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Akhter Hussain vs State And Anr. on 30 August, 2018

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRA No. 16/2005
Date of order:-30.08.2018

Akhter Hussain Vs. State of JK and anr.

Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mr. Rajnesh Oswal, Advocate.
For respondent (s) : Mr. F.A. Natnoo, AAG.

i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. This conviction appeal has been filed by Ahktar Hussain, which is

directed against judgment dated 30.03.2005 passed by learned Sessions
Judge, Kathua, in case FIR No.148/1996 registered with Police Station
Billawar, whereby appellant/accused namely Akhtar Hussain has been
convicted under Sections 451, 506 and 376 read with 109 RPC.
Accordingly Court below on 30.03.2005 has sentenced the
appellant/accused for rigorous imprisonment for three years for offence
under section 376/109 RPC and fine of Rs.500/-, in default of payment of
fine, rigorous imprisonment for two months; rigorous imprisonment for
one year under section 506 RPC and fine of Rs.500/-, in default of payment
of fine, rigorous imprisonment for two months and rigorous imprisonment
for one year under section 451 RPC and fine of Rs.500/-, in default of
payment of fine, rigorous imprisonment for two months . All the sentences
have been directed to run concurrently.

CRA No.16/2005 Page 1 of 14
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2. It is pertinent to mention here that co-accused GulzarAhmed has been
proceeded against under Section 512 Cr.P.C. by the learned trial Court
during trial.

3. Prosecution case is that on 23rd October, 1996, complainant (hereinafter to
be referred as prosecutrix) accompanied by her mother-Smt. Zainab R/o
Lohari submitted a written application before Incharge Police Post, Malhar
to the effect that in the intervening night of 21/22.10.1996 at mid-night
when the prosecutrix was sleeping in her parental house and her younger
brothers and sisters were also sleeping, somebody called for opening the
door, she did not open the door and asked as to who he was, why the door
should be opened and what job he has? After 2-4 minutes that person
opened the door, entered into the room and caught hold of her and dragged
her out. She raised alarm and cried for help, but nobody heard, as their
house was situated at a lonely place, having no other house nearby. That
person was identified by her as Gulzar Ahmed S/o Ali Akbar and had
threatened her to keep mum or will be done to death. The assailant
removed her trousers forcibly adjacent to her house and committed rape
upon her. Another person was with the said assailant-offender, but that
companion did not indulge in any bad act except used to tell her to keep
mum, not to raise alarm otherwise she will be done to death. Her mother is
being not present at home that night and father having gone to Shimla to
work as labourer and her mother having returned that day, so has presented
the report. This report has been entered in the daily diary as Report No. 9
dated 23rd October, 1996 by the Police Post, Malhar and the offence having
been found to have been committed. Request has been made to the Police
Station, Billawar, whereupon a case bearing FIR No. 148/96 for offence
under Section 376 RPC has been registered by the Police Station, Billawar.

4. After completion of the investigation by Incharge Police Post, Malhar-Sh.

Chain Singh, ASI, , offences under Sections 451,376, 506 RPC were

CRA No.16/2005 Page 2 of 14
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found established against the accused-Gulzar Ahmed , whereas the
accused-Akhter Hussain was found involved under section 451,376 read
with section 109 RPC

5. Accused-Gulzar was charge-sheeted by court below for offences under
Sections 451, 376 and 506 RPC, whereas Akhtar Hussain was charge-
sheeted for offences under Sections 451, 376 and 109 RPC vide order dated
17th February, 1997. Both the accused pleaded not guilty and claimed trial.

6. As already mentioned, accused Gulzar was proceeded under section 512
Cr.P.C during trial.

7. Court below after trial, convicted accused Akhtar Hussain and sentenced
him accordingly.

8. I have heard the counsel for appellant as well as State counsel. With the
assistance of counsel, I have gone through the evidence on record. Before
appreciating the evidence the brief resumes of statements of witnesses read
as under:-

PW-Prosecutrix:- The victim has stated that accused are known to her.
She has got married to one-Nasar Ali. Some three years back, while she
was in her parental house at place Lohari, the accused came there during
night and asked to open the door. She did not open the door, as she was
alone and had only younger brothers and sisters there. The accused opened
the door by kicks and caught hold of her and dragged her on the roof of her
shalwar, laid her on the ground, removed his own clothes, mounted upon
her and had sexual intercourse with her by penetrating the penis into her
private part. He continued it for three hours, while as the accused-Akhtar
did not commit any sexual act and when Gulzar completed the act, the
accused-Akhter Hussain also tried to catch her, but she did not allow him.
Then the accused ran away. She raised alarm, whereupon her cousin-
Ali Moha and Som Raj came there. Her mother was not present and
returned the next day, whereupon she revealed the incident to her mother.
When her cousin and Som Raj came to her house on hearing alarm, she had

CRA No.16/2005 Page 3 of 14
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told them about the occurrence as well. The accused-Gulzar is her relation
from in-laws side. After her mother returned thereafter, she lodged a
written report. The report has been admitted as correct by her and has been
marked as EXPW-S. She was then subjected to medical examination and
her clothes had been seized that had been produced before her. One ring
had been placed on her supurdari by the police and has brought that with.
The contents of supurdnama have been admitted as correct by her and the
same has been market as ESPW-S/1.

In the cross-examination by the counsel for accused No.1-Gulzar Ahmed,
she has stated that her mother had returned next day morning after the
occurrence and thereafter, the report had been lodged in the police. Her
mother had returned at 5 in the evening. Her mother and cousin were with
her at the time of lodging the report. She has admitted that she did not
lodge the report in the morning, as her mother had not returned back by that
time and her mother returned in the afternoon. Her parental house is at an
isolated place and no other house is adjacent to that place. The houses of
Ali Mohd. and Som Raj are at the distance of half a kilometer. She had got
the report drafted by the police, narrated the matter also and the police
wrote that. She had produced the clothes herself in the police post 3 rd day
after the occurrence. She had been taken for medical check up to Billawar
on the same day when she lodged the report before the police. They had
reached there at 2 in the night and were accompanied by cousin and mother.
From Billawar, Police Station, where they had reached at 7 in the morning,
she had been taken to Hospital on that day, from where she had returned to
her parental house. When Gulzar had removed her clothes, those had been
kept on a side. The accused had broken bolt of the door of their house by
kicks. Gulzar had some pistol like object and had threatened her that in
case she raised alarm, she will be done to death. The house of her parents
is a kacha house and the roof is of clay. That day, it had not rained. The
sky was clear, but it was a dark night. She had identified the accused by

CRA No.16/2005 Page 4 of 14
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their voice. She was knowing the accused-Gulzar for the last two years, as
he used to visit her in-law’s house frequently being a resident of that
village. The accused-Akhtar had been seen by her that very day for the first
time. She has made a true statement and her cousin-Ali Mohd. and another
person had come during the night when she had raised alarm and had
revealed them about the episode. Her statement had been recorded by the
police on 3rd day after the occurrence. She had revealed the entire facts to
the police. She had revealed to police that Gulzar accused had threatened
her with a pistol. She has stated that the accused took her on the roof and
not on one side of the house, as mentioned in the statement under Section
161 Cr. P.C. She was not having good relations with her in-laws those
days, thus, was putting in her parental house. She had not changed the
clothes, which she was wearing at the time of occurrence. She has denied
that she has lodged a false report against Gulzar, as he happens to be a
friend of her husband.

In cross-examination by the learned counsel for the accused No. 2-Akhtar
Hussain, she has stated that the day she had lodged the report in Police
Post, Malhar, she was wearing the same clothes, which she was wearing at
the time of occurrence. Thereafter, on her return to home, she changed the
clothes and went to Billawar. She was not feeling well and was having
menses those days. The accused-Gulzar had dragged her and took her to
the roof. She has resisted and tried her best, but had not succeeded. Many
stones are outside her house. She had come to Kathua one day earlier along
with her parents. Akhter-accused was not armed, but had threatened her.
She had sustained scratches as well.

PW2-Smt. Zanib (mother of the prosecutrix) has stated that the accused
are known to her and the prosecutrix is her daughter. Some three years
back, she had gone to the house of her other daughter and on her return to
her own house, she was told by the prosecutrix-her daughter that the
accused had come into their house during night. They had asked her to

CRA No.16/2005 Page 5 of 14
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open the door, that had not been opened, but the door had been opened by
kicks and the prosecutrix had been taken on the roof and subjected to the
ill-treatment. They lodged the report with police Post, Malhar. Report is
correct and has admitted the contents of the Report No. 9 of the Roznamcha
Police Post, Malhar as correct.

In cross-examination by the counsel for the accused No. 1, she has revealed
that she had returned 3rd day from the house of her other daughter. She had
herself gone to Police Post, Malhar for lodging the report. None was with
her except her daughter-prosecutrix. When she had returned home that
very time, her daughter had revealed to her about the occurrence and they
went to lodge the report at 4 P.M and the next day had proceeded to
Billawar. They had started for Billawar at 2 in the night from their house
and had reached Billawar at 8 A.M in the morning and gone directly to the
Police Station. Thereafter, medical check-up had been done and had
returned to their home. Next day thereafter, her statement had been
recorded by the police. Police had seized the broken bolt of the door. She
had seen bruises on the back of the prosecutrix and the doctor had also seen
those bruises. No question has been asked from her by counsel for the
accused No. 2.

PW3-Farooq Ahmed, brother of the prosecutrix, a student, age 17 years
has been found competent witness by the then Presiding Officer and has
stated that some three years back during night, he and the prosecutrix-her
sister were asleep in their house, the accused Gulzar called to open the
door, he did not open the door whereupon the accused forcibly opened the
door and came inside, threatened him that in case, he raised an alarm, he
will be shot dead. The prosecutrix-his sister was forcibly taken out. He
asked that he be permitted to move out, whereupon the accused did not
allow him and called the accused No. 2 Nika. What the accused did to his
sister, he does not know, but her sister raised hue and cry, but nobody had
come on spot. Police came on spot and recorded his statement.

CRA No.16/2005 Page 6 of 14
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In cross-examination, he has stated that he did not reveal to any person
about the occurrence, as nobody came to their house for 2-3days. His
mother returned after 4 days. The Accused-Gulzar was having pistol.
When the accused-Gulzar dragged his sister out the home, she had
sustained injuries and had bleeding. The blood had got on her clothes and
had been there on the floor as well. When his sister had been dragged, she
had sustained friction marks by the stones. The bolt of the door had got
broke. He had told police that the accused-Gulzar was having a pistol in
his hand. The accused had not beaten him.

PW4-Som Raj has stated that on 24th October, 1996, he had gone to
Malhar and went to Police Post, where the trousers of the prosecutrix was
seized and he signed the seizure memo, contents whereof have been
admitted as correct, same has been marked as EXPW-S/1 and the police
placed the ring on Supurdnama of the prosecutrix, which Supurdnama has
been admitted as correct and has been marked as EXPW-S/1.
In cross-examination by the counsel for accused No. 2, he has stated that
the contents of seizure memo had not been read over to him and does not
know what are the contents of the seizure memo. He had been asked to
sign and had signed.

In cross-examination by the counsel for the accused No. 1, he has stated
that he is an employee in the PHE and has appeared as witness in other case
against the accused in the Court at Billawar. That case and the present case
pertained to the same date. That other occurrence had taken place half a
kilometer away from the present place of occurrence. On
24th October, 1996, he had gone to Police Post, Malhar, that day the
accused-Gulzar was in the Court at Billawar. Police had called him to be a
witness in this case as well. He does not know as to since which date,
witness-Shamsh is posted in Malhar. His house is at a distance of half a
kilometer away from the house of Shamash. They know each other. When
he reached Police Post, Malhar, the Incharge had placed the trousers in an

CRA No.16/2005 Page 7 of 14
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envelope and thereafter, sealed it by using the ring and thereafter, all of
them went back to their homes. He had been called by the Incharge Police
Post.

PW5-Shamsh Din, is also a witness to the seizure of trousers produced by
the prosexutrix and the seizure has been admitted as correct by this witness
marked as EXPW-S and thereafter, the seal (one ring) has been placed on
the Supurdnama of the prosecutrix. The Supurdnama to that effect has
been admitted correct by him that has been marked as EXPW-S/1.
In cross-examination by the counsel for the accused No. 1, he has stated
that his house is at a distance of 4 Kilometer from Police Post, Malhar.
Those days, he was posted in Malhar and had gone to collect sugar from the
depot. The prosecutrix is not related to him while as accused-Gulzar is his
relation. He had reached Police Post at 11 A.M. He had left his home at
9 to attend the duty. The seizure was prepared in the police post in his
presence, which had been sealed. What was the specimen, he cannot state.
The prosecutrix had not come to Police Post, Malhar. He had been called
by the Officer Incharge Police Post, Malhar, as his office is situated near
the Police Post. He has admitted that the accused is his relation, but he has
no dispute or enmity with the accused.

In cross-examination by the counsel for the accused No. 2, he has stated
that he had gone to Malhar in the year 1995, but does not remember the
date and the month. He is Class-IX employee in Horticulture. He was
posted in Malhar area, does not remember the name of the salesman, where
he had gone to purchase the sugar. He had been called to the Police Post by
the Incharge Police Post. The Incharge Police Post himself prepared the
documents.

PW6-Mohd. Saleem has stated that on 22nd date of the year 1996, month is
not recollected by him. He had seen the accused-Gulzar Ahmed, taking tea
at the shop of one-Yash Pal and had left by bus for Billawar. He has seen
Gulzar, taking tea at 7 A.M in the morning. Thereafter, he came to know

CRA No.16/2005 Page 8 of 14
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that theft had taken place in the house of Sharif and rape has been
committed upon the prosecutrix.

In cross-examination, he has stated that he had heard about the theft and
rape upon the prosecutrix. The day he had seen Gulzar taking tea, that very
day the mother of the prosecutrix had told him that the theft had taken place
in the house of Sharif. The prosecutrix was putting up in her parental house
for the last 4-5 years for having strained relations with her in-laws. The
husband of the prosecutrix is Nasar Ali. What is relation between Nasar
Ali and Gulzar, he does not know. He knows Gulzar. The husband of
prosecutrix was not putting up in the parental house of prosecutrix.
PW7-Dr. Asim Sharma has stated about the fact that he as Gynecologist,
examined prosecutrix on 24th October, 1996 and issued the Certificate
EXPW-M.

In cross-examination, he has stated that he did not notice any injury on the
body of the prosecutrix.

PW8-Chain Singh, I.O has stated that on 23rd of October, 1996, the
prosecutrix produced a written report in the Police Post, Malhar that he
entered in the Roznamcha as Report No. 9, submitted request for
registration of the case to the Police Station, Billawar, prepared Site Plan
EXPW-CS, seized the trousers produced by the prosecutrix vide Seizure
EXPW-S, sealed that with the seal and the seal used was placed on
Supurdnama vide document EXPW-S/1. The prosecutrix was medically
examined and the statements of the witnesses were recorded. From his
investigations, case for offence under Sections 376 and 109 RPC was
established against the accused, prepared the Challan and submitted the
same to SHO, Billawar.

In cross-examination, he has stated that in the report EXPW-S, the name of
the accused No. 2 had not been disclosed, but the co-accused had been
mentioned. The name of the accused No. 2 also does not figure in the FIR.
The accused No. 2 was not known to the prosecutrix prior to occurrence.

CRA No.16/2005 Page 9 of 14
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The occurrence took place during night. There was no electricity in the
house of the prosecutrix. No identification parade has been conducted for
identification of the accused No. 2. From his investigation, it did not come
on record that the accused No. 2 was armed. The accused No. 2 had not
entered the house of the prosecutrix. He did not notice any injury on the
person of the prosecutrix and had not shown any injury by the prosecutrix.
He did not enquire as to why the prosecutrix was not putting up with her
husband. This is the evidence of prosecution.

9. The statement of appellant/accused was recorded u/s 342 Cr.P.C and denied
all incriminating materials, but did not produce any evidence. The court
below after final conclusion convicted the accused and sentenced him.

10. Court below has observed that no doubt, Investigating Officer has stated
that name of Akhtar Hussain accused was not mentioned in the FIR and no
identification parade was conducted during the investigation, but lapse
committed by the Investigating officer during investigation cannot be
allowed to be encashed as a premium by an accused; why should the
prosecutrix and her brother implicate a person with whom they have no
enmity or any scores to settle with. The court below further held that
presence of accused No.2-Akhtar Hussain/appellant with accused No.1-
Gulzar Ahmed at the time of occurrence viz. during night at the place of
occurrence cannot be disputed and is established beyond doubt.

11. Law with regard to appreciation of evidence in rape cases or cases against
women are concerned, the evidence of victim/prosecutrix carries value.
The conviction can be based on solitary statement of victim/prosecutrix,
provided it inspires confidence of Court.

12. Mr. Rajneesh Oswal, learned counsel for appellant, has limited his
argument so far accused/appellant is concerned and has assailed the
impugned judgment on the ground that the trial Court has not correctly
appreciated the evidence on record against accused Akhtar Hussain. First
and foremost argument is that in written report and FIR, the prosecutrix has

CRA No.16/2005 Page 10 of 14
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neither mentioned the name nor identified the 2nd person (accused/appellant
herein) who came in the intervening night of 21/22.10.1996 along with
Gulzar Ahmed.

13. Mr. F. A. Natnoo, learned Addl. AG, has supported the impugned judgment
stating that the same is based on appreciation of entire evidence on record
and prayed that the instant appeal be dismissed out-rightly.

14. I have gone through the written report lodged by victim upon which FIR
was lodged; it does not bear the name of appellant, but it has been stated
that another person was with accused Gulzar Ahmed. Further allegations
against him are that ‘another person did not perform any bad act, but
threatened her not to make noise, otherwise she will be killed”. In her
statement u/s 161 Cr.P.C she has not named accused/appellant. But in her
statement before Court she has first time named the another accused as
Akhtar Hussain. Similarly PW3-Farooq Ahmed, brother of the
prosecutrix, has not named the accused/appellant in his statement u/s 161
Cr.P.C. In his statement before Court he has stated that some three years
back during night, he and the prosecutrix, her sister, were asleep in their
house, the accused Gulzar called to open the door, he did not open the door
whereupon the accused forcibly opened the door and came inside,
threatened him that in case, he raised an alarm, he will be shot dead. The
prosecutrix-his sister was forcibly taken out. He asked that he be permitted
to move out, whereupon the accused did not allow him and called the
accused No. 2 Nika.

15. So prosecutrix and her brother were not knowing the name of another
accused, the appellant herein at the time of occurrence. No identification
parade was got conducted by I/O during investigation of this accused. Law
is clear that when accused is not known to victim, then identification parade
is necessary. Section 9 of the Indian Evidence Act, makes the identification
of proper accused and properties admissible and relevant facts in a court of
Law. The identification is always a matter of opinion or belief. With regard

CRA No.16/2005 Page 11 of 14
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to criminal offence, identification has two-fold object; firstly to satisfy the
investigating authorities, before sending a case for trial to court, that the
person arrested was not previously known to the witnesses and is among
those who have committed the crime, or the property concerned was subject
of such crime. Secondly, to satisfy the Court that the accused was the real
offender or the article was concerned with the crime which is being tried.

16. In AIR 1999 SC 3916 in case titled State of Himachal Pradesh Vs. Lekh
Raj And Anr., Apex Court has held as under:-

A. Evidence Act ( 1 of 1872 ) Section 9 -Penal code , 376 (2)(g) -Rape case –
identification evidence- Name of another accused who along with named accused
alleged to have committed rape ,not named in FIR- absence of identification
parade ,fatal prosecutrix even denied suggestion that said accused had been
working at her place -identity of said accused not established -He cannot be held
guilty.

Relevant para:

This Court in Budhsen Anr. v. State of U.P [1970] 2 SCC 128 held that the
evidence in order to carry conviction should ordinarily clarify as to how and under
what circumstances the complainant or the witness came to pick out the particular
accused person and the details of the part which he allegedly played in the crime in
question with reasonable particularly. In such cases test identification is considered
as safe rule of prudence to generally look for corroboration of the sworn testimony
of witnesses in Court as to the identity of the accused who are strangers to them.
There may, however, be exceptions to this general rule, when, for example, the
court is impressed by a particular witness on whose testimony it can safely rely
without such or other corroboration. Though the holding of identification
proceedings are not substantive evidence. Yet they are used for corroboration
purposes for believing that the person brought before the court was the real person
involved in the commission of the crime. The identification parade even if held,
cannot, in all cases, be considered as safe, Sole and trustworthy evidence on which
the conviction of the accused could be sustained. It is a rule of prudence which is
required to be followed in cases where accused is not known to the witnesses or the
complainant.

The holding of identification parade in the instant case would have been irrelevant,
had the name of respondent No. 2 been mentioned in the FIR Exhibit P/D. The
prosecutrix in her deposition before the Trial Court even denied the suggestion of
the respondent No. 2 to the effect that the respondent No. 2 had been working at
her place as a Mason. It was, therefore, incorrect for the Trial Court to hold :

CRA No.16/2005 Page 12 of 14
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“So far as the identification of the accused is concerned that is not disputed at all,
therefore, at the relevant time they could not have been identified by the
prosecutrix”

The identity of the respondent No. 2 was, admittedly, not established during the
investigation and it is not clear as to how the said respondent was put on trial along
with respondent No. 1. We agree with the finding of the High Court that accused
Diwan Chand could not be held guilty as no unimpeachable, reliable and
satisfactory evidence was produced regarding his involvement in the commission of
the crime.”

17. Further one more fact is required to be noted that I/O has categorically
stated that the occurrence took place during night; there was no electricity
in the house of the prosecutrix, so identification parade of
appellant/accused was necessary. There is also no proof as to whether the
nick name of present appellant was NIKA as narrated by PW Farooq
Ahmed.

18. Law is clear that prosecution has to prove its case beyond reasonable
doubts. Burden to prove prosecution version is wholly upon the
prosecution. The Courts while appreciating the evidence in criminal cases
have to see that the degree of proof is maximum than that of civil case. The
evidence produced by prosecution should be legally admissible. If there
come the slightest doubts regarding the involvement of accused then court
should not go on convicting the accused.

19. In arriving at conclusion about guilt of accused charged with heinous crime,
the Court has to judge the evidence by yardsticks of probabilities. Every
case has its own facts. The law does not permit the Court to punish the
accused on basis of moral conviction or suspicion. The burden of proof
never shift, it is always on prosecution.

20. In view of the above discussion, I am of considered opinion that
prosecution has not established its case beyond reasonable doubt against
appellant. The conviction and the sentence passed by the Court below are
set aside. Appellant is discharged from bail bond. File of Court below be

CRA No.16/2005 Page 13 of 14
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sent back. I have confined my judgment in re-appreciation of evidence only
with regard to the present accused. Trial Court is directed to remind the
concerned police with regard to the execution of the warrant under section
512 Cr.P.C. against main accused/ Gulzar Ahmed expeditiously.

21. Appeal is allowed and disposed of in the aforesaid terms.

(Sanjay Kumar Gupta)
Judge
Jammu
30.08.2018
Narinder

CRA No.16/2005 Page 14 of 14

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