CHAMAN Vs STATE OF UTTRAKHAND
Bench: S.A. BOBDE,AMITAVA ROY
Case number: Crl.A. No.-000365-000365 / 2013
Diary number: 28899 / 2012
Advocates: SHOMILA BAKSHI Vs
ANUVRAT SHARMA
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 365 OF 2013
CHAMAN AND ANOTHER …APPELLANTS
VERSUS
STATE OF UTTRAKHAND …RESPONDENT WITH CRIMINAL APPEAL NO. 597 OF 2013
J U D G M E N T
AMITAVA ROY, J.
The appeals assail the judgment and order dated
11.6.2012, rendered by the High Court of Uttrakhand, Nainital
in Criminal Appeal No. 111 of 2004, affirming the conviction of
the appellants under Sections 302,364 r/w 34 IPC. For the
offence under Section 302 r/w 34 IPC, the appellants have
been sentenced to undergo imprisonment for life and fine of
Rs. 5000/- each and for the offence under Section 364 r/w 34
IPC, they have been sentenced to suffer rigorous imprisonment
for seven years and fine of Rs. 5000/- each. Sentence of
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imprisonment in default of fine has also been awarded. The
trial court had convicted and sentenced the appellants in
identical terms.
2. We have heard Mr. V. Shekhar, learned senior counsel
for the appellants – Chaman and Sukhbeer in Criminal Appeal
No. 365 of 2013, Mr. P.K. Dey, learned counsel for the
appellant – Rakesh Kumar @ Mota in Criminal Appeal No. 597
of 2013 and Mr. Jatinder Kumar Bhatia, learned counsel for
the State.
3. The genesis of the prosecution case is traceable to the
F.I.R. lodged on 12.6.1996 by Rajo Devi, widow of the
deceased Jagram, addressed to the Station In-charge, Police
Station Cleamantown, Dehradun. She alleged in the FIR that
prior to the date of incident i.e. 12.6.1996, the appellants
Chaman, Rakesh @ Mota and Sukhbeer along with two
associates had come to their residence in search of her son
Vinod, who they alleged was involved in the murder of the son
of Chaman. As Vinod was not available there, they went back.
They returned on the date of the incident at about 11 A.M.,
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when she along with her husband and daughters Bina and
Manju were present in the house. The appellants again
enquired about Vinod and as he was not present in the house,
they took away her husband Jagram with them. The
informant stated that the appellants had come in a jeep
bearing No. UP 015 5330 and had forced her husband in the
said jeep and had taken him away. She expressed
apprehension that due to the impression of the appellants that
her son Vinod was involved in the murder of the son of
Chaman, they would eliminate her husband, Jagram. She
mentioned as well in the FIR that at the time of the incident,
her daughters Bina and Manju raised alarm, but the people of
the locality did not intervene.
4. This information was registered as FIR No. 250 of 1996
and in course of the investigation, on 15.6.1996 at about 1400
hours, one Amar Singh informed the Police Station Chandpur,
District Bijnour that a decomposed dead body, 3/4 days old,
had been detected in a jungle between Cehla and Ismailpur.
This information was recorded and inquest of the dead body
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was conducted in presence of panch witnesses, whereafter the
body was dispatched for post-mortem examination. At that
stage, the dead body was unidentified. It was found to be
decomposed with maggots. No visible injury was noticed on
the dead body. The appellant Chaman was arrested on
3.7.1996, who thereafter led the police to the jungle at Village
Cehla, within the jurisdiction of P.S. Chandpur, District
Bijnour from where a rope, as shown by him, was recovered
from bamboo bushes. According to the prosecution, the
appellant Chaman also showed to the police, the place in the
jungle where Jagram had been killed by hanging him by that
rope from a tree. The rope was seized vide recovery memo and
the site plan of the place of occurrence as indicated by the
appellant Chaman, was prepared.
5. The dead body, on the completion of inquest, was sealed
and was brought to the District Hospital, Bijnour for autopsy.
On the basis of the evidence collected in the course of
investigation, charge-sheet was submitted against the
appellants – Chaman, Rakesh Kumar @ Mota, Sukhbeer,
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Ghanshyam @ Bundu, Tofique and Ashok under Sections
302/364/201 IPC. The case being exclusively triable by the
Court of Sessions was committed to the Court of Additional
Sessions Judge, Fast Track (IV), Dehradun. Charge was
framed under Sections 147, 201/302/364 r/w 149 IPC, to
which the accused persons pleaded “not guilty” and claimed to
be tried.
6. The prosecution examined ten witnesses, whereafter the
statements of the accused persons were recorded under
Section 313 Cr.P.C.. All of them stood by their denial in their
statements. On the conclusion of the trial, the trial court
acquitted accused Ghanshyam, Tofique and Ashok of all the
charges. It acquitted appellants as well, of the charges under
Sections 147, 201 r/w 149 IPC but convicted them, under
Sections 302/364 r/w 34 IPC and sentenced them as above.
7. The High Court, by the verdict impugned, affirmed the
sentence and conviction recorded by the trial court.
8. Mr. Shekhar, learned senior counsel for the appellants-
Chaman and Sukhbeer has at the threshold dismissed the case
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of the prosecution as motivated and concocted and to buttress
this plea, has drawn the attention of the Court to a letter dated
15.4.1996, addressed by one Surender @ Baniya, a detenue in
District Jail, Bijnour to the Superintendent of Police, Bijnour,
U.P. hinting at a plot to kill, the appellant Chaman who is a
witness in the case of the murder of his son. The learned
senior counsel sought to impress upon the court on the basis
of this document, that the appellant Chaman in particular, was
thus falsely implicated in the case of alleged abduction and
murder of Jagram. Apart from emphatically contending that
there was an apparent confusion in the information as to the
type of the vehicle in which the appellants had visited her
house, Mr. Shekhar has endeavoured to discredit the
prosecution case, for the omission to examine the scribe of the
FIR, who admittedly had penned the same on the disclosures of
the informant Rajo Devi. According to the learned senior
counsel, the discrepancy in the description of the rope allegedly
recovered, being led thereto by the appellant Chaman and the
one produced in the court, did conclusively belie the
prosecution case.
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9. Mr. Shekhar laboured to emphasise that this anomaly is
writ large from the testimony of PW4, Constable Nardev Singh
who identified the rope produced in the court to be made of
plastic whereas PW10 S.I. Ramesh Chander Sharma, the
Investigation Officer in categorical terms, had deposed that the
seized rope was made of jute and that it was not a nylon rope.
Mr. Shekhar further urged, that admittedly though the dead
body was decomposed and some portions of the abdomen and
lower half were missing, no visible injury was noticed thereon
and particularly on the neck and thus the prosecution version
of death by asphyxia, as opined by the doctor, effected by the
rope recovered, was wholly untrustworthy. The learned senior
counsel, while questioning the identification of the appellants,
has also cast aside the prosecution case to be wholly
improbable as well.
10. While generally endorsing the above contentions, Mr. P.K.
Dey, learned counsel for the appellant Rakesh Kumar @ Mota,
has urged that the FIR, lodged within 45 minutes of the
incident, is too prompt in point of time, having regard to the
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nature of the incident complained of and in reality is ante
timed to falsely implicate the appellant –Rakesh Kumar in the
case. According to the learned counsel, not only the
prosecution case is inherently unbelievable, in absence of any
endeavour whatsoever by the family members to resist the
alleged abduction of Jagram and the non-intervention of
residents of the otherwise densely populated neighbourhood,
the acquittal of the three co-accused, who allegedly had
accompanied the appellant, is destructive of the sub stratum of
the prosecution case. This is more so, as the accused-
appellant and their companions were unarmed. Mr. Dey has
argued, that not only the discrepancy in the description of the
rope recovered and produced in the court, renders the
prosecution case highly doubtful, in absence of identification of
the dead body and any perceptible nexus between the offence
of murder of Jagram and the appellants, their conviction, if
sustained, would be a travesty of justice. The learned counsel
underlined the contradictions in the statements of PW6, the
Doctor and PW5-Rakesh about the state of the body before the
autopsy and also maintained that in absence of any evidence of
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coordination between the police stations at Dehradun and
Bijnour over the detection of the dead body, the despath
thereof and its identification, the prosecution could not
establish that the dead body was that of Jagram. Inviting the
attention of this Court to the evidence of PW5- Rakesh, the son
of the deceased who stated to have come to learn about the
abduction of his father 4/5 days prior to the recovery of the
dead body, the learned counsel has insisted that such a
statement being a part of the same transaction enfolding the
alleged abduction of the deceased and recovery of the dead
body, it is res gestae and thus demolished the version in the
FIR as well as the testimony of the informant to that effect. Mr.
Dey has urged as well that as the factum of the identification of
the dead body to be of Jagram, as made by his son PW5 Vinod,
had not been put to the appellants, in the course of their
statements under Section 313 Cr.P.C., this incriminating
circumstance could not have been taken note of and acted
upon in support of the charge.
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11. Per contra, learned counsel for the State has maintained
that the testimony of PW1–Rajo Devi, the informant, PW2-
Manju, the daughter of the deceased, PW4 Constable Nardev
Singh, the seizure witness of the rope, PW5 Rakesh, son of the
deceased who identified the dead body, PW6 Dr. A.K. Kaul who
had performed the post-mortem examination and PW10 S.I.
Ramesh Chander Sharma in particular has proved the charge
against the appellants beyond all reasonable doubt and thus
the conviction and sentence as recorded by the trial court and
affirmed by the High Court does not merit any interference.
12. The learned counsel for the State has asserted that as
the abduction of the deceased has been convincibly proved by
PWs 1 and 2 and that Jagram had met a homicidal death
immediately thereafter, there was a rebuttable presumption of
guilt against the appellants and as they had failed to offer any
explanation whatsoever, as to how they had dealt with Jagram
while he was in their custody, their conviction is sustainable in
law and on facts. He referred, in particular to Section 106 of
the Indian Evidence Act, 1872 to reinforce this plea and also
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relied upon the decision of this Court in State of State of
W.B. vs. Mir Mohammad Omar and others, (2000) 8 SCC
382.
13. The arguments advanced and the materials on record
have received our due attention. Concurrent findings of facts,
notwithstanding, having regard to the conviction and sentence
as recorded, we have traversed the evidence available to the
extent essential for the present adjudication.
14. The facts narrated in the FIR dated 12.6.1996, in our
estimate, are of sufficient clarity regarding the dual visits of
the appellants to the house of the deceased in search of his
son Vinod. The contents thereof do not admit any doubt that
the appellants along with two others had come in a jeep, the
number whereof had been provided in the FIR, on the date of
the incident at about 11 A.M. and had taken away with them
the deceased, father of Vinod in presence of the informant-
Rajo Devi, his daughters Bina and Manju. There is a clear
averment that though the daughters raised alarm and that the
people of the locality were present, no body did come forward
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to prevent the abduction. The omission on the part of the
people in the neighbourhood to intervene per se, in our
opinion, does not detract from the truthfulness of the report
made which admittedly had been done within the shortest
possible time. Though the FIR was written by one H.S.
Verma, his non-examination as well is of no adverse bearing
on the prosecution case. The letter by Surender, a detenu in
the District Jail, Bijnour hinting at the plot to kill Chaman
also, in our comprehension, is not of any definitive
significance.
15. PW1-Rajo Devi, in unequivocable terms, stated on oath
that on the date of the incident at 11 A.M., the appellants and
two other persons, whose names were not known to her, had
come in a car with curtains. They searched for her son Vinod
and when he was not found, they picked up her husband
Jagram, pushed him in the car and took him away. She
identified the appellants and other accused persons in the
court to be the kidnappers of her husband. She stated as well,
in terms of the FIR filed, that the appellants had visited her
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house 15 days prior to the date of the incident looking for her
son Vinod, disclosing it to her that they suspected that he was
involved in the murder of the son of Chaman. The witness also
deposed that thereafter she along with her two daughters Bina
and Manju and son-in-law, had visited the Bijnour mortuary
and had identified the dead body of her husband.
16. PW2- Manju, daughter of the deceased testified in the
same lines as of her mother. She identified the appellants who
along with two others had come in a car to their house on the
date of the incident. She reiterated the purpose of the visit of
the appellants and their companions as disclosed by them and
confirmed that they had similarly come to their house in
search of Vinod 15 days prior to the date of incident. She
mentioned about the presence of her sister Veena in the house
at the time of the incident. She was categorical in the matter of
identification of the accused persons.
17. PW4 Constable Nardev Singh deposed that the appellant
Chaman led the police to recover the rope whereby Jagram was
hung from the tree. He stated that the appellant Chaman not
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only identified the tree but also led the police to the rope which
was recovered from the bush in the jungle. He identified the
rope in the court to be one of plastic. In cross-examination,
this witness clarified that the jungle was not on a thorough
fare. He stated that he was unaware as to why in his
statement under Section 161 Cr.P.C., the recovered rope was
described to be a “jute rope” (suthli).
18. PW5 Rakesh, son of the deceased on oath deposed that
he recognized the dead body of his father at District Hospital
Mortuary, Bijnour, after it was taken out from the sealed cloth
before the post-mortem examination. He stated that he came
to know about 4/5 days before, that appellant Chaman had
called his father and had taken him away.
19. PW6 Dr. A.K. Kaul who had performed the autopsy,
testified that the dead body was then in an advanced stage of
decomposition and maggots were present on it. He stated that
some body parts like middle stomach and left thigh were
missing and that it appeared that it had been nibbled by
animals. He mentioned that there was no apparent injuries on
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the dead body of the deceased but opined that the cause of
death might be asphyxia. He stated as well that there was no
mark of rope on the body but added that bronchial tube was
broken. According to him, death had occurred between
12.6.1996 to 15.6.1996.
20. PW7 Shakoor Khan was a witness to the recovery and
inquest of the dead body. PW8 S.I. Charan Singh had
prepared the inquest report of the dead body. PW9 Amar
Singh had detected the dead body of an unknown person lying
in the jungle between Cehla and Ismailpur. The dead body was
3/4 days old and he had informed of this fact in writing to the
Police Station Chandpur.
21. PW10 S.I. Ramesh Chander Sharma, the Investigating
Officer narrated the steps taken by him in the course of
investigation. He stated about the recovery of the rope from
the bamboo bushes of the place of occurrence, being led
thereto by appellant Chaman and the preparation of the memo
of seizure thereof. He admitted in his cross-examination that
the place from where the rope was recovered was accessible to
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all. He mentioned that the rope recovered was a jute rope and
not a nylon rope.
22. A perusal of the statements of the accused persons
recorded under Section 313 Cr.P.C. reveal that comprehensive
questions pertaining to abduction and murder of Jagram by
them, detection of his decomposed dead body, post-mortem
thereof with the cause of death and the recorded statement of
appellant Chaman leading to the discovery of the rope involved,
were put to them so as to fully enable them to explain all the
incriminating circumstances appearing against them in the
evidence adduced by the prosecution.
23. An analytical evaluation of the materials on record does
not admit of any doubt of the successive visits of the appellants
on the turn of 15 days to the house of the deceased in search
of Vinod whom they suspected was involved in the murder of
the son of the appellant Chaman. There is nothing to
disbelieve PWs 1 and 2 that the appellants, on the date of the
incident, had come in a jeep and as they did not find Vinod in
the house, they abducted Jagram, who was later on found dead
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within 3/4 days therefrom in a nearby jungle. Though the
incident took place in the broad day light and the daughters
did raise alarm, the mere non-intervention by the persons in
the locality, in our opinion, in the face of the otherwise
overwhelming and consistent testimony of the mother and the
daughter does not discredit the prosecution case. Noticeably,
the PWs 1 and 2 were steadfast in the matter of identification
of the three appellants, not only at the time of the incident but
also thereafter in court. According to them, the appellants
were of the village Ismailpur and thus their identification was
not difficult for them. Admittedly the FIR was lodged with due
promptness, thus obviating the possibility of any
embellishment. To reiterate, non-examination of the scribe of
FIR does not render the prosecution case untrustworthy in the
attendant facts and circumstances.
24. The irrefutably proved circumstance against the appellants
is that they had visited the house of the deceased twice within
a span of fifteen days, on each occasion in search of his son
Vinod and ultimately on the date of the incident had forcibly
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taken him away, only thereafter to be found to have died a
homicidal death in an unnatural setting. The fact of recovery
of the rope, being led thereto by the appellant Chaman is
admissible in evidence against the appellants. The discrepancy
about the texture of the rope, the seizure thereof having
otherwise been proved, is not of much significance. PW4
Constable Nardev Singh, who was associated with the
procedure of seizure of the rope had identified the same in the
court. In our opinion, nothing much turns on the mismatch in
the description thereof as has been sought to be emphasised
on the basis of his statement to this effect under Section 161
Cr.P.C. The dead body has been identified by the informant
wife in presence of her daughters and sons-in-law as well as
the son PW5 as is evident from the evidence on record.
25. The motive for the offence is also discernible in the facts
of this case and for that matter, from the disclosures made by
the appellants for their visits in search of Vinod, who they
believed, was involved in the murder of the son of the appellant
Chaman. The pleas based on res gestae and the perceived
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omission to bring to the notice of the appellants, the factum of
identification of the dead body, in the face of the consistent,
cogent and coherent evidence on record, do not commend for
acceptance. The statement of PW2 that he came to know about
the abduction after 4/5 days can by no means be one in
course of the transaction encompassing the incident to attract
the doctrine of res gestae.
26. Significantly, the proved abduction of the deceased from
his house by the appellants is per se a criminal offence and
carries with it a much higher degree of sinister culpability
compared to any phenomenon of “last seen together”,
simpliciter. Further the deceased being in the custody of the
appellants after his abduction on 12.6.1996, it was within their
special knowledge as to how he had been dealt with by them
thereafter before his dead body was found in a decomposed
state in a nearby jungle. No explanation is forthcoming in any
form in this regard from the appellants.
27. This Court in State of West Bengal (supra) in a
somewhat similar fact situation, where the deceased was
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abducted by the accused persons and thereafter his mangled
body was found, held that the pristine rule that the burden of
proof is on the prosecution to prove the guilt of the accused
should not be taken as a fossilised doctrine as if it admits of
no process of intelligent reasoning. It was enunciated that the
doctrine of presumption is not alien to the above rule, nor
would it impair the temper of the rule qua the purport of
presumption of fact as a rule in the law of evidence. It was
observed thus:
“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
28. Adverting to the facts, this Court ruled that as the
prosecution had succeeded in establishing that the deceased
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had been abducted by the accused, they alone knew what
happened to him until he was with them and if he was found
murdered in a short time, after the abduction, the permitted
reasoning process would enable the court to draw the
presumption that the accused had murdered him. It was held
that such inference can be disrupted, if the accused would tell
the Court what else had happened to the deceased at least
until he was in their custody.
29. Referring to Section 106 of the Evidence Act, it was
propounded that the said section was not intended to relieve
the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt, but would apply to cases where
prosecution had succeeded in proving facts from which a
reasonable inference could be drawn regarding the existence
of certain other facts, unless the accused, by virtue of his
special knowledge regarding such facts, succeed to offer any
explanation, to drive the court to draw a different inference.
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30. The following observations by this Court in the context
of above legal provision in Shambhu Nath Mehra vs. State of
Ajmer AIR 1956 SC 404 was adverted to with approval.
“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that it means facts that are pre-eminently or exceptionally within his knowledge.”
31. Proof beyond reasonable doubt, as has been held in a
plethora of decisions of this Court, is only a guideline and not a
fetish and that someone, who is guilty, cannot get away with
impunity only because truth may suffer some infirmity when
projected through human processes as has been observed in
Inder Singh and another vs. The State (Delhi
Administration) (1978)4SCC161. A caveat against
exaggerated devotion to the rule of benefit of doubt to nurture
fanciful doubts or lingering suspicion so as to destroy social
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defence has been sounded by this Court in Gurbachan Singh
vs. Satpal Singh and others (1990)1SCC 445. It has been
propounded that reasonable doubt is simply that degree of
doubt which would permit a reasonable and a just man to
come to a conclusion. It has been underlined therein that
reasonableness of doubt must be commensurate to the nature
of the offence to be investigated.
32. Judged by the above touchstone of reasonableness of
doubt in evaluating the facts and circumstances of the present
case, we are clear in our mind that the complicity of the
appellants in the offences with which they have been charged,
has been convincingly proved as required in law.
33. It is patent from the evidence of the doctor conducting
the post-mortem examination that the cause of death is
asphyxia. PW6 – Dr. A.K. Kaul has indicated as well in his
statement on oath that the bronchial tube of the deceased was
broken. Having regard to the decomposed state of the dead
body, at the time when the post-mortem was conducted, the
absence of visible injury on the body per se does not militate
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against the otherwise unambiguous medical opinion that the
death was due to asphyxia. Breaking of bronchial tube is
understandably a finding in endorsement of the above cause of
death. Absence of visible injuries on the dead body, therefore
as such, does not cast any doubt about the homicidal death of
Jagram. This is also authenticated by the medical opinion that
death had occurred between 12.6.1996 and 15.6.1996, i.e.
during the interval between the abduction of the deceased and
the detection of his dead body.
34. On a anxious consideration of the entire gamut of the
facts of the case and the principles of law evolved, we are, thus
of the unhesitant opinion that the concurrent convictions and
the sentences based thereon, as recorded by the trial court and
the High Court, do not warrant any interference in the present
appeals. The appeals are, thus dismissed.
……..……………………..….J. (S.A. BOBDE)
……..……………………..….J. NEW DELHI (AMITAVA ROY) APRIL 19, 2016.