Thursday, September 16, 2010

Sunder Singh V/S State of Uttaranchal CRIMINAL APPEAL NO. 1164 OF 2005 September 16, 2010





Sunder Singh ... Appellant


State of Uttaranchal ... Respondent



1. Appellant herein challenges the judgment of the High

Court affirming the judgment passed by the Sessions Court.

The Sessions Judge convicted the appellant/accused Sunder

Singh for offences under Sections 302, 307 and 436, Indian

Penal Code (IPC). While he was awarded the death sentence

along with a fine of Rs.5,000/- and in default to suffer

further rigorous imprisonment for one year, he was given the

punishment of seven years along with fine of Rs. 5,000/- and

in default to suffer further rigorous imprisonment for one

year separately on the other two counts.


2. The incident in this case had taken place on 30.6.1989

in village Mahargheti, Patwari Circle Dangoli in the newly

formed District Bageshwar (which was part of District Almora

at the time of incident). In this ghastly incident, Pratap

Singh, his wife Nandi Devi, his elder son Balwant Singh

(aged about 28 years), another son Prem Singh (aged about 19

years), daughter Kamla (aged about 16 years) lost their

lives while wife of Balwant Singh, namely, Vimla Devi (PW-1)

sustained grievous burn injuries. Five victims who lost

their lives including Balwant Singh were roasted alive and

died either on the spot or while being taken to the hospital

or in the hospital. Balwant Singh, however, was almost

beheaded while he also suffered the burn injuries. The

prosecution alleged that this incident took place at about

10 p.m. when all the victims were taking their dinner in the

ground floor room of their house. The appellant/accused

came there with jerry can containing petrol and burning

torch and threw the petrol in the room and after setting

fire by torch, he shut the door of the room. Though Balwant

Singh was in flames he managed to come out of the room by

opening the door. However, as soon as he came out of the

room, the accused who was still waiting there gave him a

sword blow on the neck because of which he fell down dead

out side the house. The other five family members who

sustained severe burns also died barring Vimla Devi who

alone survived. Nandi Devi died on the way to the Primary

Health Centre at Baijnath while Pratap Singh also died there

itself. Kamla and Prem Singh died in the District hospital,

Almora later on, where they were shifted from Baijnath.

3. Informant Kheem Singh (PW-2) prepared a written report

and handed over to the Circle Patwari, Hyat Singh (PW-13).

In fact Hyat Singh (PW-13) came almost immediately after the

incident and so did the other witnesses like Chanar Singh

(PW-3) and Rewadhar (PW-4). At the time when they reached

the spot almost simultaneously, Pratap Singh was alive, who

told these witnesses that accused Sunder Singh had burned

them by throwing petrol from jerry can and by torching the

house thereafter. Even Vimla Devi (PW-1), the wife of

Balwant Singh told Hyat Singh (PW-13) about the incident and

also about the attack on Balwant Singh by the accused. Hyat

Singh (PW-13) started the investigation. He inspected the

burnt house and the spot where Balwant Singh's body was

lying. He found that Balwant Singh was dead and had

suffered a serious injury on his neck. The other injured

barring Balwant Singh were sent first to the Primary Health

Centre, Baijnath. Nandi Devi, however, died even before

reaching the Primary Health Centre, Baijnath, while Pratap

Singh is said to have died after reaching the Health Centre.

Dr. K.C. Joshi (PW-12) examined Vimla Devi (PW-1) and noted

the injuries suffered by her, so also Kamla and Prem Singh

were examined by him, and he noted their injuries in the

medical certificates (Exhibits Ka-9, Ka-10 and Ka-11).

Thereafter, the injured were sent to District Hospital,

Almora in view of the seriousness of their injuries. When

the three injured were at District Hospital, Almora, the

dying declarations of Prem Singh and Vimla Devi (PW-1) were

recorded on 1.7.1989 by Narender Singh Patel (PW-9), Sub-

Divisional Magistrate, Baramandal, District Almora. Before

this, Hyat Singh (PW-13) had completed his inspection of all

the spots and had attached burnt radio, damaged plastic

gallons, burnt breads and cut pieces of can from the scene

of offence. He also found a cover of the sword (described

as `Khol') and also a pistol which had two bullets in it.

He also held the inquest on the dead body of Balwant Singh

and thereafter on the body of Pratap Singh and Nandi Devi.

These bodies were sent for post mortem. In the District

Hospital, Almora, Prem Singh died on 1.7.1989 itself while

Kamla died later on after the treatment. Vimla Devi (PW-1),

however, miraculously survived. The inquests and the post

mortem on the dead bodies of Kamla and Prem Singh were also

conducted later on by the doctors. All the five dead bodies

had suffered extensive burn injuries, almost to the extent

of 70% or 80%. Vimla Devi (PW-1), however, miraculously

escaped and survived, though she had also suffered 70% of

the burn injuries. After the preliminary investigation was

completed by Hyat Singh (PW-13), the same was entrusted to

C.B.C.I.D. and Inspector K.R. Tamta (PW-14), who completed

the remaining formalities of the investigation. The accused

was absconding. He was found only in July, 2002 after a

lapse of 12 years. It was then that the matter was

committed to Sessions on the basis of the chargesheet

already filed.

4. The chargesheet was for the offences under Sections

302, 307 and 436, IPC. The Sessions Judge framed charges.

Fourteen witnesses were examined in support of the charges

including Vimla Devi (PW-1) who was the injured eye witness.

Kheem Singh (PW-2), who was the author of the First

Information Report (FIR), was examined to prove the same.

Chanar Singh (PW-3) and Rewadhar (PW-4) were the witnesses

who reached the spot almost immediately after the incident.

They were examined as the panch witnesses. Dan Singh (PW-5)

also acted as a panch on the inquest, so also Daya Krishna

(PW-7) and Ramesh Singh Rotella (PW-8) were examined to

prove the inquest panchnamas on the dead bodies. Narender

Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal,

District Almora was examined to prove the dying declarations

of Vimla Devi (PW-1) and Prem Singh, which was recorded by

him on 1.7.1989. Dr. N.D. Punetha (PW-6), Dr. H.G.S. Manral

(PW-10) and Dr. Nanda Vallabh Sharma (PW-11) were the

doctors conducting the post mortem, while Dr. K.C. Joshi

(PW-12) was the doctor who had examined Vimla Devi (PW-1)

and Prem Singh and had issued medical certificates to them.

Hyat Singh (PW-13), the investigating Patwari and Inspector

K.R. Tamta (PW-14) were examined as the investigating


5. The accused abjured his guilt. He raised the defence

of false implication on account of the enmity due to land.

However, learned Sessions Judge came to the conclusion on

the basis of the evidence of Vimla Devi (PW-1) and the dying

declaration of Prem Singh and the other substantive evidence

that it was accused Sunder Singh who had torched the ground

floor room on the fateful day resulting in the victims being

roasted alive. It was also held that the prosecution had

proved that the accused had dealt a sword blow on Balwant

Singh almost beheading him and on that count proceeded to

convict the accused and awarded the sentences which have

already been mentioned.

6. Since the death sentence was ordered there was a death

reference made in the High Court. The accused also filed an

appeal challenging his conviction. The High Court came to

the conclusion that the Sessions Judge was right in

convicting the accused. The High Court also endorsed the

opinion of the Sessions Judge that this was a rarest of rare

case and, therefore, affirmed the death sentence awarded to

the accused by the Sessions Judge. The judgment affirmed by

the High Court has now fallen for our consideration.

7. Shri Y.P. Singh who was appointed as Amicus Curiae

urged before us that it could not be said that it was the

accused who was the perpetrator of this crime. According to

the learned Counsel, the prosecution was not able to prove

the guilt. He contended that the evidence of Vimla Devi

(PW-1) could not be accepted as there were inherent pitfalls

in her evidence. Firstly, she was an interested witness and

secondly, her ability to see at night at 10 O'clock was

suspect. We have been taken through the whole evidence to

show that there were contradictions and material omissions

in her evidence. The learned Counsel further argued that

the so-called dying declaration by Prem Singh was also a

suspect document and was not creditworthy. He pointed out

that the said dying declaration of Prem Singh did not have

the endorsement of the doctor about Prem Singh being in fit

condition to make a dying declaration.

8. Lastly, learned Counsel suggested that this could not

be said to be a rarest of rare case and the High Court has

erred in affirming the death sentence.

9. As against this, the learned Counsel appearing on

behalf of the State supported the judgment and contended

that the evidence of Vimla Devi (PW-1) was extremely

important and credible and she was herself an injured

witness. He pointed out that being a relative and having

lost her near and dear ones she is not likely to screen the

real offender. She had all the opportunity to see and since

the accused was the real uncle of her husband, there was no

question of any mis-identity also. He pointed out that the

evidence is extremely natural and she had not tried to rope

in other persons. It was further pointed out that there was

nothing to suspect the dying declaration of Prem Singh. As

regards the absence of the endorsement of the doctor, the

learned Counsel suggested that it cannot be forgotten that

the said dying declaration is recorded by an independent

witness. He also pointed out that the victim was fully

conscious and had survived after the dying declaration for

substantial time which would suggest that he was completely

conscious at the time when the dying declaration was

recorded. It was further argued by the learned Counsel that

this was the most dastardly act on the part of the accused

that he not only set the house to fire but also closed the

door thereby he displayed his foul intention to eliminate

the whole family and he was successful in eliminating the

whole family. Learned Counsel pointed out that two of the

victims were extremely young being 16 years and 19 years old

and had not even seen their lives. The learned Counsel

brought to our notice the fact that the accused remained

absconding for 12 long years. His being remaining

absconding for 12 years was also a clear cut circumstance

against him. According to the learned Counsel, therefore,

this was a rarest of rare case.

10. It has to be borne in mind in this case that there is

no scope of a mistaken identity for the simple reason that

the accused was the real brother of Pratap Singh. Again,

because the house was set to fire there was ample light

available for identifying the accused.

11. The prosecution basically relied on the evidence of

Smt. Vimla Devi (PW-1) whose evidence was examined by us

very closely. She is a natural witness and there can be no

dispute about her presence on the spot. She is also an

injured witness as she has herself suffered 70% burns. She

was very fortunate to survive. Learned counsel criticized

the evidence by saying that she had obviously deposed in an

unnatural manner by claiming that the accused was carrying

three Jerry cans, opened them one by one and poured petrol.

It was also pointed out that initially in her statement

which was recorded as dying declaration, she had suggested

that the room was set to fire by a match stick. In her

cross examination, however, she refuted that claim. A

fantastic theory was introduced in her cross-examination

that her husband died because he dashed against sharp stone.

Considering the overall evidence which has been accepted by

the Trial Court and the High Court, we are of the clear

opinion that this witness is reliable and the Courts below

committed no error in accepting the evidence of Vimla Devi

(PW-1). It cannot be forgotten that the witness has

identified the jerry cans, the sword etc. which were lying

in her courtyard. There were undoubtedly some contradictions

and omissions in her evidence and the dying declaration but

in our opinion they were not substantial enough so as to

affect the credibility of her evidence. She undoubtedly

suggested in her Examination-in-Chief that the accused was

carrying jerry cans. She has referred `jerry cans' in

plurals- "Uske hath me petrol va diesel k jerry can thhe".

She then identified the three jerry cans when the three

jerry cans, which were attached, were produced in the Court.

She also identified the cover of the sword and also the

pistol which was left behind and was found by Hyat Singh

(PW-13). She has then identified all the other material

objects like radio etc. In her Cross-Examination, she again

asserted that the accused had three jerry cans, which she

described as gallons. She then described that the caps of

these jerry cans were cut. She could not, however, tell as

to the capacity of the said jerry cans nor could she speak

about their colour. She accepted the suggestion that the

accused first threw the petrol from one jerry can and then

from the second and the other. She then asserted that they

were not set to fire with the match box on which she was

contradicted with her previous statement, wherein she had

suggested that the accused had set fire by the match stick.

This was, by far, the only contradiction which was brought

in her Cross-Examination.

12. Very strangely, a suggestion was put to her that since

the accused threw the petrol from three jerry cans one after

the other, they could run out and catch the accused. In her

further Cross-Examination, however, she admitted that her

statement was properly recorded by Narender Singh Patel (PW-

9), Sub-Divisional Magistrate, Baramandal, District Almora.

She also admitted that she had stated in her dying

declaration that there was one jerry can. In our opinion,

the witness, in her dying declaration dated 1.7.1989,

mentioned about one jerry can as she had seen the accused

throwing the petrol from one jerry can. Very strangely,

this contradiction was not got proved from Narender Singh

Patel (PW-9), Sub-Divisional Magistrate, Baramandal,

District Almora nor was it put to him. Unless a

contradiction is proved by putting it to the person who

records the original statement, such contradiction is of no

consequence. The only Cross-Examination of Narender Singh

Patel (PW-9), Sub-Divisional Magistrate was to the effect

that there was no certification on the dying declarations to

the effect that both the witnesses were in fit condition to

give the statement. When we see again the evidence of Vimla

Devi (PW-1), even she was not specifically questioned about

her previous statement nor was she given an opportunity to

explain as to why she had made the statement in her evidence

that there were three jerry cans as in her statement in

dying declaration that there was one jerry can. Unless the

witness is specifically given an opportunity to explain such

contradiction, it cannot be taken note of. The very purpose

of putting the contradiction to the witness is to give an

opportunity to him/her to explain a contradictory statement,

if any. There can be no dispute that when a witness making

a dying declaration survives, the said dying declaration

does not remain substantive evidence. However, as held in

Ramprasad v. State of Maharashtra [1999 (5) SCC 30] when

such dying declaration has been recorded by a Magistrate

then it can be used as a corroboration to the oral evidence

of such witness. This Court in the aforementioned decision

of Ram Prasad (cited supra) specifically held that where

such statement is recorded by a Police Officer, its user is

barred under Section 162 Cr.P.C. However, where it is

recorded by a Magistrate under Section 164, Cr.P.C. it

becomes usable to corroborate the witness as proved under

Section 157 of the Evidence Act. That is precisely the case

here. We have very critically examined the dying

declaration and we are of the clear opinion that the dying

declaration was voluntary, truthful and uninfluenced by any

other factor. We have considered the dying declaration vis-

`-vis the substantive evidence given by this witness. The

only criticism against this dying declaration was that the

Magistrate had not got it certified by the doctor to the

effect that the witness was in a fit state of mind to make

the dying declaration. That really appears to be the case.

However, it can not be forgotten that in his evidence, the

Magistrate Narender Singh Patel (PW-9) very specifically

asserted that he had obtained the opinion of the doctor.

Very surprisingly, there was no cross-examination at all on

this very vital aspect. Therefore, the assertion that he

had asked the doctor and was convinced that the injured was

in a fit position to make a dying declaration has gone

unchallenged. This witness has very specifically stated

that he completed all the formalities and had taken all the


13. When we see the Exhibits Ka-30 and 31, which are

seizure Panchnamas duly proved by Rewadhar (PW-4), it is

seen that there were three jerry cans found which were cut

from the above, and as such, were open. Out of these three

jerry cans, one was white and the others were black. It is

specifically stated in the panchnama that all the jerry cans

were smelling of petrol. In Exhibit Ka-31, the cut parts of

the jerry cans were shown, which were found lying on some

distance on the Western side of the spot of incident.

Therefore, there can be no dispute that actually the accused

had carried the three jerry cans full of petrol and the

witness had seen the accused pouring petrol from one of

them. It can also be that the accused might have utilized

the two jerry cans in sprinkling the petrol on the roof from

outside and then opening the door, threw the petrol from the

third jerry can remaining with him. The witness had after

all seen the three jerry cans being presented in the Court

and had, therefore, tried to improve upon the story.

However, if the three burnt jerry cans were actually found

by Hyat Singh (PW-13) immediately on the spot in a semi-

burnt condition, the so-called contradiction loses all its

rigor. The witness was very candid when she admitted before

the Court that she had not stated that her husband was cut

by the accused and that she had not, therefore, referred to

the pistol in her statement. She was also candid in saying

that she had not seen the accused assaulting her husband.

She then asserted that the accused assaulted her husband on

his neck only once. She also asserted that besides the

accused, she did not see anyone else on the spot. All this

suggests her truthfulness. She did not implicate anybody

else than the accused. Therefore, the fact that the accused

was alone and further that Balwant Singh (deceased), after

opening the door, ran out and was thereafter immediately

found cut, leads to the only inference that it was the

accused alone who assaulted Balwant Singh. It has to be

kept in mind that at that time, the whole house was burning.

The witness has explained that the other people came and

extinguished the fire; otherwise the whole house would have

burnt. There was, therefore, enough light for the witness

to see the accused. We, therefore, do not find anything to

disbelieve this witness on account of the so-called

contradictions. In fact, the presence of this lady

alongwith the other victims on the spot, goes without

challenge. Had she not been present there, she would not

have suffered 70% burns. She thus had the best opportunity

to watch everything. It was suggested that she was an

interested witness as the accused had enmity with her

father-in-law Pratap Singh. It must be remembered that she

herself had lost all her kith and kin including her husband

and, therefore, she would not be interested in screening the

real accused. We cannot view her evidence as the evidence of

an interested person. In fact, Dr. K.C. Joshi (PW-12), in

his first medical statement (Exhibit Ka-9), has specifically

mentioned that she was conscious when she was examined at

the Primary Health Centre, Baijnath. The certificate

describes her condition "patient fully conscious, needs

urgent (probably treatment), referred to Hospital, Almora

for management". Therefore, even at Primary Health Centre,

Baijnath, where she was examined at 9.30 A.M. on the next

day, the patient was fully conscious, thereby it cannot be

said that was not able to see and comprehend.

14. In fact, the way this lady was sitting in the room

which was 10 cubic long and 5 cubic wide she would have had

the best opportunity to see the accused. The High Court has

also taken stock of her inability to tell the colour of the

container, length etc. of the blade of the sword and the

omission in her statement as regards the pistol which was

found lying in the courtyard after the incident. However,

the Sessions Judge as well as the High court have chosen to

accept the evidence of the witness who has survived 70 %

burns. The High Court also endorsed view of the Sessions

Judge that she was wholly reliable witness and there was no

requirement of corroboration to her evidence from any other

witness. We are, therefore, of the opinion that the dying

declaration is reliable and properly recorded and truthful

and corroborates the oral evidence of Vimla Devi (PW-1).

That is a very strong circumstance in favour of the


15. This takes us to the other material circumstance and

that is the dying declaration of Prem Singh. This dying

declaration was recorded on 01.07.1989 i.e. on the next day

at 3.45 p.m. in the District Hospital, Almora by Narender

Singh Patel (PW-9). The said dying declaration is Exhibit

Ka-6. In fact this was a witness who had recorded the dying

declaration of Vimla Devi (PW-1) also. In his evidence,

Narender Singh Patel (PW-9) asserted that before recording

the dying declaration of Prem Singh, he had sought the

opinion of the doctor about the witness being in fit state

of mind to make a dying declaration. He also asserted that

the witness was not in any kind of mental pressure nor was

he depressed and was fully conscious and in possession of

the mental faculties. The witness also asserted that before

recording the dying declaration he had taken all the

precautions and the dying declaration was written in the

language of the witness himself. There is practically no

Cross Examination of this witness. The only thing that was

brought out was that he did not obtain the endorsement

certification by the Doctor that they were in a position to

make a statement. We have seen the dying declaration

itself. It is true that the dying declaration is not

endorsed by the doctor but for the same comments for dying

declaration of Vimla Devi (PW-1) we would accept the dying

declaration of Prem Singh which would become substantive


16. In his dying declaration, Prem Singh had specifically

alleged that while he along with other members of his family

like father, mother, sister-in-law, elder brother and

younger sister were having food, at that time accused Sunder

Singh who was his uncle was coming towards his house with a

torch and he was carrying a jerry can (named as `gallons' by

witness) and he poured the petrol and closed the door.

After throwing the torch he closed the door resulting in the

room catching fire. He then said that his elder brother

Balwant Singh pushed the door though his body had also

caught fire. He then asserted that Sunder Singh cut him

with some sharp weapon. He also explains that they could

not go out because the whole room had caught fire. The

witness further stated in his dying declaration that the

other villagers came. However, he could not recognize them

as he had suffered burn injuries. He was specific that

Sunder Singh alone had come to set the house on fire. This

declaration was recorded on 1.7.1989 at 3.45 p.m. as is

recorded in the dying declaration itself. The dying

declaration bears the thumb impression on both the pages.

When this dying declaration is considered in the light of

the evidence of Narender Singh Patel (PW-9), it is

established that the dying declaration was not only

voluntary but it was the correct depiction of the facts of

which took place. There is no reason for us to reject the

dying declaration again solely for the reason that there was

no endorsement of the doctor on the dying declaration

regarding the fit condition of the injured to make the

statement. We have already, while discussing the dying

declaration of Vimla Devi (PW-1), held that the Magistrate,

Narender Singh Patel (PW-9) had specifically asserted that

he had got himself satisfied by asking the doctor that the

injured witness were in a fit mental and physical condition

to make a statement.

17. Hyat Singh did not specifically name Vimla Devi (PW-1)

having made oral dying declaration to him but asserted that

the injured victims had told him about Sunder Singh's

involvement. We would use this circumstance only as

corroboration to Vimla Devi's evidence. It is true that

Vimla Devi (PW-1) had specifically not stated that she made

a statement to Hyat Singh. However, we are of the clear

opinion that the evidence of Vimla Devi (PW-1) as

corroborated by dying declaration (Exhibit Ka-5) was totally

acceptable and was rightly relied upon by the Trial and the

appellate Court.

18. There can be no dispute that the dying declaration can

be made a basis of conviction. There again can be no

dispute that for basing the conviction on the dying

declaration, the dying declaration must pass all the tests

of voluntariness, the fit condition of mind of the maker of

the dying declaration and the witness not being influenced

by any other factors and the truthfulness of the

declaration. The law is settled by this Court in the

decision of Laxman Vs. State of Maharashtra [2002 (6) SCC

710]. There, of course, the Court has discussed implication

of the doctor's statement. The Court has further considered

the subject in Shanmugham @ Kulandaivelu v. State of Tamil

Nadu [(2002) 10 SCC 4] as also in P.V. Radhakrishnan v.

State of Karnataka [(2003) 6 SCC 443]. We hasten to add

that we do not want to understate the importance of the

evidence of doctors. However, there could be cases where

though there is no certification by the doctor, still the

dying declaration can be accepted and in our opinion present

is such a case. In Laxman's case (cited supra), the court

had observed in paragraph 3:

"normally, therefore, the Court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration look up
to the medical opinion. But where the eye
witnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be
said that since there is no certification of the
doctor as to the fitness of the mind of the
declarant, the dying declaration is not

19. This decision was by the Constitution Bench of this

Court and has taken stock of all the earlier decisions. It

has been through out followed by this Court in the later

cases. After examining all the circumstances, particularly,

the evidence of the Magistrate, we are of the clear opinion

that the dying declarations of Vimla Devi and Prem Singh do

pass the test of credibility. Of course, the dying

declaration of Vimla Devi cannot be substantive evidence and

it can only be corroborative evidence of oral testimony

since she survived. However, the evidence of Prem Singh

does become substantive evidence and in our opinion, wholly

reliable. We, therefore, hold that the Trial Court and the

appellate Court have committed no error in relying on that

dying declaration.

20. There is immediate disclosure of the name of the

accused in the FIR. This report was in the same night at

3.30 a.m. where it is specifically stated that at 10 O'clock

Sunder Singh had set the house on fire when the family

members of Prem Singh were having food. It is also asserted

therein that even Balwant Singh's neck was cut by him. The

FIR is not substantive evidence. However, it corroborates

the assertion of Kheem Singh that Hyat Singh came on the

spot and had enquired into the matter. Therefore, the name

of the accused was reported almost immediately without any

waste of time.

21. Chanar Singh (PW-2) asserted that he was told by

injured Pratap Singh that Sunder Singh had set the house on

fire and he had injured. This assertion on the part of

Chanar Singh has not been challenged in the cross-

examination at all. In fact Chanar Singh is the brother of

the accused. It is true that in cross-examination he

admitted that he had not seen Sunder Singh setting the house

on fire nor did he see him assaulting Balwant Singh with a

sword. Even this witness was told by Vimla Devi that it was

Sunder Singh who had set the house on fire. His evidence,

therefore, corroborates the evidence of Vimla Devi. It is

relevant as a previous statement made to other witness and

usable as such. Similarly, Rewadhar (PW-3) also asserted

that Pratap Singh had told him that when they were having

their food at that time Sunder Singh had poured the petrol

and had put the house on fire. Even this assertion in the

examination-in-chief was not challenged in the cross-

examination. The only challenge in the cross examination

was that he had himself not seen the incident. The evidence

of this witness also thus went unchallenged. Very

unfortunately, though the Panchnamas on which these two

witnesses have put their signatures were put to the accused.

However, this fact of oral dying declaration by Pratap Singh

to both of them was not put to the accused. It is really a

matter of concern that even the trial Judge did not frame

the question in Section 313 Cr.P.C. examination specifically

putting the names of these two witnesses. Thereby a very

important circumstance is lost. We have not allowed

ourselves to be influenced by these two oral dying

declarations. However, we are mentioning these facts only

with a view to caution the Trial Courts to be extremely

careful about the questions to be put to the accused persons

in examination under Section 313 Cr.P.C. Record must show

that meticulous care is taken to put all the incriminating

circumstances to the accused. It is found that the Trial

Courts sometimes are extremely casual about this aspect and

fail to put all the incriminating circumstances to the

accused. We would expect the Trial Courts to be extremely

careful in this behalf. It is only with this idea that we

are mentioning these facts.

22. However, the fact remains that even ignoring these oral

dying declaration allegedly made by Pratap Singh to the two

witnesses, namely, Chanar Singh (PW- 3) and Rewadhar (PW-4)

the prosecution still is successful in proving its case on

the basis of the oral evidence of Vimla Devi and the dying

declaration by Prem Singh.

23. The evidence of four doctors was led. It is obvious

from the evidence that only two victims when they were

alive, namely, Vimla Devi (PW-1) and Prem Singh were

examined by Dr. K.C. Joshi (PW-12). The other doctors were

namely Dr. N.D. Punetha (PW-6) who conducted the post-mortem

on Balwant Singh's dead body. He has specifically proved

the injury No.1 on the neck of Balwant Singh which was bone

deep. He also described that all the body was burnt. He

also confirmed the opinion that the injury No.1 on the neck

could have been possible by a sharp weapon like a sword. He

also conducted the post-mortem of Smt. Nandi Devi who had

died almost immediately after she was burnt. He opined that

she had died of the burn injuries. Both these post-mortem

reports have been proved as Exhibits Ka-2 and Ka-3

respectively. He also conducted the post-mortem of Pratap

Singh on 02.07.1989 and opined that the deceased had died on

account of the shock of the burn injuries. He proved the

post-mortem report at Exhibit Ka-5. Dr.H.G.S. Manral was

examined as PW-10. He conducted the post-mortem of body of

Prem Singh. He opined that Prem Singh had suffered 90% of

second and third degree burns. The whole body was blackened

and the black soots were found in the respiratory track up

to his lungs. He also opined that Prem Singh had died on

account of the burn injuries and shock. Dr. Nanda Ballabh

Sharma was examined as PW-11. He conducted the post-mortem

on 13.10.1989 on the body of Kamla. Thus, Kamla had

survived for almost three and a half months. However,

ultimately she succumbed on 12.10.1989. According to this

witness, the deceased had died after substantially long

period after she was burnt on account of the shock, paucity

of blood and on account of extensive weakness on account of

burns. Thus, it is clear that all the deceased persons had

died on account of the burn injuries. Dr. K.C. Joshi who

was examined as PW-12, had medially examined Vimla Devi and

Prem Singh on 1.7.1989. He had described as many as five

burn injuries on the body of Vimla Devi. He had also

examined Kamla Devi and noted her burn injuries as also Prem

Singh for his burn injuries. All the three witnesses were

alive when he examined them. He proved the injury reports

at Ka-9, Ka-10 and Ka-11, respectively. Nothing has been

brought in the cross-examination of these doctors excepting

the suggestion to practically all of them that if there was

an accidental fall of a can containing oil or petrol in the

hearth, there could be a possibility of the witnesses

receiving burn injuries. We have already pointed out

that such possibility was merely an imagination and there is

no material whatsoever to see any such possibility. This is

all the more true considering that Balwant Singh was given a

blow by a sword resulting in his instantaneous death. The

defence thus could not get any advantage from the medical


24. This takes us to the quality of investigation. We must

say that the investigation in this case was not up to the

mark. In the distant hilly areas in the State of

Uttarakhand, the investigation is conducted by village

Police through a Patwari who is the lowest officer in the

revenue department. Much more could have been done in this

case. For example, the investigation officer could have

recorded the dying declaration of Pratap Singh, Nandi Devi,

Kamla, Vimla Devi and Prem Singh. They were alive when the

investigating officer allegedly reached the spot as per his

own evidence. That was not done. We also fail to

understand as to why K.R. Tamta (PW-14), the investigating

officer did not even bother to get the dying declaration of

Kamla recorded. Even Hyat Singh (PW-13) could have got the

said dying declaration recorded. Even that was not done.

We again fail to understand as to why the FSL report was not

obtained and filed. The trial was started only after the

arrest of the accused after 12 years. All this suggests

that the investigation was conducted in a very casual and

careless manner. Same is the story of prosecution. We have

already commented on proper questions not being put to the

accused. It is obvious that the prosecuting agency did not

even bother to look into the questions before they were

asked to the accused in his Section 313 Cr.P.C. examination.

Merely because this heinous offence took place in the remote

corner of District Bageshwar which - at the time when the

offence took place was Almora District - it did not mean

that the investigating agency could do some slipshod

investigation and thereafter the prosecution could be

allowed to be equally casual as it appears to have been in

conducting the prosecution. This also speaks about the duty

of the Trial Court Judge who cannot be a mere spectator to

what goes on in the name of the trial. The Trial Judge has

to control the trial by active application of mind. A time

has come when the village police system prevalent in the

State of Uttaranchal in respect of distant areas would have

to be changed and the distant villagers would have to be

given the protection and services of the regular police. It

is really strange that the four Districts which are in the

plains have had advantage of the police system while in the

remaining Districts, the distant part of those Districts

should be deprived of a police system. Such deprivation

undoubtedly results in affecting the law and order

situation, the detection of crimes and the protection of the

poor villagers. In fact effective policing is the need of

the whole society, urban as also rural. However, all these

factors have not prejudiced the accused. Even with these

factors, the prosecution has fully proved the heinous

offence committed by him. This Court has time and again

held that incompetent investigation should not result in the

accused getting any unfair advantage. We reiterate the same


25. Considering overall situation the evidence led by the

prosecution through Vimla Devi which has been corroborated

by her dying declaration as also the dying declaration

(Exhibit Ka-6) of Prem Singh and the other circumstances

proved on record through the evidence of Panchas and the

Panchnamas. It must be said that it was the accused and

accused alone whose guilt has been proved beyond all

reasonable doubts. We, therefore, endorse the judgments of

the Trial Court and the High Court and confirm their

findings on conviction.

26. This takes us to the sentencing part. Both the Trial

Court and the High Court have confirmed the death sentence.

It was urged by the learned Amicus Curiae that this could

not be the case which can be described as the rarest of rare

case. It was urged that long standing enmity has resulted

in the accused committing this offence. It was also urged

that merely because the accused set the house on fire, it

cannot be said that it was his intention to commit murder of

all inmates as the accused might not have been able to

foresee the horrible results that were likely to follow from

his act of setting the house on fire and, therefore, at the

most it could be described as indiscretion on the part of

the accused. The learned Amicus Curiae further urged that

this incident had taken place in the year 1989 and to send

the accused to gallows after 21 years of the incident would

be inhuman. Further it was pointed out that the first

judgment of the Trial Court came in the year 2004 and for

six years thereafter, the accused is under the shadow of

death and, therefore, it would not be proper to confirm his

death sentence.

27. As against this, the learned counsel appearing on

behalf of the State pointed out that this act of burning the

house and as a result of roasting of six persons alive

appears to have been committed by the accused with cool mind

and in a cold blooded manner. The learned counsel was at

pains to point out that there was no immediate provocation

by any of the deceased persons which could drive the accused

to take such a horrible step. Learned counsel pointed out

that secondly, the accused came with full preparation to

eliminate as many persons as possible as he had come with

the sword and also a pistol. The counsel invited our

attention to the fact that the pistol was found lying in the

courtyard which had two bullets. He further pointed out that

as many as three jerry cans were also found in the same

condition and it was obvious that the accused had used the

petrol to bathe the house with petrol. Otherwise, the room

which was 10 cubic long and 5 cubic wide could not be burnt

so extensively. The learned counsel further pointed out

that thirdly, after pouring the petrol and setting the house

on fire by a torch, the accused closed the door which fact

was proved by the evidence of Vimla Devi which was

corroborated by her dying declaration and also the dying

declaration of Prem Singh. According to the learned counsel

when the whole room was aflame, to close the door was a

definite pointer towards the evil intention of the accused

who must have seen the six family members burning. As if

all this was not sufficient, according to the leaned counsel

forthly, as Balwant Singh was able to open the door and run

out, though he himself was in flames at that time, the

accused almost beheaded him.

28. Our attention was invited to the injury No.1 proved in

the post-mortem report of Balwant Singh (Ka-2). The learned

counsel then urged that as a result of his assault Balwant

Singh died on the spot while the remaining five members of

the same family were extensively burnt though Vimla Devi

miraculously escaped death though she had suffered 70 %

burns. The learned counsel further invited our attention to

the fact that all those who died had suffered extensive

burns which suggests the quantity of petrol used by the

accused. According to the counsel, therefore, the quantity

of petrol used from three jerry cans was itself another

definite pointer to the evil intention of the accused. As

regards the lapse of 21 years, the learned Counsel pointed

out that showing scant respect to law the accused absconded

and remained absconding for 12 years. Unfortunately, it has

not come in the evidence of Hyat Singh or K.R. Tamta as to

how or in what manner the accused was apprehended, nor has

it been put to the accused in his examination that he was

absconding for 12 years. However, the learned counsel

further submitted that the accused was undoubtedly

apprehended only when he was found to have been arrested for

offences under Sections 323, 504 and 506 IPC registered in

police station Karnprayag. He was in Pursadhi jail of

Chamoli District. Learned counsel, therefore, urged that it

was because the accused himself remained absconding for good

long almost 12 years, that the time of 21 years has elapsed.

Learned counsel then pointed out that the accused cannot

take advantage of his own wrong of remaining absconding for

12 years. Lastly, learned Counsel urged that because of

this cruel and inhuman act as many as six persons of the

same family were burnt and five of them died resulting in

the family of Pratap Singh completely being wiped out

excepting for his daughter-in-law Vimla Devi who has to

spend rest of her life with extensive burn injuries. The

learned government pleader, therefore, urged that

considering the balance-sheet of circumstances for and

against the accused, the Court should confirm the death


29. On these rival contentions, we would have to take stock

of few rulings of this Court.

30. The law is now well settled in the decision in Bachan

Singh Vs. State of Punjab [AIR 1980 SC 898], where it was

held that the death penalty can be inflicted only in the

gravest of the grave cases. It was also held that such

death penalty can be imposed only when the life imprisonment

appears to be inadequate punishment. Again it was cautioned

that while imposing the death sentence, there must be

balance between circumstances regarding the accused and the

mitigating circumstances and that there has to be overall

consideration of the circumstances regarding the accused as

also the offence. Some aggravating circumstances were also

culled out, they being:-

(a) where the murder has been committed after previous
planning and involves extreme brutality; or

(b) where the murder involves exceptional depravity.

The mitigating circumstances which were mentioned in

that judgment were:-

(a) That the offence was committed under the influence
of extreme mental or emotional disturbance;

(b) The age of the accused. If the accused is young
or old, he shall not be sentenced to death;

(c) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society;

(d) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence
prove that the accused does not satisfy the
conditions (c) and (d) above;

(e) That in the facts and circumstances of the case,
the accused believed that he was morally justified
in committing the offence;

(f) That the accused acted under the duress or
domination of another person; and

(g) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the
criminality of his conduct.

The law was further settled in the decision in Machhi

Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where

this Court insisted upon the mitigating circumstances being

balanced against the aggravating circumstances. The

aggravating circumstances were described as under:-

(a) When the murder is in extremely brutal manner so as to
arouse intense and extreme indignation of the community.

(b) When the murder of a large number of persons of a
particular caste, community, or locality is committed.

(c) When the murder of an innocent child, a helpless woman
is committed.

The matter was further considered in Devender Pal

Singh Vs. State of NCT of Delhi [AIR 2002 SC 1661],

wherein, after examining both the aforementioned cases, it

was held that when a murder is committed in an extremely

brutal manner, or for a motive which suggests total

depravity and meanness or where the murder is by hired

assassin for money or reward, or a cold blooded murder for

gains, the death sentence is justified. Similar such

observation was made even in the decision in Atbir Vs.

Govt. of NCT of Delhi [JT 2010 (8) SC 372]. Relying on all

these cases, this Court, in Criminal Appeal Nos. 127-130 of

2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided

on 30.8.2010, confirmed the death sentence. That was a

case where the accused persons, while demonstrating against

the arrest of their leader, started damaging public

transport vehicles. Some girl students of a University

were travelling in a bus. The three accused persons

attacked the bus and sprinkled petrol in the bus full of

girl and boy students and set it on fire with the students

still inside the bus. As a result, the inmates started

escaping; however, three of the girls could not escape and

were roasted alive. The unprovoked attack on the bus and

the burning of the bus by sprinkling petrol on the bus, and

the death of three students as a result of such burning was

viewed by this Court as a barbaric and inhuman act of the

highest degree. The offence was viewed as brutal,

diabolical, grotesque and cruel, shocking the collective

conscience of society. It was on that account that the

death sentence was confirmed. Several comments have also

been made by this Court on the inaction shown by the

general public and the police who remained passive and did

not try to help the unfortunate victims.

31. In Ravji Alias Ram Chandra Vs. State of Rajasthan

[1996 (2) SCC 175], relying on the decision in Dhananjoy

Chatterjee Vs. State of West Bengal [1994 (2) SCC 220],

this Court confirmed the death sentence, where the murder

by the accused of his wife in the advanced stage of

pregnancy and of his three minor children was viewed as

rarest of the rare cases. The Court observed that the

accused has not even spared his mother, who very rightly

tried to prevent him, and the accused assaulted her with

the same axe with which he killed his wife and minor

children. The accused was described as blood-thirsty

demon. In Dhananjoy Chatterjee Vs. State of West Bengal

(cited supra), the murder was of a helpless girl who was

raped and then murdered. That was viewed as the rarest of

the rare cases. In State of U.P. Vs. Dharmendra Singh &

Anr. [1999 (8) SCC 325], it was held that the High Court

was not right in avoiding the death sentence on the ground

that the convict was languishing in death cell for more

than 3 years. In that case, the accused had committed

murder of 5 persons including an old man of 75 years, a

woman aged 32 years, two boys aged 12 years and a girl aged

15 years when they were asleep only to wreak vengeance on

the part of the accused. The High Court considered the act

on the part of the accused in denuding the lower part of

the body of the girl. This Court observed that the High

Court had misdirected itself in refusing to confirm the

death sentence on account of the so-called 3 years of

languishing in death cell. For this proposition, the Court

relied on the decision in Triveniben Vs. State of Gujarat

[1988 (4) SCC 574], where it was held that the delay in

executing the sentence was of no consequence.

32. In Atbir Vs. Govt. of NCT of Delhi (cited supra),

which was a case dependant upon a dying declaration, the

allegation was that the accused had stabbed all the three

persons of a family so that he and his brother could enjoy

the entire property and money. The repeated stabbing of

the deceased was viewed as the act for which the accused

could be legitimately awarded death sentence. The incident

therein had occurred on 22.1.1996 while the Sessions Judge

had awarded the death sentence on 27.9.2004. The High

Court had confirmed the death sentence on 13.1.2006 while

this Court affirmed this sentence by its judgment dated

9.8.2010. This Court, after taking the stock of the

aggravating circumstances and mitigating circumstances, as

pointed out in Bachan Singh Vs. State of Punjab (cited

supra) and Machhi Singh & Ors. Vs. State of Punjab (cited

supra), came to the conclusion that though Atbir was a

young person of 25 years of age and had already spent 10

years in jail, that was not a mitigating circumstance in

his favour. The three murders were held to be extremely

brutal and diabolical, committed with deliberate design in

order to inherit the entire property of Jaswant Singh

without waiting for his death. In Sushil Murmu Vs. State

of Jharkhand [AIR 2004 SC 394], which was a case of human

sacrifice of a 9 years old child, this Court found the

accused guilty on the basis of circumstantial evidence.

While culling out the aggravating circumstances, this Court

named five circumstances on the basis of the earlier case

law in Machhi Singh & Ors. Vs. State of Punjab (cited

supra), Bachan Singh Vs. State of Punjab (cited supra) and

Ediga Anamma Vs. State of A.P. [AIR 1974 SC 799]. Two of

the said circumstances are as follows:-

1. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the community.

2. When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons of a
particular caste, community or locality, are committed.

In this case, the Court recorded that the murder was a

dastardly murder by sacrificing a hapless and helpless

child of another for personal gain and to promote his

fortunes by pretending to appease the deity or was a brutal

act which is amplified by the grotesque and revolting

manner in which it was committed. This case was even

relied upon by the High Court while confirming the death


33. In another decision in Gurdev Singh & Anr. Vs. State

of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR

2003 SC 4187], this Court specifically held in Para 19 that

there could be no fixed or rigid formula or standard for

invoking extreme penalty of death sentence. This was a

case where this Court took notice of the decision in

Rajendra Prasad Vs. State of Uttar Pradesh [1979 (3) SCC

646], where this Court had held that the focus had shifted

from crime to criminal and the special reasons necessary

for imposing death penalty must relate not to the crime as

such but to the criminal. The Court, however, noted that

this was overruled in Bachan Singh Vs. State of Punjab

(cited supra) later on. The Court also referred to various

cases like (i) A. Devendran Vs. State of Tamil Nadu [1997

(11) SCC 720], which was a case of triple murder, where the

Court had refused to pass the death sentence, (ii) Kumudi

Lal Vs. State of U.P. [1999 (4) SCC 108], which was a case

of rape and murder of a young girl aged 14 years and where

this Court had refused to confirm the death sentence on the

ground that the death of the girl must not had been

intended by the accused, and (iii) Om Prakash Vs. State of

Haryana [1999 (3) SCC 19], which was a case where a BSF

Jawan had murdered as many as 7 persons. This was also a

case where the Court refused to confirm the death sentence

on the ground that the bitterness in the mind of the

accused had increased to a boiling point and the agony

suffered by the accused and his family members at the hands

of the other party, and for not getting protection from the

police officers concerned and the total inaction on their

part inspite of repeated written prayers, had goaded or

compelled the accused to take law in his own hands. Two

other cases where the death sentence was not confirmed were

also referred to in Gurdev Singh & Anr. Vs. State of Punjab

with Piara Singh & Anr. Vs. State of Punjab (cited supra).

They were Mohd. Chaman Vs. State (NCT of Delhi) [2001 (2)

SCC 28] and Lehna Vs. State of Haryana [2002 (3) SCC 76].

However, this Court then took notice of the facts and noted

that the accused in that case had fired at the marriage

party as he knew that there was going to be a marriage on

the next day in the house of the complainant. The accused

had fired at the time when the feast was going on and 13

persons were killed on the spot and 8 persons were

seriously injured. Out of all those 13 persons, one was 7

years' child. This Court, under the circumstances, refused

to convert the death sentence into the sentence for life.

34. There are three other cases which we must mention. In

Haru Ghosh Vs. State of West Bengal [2009 (15) SCC 551],

where one of us was a party (V.S. Sirpurkar, J.), there was

a murder of a helpless lady and a child by a person who was

already suffering death sentence. However, that act was

not found to be a pre-meditated act. It was found that the

accused had acted on account of the previous enmity and

since he thought that his livelihood was being attacked by

the husband of the deceased, though in an incorrect manner.

It was found that he had not come armed to the scene of

offence. It was also found that though he was not

justified in eking out his livelihood by selling liquor,

but the fact of the matter was that he and his family was

surviving only on that, and the effort on the part of the

husband of the deceased to stop the activity of the accused

was sufficient to nurture deep hatred in his mind on

account of which the accused acted. Such is not the case

here. In Dilip Premnarayan Tiwari & Anr. Vs. State of

Maharashtra etc. [2010 (1) SCC 775], again where one of us

(V.S. Sirpurkar, J.) was a party, this Court refused to

confirm the death sentence, where the accused was guilty of

committing multiple murders (4 in number). However,

considering the fact that the sister of the accused was

married to the deceased out of a love affair, which

marriage was not approved at all by the family of the

accused being an inter-caste marriage and further they

being neighbours and the accused having to suffer the

ignominy because of the so-called marriage on day to day

basis, this Court took the view that this was not a case

where the death sentence was to be awarded. The Court

considered the psychology of the accused, the taunts that

he had suffered on account of his sister's marriage with a

person of different community and further the fact that the

situation had gone out of his hand as his sister was on the

family way. The Court, therefore, viewed that this could

not be the rarest of the rare cases. Lastly, in Swamy

Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka

[AIR 2008 SC 3040], though there was one of the most cold-

blooded murder for gains, the Court recorded that

considering the absolute irrevocability of the death

penalty, sentencing accused to death would not be proper.

We do not find anything in this decision, which will be

helpful to the accused in the present matter.

35. Considering all these cases, on the backdrop of the

facts, which have taken place and provided in this case, it

must be said that this is one of the rarest of the rare

cases. Here is a case where the whole family is wiped out.

Five persons have lost their life while the sixth person, a

helpless lady, who has now been left to be the only member

of the family, has to live her life with 70% burn injuries.

The murder was committed in a cruel, grotesque and

diabolical manner. When all the members of the family were

having their food, the accused poured petrol in the room

and set it to fire and went to the extent of closing the

door also. He closed the door as established by Vimla Devi

(PW-1) and Prem Singh in the dying declaration. This was

the most fouled act, by which the accused actually intended

to burn all the persons inside the room and precisely that

had happened. Barring Vimla Devi (PW-1), everybody in that

room was burnt with the exception of Balwant Singh, who

somehow, was able to open the room and come out. Even he

was not spared and almost beheaded by the accused. It was

clear that the accused had done this with pre-meditated and

cold-blooded mind, as he had taken the trouble of carrying

petrol to his own cousin's house. As if all this was not

sufficient, he was also carrying a sword, and probably

prepared himself to fire on the complainant party, as a

pistol with two bullets in it was also found on the spot.

The accused shown extreme depravity of mind in causing a

sword blow on the neck of Balwant Singh, who himself was

burnt and was trying to escape. A murder by burning, by

itself, would be a very cruel act. The agony caused to the

dying witnesses because of their burn injuries would be

enormous. Again, when it is seen that there was no

immediate provocation to the accused and all this only was

on account of the enmity going on in respect of the family

lands, the enormousness of the crime is increased by many

folds. The accused showed scant respect for the law by

remaining absconding for about 12 years and only because of

that he could not be brought to books. It is only his

accidental arrest and being lodged in other jail that the

prosecuting agency was able to prosecute him. Out of the

five persons who lost their life, Kamla was barely 16 years

old while Prem Singh was 19 years old only. Their life was

nipped in bud. Both the ladies who lost their life, as

also the other three persons who lost their life were

without any arms and were helpless. They could not have

even saved themselves and did succumb to the burn injuries.

The balance sheet of the aggravating circumstances thus

exceeds the mitigating circumstances. In fact, there is no

mitigating circumstance in this case. The age is not on

the side of the accused. We cannot appreciate the argument

that it was only a rash act on the part of the accused

without an intention to commit the murder. That does not

appear to be the case at all. Pouring of the petrol

extensively would rule out the intention on the part of the

accused only to burn the house. Again, his act of closing

the door after setting the house to fire, would speak

completely against him. Insofar as the other circumstance

of the accused remaining under the shadow of death sentence

right from 2004 is concerned, we do not think that that

circumstance, by itself, is sufficient to mitigate his

horrible crime as the time factor is identical with the

case of Atbir Vs. Govt. of NCT of Delhi (cited supra).

36. Considering the overall circumstances, we are of the

opinion that the death sentence was rightly awarded by the

Trial Court and was rightly confirmed by the High Court.

We find no reasons to interfere in this appeal. The appeal

is dismissed.

(V.S. Sirpurkar)

(A.K. Patnaik)

New Delhi;
September 16, 2010

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