[2011] 1 S.C.R. 94 -

KAILAS & OTHERS

STATE OF MAHARASHTRA TR. TALUKA P.S.

(Criminal Appeal No. 11 of 2011)

JANUARY 05, 2011

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Penal Code, 1860 - ss. 459, 354, 323, 506 (2) rw s. 34 - Conviction under - Young woman, belonging to Scheduled c Tribe beaten with fists and kicks, stripped naked and then paraded in naked condition on the road of the village by accused persons - Conviction ulss. 452, 354, 323, 506 (2) rw s. 34 and sentenced to RI for six months with imposition of fine; sentenced to RI for one year with a fine for the offence ; D punishable u/s. 354134 and three months RI with a fine for the offence punishable u/s. 323134 - Accused also convicted and sentenced uls. 3 of the SC/ST Act - High Court acquitting the accused for the offence u/s. 3 of the SC/ST Act, however, upholding conviction under the provisions of the /PC - As c: regards imposition of fine, each accused directed to pay fine ....

of Rs. 50001to the victim - On appeal held: There is no reason to disbelieve the statement of the victim though many witnesses turned hostile - Evidence of the victim corroborated by two prosecution witness - Medical certificate proved by y-

F doctor - Order passed by the High Court convicting the accused under various provisions of the /PC and fine imposed upheld, though sentence was too light considering the gravity of the offence - Instant case deserves total condemnation and harsh punishment - Scheduled Castes

G and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s. 3. ._..

According to the prosecution, 'N' a young woman belonging to the Bhil tribe (Scheduled Tribe) in Maharashtra, had illicit relations with PW 9 who was from H 94

a higher caste and had given birth to. his daughter and A .. was also pregnant through him for a second time. On the fateful day, the appellants-accused persons beat her with fists and kicks and stripped her naked after tearing her clothes, and then paraded her in naked condition on the road of a village while being beating and abusing her.

B The Court of Sessions convicted the accused under

Sections 452, 354, 323, 506 (2) read with Section 34 IPC and sentenced them to RI for six months with imposition of fine. Rs.100/-; sentenced them to RI for one year with fine of Rs. 100/- for the offence punishable under c Sections 354/34 IPC; sentenced under Section 323/34 IPC to three months RI with a fine of Rs. 100/-. The appellants were also convicted and sentenced l!nder Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The High Court acquitted the D _.._ appellants of the offence under Section 3 of the SC/ST Act, but upheld the conviction under the provisions of the IPC. However, as regards imposition of fine, each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim. Therefore, the appellants filed the instant E appeal.

_, Dismissing the appeal, the Court

HELD: 1.1 There is no reason to interfere with the judgment of the High Court convicting the appellants F under various provisions of the Penal Code and imposing fine on them. In fact, the sentence was too light considering the gravity of the offence. [Para 11] [100-F]

i- 1.2 There is the evidence of the victim 'N' PW4 herself and there is no reason to disbelieve the same. Although G many of the witnesses have turned hostile, there is no reason to disbelieve the statement of PW 4. In fact, PW9 supported the prosecution case to some extent. He accepted his illicit relations with PW 4 and admitted that he had a daughter from her and she was pregnant for a H

I A second time 'through him. Even though PW 9 did not _... support the actual incident, his evidence at least on t~ points admitted by him corroborates the evidence of P

4. [Para 12] [100-G-H; 107-A]

B 1.3 PW 2 proved the spot. He stated that the panchanama was drawn in front of the house of PW 4.

At the time of the panchanama, PW 4 was accompanied

~ by the police and she had shown the entire area from her house to the place in front of the shop of PW3. The police c seized the clothes in torn condition, produced by PW4.

There were pieces of banglesJying in front of the house.

Thus, there is no reason to disbelieve PW2. (Para 13] (101-

B-C]

1.4 It appears that the accused are powerful persons D in the village inasmuch as that all the eye-witnesses have ~- turned hostile out of fear or some inducement. However, .

PWB-doctor proved the medical certificate and stated that tl'tere were two contusions on the person of the victim. [Para 14] (101-D]

E • 1.5 The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous.

The dishonor of PW 4 called for harsher punishment, it -r is surprising that the State Government did not file any

F appeal for enhancement of the punishment awarded by the Additional Sessions Judge. [Paras 15] [101.:E-F]

2. India has tremendous diversity and this is due to the large scale migrations and invasions into India over thousands of years. The various immigrants/invaders __..

G who came into India brought with them their different cultures, languages, religions, etc. which accounts for the tremendous diver5ity in India. Since India is a country of great diversity, it is absolutely essential if the country is united to have tolerance and equal respect for all H communities and sects. The Constitution of India which

....

is secular in character, caters to the tremendous diversity A\ in our country. Thus, it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc.

in the country. The Constitution guarantees to all citizens B freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21 ), etc.

However, giving formal equality to all groups or , communities in India would not result in genuine equality.

The historically disadvantaged groups must be given c special protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special provisions have been made in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups. Among these 0 disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, are the-- descendants of the original inhabitants of India, and are the most marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc. Thus, E it is the duty of all people who love the country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities.

The mentality of the countrymen towards these tribals F must change, and they must be given the respect they deserve as the original inhabitants of India. [Para 31, 34]

[107-E-G; 108-A-C]

3. The injustice done to the tribal people of India is a G shameful chapter in the country's history. Instances like the instant case deserves total condemnation and harsh punishment. [Paras 36 and 40] [108-G-H; 109-G]

Samatha vs. State of Andhra Pradesh and Ors. AIR 1997 SC 3297 - referred to.

A Case Law Reference:

AIR 1997 SC 3297 Referred to Para 34

CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 11 of 2011.

B From the Judgment and Order dated 10.03.2010 of the High Court of Bombay Bench at Aurangabad in Criminal Appeal No. 62 of 1998. +

Dilip A. Taur and Anil Kumar for the Appellants.

The following Judgment of the Court was delivered

JUDGMENT

1. Leave granted.

2. This appeal has been filed against the final judgment ).

and order dated 10.03.2010 in Criminal Appeal No. 62 of 1998 passed by the Aurangabad Bench of Bombay High Court.

3. Heard learned counsel for the appellants.

4. This appeal furnishes a typical instance of how many of our people in India have been treating the tribal people (Scheduled Tribes or Adivasis), who are probably the )- -

descendants of the original inhabitants of India, but now F constitute only about 8% of our total population, and as a group are one of the most marginalized and vulnerable communities in India characterized by high level of poverty, illiteracy, unemployment, disease, and landlessness.

5. The victim in the present case is a young woman --4 Nandabai 25 years of age belonging to the Bhil tribe which is a Scheduled Tribe (ST) in Maharashtra, who was-beaten with fists and kicks and stripped naked by the accused persons after tearing her blouse and brassieres and then got paraded

H --

 in naked condition on the iroad of a village while being beaten A

,, i.., and abused by the accused herein.

6. The four accused were convicted by the Additional Sessions Judge, Ahmednagar on 05.02.1998 under Sections 452, 354, 323, 506(2) read with Section 34 IPC and sentenced 8 to suffer RI for six months and to pay a fine of Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine of Rs. 100/- for the offence punishable under Sections 354/34 IPC. They were also sentenced under Section 323/34 IPC and sentenced to three months RI and to pay a fine of Rs. 100/-.

The appellants were further convicted under Section 3 of the C Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.

6. In appeal before the High Court the appellants were D acqu-itted of the offence under Section 3 of the SC/ST Act, but the conviction under the provisions of the IPC were confirmed: However, that part of the order regarding .fine was set aside and each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim Nandabai.

7. The prosecl; ion case is that the victim Nandabai who belongs to the Bhil community was residing with her father, handicapped brother, and lunatic sister. She had illicit relations with PW9 Vikram and had given birth to his daughter and was also pregnant through him for a second time. Vikram belongs to a higher caste and his marriage was being arranged by his family with a woman of his own caste. On 13.5.1994 at about

5 00 P.M. when the victim Nandabai was at her house the four accused went to her house and asked why she had illicit relations with Vikram and started beating her with fists and G kicks. At that time the accused Kailas and Balu held her hands . while accused Subabai @ Subhadra removed her sari. The accused Subhash then removed her petticoat and accused Subabai tore the blouse and brassiere of the victim Nandabai.

SUP~EME COURT REPORTS


A Thereafter the accused Subabai and Balu paraded the victim Nandabai on the road of the village and at that time the four

accused herein were beating and abusing the victim Nandabai.

8. At about 8.40 p.rn. an FIR was lodged at Taluka Police

B Station and after investigation a charge-sheet was filed. After taking evidence the learned Additional Sessions Judge convicted the accused.

9. As already mentioned above, the conviction under the provisions of the IPC have been upheld but that under the c Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 have been set aside.

10. We are surprised that the conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention

D of Atrocities) Act, 1989 was set aside on hyper technical

grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appear to be only technicalities and hardly a ground for acquittal, but since

E no appeal has been filed against that part of the High Court

judgment, we are now not going into it.

11. However, we see no reason to interfere with the ;- - judgment of the High court convicting the appellants under various provisions of the IPC and imposing fine on them. In fact, F we feel that the sentence was too light considering the gravity of the offence.

12. There is the evidence of the victim Nandabai PW4 herself and we see no reason to disbelieve the same. Although

G many of the witnesses have turned hostile, we see no reason .... to disbelieve the statement of the victim Nandabai. In fact, PW9 Vikram supported the prosecution case to some extent. He has accepted his illicit relations with victim Nandabai and admitted that he had a daughter from her and she was pregnant for a

H second time through him. Even though he did not -support the

y, actual incident, we are of the opinion that Vikram's evidence A at least on the points admitted by him corroborates the evidence of victim Nandabai.

13. PW2 Narendra Kalamkar has proved the spot panchanama Exh. 12. He stated that the panchanama was B drawn in front of the house of PW4, the victim Nandabai. At

the time of the panchanama, Nandabai was accompanied by the police and she had shown the entire area from her house to the place in front of the shop of PW3 Shankar Pawar. The police seized the clothes in torn condition, PfOduced by PW4 c Nandabai. There were pieces of bangles ly111g in front of the house. Hence there is no reason to disbelieve PW2 Narendra Kalamkar.

14. It appears that .the accused are powerful persons in the village inasmuch as that all the eye-witnesses have turned D hostile out of fear or some inducement. However, PW8 Dr.

Ashok lngale proved the medical certificate Exh. 26 and stated that there were two contusions on the person of the victim.

15. The parade of a tribal woman on the village road in E broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, -""( and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.

16. It is alleged by the appellants that the people belonging to the Bhil community live in torn clothes as they do not have proper clothes to wear. This itself shows the mentality of the

Iaccused who regard tribal people as inferior or sub-humans.

This is totally unacceptable in modern India.

17. The Bhils are probably the descendants of some of the original inhabitants of India living. in various parts of the country particularly southern Rajasthan, Maharashtra, Madhya Pradesh etc. They are mostly tribal people and have managed H

A to preserve many of their tribal customs despite many oppressions and atrocities from other communities.

18. It is 'stated in the Article '\l\/orld Directory of Minorities and Indigenous Peoples - India: Advasis', that in Maharashtra

8 Bhils were mercilessly persecuted in the 17th century. If a criminal was caught and found to be a Bhil, he or she was often killed on the spot. Historical accounts tell us of entire Bhil communities being killed and wiped out. Hence, Bhils retreated to the strongholds of the hills and forests.

19. Thus Bhils are probably the descendants of some of the original inhabitants of India known as the 'aborigines' or .

Scheduled Tribes (Adivasis), who presently comprise of only about 8% of the population of India. The rest 92 % of the population of India consists of descendants of immigrants. Thus o India is broadly a country of immigrants liko Norlh America.

We may consider this in some detail.

India is broadly a country of immigrants

20. While North America (USA and Canada) is a country E of new immigrants, who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the F North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.

21. People migrate from uncomfortable areas to G comfortable areas. This is natural because everyone wants to

live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why H should anybody living in India migrate to, say, Afghanistan which

has a harsh terrain, rocky and mountainous and covered with A .,., snow for several months in a year when one cannot grow any crop? Hence, almost all immigrations and invasions came from outside into India (except those Indians whoDwere sent out during British rule as indentured labour, and the recent migration of a few mil.lion Indians to the developed countries 8 for job opportunities). There is perhaps not a single instance of an invasion from India to outside India.

22. India was a veritable paradise for pastoral and agricultural societies because it has level & fertile land, c hundreds of rivers~ forests etc. and is rich in natural resources.

Hence for thousands of years people kept pouring into India

because they found a comfortable life here in a country which was gifted by nature.

23. As the great Urdu poet Firaq Gorakhpuri wrote: D

J..

"Sar Zamin-e-hind par aqwaam-e-alam ke firaq Kafile guzarte gae Hindustan banta gaya" • Which means - E "In the land of Hind, the Caravans of the peoples of The world kept coming in and India kept getting formed".

''I,

24. Who were the original inhabitants of India ? At one time it was believed that the Dravidians were the original inhabitants.

F However, this view has been considerably modified subsequently, and now the generally accepted belief is that the original inhabitants of India were the pre-Dravidian aborigines i.e. the ancestors of the present tribals or advasis (Scheduled Tr:'"ies). In this connection it is stated in The Cambridge History G >-- of lnci:::t (Vol-I}, Ancient India as follows:

"It must be remembered, however, that, when the term 'Dravidian' is thus used ethnographically, it is nothing more than a convenient label. It must not be assumed that the speakers of the Dravidian Ian::· ages are aborigines. In H

Southern India, as in the North, the same general distinction exists between the more primitive tribes of the hills and jungles and the civilized inhabitants of the fertile tracts; and some ethnologists hold that the difference is racial and not merely the result of culture. Mr. Thurston, for instance, says:

"It is the Pre-Dravidian aborigines, and not the later and more cultured Dravidians, who must be regarded as the primitive existing race ...... These Pre-Dravidians ...... are differentiated from the Dravidian classes by their short stature and broad

(platyrhine) noses. There is strong ground for the belief that the Pre-Dravidians are ethnically related to the Veddas of Ceylon, the Talas of the Celebes. the Batin of Sumatra, and possibly the Australians. (The Madras Presidency, pp. 124-5.)"

It would seem probable, then, that the original speakers of the Dravidian languages were outsiders, and that the ethnographical Dravidians are a mixed race. In the more

habitable regions the two elements have fused, while representatives of the aborigines are still in the fastnesses (in hills and forests) to which they retired before the encroachments of the newcomers. If this view be correct, we must suppose that these aborigines have, in the course of long ages, lost their ancient languages and adopted those of their conquerors. The process of linguistic transformation, which may still be observed in other parts of India, would seem to have bsen carried out more completely in the South than elsewhere.

G The theory that the Dravidian element is the most ancient which we can discover in the population of Northern India, must also be modified by what we now know of the Munda languages, the lndi<jln representatives of the Austric family of speech, and the mixed languages in which their H influence has been traced (p.43). Here, according to the

KAILAS & ORS. v. STATE OF MAHARASHTRA TR. 105

TALUKA P.S.

evidence now available, it would seem that the Austric A element is the oldest, and that it has been overlaid In different regions by successive waves of Dravidian and - lndo-European on the one hand, and by 1ibeto-Chinese on -the other. Most ethnologists hold that there is no difference in physical type between the present speakers of Munda B and Dravidian languages. This statement has been called in question; but, if it is true, it shows that racial conditions

have become so complicated that it is no longer possible to analyse their constituents. Language alone has preserved a record which would otherwise have been lost. c

At the same time, there can be little doubt that Dravidian languages were actually flourishing in the western regions of Northern India at the period when languages of the lndo- European type were introduced by the Aryan invasions D from the north-west. Dravidian characteristics have been

>.. traced alike in Vedic and Classical Sanskrit, in the Prakrits, or early popular dialects,· and in the modern vernaculars derived frorn them. The linguistic strata would thus appear to be arranged in the order-Austric, Dravidian, lndo-European.

There is good ground, then, for supposing that, before the coming of the lndo-Aryans speakers the Dravidian

- " languages predominated both in Northern and in Southern ' India; but, as we have seen, older elements are F discoverable in the populations of both regions, and therefore the assumption that the Dravidians are aboriginal is no longer tenable. Is there any evidence to show whence they came into India?

,-;'J theory of their origin can be maintained which does G >-- not .. ~'Jcount for the existence of Brahui, the large island of Dra'v ...... ian speech in the mountainous regions of distant Baluchistan which lie near the western routes into India. Is Brahui a surviving trace of the immigration of Dravidian -speaking peoples into India from the west? Or H

A does it mark the limits of an overflow form India into Baluchistan? Both theories have been held; but as al/ the great movements of peoples have been into .India and not out of India, and as a remote mountainous district may be expected to retain the survivals of ancient races while B it is not likely to have been colonized, the former view would a priori seem to be by far the more probable."

(See 'Brahui' on Google).

25. In Google 'The original inhabitants of India', it is C mentioned :

"A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not D the case.

The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to ei.ther lndo-Aryan or Dravidian languages"

26. Thus the generally accepted view now is that the original inhabitants of India were not the Dravidians but the pre- Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand), Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the F tribals in the Andaman Islands, the Adivasis in various parts of

India (especially in the forests and hills) e.g. Gonds, Santhals.

Bhils, etc.

27. It is not necessary for us to go into further details into G this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India , are descendants of immigrants (though more research is required).

28. It is for this reason that there is such tremendous H diversity in India. This diversity is a significant feature of our

KAILAS & ORS. v. STATE OF MAHARASHTRA.TR .. 107

TALUKA P.S.

 country, and the only way to explain it is to accept that India is A largely a country of immigrants.

29. There are a large number of religions, castes, languages, ethnic groups, cultures etc. in our country, which is due to the fact that India is a country of immigrants. Somebody B: is tall, somebody is short, some are dark, some are fair . complexioned, with all kinds of shades iri between, somecme has Caucasian features, someone has Mongoloid features, . someone has Negroid features, etc. There are differences in dress, food habits and various other matters.

30. We may compare India with China which is larger both in population and in land area than India. China has a population of about 1.3 billion whereas our population is roughly

1.1 biUion. Also, China has more than twice our land area.

However, all Chinese have Mongoloid features; they have a o common written script (Mandarin Chinese) and 95% of them belong to one ethnic group, called the Han Chinese. Hence there is a. broad (though not absolute) homogeneity in China:

31. On the other hand, as stated above, India has E tremendous diversity and this is due to the lre scale. migrations and invasions into India over thousands of years. The various immigrants/invaders who came into India brought with them. their different cultures, languages, religions; etc. which .· accounts for the tremendous diversity in India. F

32. Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tq!erance and equal respect for <illf communities and sects. It was due to~· the-wisdom of our founding fathers that we have :a Constitution which issecular in character, and which caters to the G tremendous diversity in our country.

33. Thus it is the Constitution of India which is keeping us . together despite all our tremendous diversity, because. the Constitution gives equal respect to all communities, sects, . H.

A lingual and ethnic groups, etc. in the country. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21 ), etc.

34. However, giving formal equality to all groups or communities in India would not result in genuine equality. The historically disadvantaged groups must be given spcial protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special c provisions have been made in our Constitution in Articles 15( 4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups.

Among these disadvantaged groups, the most disadvantaged. and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalized and living D in terrible poverty with high rates of illiteracy, disease, early

mortality etc. Their plight has been described by this Court in

Samatha vs. State of Andhra Pradesh and Ors. Al R 1997 SC 3297 (vide paragraphs 12 to 15). Hence, it is the duty of all people who love our country to see that no harm is done to the E Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals 'f- -

must change, and they must be given the respect they deserve F as the original inhabitants of India.

35. The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.

36. The injustice done to the tribal people of India is a

"" shameful chapter in our country's history. The tribals were called 'rakshas' (demons), 'asuras', and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of H atrocities inflicted on them for centuries. They were deprived

of their lands, and pushed into forests and hills where they eke A . ..,.: out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.

37. The well known example of the injustice to the tribals B

is the story of Eklavya in the Adiparva of the Mahabharat.

-+-- Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. c He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya's favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as 'guru dakshina' (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what D .l he was told .

38. This was a shameful act on the part of Dronacharya.

He had not even taught Eklavya, so what right had he to demand 'guru dakshina', and that too of the right thumb of Eklavya so that the latter may not become a better archer than E his favourite pupil Arjun?

-\:

39. Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country. They normally

F : do not cheat, tell lies, and do other misdeeds which many nontribals do. They are generally superior in character to the nontribals. It is time now to undo the historical injustice to them.

40. Instances like the one with which we are concerned in

~ this case deserve total condemnation and harsh punishment.

41. With these observations the appeal stands dismissed.

N.J.

Appeal dismissed