MOHAMMAD KHALIL CHISTI Vs STATE OF RAJASTHAN .
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-000634-000634 / 2012
Diary number: 5287 / 2012
Advocates: GAURAV AGRAWAL Vs
PRAGATI NEEKHRA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 634 OF 2012
Dr. Mohammad Khalil Chisti .... Appellant(s)
Versus
State of Rajasthan & Ors. .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 635 OF 2012
Yasir Chisti & Anr. .... Appellant(s)
Versus
State of Rajasthan .... Respondent(s)
J U D G M E N T P.Sathasivam,J.
1) These appeals are directed against the common
judgment and order dated 20.12.2011 passed by the
High Court of Judicature for Rajasthan, Bench at Jaipur in
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D.B. Criminal Appeal Nos. 189 and 188 of 2011 whereby
the Division Bench of the High Court dismissed the
appeals filed by the appellants herein and affirmed the
judgment dated 31.01.2011 passed by the Court of
Additional Sessions Judge (Fast Track) No.1, Ajmer in
Sessions Case No.157 of 2001.
2) Brief facts
(a) The case relates to a fight between two groups of
Khadim Mohalla, Jhalra, Ajmer which culminated into the
death of one Idris and registration of 2 FIRs being Nos.
90 and 91 of 1992.
(b) On 14.04.1992, an altercation took place between
Khalil Chisti (A-2) and Khurshid Pahalwan – cousin of
Aslam Chisti (the complainant in FIR No. 90 of 1992)
during a function at the house of one Shabbir on
account of old rivalry. On the same evening, Khurshid
had called Idris-cousin brother of Shabbir for having the
matter resolved by way of a compromise between the
two parties. In pursuance of the same, Idris, Shamim,
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Aslam, Mustqueem, Asif, Sagir and Javed (relatives)
proceeded towards the house of Khalil Chisti where they
found Khalil Chisti (A-2), Yasir Chisti (A-1), Akil Chisti (A-3)
and Farukh Chisti (A-4) who were already present there.
On entering the house, they realized that Khalil (A-2) was
having sword in his hand and Farukh (A-4) was holding a
gun whereas Yasir and Akil were having revolvers and the
accused party immediately closed the door from behind
and Khalil Chisti (A-2) shouted “no one should escape,
kill all of them.” On seeing their intention, the
complainant party tried to run in order to save their lives
at which time Farukh (A-4) fired a shot at Idris which
resulted into injury to his right eye. Khalil (A-2) also gave
a sword blow to the complainant-Aslam Chisti which
struck on his forehead and Yasir and Akil also opened
fire. Later on, considering the injured to have been shot
dead, the accused persons fled away. Subsequently,
Khurshid and Shamim had taken Aslam Chisti and Idris to
the hospital where Idris succumbed to his injuries.
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(c) On the same day, i.e., on 14.04.1992, Aslam Chisti
lodged an FIR being No. 90 of 1992 at Police Station
Ganj, Ajmer against Yasir (A-1), Khalil (A-2), Akil (A-3) and
Farukh (A-4).
(d) On the same day, at about 10:30 to 11:00 p.m.,
another FIR being No. 91 of 1992 was registered at P.S.
Ganj, Ajmer on the statement made by Akil Chisti, while
under treatment, wherein he stated that at about 5:00
to 5:30 p.m., when he along with other persons were
sitting in his house, he suddenly noticed pelting of
stones on the grills of the house. When all of them went
on the roof top to understand the matter, they found
Idris, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed
standing there duly armed with weapons. On enquiring
about the same, Idris stabbed Farukh (A-4) with a knife
and Shamim opened fire on Akil (A-3) which missed the
target. In the meantime, Akil (A-3) brought a rifle of his
father but Sagir, Asif and Javed snatched the same from
him and Aslam stabbed him into his waist from behind
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leading to his collapse. Asif also opened fire on to him
which hit Idris. A number of persons had gathered in the
neighbourhood on hearing the hue and cry.
(e) After investigation, chargesheets were filed against
4 persons, namely, Yasir, Khalil, Akil and Farukh in FIR No.
90 of 1992 and against 6 persons, namely, Shamim,
Aslam, Mustqueem, Asif, Sagir and Javed in Cross FIR No.
91 of 1992 and both the cases were committed to the
Court of Additional Sessions Judge (Fast Track) No.1,
Ajmer and were registered as Sessions Case No.
157/2001 (FIR No.90/1992) and Sessions Case No.
178/2001 (FIR No.91/1992).
(f) The trial Court, by judgment dated 31.01.2011 in
Sessions Case No. 157 of 2001, convicted Farukh Chisti
(A-4), Yasir Chisti (A-1) and Akil Chisti (A-3) under
Sections 302 and 324 read with Section 34 of the Indian
Penal Code, 1860 (in short ‘the IPC’) whereas Khalil Chisti
(A-2) was convicted under Sections 302 and 324 of the
IPC. A-1, A-2, A-3 and A-4 were sentenced to undergo RI
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for life along with a fine of Rs. 20,000/-, in default, to
further undergo RI for a period of 6 months for the
offence punishable under Section 302 of IPC. They all
were further sentenced to undergo simple imprisonment
for 2 years along with a fine of Rs. 2,000/-, in default, to
further undergo simple imprisonment for 1 month for the
offence punishable under Section 324 read with Section
34 of IPC.
(g) On the same day, the trial Court convicted the
accused persons in Session Case No. 178 of 2001 and
sentenced all of them to suffer RI for 10 years alongwith
a fine of Rs.10,000/-, in default, to further undergo RI for
6 months for the offence punishable under Section 307
read with Section 149 of IPC. They were further
sentenced to RI for 2 years under Section 148 of IPC, RI
for 3 years with a fine of Rs.1,000/-, in default, to
undergo RI for one month under Section 452 and RI for 2
years under Section 324 read with Section 149 of IPC.
Challenging the said judgment, all the accused persons
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named in FIR 91 of 1992 filed Criminal Appeal No. 131 of
2011 before the High Court which is still pending.
(h) Challenging the judgment in Session Case No.
157/2001, Yasir Chisti and Akil Chisti filed D.B. Criminal
Appeal No. 188/2011, Dr. Mohammad Khalil Chisti filed
D.B. Criminal Appeal No. 189 of 2011 and Farukh Chisti
filed D.B. Criminal Appeal No. 423 of 2011 before the
High Court. By a common judgment dated 20.12.2011,
the High Court dismissed all the appeals and affirmed
the judgment passed by the trial Court.
(i) Aggrieved by the said judgment, Dr. Mohammad
Khalil Chisti preferred Criminal Appeal No. 634 of 2012
and Yasir Chisti and Akil Chisti preferred Criminal Appeal
No. 635 of 2012 before this Court.
3) Heard Mr. Uday U. Lalit, learned senior counsel for
Dr. Mohammed Khalil Chisti –appellant in Criminal Appeal
No. 634 of 2012, Mr. K.T.S. Tulsi, learned senior counsel
for Yasir Chisti and Akil Chisti, appellants in Criminal
Appeal No. 635 of 2012, Mr. Rahul Verma, learned
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counsel and Jasbir Singh Malik, learned Additional
Advocate General for the State in both the appeals and
Mr. Mukul Gupta, learned senior counsel for the Union of
India in Criminal Appeal No. 634 of 2012.
Contentions:
4) After taking us through FIR No. 90 of 1992 and
Cross FIR No. 91 of 1992 dated 14.04.1992, the entire
material relied on by the prosecution and defence, the
decision of the trial Court in Session Case No. 157 of
2001 and Session Case No. 178 of 2001 and the
reasoning of the impugned decision of the High Court,
Mr. Lalit as well as Mr. K.T.S. Tulsi, learned senior counsel
contended that the members of the complainants’ party
were aggressors, they formed an unlawful assembly
armed with various weapons and had climbed upon the
roof of their premises in order to beat the accused
persons in furtherance of their common object. It is
further submitted that the appellants/accused persons
had not committed any offence and whatever they did
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was in exercise of their right of private defence. There is
no evidence on record to show that the accused
persons were having any common object to commit
murder of the deceased- Idris. They further submitted
that the trial Court as well as the High Court failed to
take into consideration the fact that the complainant
party including Idris, Aslam, Asif, Shamim, Mustqueem,
Sagir and Javed were duly armed and had come to the
place of the accused persons. In such circumstances,
the accused appellants deserve to get the benefit of
right of private defence on their person. They also
submitted that there is no explanation by the
prosecution as to how Farukh (A-4) and Akil (A-3)
sustained injuries. They also contended that the
prosecution suppressed the true genesis of the incident.
5) On the other hand, learned counsel for the State
submitted that the judgment of the trial Court as well as
the High Court is based on evidence and in the light of
the settled principles of law. It is pointed out that the
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accused appellants, after full preparation, sent a
message to Khurshid, Shamim, Idris and other members
of the complainant party to meet at their house. It is
pointed out that as soon as the members of the
complainant party started climbing the stairs of their
house and moved towards the roof top, the accused
appellants followed them and inflicted injuries by use of
various weapons, consequently, Idris and Aslam were
seriously injured and later on Idris succumbed to his
injuries. Finally, they submitted that the prosecution has
proved its case beyond reasonable doubt and the
impugned judgment does not suffer from any infirmity or
illegality.
6) We have carefully considered the rival submissions
and perused all the relevant materials.
Discussion:
7) It is not in dispute that in respect of the same
incident that took place on 14.04.1992, there had been
two FIRs, namely, FIR No. 90 of 1992 and Cross FIR No. 91
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of 1992. In these appeals, we are concerned about FIR
No. 90 of 1992 in which the present appellants and one
Farukh were implicated as accused. The said FIR was
registered on the basis of a complaint made by one Syed
Md. Aslam who was examined as PW-3. He is a resident
of Mian House, Khadim Mohalla, Ajmer. In the complaint,
it has been stated that on 14.04.1992, on the occasion
of “Peela Ki Rasm” at the place of Shabbir, an altercation
took place between Khalil Chisti (A-2) and Khurshid
Pahalwan on account of old rivalry following which
Khurshid had called his brother Idris in the evening in
order to finally sort out the matter by way of a
compromise. When Idris, Shamim-his relative and Md.
Aslam Chisti-the complainant went to the house of
Khurshid at that time, one Tariq Mohammed informed
them that Khalil Chisti is calling them for a compromise
following which, all of them, namely, Idris, Shamim, Md.
Aslam, Khurshid, his brother Sagir went to the house of
Khalil. On reaching there, they found that Khalil, Farukh,
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Yasir and Akil were present there at home. It has been
further stated that having entered into the house, the
accused party closed the door from behind and Khalil
shouted that “they should not escape, kill all of them”. It
has been further stated that Khalil was armed with a
sword and Farukh was carrying a rifle. When they tried
to escape, at that time, Farukh (A-4) opened fire on Idris
(deceased) which hit at his right eye and he fell down.
Khalil (A-2) gave a blow with the sword to the head of Md.
Aslam Chisti-the complainant which struck on his
forehead and hit his temple and eye. Akil (A-3) and Yasir
(A-1), who were armed with revolvers also opened fire.
All the accused persons ran away and Khurshid and
Shamim had taken Idris to the hospital where he
succumbed to his injuries. The above statement was
recorded at 5.45 p.m. on 14.04.1992.
8) Though we are not directly concerned about the
cross FIR No. 91 of 1992 dated 14.04.1992, in view of the
plea and the defence of the present appellants, it is
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desirable to note down the contents of the same. The
complainant in this cross FIR is Akil Chisti (A-3), the
appellant in the present appeal. The following persons
were shown as accused, namely, Idris, Shamim,
Aslam, Mustqueem, Asif, Sagir and Javed. According to
the complainant, Akil Chisti, who is a resident of Baitool,
Jhalra, Dargah Sharief, Ajmer that on 14.04.1992 at 5 to
5.30 p.m., when he was in the room of Farukh Chisti, they
suddenly noticed pelting of stones on the grills of their
house. When they went on the roof top, they found that
Idris, his brother Shamim, Aslam, Mustqueem, Asif, Sagir
and Javed were standing there, armed with weapons and
Shamim was armed with a country-made pistol. When
Farooq questioned about pelting of stones, Idris stabbed
him with a knife. Shamim opened fire on him which
missed him. It has been further stated that Akil-the
complainant brought a 12-bore licensed rifle of his father
but Sagir, Asif and Javed snatched it from him and Aslam
inflicted stab wounds in his waist from behind and he fell
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down. Asif opened fire from his rifle which missed him
and hit Md. Idris. A number of persons had gathered in
the neighbourhood who raised a clamour “maar diya -
maar diya”. These people assaulted them by entering
inside their house. The above statement was recorded
at 10.30 p.m. by SHO Police Station, Ajmer.
9) It is relevant to note that in respect of FIR No. 90 of
1992, the present appellants and one Farukh were
convicted and sentenced to life imprisonment by the trial
Court as affirmed by the High Court. It is brought to our
notice that in respect of cross FIR No. 91 of 1992, the
same trial Judge on the same day i.e. 31.01.2011
convicted and sentenced all of them for various offences
and the appeals filed against those convictions is still
pending in the High Court.
10) Now, let us consider the witnesses and materials
relied on by the prosecution and the defence.
Aslam Chisti (PW-3):
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11) In his evidence, he deposed that deceased Idris was
his cousin and Khurshid and Sahir were also his cousins.
Shamim is his real younger brother. He identified Khalil
Chisti (A-2), a Pakistani citizen in the Court. He was
familiar with accused Farukh, Yasir and Akil. He narrated
that he came to know from his father that some
altercation took place between Khalil Chisti (A-2) and
Khurshid Pahalwan on account of old rivalry on the
occasion of “Peela ki Rasm” at the place of Shabbir. He
further narrated that in the evening of 14.04.1992, when
he was at his home with his brothers Shamim and Idris,
the son of Khurshid came to their residence and
informed that his father was calling all of them. After
reaching there, Khurshid asked them to sort out the
matter. In the meantime, one Tariq Mohammad informed
them that Khalil Chisti (A-2) has called them for a
meeting. He along with others went to the residence of
Khurshid. From there, he, along with the deceased- Idris,
Shamim, Khurshid, Sagir, Javed, Mustqueem and Asif
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proceeded towards the house of Khalil and on reaching
there they noticed that Khalil was standing at the
entrance. On their entering into the house of Khalil, the
other persons present there closed the door from
behind and Khalil shouted to kill all of them. In order to
save their lives, he along with Idris, Shamim, Asif and
others climbed over the Baitool Manzil and reached the
roof top of Kaptan house. At that time, accused Khalil,
Farukh, Yasir and Akil came to that place and Khalil was
carrying a bare sword and Farukh was armed with a rifle,
Yasir and Akil were holding rifles. Farukh fixed the target
and shot fired his brother Idris. The bullet had hit on the
right eye of Idris leading to his collapse there itself.
Khalil hit two injuries of sword in his skull and forehead.
Akil and Yasir had also opened fires from their respective
revolvers but they managed to escape. He admitted that
the fire triggered from the revolver of Akil and Yasir had
hit none. In the course of the above narration, PW-3
admitted that two police personnel had arrived on the
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roof top, particularly, when Akil and Yasir were firing.
From the evidence of PW-3, it is clear that though he
narrated the prosecution case about the involvement of
the present appellants as well as the role of Farukh, he
admitted the arrival of two police personnel, viz.,
Bhanwar Singh (PW-4) and Bhanwarlal Sharma (PW-5) on
the roof top when Akil and Yasir were firing.
Bhanwar Singh (PW-4):
12) At the relevant time, PW-4 was posted as LHC at
Police Post Tripolia Gate, Police Station Ganj, Ajmer. In
his evidence, he has stated that on 14.04.1992, at
about 4.30 p.m., he received information from wireless
control room that a quarrel has broken out at Jhalra. On
receiving the said information, PW-4 and Bhanwar Lal
Sharma (PW-5), reached the spot and went to the house
of Ahmed Chisti. On enquiry, they came to know that
some altercation took place on the issue of children in
the morning. In order to make a call to the Control
Room, both of them went to the room situated at the
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first floor of house of one Ahmed Chisti and while they
were returning, they found 5-6 persons duly armed with
sword and hockey sticks climbed upstairs from the
ground. They tried to prevent them but they didn’t stop.
Out of them, he knew Shamim, Aslam and Idris. He
further deposed that they were shouting “bring out
Farukh”, “bring out Pakistani (A-2) and where he is, we
will kill him”. He also stated that in spite of their
intervention, the assailants reached at the roof top of
the second floor of that house. Both PWs 4 and 5
followed them. He also stated that he had seen Farukh
Chisti (A-4) with a 12 bore gun with him. Khalil (A-2),
Yasir and Akil were having swords with them. Farukh
went to the roof and fired from his gun and the shot hit
the right eye of Idris, because of which, he died on the
spot. When PW-5 came in between, he also sustained
injuries. He was there at the same place till 11.30 p.m.
and after 11.30 p.m. he went to Tripolia Gate, P.S. made
necessary entries in the daily diary in his own
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handwriting which is Exh. P-3. He left constable Bhanwar
Lal Sharma (PW-5) at the place of incident.
13) Since PW-4 contradicted his statement made under
Section 161 of the Code of Criminal Procedure, 1973 (in
short ‘the Code’), the Public Prosecutor sought for
permission to cross examine him. Even in the cross-
examination, he admitted that he made a statement to
police and at the time of incident, deceased- Idris and
others were armed with swords and hockey sticks and
they were going upstairs which is Exh. P-4. Though PW-4
turned hostile, to some extent, he being a police
constable, on receipt of information and after recording
the same in the diary he left the police station along with
Bhanwar Lal Sharma (PW-5) another police constable to
the spot and noticed that the complainant parties
rushed towards the roof top with sword and hockey
sticks. It is also clear that the present accused
appellants were inside the house of Khalil Chisti and the
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complainant’s group reached there with arms. It has
been also made clear that he was accompanied by
another constable PW-5 and after noticing the incident,
he rushed to P.S. Tripoli and made necessary entries
leaving PW-5 at the spot. As rightly pointed out by
learned senior counsel for the appellants, the presence
of PWs 4 and 5 at the relevant spot and time cannot be
disputed. It is also clear from the evidence of PW-4 that
the complainant parties reached the spot armed with
sword and hockey sticks. The presence of the
complainants with arms is the subject matter of Cross FIR
No. 91 of 1992.
Bhanwar Lal Sharma (PW-5):
14) At the relevant time, he was posted as a police
constable with the police station of Tripolia Gate and was
on duty on 14.04.1992. According to him, on that day,
around 4.30 p.m., he and another constable PW-4
received an information on wireless from the Police
Control Room in Tripolia P.S. that some fight is going on
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at Jhalra. On hearing such information, both of them
went to Jhalra and noticed that there was no such brawl.
In order to inform the same to the Control Room, they
went to the house of one Ahmed Chisti by using the
stairs. At the same time, he noticed Shamim (A-6 in
Cross FIR) running upstairs with hockey stick in his hand,
Aslam (A-1 in Cross FIR) armed with sword and two more
people who were armed with weapons were going
upstairs. Both of them (PW-4 and (PW-5) tried to stop
them but they did not stop. Both of them went to the
Chisti Manzil’s room and on the roof, they noticed
Shamim Chisti and others were abusing Farukh and
others and then they went to Jamil Chisti’s room and
started pelting stones. After seeing the seriousness of
the situation and to avoid untoward incident, PW-5 went
downstairs to call other police staff while PW-4 remained
on the roof. He also heard the sound of a shot being
fired. When he came back after making a call, he saw
Idris was lying on the Kaptan’s room and was bodily
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injured. At the place of incident where Idris was lying, a
12-bore gun was also found 10-15 ft. away from the spot.
He also explained that based on his message, other
police men came to the spot. He also mentioned the
injuries sustained by him when they were trying to stop
Shamim and others on the stairs. He further narrated
that in the midnight, around 12.50 a.m., they came to
Tripolia Gate P.S. and made necessary entries of their
arrival time which is Exh. P-3. Since he contradicted his
statement under Section 161 of the Code, the Public
Prosecutor sought permission of the court in order to
cross-examine him. Even in the cross-examination, he
asserted that at the time of the incident only Shamim (A-
6 in Cross FIR) was throwing stones downstairs with full
force in Jamil Chisti’s house. He also mentioned about
the fights and FIRs were registered against Aslam and
Shamim.
15) Like PW-4, PW-5 narrated the incident starting from
the receipt of wireless message till the clash at Jamil
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Chisti’s house. It is relevant to point out that PWs 4 and
5 were not associated with any group, on the other
hand, they were policemen of the Tripoli P.S. having
jurisdiction over the area. The entries in the concerned
registers of their departure and arrival to the police
station also prove their statement. In the light of their
statement, we have carefully analyzed their evidence and
it is clear that the complainant’s party came to the spot
with weapons like sword, hockey sticks and few from that
group also pelted stones. These aspects, though the
trial Court and the High Court failed to give credence,
the appellants are justified in claiming that the
complainants group was responsible for the incident and
the injuries caused to them.
Evidence of PWs 6, 13 and 18:
16) At the instance of the counsel for the State, we
were taken through the evidence of PWs 6, 13 and 18.
No doubt, they supported the prosecution stand and
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claim that it was the appellants who caused the injuries
and, particularly, Idris died due to the shot fired by
Farukh using his revolver. They also stated that they
sustained injuries due to the sword used by Khalil Chisti
(A-2). It is also their claim that the other two accused
Yasir Chisti and Akil Chisti, A-1 and A-3 respectively used
revolver but their shots had hit none. Like PWs 6, 13 and
18, PW-3 who sustained sword injury at the instance of A-
2 also explained about the prosecution case. It is also
seen from the evidence of PW-3 that Farukh (A-4) also
sustained injuries for which there is no explanation by
the prosecution. Relying on the evidence of PWs 3, 6 13
and 18 even if we accept the case of the prosecution,
the statement of official witnesses examined on the side
of the prosecution, namely, PWs 4 and 5 clearly show
that the complainants were rushing towards the house
of Chisti with sword and hockey sticks and also pelted
stones. In these circumstances, as rightly pointed out
by the counsel for the appellants, the complainants who
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were accused in the cross case were also responsible
for their individual act.
Occurrence at the residence of A2:
17) All the prosecution witnesses, namely, PWs 3, 4, 5, 6
13 and 18 deposed that the incident occurred at the
residence of A-2, namely, Chisti Manzil. It is also clear
from the categorical statement of two police constables,
viz., PWs 4 and 5 that on receipt of a phone call, they left
Tripoli PS and reached the house of Kaptan which is
adjacent to Chisti Manzil. It is clear that it was not the
appellants/accused who went out of their house with
arms, but even according to the prosecution witnesses,
the incident took place at the residence of A-2. It is also
clear that all of them entered the said house with
weapons like sword and hockey sticks which we have
already noted from the evidence relied on by the
prosecution.
No explanation as to how Farukh (A-4) and Akil (A- 3) sustained injuries:
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18) The prosecution document, viz., injury report of
Farukh dated 14.04.1992 and injury report of Akil dated
14.04.1992 have been placed as Annexure P-5 (Colly).
The injury report relating to Farukh Chisti (A-4) issued by
the Department of Medical Jurist, J.L.N. Medical College
and Hospital, Ajmer reads as under:-
“Admitted in MSW II, Time-5.45 p.m. date – 14.4.1992, 839/92 Department of Medical and Health, Rajasthan, Jaipur
Injury Report Form Accompanied by Police
Injury Report of Shri Farukh Chisti s/o Shri Sadiq Chisti, age 26 years, Caste-Muslim, Resident of Khadim Mohalla, Ajmer, Police Report No…………..dated……….enclosed.
Nature of injury of slash, wound, crushing etc.
Size of each injury in inches, length, width and depth
Hurt on which part of the body
Normal or grievous
Which type of weapo n caused hurt
Identification mark of the injured
X-Ray
Tajbeez
Special description
1 2 3 4 5 6 7 8 1. Stab wound 4x0.5 cm x depth in on
umbilical region, right lateral to umbilical obliquely placed
2. Stab 4x3/4 cm x on left lateral side of chest wall 6 cm below axilla in mid axillur line.
3. Stab wound 3x1x? on left scapular region Injured in the state of shock
Sharp M.F.1 ½ x ½ cm old scar on left side of right leg upper third
Fresh
Opinion after surgical note
Sd/- Dr. V.D. Kavia, MD Reader, Head of Department Department of Medical Jurist
J.L.N. Medical College and Hospital, Ajmer”
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Operative notes of Farukh Chisti reads as follows:
Operative notes
Patient Name : Farukh Chishti No. 9741
Date : 14/4/92
Surgical Pathology – Stab wound
1. Abdomen 2. Lt. Chest 3. Back
Anaesthesia – G.A.
Operation – Explanatory haprotomy and repair of the tear in stomach. Incision – Continuation of the stab wound (Rt. Paramedian) – On exploration it was found that there was a tear in the anterior stomach wall up to the serosa. The vessel was bleeding which was ligated and tear sutured and closed in layers.
The wounds on the chest (Lt. side and back were muscle deep and sutured in single layer.
Dr. Neera Jain Surgeons Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh Dr. Paramjeet Singh
Dr. Ashok Naraina
Forwarded in original to SHO, PS Ganj in continuation to IR No. 839/92 Injury Nos. 2 & 3 are simple and Injury No. 1 is grievous (dangerous) in nature.”
The injury report of Akil Chisti (A-3) reads as under:
“Admitted in MSW II, Time-5.45 p.m. date – 14.4.1992, 839/92 Department of Medical and Health, Rajasthan, Jaipur
Injury Report Form Injury Report of Shri Akil Chisti s/o Shri Jamil Chisti, age 24 years, Caste- Muslim, Resident of Police Report No…………..dated………. enclosed.
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Nature of injury or slash, wound, crushing etc.
Size of each injury in inches, length, width and depth
Hurt on which part of the body
Normal or grievous
Which type of weapo n caused hurt
Identification mark of the injured
X-Ray
Tajbeez
Special description
1 2 3 4 5 6 7 8 Stab wound 4x1 cm x ….. Back of left region
Obliquely placed
Sharp M. 3x1 cm Fresh
Opinion after surgical note
Old scar on outer side of back and right heal
Sd/- Dr. V.D. Kavia, MD Reader, Head of Department Department of Medical Jurist
J.L.N. Medical College and Hospital, Ajmer”
Operative notes of Akil Chisti reads thus:
“ Operative notes
Patient Name : Akil Chisti R.No. 9740
Date : 14/4/92
Surgical Pathology –Cut wound back
Anaesthesia – L.A.
Operation – Repair of the wound.
Notes : There was a wound on the back side near midline in lumber region which was muscle deep and sutured in layers.
Dr. Neera Jain Surgeons Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh Dr. Paramjeet Singh
Dr. Ashok Naraina
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Sd/- (Dr. K.K. Dangayeh)
Forwarded in original to SHO, PS Ganj in continuation to IR No. 840/92 Injury No. 1 is simple in nature.”
19) The above ‘injury reports’ of Farukh Chisti and Akil
Chisti as well as their respective ‘operative notes’ clearly
show that both of them sustained injuries on 14.04.1992
in the same incident. The report relating to Farukh
shows that he sustained stab wound injuries due to the
use of sharp edged weapons. Operative notes relating
to him also show that injury Nos. 2 and 3 are simple and
injury no. 1 is grievous (dangerous) in nature. Injury
report relating to Akil Chisti also shows that he sustained
stab wound injuries by use of sharp edged weapon.
Though all the relevant aspects, namely, the injuries
sustained by two accused appellants are available in the
materials placed by the prosecution, there is no
explanation at all as to how they sustained those
injuries. In other words, the prosecution failed to prove
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the genesis of the incident and in fact they suppressed
the same.
20) In Lakshmi Singh and Others vs. State of Bihar,
(1976) 4 SCC 394, this Court held that:
“… … It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. … …”
It is clear that where the prosecution fails to explain the
injuries on the accused, two results follow: (1) that the
evidence of the prosecution witness is untrue and (2)
that the injuries probabilize the plea taken by the
appellants. In a murder case, non-explanation of the
injuries sustained by the accused at about the time of
the occurrence or in the course of altercation is a very
important circumstance from which the court can draw
the following inferences:
“(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
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(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.”
21) It is further clear that the omission on the part of
the prosecution to explain the injuries on the person of
the accused assumes much greater importance where
the evidence consists of interested or inimical witnesses
or where the defence gives a version which competes in
probability with that of the prosecution one. However,
there may be cases where the non-explanation of the
injuries by the prosecution may not affect the
prosecution case. This principle would apply to cases
where the injuries sustained by the accused are minor
and superficial or where the evidence is so clear and
cogent, that it outweighs the effect of the omission on
the part of the prosecution to explain the injuries.
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22) In Waman and Others vs. State of Maharashtra,
(2011) 7 SCC 295 wherein one of us (P. Sathasivam, J.)
reiterated the very same principles and held that:
“36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non- explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.”
23) Mr. Tulsi, learned senior counsel for the appellants
in Criminal Appeal No. 635 of 2012 contended by
pointing out that since the complainant’s were the
aggressors, armed with sword, hockey sticks and pelted
stones, the appellants/accused are entitled to avail the
right of private defence for which he relied on various
principles enunciated by this Court.
24) In Raghubir Singh vs. State of Rajasthan and Ors.
(2011) 12 SCC 235, the following conclusion in para 16
has been pressed into service:
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“16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act.”
25) In Krishnan vs. State of Tamil Nadu, (2006) 11 SCC
304, the following principles have been relied on:
“15. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P, Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab.
16. In Sekar v. State this Court observed: (SCC p. 355) “A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries
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caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self- defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.”
(emphasis supplied)
17. The above legal position was reiterated in Rizan v. State of Chhattisgarh. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus: (SCC pp. 670-71, para 13) “Under Section 105 of the Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. … The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for
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him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”
(emphasis supplied)” 26) In Babulal Bhagwan Khandare and Another vs.
State of Maharashtra, (2005) 10 SCC 404, this Court
held that non-explanation of the injuries sustained by
the accused at about the time of occurrence or in the
course of altercation is a very important circumstance. It
was further held that the right of self defence is a very
valuable right, serving a social purpose and should not
be construed narrowly.
27) It is clear that it is the duty of the prosecution to
explain the injuries sustained by the accused and
establish the genesis of the incident by placing
acceptable materials. In the case on hand, we have
already pointed out there is enough material to show
that in the course of the very same incident Farukh (A-4)
and Akil (A-3) also sustained injuries. In fact, Farukh
sustained grievous injury by use of sharp edged weapon.
However, these injuries were not explained at all by the
prosecution.
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28) Mr. Jasbir Singh Malik, learned counsel for the State
by relying on a decision of this Court reported in
Mitthulal and Another vs. The State of Madhya
Pradesh, (1975) 3 SCC 529 submitted that evidence in
cross case cannot be relied upon. It is true that in the
said decision, this Court held that it has not accepted
the procedure followed by the High Court which has
based its conclusion not only on the finding recorded in
the case against the appellants therein and the four
other accused but also taken into account the evidence
recorded in the cross case against Ganpat, Rajdhar and
others. This Court held that the course adopted by the
High Court was clearly impermissible. There is no dispute
about the said proposition and in fact in the case on
hand, neither the trial court nor the High Court relied on
the evidence led in the cross case but the same were
tried separately and in fact appeals are still pending
before the High Court against the conviction in the cross
case.
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29) The other decision relied on by the State counsel is
reported in Sambhu Das alias Bijoy Das and Another
vs. State of Assam, (2010) 10 SCC 374 which shows
that this Court in exercise of its powers under Article 136
of the Constitution will not reopen the findings of the
High Court when there are concurrent findings of facts
and there is no question of law involved and the
conclusion is not perverse. The above proposition holds
good. We also reiterate that Article 136 of the
Constitution does not confer a right of appeal on a party.
It only confers discretionary power on this Court to be
exercised sparingly to interfere in suitable cases where
grave mis-carriage of justice has resulted from illegality
or misapprehension or mistake in reading evidence or
from ignoring, excluding or illegally admitting material
evidence.
Summary:
30) The analysis of the prosecution case, undoubtedly,
has led two sets of evidence. The evidence adduced
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suggest that the accused in the present appeals are to
some extent victims of armed aggression at the hands of
the deceased and his companions. We have pointed out
that Tariq Mohammad (PW-1) deposed that he saw Idris
(deceased) with a knife in his hand, Mohd. Aslam (PW-3),
Sagir (PW-6), Shamim (PW-18) and others armed with
sticks left for the house of the Farukh (A-4). It was also
deposed by him that he tried to stop Idris and others but
in vain. Bhanwar Singh (PW-4) and Bhanwar Lal Sharma
(PW-5) –the police constables, examined on the side of
the prosecution, were present at the scene of offence.
We have already dealt with the evidence of these two
witnesses which clearly show that the complainant’s
party, i.e., accused in FIR No. 91 of 1992 were armed
with sword, hockey sticks etc. and entered into Chisti
Manzil, hurled abuses, threw stones on the inmates and
exhorted to kill Khalil Chisti (A-2) and Farukh (A-4). These
persons also deposed that Idris (deceased) and the
accused in FIR No. 91 of 1992 were the aggressors in
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the incident. PWs 4 & 5 were categorized as
independent witnesses by the trial Court. Even in their
evidence, they did not attribute any specific overt act to
Khalil (A-2). M.A. Tariq I.O. (PW-25) also deposed that the
complainant’s party forcibly entered the house of the
appellants herein with the intent to attack them.
31) Mohd. Aslam (PW-3), Sagir Ahmed (PW-6), Sayeed
Javed (PW-13) and Shamim (PW-18) were examined as
eye witnesses to the occurrence. Admittedly, none of
them offered any explanation to the admitted injuries
received by Farukh (A-4) and Akil (A-3). We have already
adverted to the details as to the injury report relating to
these persons. In the absence of any explanation by the
prosecution, we are of the view that they are guilty of
suppressing the real genesis of the occurrence. The
trial Court had also condemned the evidence of PW-18
for narrating a parrot like version and also pointed out
numerous improvements made.
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32) The analysis of the materials clearly show that two
versions of the incident adduced by the prosecution are
discrepant with each other. In such a situation where
the prosecution leads two sets of evidence each one
which contradicts and strikes at the other and shows it
to be unreliable, the result would necessarily be that the
Court would be left with no reliable and trustworthy
evidence upon which the conviction of the accused might
be based. Though the accused would have the benefit
of such situation and the counsel appearing for the
appellants prayed for acquittal of the appellants of all
the charges, in view of the principles which we have
already discussed, we are of the view that each accused
can be fastened with individual liability taking into
consideration the specific role or part attributed to each
of the accused. In other words, both sides can be
convicted for their individual acts and normally no right of
private defence is available to either party and they will
be guilty of their respective acts.
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33) Having regard to the facts and circumstances of the
role attributed to Khalil (A-2), we are of the view that
there is no scope for invoking the applicability of Section
34 IPC against him. Even independent witnesses, viz.,
PWs 4 and 5 do not attribute any overt act to him.
34) As rightly pointed out by the learned counsel for the
appellants, in the light of the case and cross-case, it
would be in the fitness of things that the respective
appeals preferred by the appellants against Session
Case No. 157 of 2011 and the one preferred by the
convicts in Sessions Case No. 178 of 2011 ought to have
been heard and disposed of simultaneously by the High
Court. Unfortunately, such recourse has not been
adopted by the High Court and we were informed that
the other appeal (Crl. Appeal No. 131 of 2011) relating
to Sessions Case No. 178 of 2011 is still pending on the
file of the High Court.
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35) Coming to the other accused, namely, Yasir Chisti
(A-1) and Akil Chisti (A-3), they cannot be punished and
fastened the liability of individual acts committed by them
with the aid of Section 34 IPC without acceptable
materials. Though the prosecution witnesses mentioned
that these appellants had a pistol, they did not state
whether anyone was hit by that pistol fire and no specific
evidence was led in that the shot emanated from the
pistol in their hand. Even Mohd. Aslam (PW-3) - the
informant, stated before the Court that these appellants
fired from their pistols but no one was hit from that fire.
36) As discussed earlier, the evidence of PWs 4 & 5 –
police constables, clearly shows that the complainant’s
party was armed with sword and hockey sticks and were
abusing and pelting stones. Sagir (PW-6), though
deposed that the present appellants had a revolver and
they fired from that pistol, without telling whether
anybody was injured from such firing. PW-4 – one of the
prosecution witnesses, police constable, had denied
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that these appellants had revolvers, in fact, PWs 4 and 5
did not attribute any overt done by the appellants, i.e.,
A-1 and A-3 and categorically stated that the
complainant’s party was the armed aggressors. It is
relevant to point out that on the same day in Sessions
Case No. 178 of 2001, the informant along with five other
co-accused was convicted under Sections 307, 324, 326,
452 and 148 IPC read with Section 149 IPC. We are also
satisfied that though the prosecution witnesses have
stated that these appellants were having revolvers, the
evidence of PWs 4 & 5 clearly shows that the
complainant’s party were aggressors and the present
appellants were not carrying any revolver.
37) In the light of the facts that have been enumerated
above, particularly, from the evidence of PWs 4 & 5 –
police constables attached to the Tripolia Police Chowki,
P.S. Ganj, and the materials abundantly show that the
deceased and the complainant’s party were also armed
with sword and hockey sticks. In the absence of
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evidence of fire shot from the revolvers of A-1 and A-3
and in view of the statement of PWs 3, 6, 13 & 18
alleging against the present appellants, in order to bring
the matter within a free fight both sides have to come
armed and prepared to do battle must be applied in the
present case with the result that each accused would be
liable for his individual act alone.
Conclusion:
38) In the light of the above discussion, even if we
accept the evidence of prosecution witnesses that A-2
was having a sword and PW-3 sustained injuries at his
instance, considering his individual act, he can only be
convicted under Section 324 of IPC and taking note of
his age and of the fact that he was in custody from
14.04.1992 till 09.05.1992 during the trial and again
from 31.01.2011 to 12.04.2012 (roughly one year and
four months), we feel that the ends of justice would be
met by altering the sentence to the period already
undergone. The conviction and sentence is modified to
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the extent mentioned above and Criminal Appeal No. 634
of 2012 is disposed of accordingly.
39) By order dated 10.05.2012, this Court directed Dr.
Mohammad Khalil Chisti – being a national of Pakistan-
appellant in Crl.A. No. 634 of 2012 or his nominee to
deposit a sum of Rs. 5 lakhs as security with the Registry
of this Court within a period of two weeks from that date
and on fulfilling the above condition, the appellant was
permitted to leave India and visit his home country, i.e.,
Pakistan. It is informed to us that the said condition has
been complied with and an amount of Rs. 5 lakhs was
deposited. By another order dated 17.09.2012, this
Court directed the Registry to invest the amount
deposited by the appellant in an interest bearing
account in any Nationalised Bank initially for a period of
one year. In view of our conclusion that no further
custody is required, the Registry is directed to return the
said amount to Dr. Mohammed Khalil Chisti or his
nominee forthwith. It is further directed that if the
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passport or any other document of the appellant is in
the custody of the trial Court or any other authority of
the Government of India, they are directed to return the
same to him and he is free to return to his country
without any restriction. Taking note of his age and
academic qualification etc., to facilitate such course, the
concerned department of the Government of India is
directed to issue necessary visa and complete all the
formalities for his smooth return to his country.
40) In the light of the evidence and conclusion in
respect of Yasir Chisti (A-1) and Akil Chisti (A-3), the
appellants in Criminal Appeal No. 635 of 2012, taking
note of their individual acts, they can only be convicted
under Section 324 of IPC and also in view of the fact that
A-1 and A-3 have served approximately 11 and 10
months respectively, the same would be sufficient and
no further imprisonment is required, hence, both of them
are directed to be released forthwith, if they are not
required in any other case.
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41) With the above modification, both the appeals are
disposed of accordingly.
...…………….…………………………J. (P. SATHASIVAM)
...…....…………………………………J. (RANJAN GOGOI)
NEW DELHI; DECEMBER 12, 2012.
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