Full Judgment Text
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CASE NO.:
Appeal (crl.) 431 of 1999
PETITIONER:
Parsuram Pandey and Others
RESPONDENT:
The State of Bihar
DATE OF JUDGMENT: 14/10/2004
BENCH:
P. Venkatarama Reddi & P.P. Naolekar
JUDGMENT:
JUDGMENT
With
Criminal Appeal No 1199/2004
@ Special Leave Petition (Criminal) No. 2238 of 2004
P.P. NAOLEKAR, J.
Leave granted in S.L.P. (Crl.) No.2238 of 2004.
Both these appeals arise out of the same incident for
which all accused persons have been convicted and sentenced.
The accused/ appellants were tried for the offence along with two
other accused persons namely, Dharm Raj Pandey and Shradha
Ram. Raghunath Pandey-accused/appellant has been convicted
under Section 302 of the IPC and awarded sentence of life
imprisonment. He was further convicted and sentenced to two
years RI under Section under Section 148 IPC and 27 of the Arms
Act. The accused/appellants Parshuram Pandey, Bishram Pandey
and Somaru Pandey together with the other accused (non-
appellants) have been convicted and sentenced to life
imprisonment under Section 302 read with Section 149 of the
Indian Penal Code and two years RI under Section 148 of the IPC.
Parshuram Pandey, Bishram Pandey together with Dharmraj
Pandey (non-appellant) have been further convicted and sentenced
to 5 years RI under Section 307 for attempting to murder
Rajdendra Dusadh, Hriday Shankar Rai, Shampu Kumar Singh,
Mathura Singh and Rajesh Singh and one year RI under Section 27
of the Arms Act. All these sentences have been ordered to run
concurrently.
The prosecution case in nut-shell is as follows. That on 24th
December 1989 at about 1.30 P.M. at Village Burhaila, FIR was
lodged by informant-PW6, Birender Pandey informing that he
along with Bharat Pandey (PW5) and Kanhaiya Pandey (deceased)
were standing in their field. Appellant-Raghunath Pandey after
getting his buffalo washed in the canal reached near Birender
Pandey’s field and drove the buffalo to graze the tori crop grown in
the field. Birender Pandey objected to it, whereupon Raghunath
Pandey abused him which was resisted by Kanhaiya
Pandey(deceased). On this Raghunath Pandey went to his
residence and returned with other accused persons, armed.
Raghunath Pandey was armed with rifle and other accused persons,
Parshuram Pandey and Bishram Pandey were armed with gun and
Somaru Pandey armed with spear. On entering the field on
exhortation of Somaru Pandey and Shradha Ram, Raghunath
Pandey fired four shots by his rifle. Two shots hit Kanhaiya Ram
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(deceased) who fell down after receiving injuries. Thereafter the
appellants Parshuram Pandey, Bishram Pandey along with other
accused persons started indiscriminate firing by their guns which
caused injuries to the villagers. The appellant Somaru Pandey
hurled spear towards Birender Pandey and Bharat Pandey which
caused injuries to Bharat Pandey by the lathi protion of the spear.
Surendra Pandey and other alleged eye-witnesses (PW3) and Ram
Ekbal Pandey (PW4) reached the place of occurrence and saw the
occurrence. The accused/appellants made good their escape.
Kanhaiya Pandey was taken to Nana Nagar Hospital where he was
declared dead.
The autopsy was conducted by (PW7) Dr. Parma Nand Rai
and he found the following ante-mortem injuries on his person:
1) Lacerated wound with rugged and
blackish marks 31/2" x 21/2" on the left side of
upper chest, auxillary side of the chest;
2) Lacerated wound with blackish
margin 4" x 3" x muscle deep on the medial
side of upper chest, auxillary side of the chest;
3) Lacerated wound 4" x 3" x bone deep
and inverted margin on the upper left arm on
the same level as injury no.2
4) Lacerated wound with everted margin
5" x 31/2" x bone deep on lateral side of left
arm. It is wound of exit.
From the post mortem report it is clear that the injuries
found on the person of the deceased are lacerated wound of 31/2"
X21/2" on the left side of the chest just above the level of nipple
and lacerated wound of 4" x 3" x muscle deep on the medial side
of upper chest and auxillary side of the chest apart from a wound
of entry and exist on the upper left arm. The Injury No.1 and
Injury No. 2 could not have been caused of the same shot and must
have been by two gun shots.
On the internal examination he found the following injuries:
"Left auxillary blood vessel badly lacerated
and upper arm badly lacerated and fractured.
Fracture is compounding nature."
In the opinion of the doctor the cause of death was
hemorrhage and shock as a result of the fire arm. S.K. Singh, the
doctor, who has conducted the postmortem, he has found
lacerated wound with blackish margin, which indicates that the
firing was from a near distance. The other injured persons
namely, Hriday Shankar Rai, Sampu Kumar Singh, Rajesh Singh,
Mathura singh were examined by Dr. Shiva Nand Prasad (PW8)
on 24.12.1989 and he has opined that the injuries sustained by
these persons were simple and were caused by suspected gun-
shot. Prosecution has examined only one injured witness namely,
Rajesh Singh while defence has examined Sampu Kumar Singh,
DW2. The trial court and High Court while relying on the
statement of PW3 Surendra Pandey, PW4 Ram Ekbal Pandey,
PW5 Bharat Pandey, PW6 Birendra Pandey convicted the
accused persons. Defence plea of accidental firing deserves
rejection.
It is urged by the learned counsel for the appellant
that on proper appreciation of the evidence on record, PW3
Surendra Pandey and PW4 Ram Ekbal Pandey could not be held
to have been present at the place at the time of the occurrence.
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PW 3 and 4 claim themselves to be the eye-witnesses but in the
FIR lodged by PW6 at the police station it is revealed that
Surendra Pandey-PW3 and Ram Ekbal Pandey-PW4 have
reached the place of occurrence after hearing the noise. The FIR
records, that hearing the fire shots and noise from the family
members and co-villagers, Surender Pandey and Ram Ekbal
Pandey (Pws 3 and 4) and many other came who had seen the
occurrence and accused persons. Therefore, as per the FIR these
two witnesses have reached the spot after hearing the fire shots
and the noise from the family members. PW5 - Bharat Pandey in
his cross-examination has admitted that after the accused fled
away, his family members came. His brother PW3- Surendra
Pandey and father PW4-Ram Ekbal Pandey reached the spot after
the accused persons had already fled away. PW3 has deposed
that on 24.12.1989 at about 1.30 O’ clock at day time he was in
verandah of his house and he saw accused persons armed with
guns were going towards Dusadi Tola and he has followed them.
In cross-examination he has admitted that he has followed the
accused persons after 2-4 minutes of hearing the ‘hulla’. The
statement clearly indicates that he has not immediately followed
the accused persons but he left his residence after 2-4 minutes of
hearing the hulla. He was attracted to the place of incident after
he has heard the ‘hulla’. Thus the statement of this witness
clearly shows that he has reached the place of incident after the
incident was over. PW-4 has deposed that on the date of incident
he was at the door of his house and he saw the accused persons
going towards the Dusadi Tola. His son Surendra Pandey-PW3
was also sitting at the door. Both of them moved to see where
these people were going. Thus the father and the
son have followed the accused persons at the same time and must
have reached the place of incident after the incidence had
occurred. The deposition of these witnesses read with the
statement of PW5 \026Bharat Pandey and the incident recorded in
the FIR leaves no manner of doubt that these witnesses were not
the eye-witnesses and have not seen the incident happening.
They reached the spot later on.
It is then submitted by the learned counsel for the appellant
that the fact situation alleged by the prosecution of the
commencing of the incident does not inspire confidence in the
circumstances of the case. As per the counsel it was impossible
for the accused Raghunath Pandey to put his buffalo in the field
for grazing when Birender Pandey, Bharath Pandey and
Kanhaiya Pandey were standing in the field. Particularly so,
when the investigating officer did not find any foot marks of the
animal in the field and therefore the whole genesis of the incident
is false and therefore the prosecution could not be believed. It
may be true that there may be exaggeration in the prosecution
case in so far as as Raghunath Pandey deliberately putting his
buffalo in the field to graze the standing crop. It might be that
the buffalo must have strayed in the field and that would have
caused heated argument between Raghunath Pandey and the
deceased Kanhaiya Pandey, Bharat Pandey and Birender Pandey
which has enraged Raghunath Pandey who went to his house and
came back with his rifle and thereafter the incident occurred.
Exaggerated story put up by the prosecution would not wash
away the entire incident, which has been proved by the witnesses
who were present on the spot. The incident might have
commenced somewhat in different manner but the fact of the
commission of the offence, when proved by the witnesses the
prosecution’s case cannot be thrown out only on the basis that
prosecution has put inflated version of the commencement of
incident. PW6 - Birender Pandey, the informant reiterated his
version as given in the FIR. In his statement he said that he was
in the field along with Bharat Pandey and Kanhaiya Pandey on
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the fateful day. Raghunath Pandey came near the field and let
loose his buffalo in the field of the informant to graze the
standing tori crop and when he protested, Raghunath Pandey
started abusing him and Kanhaiya Pandey intervened and
objected the act of Raghunath Pandey, whereupon Raghunath
Pandey went to his house after threatening and came back with
his rifle along with other accused persons who were also armed
with the fire arms. It is further stated that on exhortation of
Somaru Pandey and Shradha Ram , Raghunath Pandey fired 4
shots by his rifle out of which two shots hit Kanhaiya Pandey
who fell down. Thereafter, Dharmraj Pandey, Parshuram Pandey
and Bishram Pandey, indiscriminately started firing their guns
which caused injuries to Rajesh Singh-PW1 and Somaru Pandey-
DW2 and other villagers. It is further deposed that appellant
Somaru Pandey and Shradha Ram hurled spear and Bharat Ram
was injured by the back portion of the spear. PW5-Bharat
Pandey corroborated the statement of PW6-Birender Pandey
when he stated in the Court that he was present in the field along
with Kanhaiya Pandey and Birender pandey when Raghunath
Pandey came there and let loose his buffalo to graze the tori crop
standing in the field of Birender pandey which was objected to by
Birender Pandey and Raghunath Pandey abused him. Kanhaiya
Pandey objected to the said act of Raghunath Pandey.
Thereafter, Raghunath Pandey went to his house and came back
with fire arm with other accused armed with guns and Somaru
Pandey, Shradha Ram armed with spear. Immediately after
having reached the field Raghunath Pandey fired four shots by
his rifle, out of which two shots hit Kanhaiya Pandey and he fell
down. The other accused persons started indiscriminate firing
with the result the villagers sustained injuries. Statements of
these two witnesses have been found trustworthy by two courts
below as regards causing injuries by fire arms by Raghunath
Pandey to Kanhaiya Pandey. The injury sustained by the
deceased \026 Kanhaiya Pandey corroborates ocular statements of
these two witnesses. On consideration of the evidence, the
evidence of these two witnesses is reliable and convincing except
to the extent that some embellishments were made in explaining
the genesis of incident. The evidence of these two eye witnesses
is consistent with the medical evidence and does not create doubt
regarding the real manner in which the incident has taken place
and the injuries caused by Raghunath Pandey to Kanhaiya
Pandey by use of fire arm. We do not find any infirmity in the
reasoning of Courts below in placing reliance on the statement of
these two witnesses for convicting Raghunath Pandey for causing
death of Kanhaiya Pandey.
It is submitted by the learned counsel for the appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey that in
the facts and circumstances of the case these appellants could not
have been convicted under Section 302 read with Section 149 for
causing death of Kanhaiya Pandey. Further they are wrongly
convicted under Section 307 for causing injury to the villagers
and their further conviction under Section 27 of the Arms Act is
not in conformity with the evidence led by the prosecution.
It has come in evidence that PW5-Bharat Pandey, PW6-
Birender Pandey, were standing near by the deceased Kanhaiya
Pandey. Parshuram Pandey and Bishram Pandey were carrying
fire arms, whereas Somaru Pandey was carrying spear. The
incident has happened within a short span of time. The witnesses
have said that the accused persons entered the field and
immediately thereafter Raghunath Pandey opened four shots at
Kanhaiya Pandey, the deceased. Kanhaiya Pandey received two
gun-shot injuries and fell down. Thereafter, Parshuram Pandey
and Bishram Pandey had started indiscriminate firing. Somaru
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Pandey had hurled spear at Bharat Pandey. It has also come in
the prosecution evidence that after hot exchange of words
Raghunath Pandey came back within few minutes from his
residence armed with rifle and accompanied by other accused
persons to the field. The evidence also shows that neither Bharat
Pandey or Birender Pandey have received any injuries by the fire
arms. It is not stated by the eye-witnesses that Parshuram Pandey
or Bishram Pandey while indiscriminately firing from their fire
arms had aimed at Kanhaiya Pandey, the deceased nor there is
any evidence on record that Bharat Pandey, Birender Pandey who
were standing near the deceased have received any injuries by
the fire arm. PW1-Rajesh Singh has deposed that on 24.12.1989
at 1.30 P.M. he was going towards the place of one Mathura
Uncle of the Village and while he was passing by the side of
field of Birender Pandey, all of a sudden he heard the noise of 4-
5 firing shots and simultaneously he had received pellet injuries.
He has not stated that he has sustained injuries by any of the
accused persons firing at him. In fact he has not seen the actual
firing of the guns. He is a witness who was going by the side of
the field of Birender and sustained injuries by fire arm. He has
only heard the noise of 4-5 firing shots. Thus this witness has not
stated that he has received the injuries at the hands of Parshuram,
Bishram or Somaru. DW2-Sampu Kumar Singh who was
examined by defence, sustained injuries by the fire arm, has not
named any of the accused person to be the person who has
caused him injuries in the incident. Thus there is no evidence on
record that the injuries sustained by the villagers by fire arm was
intended to be caused by the accused persons. There is no
evidence on record that any of the villagers (passer-by) have
received any specific injury by a fire arm used by either
Parshuram or Bishram intended to be caused to them.
By virtue of Section 149 IPC every member of an unlawful
assembly at the time of the commission of the offence is guilty of
an offence committed by any member of the unlawful assembly.
The Section creates constructive or vicarious liability of the
members of the unlawful assembly for unlawful acts committed
pursuant to the common object by any other member of that
assembly. The basis of constructive guilt under Section 149 is
mere membership of an unlawful assembly. In a case under
Section 149 the accused if is a member of the unlawful assembly,
the common object of which is to commit a certain crime and if
that crime is committed by one or more members of that
assembly every person who happened to be a member of that
assembly would be liable for that criminal act by virtue of his
being a member of it, irrespective of the fact whether he actually
committed the act or not. To attract Section 149 of the IPC the
prosecution must prove that the commission of the offence was
by any member of an unlawful assembly and such offence must
have been committed in prosecution of the common object of the
assembly or must be such that the members of the assembly knew
that it was likely to be committed. Unless these three elements
are satisfied by the prosecution the accused cannot be convicted
with the aid of Section.
The facts which have been proved by the prosecution are
that on heated exchange of words in the field of Bharat Pandey,
between Bharat Pandey, Birender Pandey, Kanhaiya Pandey with
Raghunath Pandey, Raghunath Pandey went home enraged and
returned back immediately thereafter (within 3 minutes according
to PW-6) with a rifle accompanied by other accused persons who
were also carrying guns and spear. Immediately on entering the
field, Raghunath Pandey opened fire at Kanhaiya Pandey and as a
result thereof he received two gun-shot injuries from the weapon
used by Raghunath Pandey. Neither Parshuram Pandey nor
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Bishram Pandey used their guns to fire at Kanhaiya Pandey,
Bharat Pandey or Birender Pandey, who were standing nearby.
No other overt act or role has been attributed to them which
could definitely point out to their common object to kill or injure
Kanhaiya Pandey or PWs 5 and 6. The mere fact that they
accompanied Raghunath Pandey with weapons in hand does not
necessarily lead to the inference that they had shared the common
object or intention with Raghunath Pandey to kill Kanhaiya
Pandey. Their behaviour at the scene of offence negatives such
inference. However, the only fact proved by the prosecution is
that they have started indiscriminate firing which resulted in
some villagers receiving simple injuries, though the reason for
such firing is not clear. In view of the short span of time within
which the whole incident took place it could not be presumed that
the three appellants along with the other accused Raghunath
Pandey have informed the common object to do away with
Kanhaiya Pandey. The fact that immediately after entering the
field Raghunath Pandey opened fire at Kanhaiya Pandey, though
the other accused who were also armed with gun, have not fired
at Kanhaiya Pandey or his companions also indicates that the
accused persons Parshuram and Bishram Pandey did not share
the common object or intention to cause death of Kanhaiya
Pandey. It cannot be said that they fired their guns and have
missed the shot at Kanhaiya Pandey or any other person. Thus
we find it difficult to hold as has been held by the trial court and
the High Court that the accused Parshuram, Bishram and Somaru
Pandey have formed the unlawful assembly with the common
object to commit an offence of murder of Kanhaiya Pandey. In
fact there is no evidence against Somaru Pandey except that he
exhorted appellant/accused Raghunath Pandey to fire at Kanhaiya
Pandey, which in the circumstances of the case is difficult to
believe. Though PWs 5 and 6 deposed that he and Shradha Ram
threw the spears at them and the stick portion of it injured PW5,
no such injury was proved. PW5 refused to be examined by the
doctor.
Thus the accused appellants Parshuram Pandey, Bishram
Pandey and Somaru Pandey are acquitted of the charge under
Section 302 read with Section 149 and imprisonment for life.
Accused Parshuram and Bishram were also convicted under
Section 307 for 5 years RI for causing gun-shot injuries to the
villagers.
To constitute an offence under Section 307 two ingredients
of the offence must be present:-
(a) an intention of or knowledge relating to
commission of murder ; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention
or the knowledge and not the consequence of the actual act done
for the purpose of carrying out the intention. Section clearly
contemplates an act which is done with intention of causing death
but which fails to bring about the intended consequence on
account of intervening circumstances. The intention or
knowledge of the accused must be such as is necessary to
constitute murder. In the absence of intention or knowledge
which is the necessary ingredient of Section 307, there can be no
offence ’of attempt to murder’. Intent which is a state of mind
cannot be proved by precise direct evidence, as a fact it can only
be detected or inferred from other factors. Some of the relevant
considerations may be the nature of the weapon used, the place
where injuries were inflicted, the nature of the injuries and the
circumstances in which the incident took place. On the evidence
on record, where the prosecution has been able to prove only that
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the villagers have sustained injuries by indiscriminate firing and
it was an open area with none of the injured nearby there is a
complete lack of evidence of intention to cause such injuries for
which the accused persons Parshuram and Bishram could have
been convicted under Section 302 of the IPC. Nature of the
injuries sustained by the villagers is simple. None of the
witnesses have stated that the fire arm causing injuries was being
used by any particular accused for causing injuries to them. In
fact the injured have not seen any of the accused persons using
fire arms. There is no evidence about the distance from which
the said two accused fired. The only evidence led by the
prosecution is indiscriminate firing by Parshuram and Bishram
which has caused simple injuries to the villagers. Amongst the
injured villagers, only PW1 and DW-1 were examined. Thus this
evidence does not constitute the intention or knowledge of the
accused persons for committing the murder or doing of an act
towards it. The evidence only shows that the villagers have
sustained simple injuries. In the circumstances, we acquit
Parshuram and Bishram under Section 307 of IPC.
It is evident from the evidence placed on record that
injuries caused to the villagers are the result of indiscriminate
firing from the guns used by Parshuram Pandey and Bishram
Pandey. It has also proved that Somaru Pandey was carrying
spear which he had hurled at PW-5 but no injury was caused to
him by it. It appears that after exchange of hot words between
Raghunath Pandey and members of the complainant-party at the
field of Birender Pandey the accused Raghunath Pandey came to
his house and left his house within few minutes with rifle,
observing Raghunath Pandey in a furious mood returning back to
the field armed with rifle, the accused-appellants Parshuram
Pandey, Bishram Pandey and Somaru Pandey must have
apprehended some danger and thus accompanied him to the field.
Raghunath Pandey immediately after reaching the field opened
fire from the gun which he was carrying. He fired four shots, two
shots out of them hit the deceased Kanhaiya Pandey and he fell
down on field at the spot. The three accused persons finding
Kanhaiya Pandey, deceased falling on the field seriously injured,
apprehended retaliation from the complainant-party and from
other villagers present nearby the field and to ward off any attack
on them including Raghunath Pandey, must have started
indiscriminate firing from the fire arms held by them. In the same
process Somaru Pandey also threw spear at the member of the
complainant-party which of course has not caused any injury.
The common intention of the three accused developed
immediately after the shots were fired at Kanhaiya Pandey, as a
result thereof he fell down on the ground seriously injured. The
plan to ward off attack in retaliation by the complainant-party
and the other villagers present nearby and to prevent them from
approaching towards place of incident and the accused persons,
common intention developed at the spur of the movement at the
place of occurrence during the commission of crime. The act of
all the three accused persons of firing and throwing spear was in
furtherance of the common intention of all of them. When the
fire arms were used indiscriminately in the open place, the
assailants may be presumed to know that result of such use of the
weapon will very likely to give bodily injury to the persons and
when such injuries are caused to the persons, it is the actual
result from the assault made, and everyone of the persons
concerned in the act will be guilty for that injury irrespective of
the fact whether the prosecution has proved that a particular
injury was caused by a particular accused person or not. Injury
caused to the villagers by the fire arm although simple in nature
are caused by accused person in furtherance of the common
object of all the three accused persons. We, therefore, hold the
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accused/appellants Parshuram Pandey, Bishram Pandey and
Somaru Pandey guilty of offence under Section 324 read with 34
IPC.
It is lastly submitted by the learned counsel for the
accused/appellants that the statement under section 313 Cr.P.C.
of the accused persons have been recorded in a most cursory,
casual and perfunctory manner by the Sessions court. It is urged
that this is a normal practice followed in the court in the State.
The manner in which the trial court recorded the statement under
Section 313 Cr.P.C. of the accused persons, is not in accordance
with law and, therefore accused-appellant are entitled for the
benefit as they have not been provided with sufficient
opportunity to explain the circumstances appearing in evidence
against them. We have perused the statement under Section 313
Cr.P.C. and the question formulated by the trial court in the
present case and we may say that it is far from satisfactory. This
court time and again has laid down that it is obligatory on the part
of the trial court to examine the accused for the purpose of
enabling the accused personally to explain any circumstance
appearing in evidence against him. If such opportunity is not
afforded, the incriminating piece of evidence available in the
prosecution evidence against the accused cannot be relied upon
for the purpose of recording the conviction of the accused person.
It is imperative on the court to record the statement under Section
313 Cr.P.C. of the accused persons so as to give opportunity to
the accused persons to explain any incriminating circumstance
proved by the prosecution. The duty cast on the court cannot be
taken lightly. However, we find that no argument has been
advanced by the counsel for the appellants in the trial court or
before the High Court on the basis of improper recording of the
statement under Section 313 of the Cr.P.C. In the present case,
the counsel for the accused/appellant could not point out to us
any prejudice being caused to the accused/appellants on account
of the irregular, imperfect statement recorded under Section 313
of the Cr.P.C. That being the case, the accused are not entitled
for any benefit for the lacuna in recording the statement of the
accused under Section 313 of the Cr.P.C.
As the result of the aforesaid discussion and of the
findings, appeal of accused/appellant Raghunath is dismissed and
his sentence is maintained. The appeal of accused/appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey is
allowed and their conviction under Section 302 read with 149
IPC and Section 148 IPC is set aside. The appeal of
accused/appellants Parshuram Pandey and Bishram Pandey is
partly allowed, their conviction under Section 307 IPC and
sentence of 5 years RI is set aside. Accused/appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey are
convicted under Section 324 read with 34 IPC and sentenced to
three years RI. The sentence of appellants Parshuram Pandey and
Bishram Pandey under Section 27 of the Arms Act is maintained.
All these sentences shall run concurrently.