendra Bora. The assault took place between both the parties and at that time except Mohendra Bora and Rabiram, there were no other persons at the spot. When Ratulmoni went to the spot, he was assaulted by means of Dao and Axe. 28. PW-9, is the Medical Officer who conducted post Mortem examination on the dead body of the deceased on police requisition. He deposed in his evidence that on 10.05.1998, he conducted post-mortem examination on the dead body of the deceased and on examination he found the following: 1. one stitched wound present on the right cheek and right side of the hand, 14 cm long in size and closed by 17 numbers of stitches. Margins were close cut well defined. 2. one stitched wound present on the right side of the head transverse, 10 cm long in size and closed by 8 numbers of stiches. 3. one stitched wound present on the right cheek and right side of the hand, 14 cm long in size and closed by 17 numbers of stitches. Margins were close cut well defined. 2. one stitched wound present on the right side of the head transverse, 10 cm long in size and closed by 8 numbers of stiches. 3. one stitched wound present on the scalp over the left parietal bone, 4 cm long in size and closed by 3 numbers of stiches. 4. one stitched wound present on the right arm transverse, 10 cm in size and closed by 12 numbers of stiches. 5. one stitched wound present on the left forearms, 3 cm long in size and closed by 4 numbers of stitches. 6. contusion and haemorrhage present on the scalp over the right parietal bone. Underneath skull bone. Depressed communated fracture present on right parietal bone. 4 cm x 3 cm in size. Membrane were contested, Diffused subdural haemorrhage present all over the brain. Whole brain congested. The Medical Officer opined that death was due to coma as a result of the head injuries sustained. The injuries were antemortem and caused by sharp weapon and homicidal in nature. The injuries were sufficient in the ordinary course of nature to cause the death of a person. 29. PW-10 is the Investigating Officer, who deposed in his evidence that while he was at Nagaon Police Station as an attached Officer, the Case Diary was handed over to him by the Officer-In-Charge of the Police Station. On 24.11.1999, he took over the charge for investigation. During his investigation, he collected the injury report of the injured Khagen Bora and Mohendra Bora. He also collected the supplementary S.C.D. from Dispur Police Station regarding death of the deceased. After completion of investigation, he submitted the charge-sheet against the accused Rabiram Kalita, Bhola Kalita, Upen Kalita, Santosh Kalita, Tagarbala Kalita, Beauti Kalita, Akonmoni @ Janmoni Kalita and Smti. Bivamoni Kalita under Sections 147/148/149/447/323/302 of IPC vide Exhibit No. 3. 30. After going through the evidence of the witnesses, it reveals that there are 4(four) eye witnesses to the alleged incident i.e. PW-1, PW-4, PW-5 & PW-8. It is an admitted fact that due to alleged incident one person Ratulmoni died. Bivamoni Kalita under Sections 147/148/149/447/323/302 of IPC vide Exhibit No. 3. 30. After going through the evidence of the witnesses, it reveals that there are 4(four) eye witnesses to the alleged incident i.e. PW-1, PW-4, PW-5 & PW-8. It is an admitted fact that due to alleged incident one person Ratulmoni died. The allegation against the appellant along with other accused was that the said Ratulmoni was assaulted by them with Dao and Axe causing grievous injuries on his person. The Medical Officer PW-9, who conducted post-mortem examination also found several injuries on the person of the deceased. The appellant took the plea that no specific allegation has been made against the appellant or the other co-accused who caused the fatal injuries to the victim, as a result of which, he died. 31. From the evidence on record, it reveals that PW-1, PW- 4, PW-5 and PW-8, claimed to be the eye-witnesses to the incident. According to PW-1, on the date of incident, the accused Rabiram Kalita, Santosh Kalita and Upen Kalita dragged the deceased Ratulmoni from the road side towards his land and assaulted him with Dao. As he was standing nearby, he had seen the incident. Due to the alleged assault, Ratulmoni sustained injuries on his abdomen and head and subsequently, he died. PW-4 also stated in the same tune that, on the date of incident, there was an altercation between the parties and the appellant Santosh, Upen and Rabiram dragged Ratulmoni towards their land and assaulted him by means of Dao, Axe and Lathi causing severe injuries on his person. PW-8 has also supported the fact that, on the date of incident, Rabiram Kalita, Upen Kalita and Santosh Kalita inflicted injuries towards the deceased Ratulmoni with Dao, Axe etc. as a result of which, he sustained grievous injury on his person. Subsequently, he died while undergoing treatment in the hospital. The evidence of the witnesses disclosed that the accused Rabiram Kalita, Upen Kalita and Santosh Kalita inflicted injuries towards the victim Ratulmoni, for which, he died but the trial Court convicted Upen Kalita and Santosh Kalita under Section 304 Part-II of IPC. It appears that during the pendency of the case, the accused Rabiram expired. Though, 2(two) accused i.e. Upen Kalita and the appellant Santosh Kalita was convicted by the trial Court but this appeal has been preferred by one of the convict Santosh Kalita. 32. It appears that during the pendency of the case, the accused Rabiram expired. Though, 2(two) accused i.e. Upen Kalita and the appellant Santosh Kalita was convicted by the trial Court but this appeal has been preferred by one of the convict Santosh Kalita. 32. It is true that as per evidence of the witnesses all the 3(three) accused persons i.e. Rabiram Kalita, Upen Kalita and the appellant Santosh dragged the deceased Ratulmoni towards some distance from the road and assaulted him with Dao and axe. Though the appellant took the plea that the witnesses are not specific regarding assault hurled towards the victim for which deceased died, but it appears from the record that the charge was framed under Section 302/34 of IPC. Though, the trial Court held that there was no intention on the part of the accused to cause death of the victim, the appellant and the accused Upen Kalita were convicted under Section 304 Part-II of IPC. 33. So far as the contention of the counsel for the appellants that the alleged eye witnesses are related witnesses of the deceased, therefore, their testimony is liable to be discarded due to contradiction in regard to role assigned by the appellant is concerned, the contention of counsel for the appellant has no force. Although, if there is some minor contradiction in the evidence of witnesses but it is not so grave or of any significant nature, rather it is trivial in nature and therefore, on the basis of such contradiction whole evidence of prosecution witnesses does not become unreliable. It is settled principle of law that merely because the witnesses may be related to the victim or the deceased, the testimony may not be rejected. There is no legal canon that only evidence of unrelated witnesses shall be considered credible. On the contrary, this Court is of the view that it is not natural for related witnesses to implicate a person falsely leaving aside the actual culprit. It is needless to say that the only interested witnesses want to see real culprit is brought to book. On the contrary, this Court is of the view that it is not natural for related witnesses to implicate a person falsely leaving aside the actual culprit. It is needless to say that the only interested witnesses want to see real culprit is brought to book. In this regard, the Hon’ble Supreme Court in the case of Jayabalan vs. UT of Pondicherry, (2010) 1 SCC 199 has held as under: “.......We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 34. Similarly, in the case of Md. Rojali Ali vs. State of Assam, (2019) 19 SCC 567 , the Hon’ble Apex Court reiterated distinction between the interested and related witnesses and has held as under: “.......As regards the contention of all the eye-witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an ‘interested’ witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ‘interested’ and ‘related’ witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.” 35. In the case in hand, it reveals that PWs. 1, 4, 5 & 8, were present at the time of incident and they belong to the same family along with the deceased person. The incident occurred on the spot which is adjacent to the house of the deceased and the eye witnesses. In the case in hand, it reveals that PWs. 1, 4, 5 & 8, were present at the time of incident and they belong to the same family along with the deceased person. The incident occurred on the spot which is adjacent to the house of the deceased and the eye witnesses. So, it is quite natural that they had seen the incident when the accused assaulted the deceased. Except the suggestion there is nothing on record which was brought by the defense side denying the presence of eye witnesses on the spot at the relevant time of incident. Hence, the submission of the learned counsel for the appellant, on the issue is of no consequence. 36. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. 37. In every case, it is not possible to have direct evidence of a common intention. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. Reference in this regard may be taken from judgment as rendered by the Hon’ble Apex Court in the case of Bengal Mandal v. State of Bihar, (2010) 2 SCC 91 wherein at paragraph 13, it has been held as under: “.......13. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the acts or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance.” 38. Therefore, courts, in most cases, have to infer the intention from the acts or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance.” 38. Further the Hon’ble Apex Court in the case of Girija Shankar v. State of U.P. (2004) 3 SCC 793 , while bringing out the purpose and nature of Section 34 IPC observed in Para 9, as follows: “9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, (1977) 1 SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. As observed in Ashok Kumar v. State of Punjab, (1977) 1 SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.” 39. Thus, it is evident that the inference regarding applicability of Section 34 of the IPC to be drawn from the circumstances appearing from the proved facts of the case and the proved circumstances. 40. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. 41. It is further settled proposition of law that to rope in an accused with the aid of section 34 IPC, it must be established by cogent evidence that he shared common intention and at the time when the final act was accomplished, he was there, may be not at the actual spot. 42. In the case of Surendra Chauhan v. State of M.P. (2000) 4 SCC 110 , the Hon’ble Supreme Court has held that under section 34 IPC, a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. 43. 43. Herein, in the instant case and as per the law settled as referred hereinabove, the case of prosecution so far as criminality of appellant Santosh Kalita is concerned, is not required to be based upon by taking aid of Section 34 rather the testimony of PW-1, 4, 5 and 8, are very specific disclosing of direct involvement of the appellant Santosh Kalita, Upen Kalita and Rabiram Kalita in commission of alleged crime. 44. Hence, the question of applicability or attracting the ingredient of Section 34 is even immaterial in the facts and circumstances of the case so far as conviction of appellant Santosh Kalita is concerned, since there is direct evidence of committing murder of the deceased as per the testimony of witnesses, as referred hereinabove. 45. From the evidence of the witnesses, it appears that the altercation and the quarrel between the accused and the family members of the deceased was sudden at the spot, and it was not a premeditated one. In view of the aforesaid circumstances, the manner in which the injuries caused to the deceased by the accused and the circumstances in which it was done, the prosecution has not been able to prove beyond reasonable doubt that the present case is covered under any of the Clauses of Section 300 of IPC. Hence, the learned trial Court has rightly convicted the appellant and the co-accused Upen Kalita under Section 304 Part-II of IPC for causing death of the deceased. 46. In the result, the appeal is dismissed. The appellant Santosh Kalita is on bail. He is directed to surrender before the trial Court to serve out the sentence as imposed by the trial Court and to pay the fine accordingly, if not paid earlier. 47. The appeal is disposed of accordingly. 48. The trial Court record be returned back.