When offence u/s 498A of IPC is not applicable – Quashed

HIGH COURT OF MADHYA PRADESH AT JABALPUR

SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE

CRIMINAL APPEAL NO.2114 of 1996

APPELLANTS: (1) Jalam s/o Ghurka
aged about 24 years

(2) Smt. Gouri Bai w/o Ghurka
aged 45 years

(3) Smt. Lalti Bai w/o Babu Lodhi,
aged about 20 years

All R/o village Hanuman Sagar,
Thana Kotwali, Tikamgarh,District Tikamgarh (MP)

Versus

RESPONDENT : State of Madhya Pradesh, through District Magistrate, Tikamgarh (M.P.).

Shri Ashish Tiwari, Advocate for the appellants. Shri Sudeep Deb, Panel Lawyer for the respondent /State

Judgment reserved on : 16.08.2013 Judgment delivered on : 12.11.2013

(J U D G M E N T)

In this appeal, the accused/appellants have called in question the soundness of the judgment dated 20 /11 / 1 996 passed by the First Additional Sessions Judge, Tikamgarh to the Court of Sessions Judge, Tikamgarh (MP) in ST No.57 / 1994, each one of the appellants was convicted and sentenced as under:-

No. and names of the appellants – Conviction under Section – Sentence

1. Jalam – 498A of IPC – Undergo RI for 3 years and to pay fine of Rs.2000 / – and in default to suffer imprisonment for 3 months.
2. Smt. Gouri – 306 of IPC – Undergo RI for 5 years and to Bai pay fine of Rs.2000 / – and in default to suffer imprisonment for 3 months. 201 of IPC Undergo RI for one year and to
3. Smt. Lalti Bai – pay fine of Rs.1000 / – and in default to suffer imprisonment for one month

02. The appeal, so far as it related to appellant No.1 Ghurka stands dismissed as abated verifying the factor of his death on dated 06 /03 / 2 013.

03. The basis of the prosecution case is the Marg Intimation No. 10/94 under Section 174 of Cr.P.C. which was lodged by complainant Gorelal at Kotwali Tikamgarh, father of the deceased Rampyaribai who died on 20.03.1994 under the mysterious circumstances which reads as under:-

“Qfj;knh mijksDr us gkftj Fkkuk vkdj fjiksVZ fd;k fd esjh cPph jkeI;kjh mez djhcu 20 o”kZ dh xzke guqeku lkxj ds tkye yks/kh dks C;kgh Fkh cPph dh vkt vpkud djhcu pkj cts fnu ekSr gks xbZ ftldh lwpuk eq>s tSls gh feyh rks eSa rRdky vius yM+ds fd’kksjh] f’kon;ky] guqer xkWao ds lksojr xksfoUnkjk vkfn ds guqeku lkxj x;k ogkWa irk pyk fd cPph dks ekSr ds mijkar rRdky fcuk fdlh dh jk; ns[ks tyk fn;k x;k gS tcfd gelc yksxksa dks irk pyk fd cPph us nksigj lc ifjokj okyksa dks [kkuk f[kyk;k o ekSr ds iwoZ vkt 3 Cri. Appeal 2114 of 1996 og LoLFk Fkh cPph igys ls chekj ugha Fkh tykus okys xkWao ds o muds ?kj ds /kqjds yks/kh] jruyks/kh] dk’kkhjke yks/kh] Hkxokunkl] ckcw] jke yks/kh] yVksjh] HkS;kyky] nmizrki flag] ckcw ukfor vkfn Fks eq>s vius cPph dh ekSr esa lansg gS lks fjiksVZ dks vk;k gwWA”

(emphasis supplied)

04. On basis of this report offence was registered; statement of complainant Gorelal and his family members and others were recorded under Section 161 of Cr.P.C. In the course of investigation some dry earth was seized that it contains traces of Sulphas poison. The sari and blouse of the deceased also seized, and sent for chemical examination. On completion of other required formalities, investigating agency filed challan under Sections 498 (A), 306 and 201 of the I.P.C. in the Committal Court which in his turn committed the matter to the Court of Sessions, Tikamgarh and eventually the matter was tried by learned trial Judge.

05. On basis of record, learned trial Court framed charges against the appellants who abjured their guilt so they put to trial.

06. The prosecution, to prove its case, examined 8 witnesses including complainant Gorelal, and filed documents Ex. P/1 to P/12.

07. During the statements recorded under Section 311 of Cr.P.C. the appellants denied all the facts which were put forth against them and claims to be falsely implicated. Defence was taken that Rampyaribai died due to illness. Pooranlal (DW /1) examined as the defence witness.

08. Learned Trial Court after consideration of the evidence placed before it, found the appellants Jalam, Smt. Gouri Bai, Smt. 4 Cri. Appeal 2114 of 1996 Lalti Bai and Ghurka (now deceased) guilty of the offence punishable under Sections and imposed the sentenced them as mentioned hereinabove.

09. Shri Ashish Tiwari, learned counsel for the appellants submitted that the learned trial Court has made a wrong judicial approach to the facts and circumstances of the case came to the wrong conclusion which cannot be sustained on a dispassionate scrutiny of the facts and law. The case of the prosecution depends entirely on circumstantial evidence and chain of the circumstances is at all not completed. The learned trial Court relied on the testimony of the interested witnesses. There is no corroboration of the prosecution case by the independent witnesses. Rampyaribai committed suicide because of the reasons that she had a sense of frustration that she could not became a mother. The learned trial Court found that dead body of Rampyaribai was cremated in a hurried manner without informing her parents and it is the reason that the appellants are found guilty but, it is not taken under consideration by the learned trial Court that parents of the deceased were living at another village at a considerable distance and massage was also sent to them but, since the body was getting decomposed giving foul smell, therefore it was cremated on the advice of villagers therefore, there was no question of attempting to screen evidence within the meaning of Section 201 of the IPC. Therefore, appeal be accepted and the appellants be acquitted.

10. Shri Amit Kumar, learned Panel Lawyer for the State has opposed the appeal vehemently contending that the appellants have rightly been convicted and sentenced thus, the appeal is liable to be dismissed.

5 Cri. Appeal 2114 of 1996

11. Considered the rival submissions made by learned counsel for the parties and perused the impugned judgment as well as evidence available on record carefully, this appeal deserves to be allowed.

12. Marg Intimation (Ex.P-1) is not alike First Information Report, it is an information regarding unnatural death of one person, which leads to criminal investing agency in action. Therefore, Investigation Officer Shri S.J. Jafrin (PW/8) recorded statements of the witnesses, out of them Kishorilal (PW/1) and Sobaran (PW-4) are brothers and Gorelal (PW/2) and Shyambai (PW/3) are parents of Rampyaribai, Gajara Bai (P.W.5) is wife of Hanumat, third brother of Rampyaribai and Balchand (PW/5) and Latori (PW/6) are resident of village of the appellants, i.e. Hanuman Sagar.

13. It is pertinent to mention here that maker of the Marg Intimation Ex.P-1 Gorelal (PW/3) stated that he did not report this Marg Intimation (Ex.P-1) when the contents read over to him, but we will ignore this denial.

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14. Kishorilal (PW/1) has stated that the marriage of Rampyari Bai was solemnized with the appellant Jamana about 8- 9 years before the incident and she was issue less. This evidence of Kishorilal (PW/1) has been fully corroborated by Shyam Bai (PW/2), Gorelal (PW/3), Sobaran (PW/4) and Gajara Bai (P.W.5). Nothing has been elicited in their cross examinations to discredit their evidence, therefore, by the evidence of these witnesses, it is established that the marriage between the Rampyri Bai and appellant Jamana was solemnized about 8-9 years ago, but the couple was not blessed with a child.

6 Cri. Appeal 2114 of 1996

15. Now, the first question that arises for determination is whether the death of Rampyaribai occurred otherwise than under normal circumstance?

16. It is rightly held by learned trial Court that the entire prosecution case is depend only on circumstantial evidence. But, it is pertinent to mention here that the learned Trial Court failed to appreciate the prosecution evidence available on record, when there is clear directions of the Apex Court how the contradictions, omissions, etc. will be looked into.

17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.

Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucial for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements 7 Cri. Appeal 2114 of 1996 of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions. The omissions, which amount to contradictions in material particulars, ie. Materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited. Please see – State Represented by Inspector of Police v. Saravanan & anr., AIR 2009 SC 152:(2008 AIR SCW 7060); Arumugan v. State, AIR 2009 SC 33]:(2008 AIR SCW 7354); Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11 SCC 334:(2009) AIR SCW 2849); Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT2010(12) SC 287:(2010 AIR SCW 7049);Vijay alias Chinee v. State of M.P., (2010) 8 SCC 191:(2010 AIR SCW 5510); State of U.P. v. Naresh & Ors., (2011) 4 SCC 324:(2011 AIR SCW 1877); and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280:(2010 AIR SCW 6704).

Where the omission amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Please see – State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106:(AIR 1998 SC 2554).

18 From the evidence of Kishorilal (PW/1), Shyam Bai (PW/2), Gorelal (PW/3), Sobaran (PW/4) Gajara Bai (P.W.5), Balchand (PW/5) and Latori (PW/6) only this fact is established that the Rampyari Bai died otherwise than under normal circumstance.

8 Cri. Appeal 2114 of 1996

19. It is pertinent to note here that at the time of lodging of Marg Intimation (Ex.P-1) nothing was clear in mind of Gorelal (PW/2) that’s why he mentioned that the reason of death of Rampyaribai is doubtful. Kishorilal (PW/1) also admitted that his father and himself were doubtful regarding the death of his sister Rampyaribai therefore, they reported the matter. This fact is also admitted by Kishorilal (PW/1) that the facts which were informed by the villagers of Hanuman Sagar are the basis on which doubt was created. Gajrabai (PW/5) also admitted that she did not went to the village of Rampyaribai, therefore, she herself stated during examination- in- chief that she is not able to say how Rampyaribai died?

20. This doubt is not looked into by the learned Trial Court nor discussed the available evidence on this vital issue. Learned Trial Court was duty bound to find out what was the cause of death of Rampyaribai?

21 Therefore, scrutiny is necessary for the evidence available in this regard. Kishorilal (PW/1) stated that when he reached at village Hanuman Sagar it was stated by family members of the appellants that Rampyaribai was died due to fever. It was Ratan, younger brother of the Ghurke (deceased appellant) who informed him that Rampyaribai was died due to fever, but, Ratan is not examined by the prosecution. Therefore, this first reason of death of Rampyaribai due to fever is not acceptable as it was also not case of the prosecution nor proved beyond doubt.

22. Gorelal (PW/3) stated first new fact that the intention of appellants was to kill Rampyaribai so the appellant Jalam ceremonised second marriage due to “Banjhpan” of Rampyaribai.

9 Cri. Appeal 2114 of 1996

23. Gorelal (PW/3) stated that when they reached at village Hanuman Sagar they found the Atari of the house of the appellants was locked when he saw the blood in the Atari and asked villagers to see that blood.

24. Shyamabai (PW/2) also stated that when her husband and both son reached at the house of the appellant at village Hanuman Sagar, the appellant went out from Atari which was stained by blood. It is pertinent to mention here that Shyamabai (PW/2) is not the witness of village Hanuman Sagar because she did not went there so whatever in his knowledge or information is hearsay only.

25. Entire statements of Shyamabai (PW/2), mother of the deceased is based on this story that appellants were not offering food to Rampyaribai, hence she died due to starvation. She specifically blamed that all the four appellants conspired and killed her daughter, it goes to show that Shyamabai (PW/2) is not supporting case of dowry demand or abetment of suicide.

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26. Kishorilal (PW/1) did not state any fact regarding the starvation which was cause of death of Rampyaribai. He did not utter a single word during his evidence that his sister was died due to starvation.

27. As per prosecution story on 20.03.1994 Rampyaribai swallowed Sulphas tablets, in consequence of which she had badly vomiting and loose motions resulting in her death at about 4 p.m.

28. Kishorilal (PW/1) stated that some villagers informed him that Rampyaribai was vomiting since 3:00 p.m. He specifically stated that Latori and Balchand were informed him that Rampyaribai swallowed sulphas tablets and bad smell was coming 10 Cri. Appeal 2114 of 1996 from her mouth. It is also stated by him that Balchand and Latori informed this fact in presence of 25 to 50 villagers.

29. Villagers of Hanuman Sagar Balchand (PW/6) and Latori (PW/7) were not supported the case of the prosecution and specifically denied all the facts stated by Kishori (PW/1) and other prosecution witnesses regarding the information given at village Hanuman Sagar about the reason of death of the Rampyaribai by taking Sulphas tablets.

30. It is pertinent to mention here that no medical evidence is available on record because without any opportunity of postmortem, collection of viscera etc. the body of Rampyaribai was cremated by the appellants, though they are charged for it also.

31. Therefore, the Investigation Agency in the course of investigation collected some dry earth suspecting that it might contain traces of Sulphas poison. The sari and blouse of the Rampyaribai was also seized to prove this fact and all the seized articles were sent to chemical examination at FSL Sagar and vide report Ex.P-11 traces of Sulphas was detected on these articles.

32. Learned trial Judge has given utmost emphasis on the fact that traces of Sulphas were found on the cloths of Rampyaribai and in para 15 of the impugned judgment held as under:

“bl lEcU/k esa mijksDr lk{; foospuk ds vk/kkj ij ;g vfHkfu/kkZfjr fd;k tk pqdk gS fd e`frdk dh e`R;q lYQkl dh xksyh [kkus ls gqbZ Fkh bl rF; dks jklk;fud ijh{k.k iz;ksx ‘kkyk lkxj dh fjiksVZ ih011 ds vuqlkj ;g vfHkfu/kkZfjr fd;k x;k gS fd e`frdk dh e`R;q fnukad 20@03@94 dks lYQkl dh xksyh [kkus ds vFkkZr tgjhyh xksyh [kkus ls vfHk;qDrx.k ds fuokl ij gqbZ FkhA”

11 Cri. Appeal 2114 of 1996

33. Above finding of the Learned trial Court is solely based on the statement of Investigation Officer Jafri (PW/8), which is not as per the requirement of law nor law permits that the Court will convict accused person(s) on the statement of the Investigation Officer when the case is related with the offence punishable under Section 498- A, 306 and 201 of IPC.

34. Apart from this, Learned trial Court failed to see that whether the prosecution had proved this fact beyond doubt that these cloths was only and only belongs to Rampyaribai, she was wearing these cloths at the time of incident and these cloths were stained with her vomiting.

35. The clothes of Rampyaribai were seized by the Investigation Officer Shri S.J. Jafrin (PW/8) vide seizure memo Ex.P-6 which was worn by Rampyaribai at the time of incident but, Gorelal (PW/3) stated that one doctor advised to the applicants so they burnt Rampyaribai with her cloths. These statements of prosecution witness’s creating doubtful situation.

36. Vide seizure memo Ex.P-6 Shri Jafrin (PW/8) also seized ash and other burnt articles in presence of witnesses. But, against above facts Gorelal (PW/3) stated that appellants were disposed of ash so if report be made, ash cannot be seized. This is also contradictory situation.

37. Learned trial Court failed to see that whether cause of death of Rampyaribai was consuming Sulphas tablets, then why that bottle or box was not recovered in which Sulphas tablets were kept?

38. In above mentioned facts and circumstances, learned trial Court wrongly come to the conclusion that the presence of 12 Cri. Appeal 2114 of 1996 traces of Sulphas on the cloths could be a circumstantial evidence, on the basis of which, conclusive inference could be drawn that cause of death of Rampyaribai was the consuming of Sulphas tablets only.

39. The another crucial question for determination:

Whether just before the death of Rampyaribai she was subjected to cruelty by the husband appellant Jalam and relative of the husband, his father Ghurke, mother Gouri Bai and sister Lalti Bai for fulfillment of dowry demand?

40. So far as the offence under Section 498- A of the I.P.C. is concerned; it is not every kind of cruelty which constitutes an offence under this section. Explanation given in Section 498- A of the I.P.C. contemplates cruelty of two kinds. The first is that which is detrimental to life, limb or health of woman and second kind of cruelty consists of harassment with a view to coerce her or any person related to her to fulfill the unlawful demand. The case at hand is related with second type of cruelty or harassment.

41. As regards section 498- A of the IPC, the allegations against the applicants are vague, unspecific and indefinite. No time or date of the occurrence is given. It was contended only that Ghurke, father- in- law of the deceased demanded dowry. A perusal of the police statements shows that demand of the dowry was made only by Ghurke, father- in- law. There are no specific particulars regarding time, place and manner of any beating, cruelty or harassment of the Rampyribai for demand of dowry and in these circumstances it cannot be said that in ingredients of the offense under section 498- A of the IPC were spelled out.

13 Cri. Appeal 2114 of 1996

42. That too, this demand of T.V. as dowry is also doubtful Shyamabai (PW/2) stated that there was demand of T.V. as dowry by Ghurke (deceased appellant). But, during cross examination, she admitted that this fact of demand of T.V. was specifically stated by her during police statement Ex.D- 2, why these facts not mentioned she cannot say anything.

43. Merely because the appellant Jamana is husband and the appellants Smt. Gouribai and Laltibai are mother and sister respectively of the appellant / h usband Jamana unless there is not any cogent and convincing evidence to show that the appellants Smt. Gouribai and Laltibai also harassed and ill- treated the Rampyribai, it can not be held that the appellants Smt. Gouribai and Laltibai are liable with the appellant Jamana for the offense punishable under section 498- A of the IPC, because, there is no evidence on record particularly to show the part played by these three appellants in instigating.

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44. Therefore, as discussed in above facts and circumstances, this question related with Section 498- A of IPC is not proved beyond doubt by the prosecution, therefore, the impugned judgment is set aside and the appellants are acquitted from the charges punishable under Section 498- A of IPC.

45. Next question for determination:-

Whether the appellants abetted Rampyaribai to commit suicide?

46. Making a person liable for an offence punishable under Section 306 of I.P.C., the prosecution has to establish that such person has abetted the commission of suicide.

14 Cri. Appeal 2114 of 1996

47. Suicide no doubt is self- murder. In order to be suicide the person who commits suicide must commit it by himself. One who committing suicide places himself or herself beyond the reach of the law and necessary beyond the reach of any punishment too. If he is killed by another with his consent the offence is homicide and not suicide and the person killing is so be liable. Between these two offences the difference may sometimes be very little; but there is difference.

48. According to evidence of the parents and brothers of Rampyaribai it is only evident that Rampyaribai was married to appellant Jalam about 8-9 years ago and because she had no child, therefore, the appellants used to taunt her saying “Banjh” (incapable of being a mother).

49. Above mentioned evidence is no evidence in eyes of law for recording the conviction under Section 306 of IPC of the appellants. Presuming that the appellants harassed the deceased for not begetting the children and caused her mental agony, but certainly there is no evidence that just before her death there was harassment by the appellants to the deceased. In the absence of such an evidence showing that due to that harassment the deceased committed suicide, it cannot be said that the appellants had abetted the death of the deceased.

50. The prosecution evidence consisted of parents and brothers of the deceased, but, there being no legal evidence in eyes of law to establish that any of the appellants abetted the deceased to commit suicide and suspicion however strong, cannot take place of the truth.

15 Cri. Appeal 2114 of 1996

51. Instances of cruelty in remote past cannot be a ground to drive the deceased to commit suicide. Please see Dwarika Prasad Soni, 2002(I) MPJR 299:2002(1) MPLJ 274: 2002(I) MPHT 311.

52. In the present case, there is no direct evidence to the effect that the appellants abetted Rampyari Bai for commission of suicide. There is also lake of evidence that the appellants committed any physical cruelty against the deceased.

53. In order to make out the offence of abetment of suicide it is necessary that culprit has either instigated the victim to commit suicide or has engaged in conspiracy with others for doing the act. Mens rea is necessary to prove the offence. Act done should be closely proximate in time to time of incident. Khyaliram vs. State of M.P. 2008(III) MPJR 91: 2007(5) MPHT 407.

54. In case of Aarti Arya vs. State of M.P., ILR 2007 MP 1733:2008(1) MPHT 483, the deceased consumed poison and died. Case of the prosecution was that the accused used to insult the deceased by talking in objectionable and insulting manner. It was held by this Court that accepting the allegations as they are, it cannot be said that the accused incited or “instigated” the accused to commit suicide. Affirmed in “Kailashi Bai vs. Aarti Arya, 2009 (2) JLJ 419 (SC).

55. It was held by the apex Court in the case of Kishorilal vs. State of M.P., 2007(3) JLJ 148 (SC) that there must be proof of direct or indirect acts of incitement to the commission of suicide. Mere fact that the husband treated the deceased wife with cruelty is not enough and merely on the allegation of harassment, conviction in terms of Section 306 of IPC is not sustainable.

16 Cri. Appeal 2114 of 1996

56. Therefore answer of this question is in negative, hence, the impugned judgment of Learned Trial Court is set aside in light of above discussed facts and circumstances and the appellants are acquitted with regard to the charges punishable under Section 306, IPC.

57. Gorelal (PW/3) stated that villagers of Hanuman Sagar informed him that his daughter is murdered by the appellants. About the massage of death of Rampyaribai, Gorelal (PW/3) also stated new fact that one person from village Hanuman Sagar came to Kotwali Tikamgarh but Kishori was not there therefore, Advocate Hari Kishan of his village informed Head Constable to inform Kishori that his sister is died.

58. It is pertinent to mention here that Kishorilal (PW/1), brother of deceased Rampyaribai admitted this fact that at about 4:30 p.m. Kamlapat informed him about the death of his sister. Kishorilal (PW/1) stated when they reached at Hanuman Sagar they found that the dead body was putting on fire for cremation.

59. As per statements of Gorelal (PW/3) the distance between two villages Madumar and Hanuman Sagar is 6 miles = 10 kms.

60. The defense witness, resident of village Hanuman Sagar, Pooran Lal (DW /1) stated that the family members of Rampyaribai and other villagers including himself brought Rampyaribai for treatment at Tikamgarh, but during the way, she died. It is further evident from the statement of defence witness therefore, they returned to her matrimonial house and also informed to the parents of Rampyaribai. Finally, it is stated by Pooran Lal (DW /1) that after waiting for a long time up to 7 p.m. 17 Cri. Appeal 2114 of 1996 when the parents of Rampyaribai did not come, hence, with advice of the villagers, she was cremated.

61. In the light of above discussed facts and circumstances, it has been found that the offences punishable under Sections 498A and 306 of I.P.C. are not proved against the appellants therefore, their conviction punishable under Section 201 of I.P.C. also cannot be sustained, hence the appellants are also acquitted from the charges punishable under Section 201 of I.P.C.

62. For the reasons aforesaid, I do not agree with the conclusion recorded by the learned trial Court that the offences charged against the appellants punishable under Sections 498A, 306 and 201 of I.P.C. are proved. The appeal is therefore, allowed. Conviction of the appellants Jalam, Smt. Gouri Bai and Smt. Lalti Bai and sentences awarded to them by the trial Court are hereby set aside and the appellants are acquitted of the charges leveled against them. The bail bonds of the appellants stands discharged.

Appeal allowed.

(Subhash Kakade) Judge

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