Raj Narain Singh vs State Of U.P. & Ors

Raj Narain Singh .... Appellant

Versus

State of U. P. & Ors. .... Respondents

With

Criminal Appeal Nos. 1811-1812 of 2009 (Arising out of S.L.P (Crl.) Nos. 3595-3596 of 2002)

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave Granted.

2. The present Criminal Appeals have been preferred against the

judgment and order passed by the Allahabad High Court whereby it reversed

the judgment and order of conviction passed by the trial Court under

Sections 302, 307, 323, 342 read with 34 of the Indian Penal Code (in short

"the IPC") and Sections 27 and 30 of the Arms Act.

3. The facts leading to the filing of the present appeals, as per the

prosecution, in brief are that on 23.05.1994, i.e., a day prior to the date of the

occurrence, Sunil Singh alias Guddoo (PW-2), a resident of village Vasnari,

Police Station, Kerakat, District Jaunpur came to visit the house of Raj

Narain Singh (PW-1), complainant/appellant herein who is a resident of

village Pravaspur, Police Station, Mariyahun, District Jaunpur for the `Bidai'

of his sister in connection with a marriage in PW-2's family. On the fateful

day, i.e., 24.05.1994 at around 8.30 a.m., PW-2 went to the petrol pump

known as the Dharamraj Service Station, Pali owned by the accused persons

for procuring petrol for his scooter. At the petrol pump, an altercation arose

between PW-2 and Prabhakar Pandey (Accused No.3), and the same ended

up in a fight between them. Shortly after PW-2 had left the house of PW-1,

PW-1 alongwith one Adya Prasad also left the house for going to the

examination centre where they were to evaluate the board examination

answer books. On their way to the said examination centre, PW-1 and

said Adya Prasad saw that PW-2 was being dragged and beaten by the

accused persons. On seeing this, PW-1 and Adya Prasad tried to intervene.

At this, Accused No. 3 exhorted Pushkar Pandey (Accused No. 2) to shoot

the interveners, whereupon, Accused No. 2 fired a shot from his double

barrel gun which compelled PW-1 and his companion to retreat to safety.

2 The gunshot and the resulting commotion attracted the attention of Rajesh

and Brijesh, both sons of PW-1, who then emerged from the village pathway

on their motorcycle and reached the spot. Karunakar Pandey (Accused No.

1) and Accused No. 3 exhorted Accused No. 2 to kill both Rajesh and

Brijesh. Shots fired by Accused No. 2 hit Rajesh and Brijesh, as a result of

which, both fell down from their motorcycle and died on the spot. The

aforesaid incident was witnessed by Ramjee Maurya (PW-3), Virendra

Singh, Bhola Nath Singh and several other persons. PW-2 was taken captive

by the accused persons inside the said service station showroom.

Immediately thereafter, PW-1 went to the Police Station, Mariyahun and

lodged a written report at about 9.10 a.m. on the same day. On the basis of

the aforesaid written report, the First Information Report (in short "the FIR")

was registered by the Head Constable Jeet Bahadur Singh (PW-8) and a

Crime Case No. 178/1994 was registered in the presence of SSI Narendra

Pratap Singh (PW-11) under Sections 323, 342, 307, 302 of the IPC.

Thereafter, PW-11 proceeded to the spot of occurrence. On reaching the

spot of occurrence, PW-11 noticed PW 2 being kept captive by the accused

Nos. 1 and 2 inside the showroom. Thereupon, he proceeded towards the

showroom and on seeing him the two accused tried to flee away from the

place of occurrence. They were, however, apprehended and on searching

them, PW-11 recovered a pistol and a gun from their possession. Accused

3 No.3 was found to be absconding from the spot of occurrence. PW-2 was

then freed from the custody and sent to the police station along with

Constable Sunil Kumar Singh for the purpose of medical treatment. The

statement of PW-1 was recorded on the spot and that of PW-2 was recorded

after he returned back after undergoing medical examination. Subsequently,

with the help of PW-1 and PW-2, a site plan was prepared and four empty

cartridges of 12 bore were seized by the police. Dr. M. L. Srivastava (PW-

4), who had examined PW-2 on 24.05.1994 at 1.50 p.m. in his report,

mentioned about four injuries on the person of PW-2. Dr. C.K. Gupta (PW-

7) had conducted the post-mortem of the dead bodies of the deceased

persons and in his two reports opined that the gunshots had injured the vital

part of the body and that death had been caused due to shock and

hemorrhage. On the completion of the investigation, a charge sheet was

submitted. On the basis of the same, the charges were explained to the

accused who pleaded not guilty and claimed to be tried.

4. The prosecution, in order to establish the guilt of the accused,

examined several witnesses and exhibited documents. After examining the

witnesses from both sides and upon hearing arguments advanced by the

parties, the trial Court by its judgment dated 01.02.1996 convicted all the

three accused. Accused No. 2 was convicted and sentenced to life

4 imprisonment under Section 302 IPC, ten years RI under Section 307 IPC,

six months RI under Section 323 read with 34 IPC, six months RI under

Section 342 read with 34 IPC; and 3 years RI under Section 27 of the Arms

Act. The trial Court also imposed a fine of Rs. 3000 and 1000 under Section

307 IPC and 27 of the Arms Act respectively. Accused No. 1 was convicted

and sentenced to life imprisonment under Section 302 read with 34 IPC, six

months RI under Section 323 read with 34 IPC, six months RI under section

342 read with 34 IPC. Accused No. 3 was convicted and sentenced to life

imprisonment under Section 302 read with 34 IPC, seven years RI under

Section 307 IPC, six months RI under Section 323 read with 34 IPC, six

months RI under Section 342 read with 34 IPC; and six months RI under

Section 30 of the Arms Act. The trial Court also imposed a fine of Rs. 3000

under Section 307 IPC. All the accused persons were also directed to pay a

sum of Rs. 1, 50,000/- in total as compensation under section 357 (3) of the

Code of Criminal Procedure (in short "the CrPC') to PW-1.

5. Aggrieved by the aforesaid decision of the trial Court, the accused

preferred two separate appeals in the Allahabad High Court. Accused No. 2

preferred Criminal Appeal No. 234 of 1996 and Accused No. 1 and 3

preferred Criminal Appeal No. 235 of 1996. The High Court by its

impugned judgment dated 27.02.2002 allowed the aforesaid appeals and set

5 aside the decision of the trial Court thereby acquitting all the accused from

the aforesaid charges.

6. Dissatisfied with and aggrieved by the decision of the High Court,

four Special Leave Petitions (two by the Complainant/PW-1 and another two

by the State of U. P.) were preferred. Leave was granted by this Court in the

Special Leave Petitions filed by the Complainant/PW-1 on 29.08.2002.

7. Learned counsel appearing for the complainant as also the State

forcefully argued before us that the decision of the High Court erroneously

acquitting the accused persons suffers from serious infirmity inasmuch as

the three eye-witnesses (PW-1, PW-2 and PW-3) were consistent in their

statements and proved the prosecution case to the hilt as stated in the FIR

and that no contradiction could be proved of the facts stated in the FIR and

the statement of witnesses. It was further submitted that the High Court

failed to appreciate the fact that a father would not unnecessarily implicate

an innocent person at the cost of sparing the real culprits responsible for the

murder of his two grown up sons. It was further contended that the High

Court ignored the vital fact that Accused No. 1 and 2 were arrested from the

spot and arms were recovered from their possession immediately and that

Accused No. 3 succeeded in absconding. It was further submitted that the

High Court wrongly discarded the evidence of PW-3 on the ground that he

6 could have got his cattle grazed elsewhere and that his statement was

recorded two days later from the date of occurrence. It was further

contended that the High Court erroneously came to the conclusion that the

prosecution failed to attribute to the accused persons any motive for the

commission of the said offence. It was further submitted that the High Court

failed to take into consideration the fact that the delay in medical

examination of PW-2 was adequately explained by the prosecution and that

could not have been made a ground for disbelieving the case of the

prosecution.

8. On the other hand, learned counsel appearing on behalf of the accused

persons strongly opposed the aforesaid contentions and submitted that the

High Court has rightly set aside the decision of the trial Court as there are

several serious infirmities in the evidence of the prosecution witnesses and

in the manner of recovery of seized weapons and cartridges. It was further

submitted that if the order of acquittal is one of the possible view, the same

deserves deference rather than interference by the appellate court. In support

of the same, reliance has been placed on the decision of this Court in Rang

Bahadur Singh v. State of U. P., (2000) 3 SCC 454; Ghurey Lal v. State

of U. P., (2008) 10 SCC 450.

7

9. In view of the aforesaid submissions advanced by the parties, we will

now proceed to address the submissions in light of the evidence available on

record.

10. The scope of appeals under Article 136 of the Constitution is

undisputedly very much limited. This Court does not exercise its overriding

powers under Article 136 to reweigh the evidence. The court does not

disturb the concurrent finding of facts reached upon proper appreciation.

Even if two views are reasonably possible, one indicating conviction and

other acquittal, this Court will not interfere with the order of acquittal. But

this Court will not hesitate to interfere if the acquittal is perverse in the sense

that no reasonable person would have come to that conclusion, or if the

acquittal is manifestly illegal or grossly unjust. Recently, in the case of

Chandrappa v. State of Karnataka,(2007) 4 SCC 415, at page 432 this

Court (per Thakker J.) after elaborately discussing the previous decisions on

this point has aptly summarized the law as follows:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it

8 may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

11. The same view has been reiterated by this Court in Ghurey Lal v. State of U.P., (2008) 10 SCC 450, at page 476, in which one of us (Hon'ble Justice Dalveer Bhandari) after discussing a number of authorities on this issue summarized the law as follows:

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

9 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence.

There must also be substantial and compelling reasons for holding that the trial court was wrong."

12. There is no dispute with regard to the place of commission of the

crime. It was committed at the Dharamraj Service Station. If we critically

examine the evidence of PW 1, there is nothing to doubt the correctness of

the version given by him. PW-1, complainant in the present case has proved

the FIR (Ext. Ka-5) lodged by him. He has stated the contents of Ext. Ka-5

verbatim in his statement and in cross examination also there is no

contradiction between the facts stated in the FIR and his evidence in the trial

Court which has been corroborated by the evidence of PW-2 and PW-3. PW-

3 in his deposition before the trial court has categorically stated that he

reached at `bhita' in the morning at about 8 a.m. for grazing his cattle and

after sometime while he was still there, he saw that the Accused No. 3 was

having an altercation with PW-2. All the accused persons then started

beating PW-2. PW-3 further stated that at that time PW-1 and one Adya

Singh came there and tried to intervene but Accused No. 2 fired a shot at

PW-1 from his double barrel gun which, however, did not hit PW-1. Upon

this, sons of PW-1 namely, Rajesh and Brijesh, reached the spot on their

motorcycle and they were also fired upon by Accused No. 2. The gunshots

10 struck both the deceased persons who fell down from their motorcycle and

died on the spot.

13. Thus, it is quite clear that PW-1, PW-2 and PW-3 who were eye-

witnesses to the occurrence have fully proved the incident and corroborated

the statements mentioned in the FIR and there is no inconsistency in the

statements of all the three witnesses. There is no material contradiction in

the cross examination and the entire facts of the FIR which has been fully

supported by the statements of all the three aforesaid witnesses.

14. Another submission of the counsel appearing on behalf of the accused

is that PW-3, being an employee of PW-1, could not be said to be an

independent witness and therefore his testimony could not be relied upon.

We cannot accept this contention as it neither finds any support from the

prosecution evidence nor has been proved by any defence witnesses.

Counsel for the Respondent relied upon the statement of PW-3 wherein he

stated PW-1 as master for submitting that PW-3 is a servant of PW-1. But a

careful perusal of his statement would indicate that PW-3 called PW-1 as

master as PW-1 was a teacher and therefore he was described as master.

From the said evidence, it therefore, cannot be deduced that PW-3 was a

servant of PW-1.

11

15. From the perusal of the post mortem report and the statement of the

doctor it is clearly evident that the injuries on the deceased persons were

found to be on the chest which is a vital part of the body and the death was

natural as the bullet had hit them. According to the statement of PW-7, the

cause of death was the gun shot ante-mortem injury on the vital part of the

body and from excessive bleeding and shock. According to the statement of

PW-7 at the time of firing of the gun its barrel must have been at a distance

of 3 to 6 feet from the dead bodies. As a result of which the deceased

Brijesh and Rajesh had suffered injuries from the gun shots fired within 6

feet from the place where they were hit by the bullet and the same caused

their instant death.

16. It is the case of the accused that the shot was fired by the defence in

their right of private defence. In the written statement of Accused No. 2

recorded under Section 313, Cr.PC, this fact has been accepted that there

was quarrel regarding petrol. Both deceased Brijesh and Rajesh came to the

petrol pump on motor cycle. Shots were fired indiscriminately by Accused

No. 2 from the licensed gun of Accused No. 3. The shots hit Rajesh and

Brijesh. They have also accepted the recovery of licensed gun of A3 from

the petrol pump.

12

17. The defence towards the end of the trial tried to put up a version that

the two deceased came there to the petrol pump to commit robbery by

hurling bomb and in the process also caused damage to the petrol pump.

Unfortunately, however, no proof in support of the said contention could be

produced by the defence. There is nothing on record which can even

remotely suggest that the act of the accused persons was in exercise of their

right of private defence. The investigation, at the place of occurrence, soon

after the incident did not reveal any remains of bomb or recovery of any

firearm from the hands of the deceased or any damage to the petrol-pump.

No injury was also found on the bodies of the accused. It is pertinent to

mention here that no suggestion regarding recovery of any bomb materials

or detection of any signs of damage to the petrol pump by the deceased

persons and PW-2, was put by the defence to either PW-10 or PW-11, both

of whom were present at the place of occurrence at the time when the

showroom of the accused persons was searched and weapons, cartridges and

other articles were seized. Thus, the submission of the defence with regard

to the alleged exercise of right of private defence by the accused persons

being without any basis, the same also fails.

18. As far as the allegation of delay in lodging of FIR is concerned, it was

been stated on behalf of the prosecution that the incident had taken place at

13 8.30 a.m. and as per the FIR the police station Mariyahun is about 7 km

from the place of occurrence. It is the case of the defence that as the report

was lodged at the police station at 9.10 a.m., the same being very prompt,

therefore, there is bungling regarding report and time of FIR. It was

contended that the deceased Brijesh and Rajesh were the sons of PW-1and

they died on the spot and in such a situation, the natural conduct of father

loosing two sons would be to stay with the sons and weeping instead of

going to the police station immediately to lodge an FIR. However, we are

unable to accept such contention, as it is devoid of any merit. In the present

case it is quite clear from the evidence of the witnesses that first of all, PW-2

who was relative of the PW-1 came to the petrol pump i.e. the place of

occurrence. The altercation arose between PW-2 and Accused No. 3. All the

three accused then started beating PW-2. PW-2 was then dragged and looked

inside the show room. When PW-1 came to prevent the accused from doing

this, the Accused No. 2 fired shot at him but by chance the shot did not hit

him. At that time, the deceased Rajesh and Brijesh emerged there on

motorcycle. On the exhortation by the accused persons, Accused No. 3 fired

shots aiming at them, due to which Brijesh and Rajesh fell down and died on

the spot. It is also proved from the evidence that PW-1 along with his

companion Adya Prasad Singh again came forward to his sons then the

accused Pushkar again fired a shot. In the aforesaid circumstances, it is quite

14 clear that PW-1 could not reach upto his sons after they fell down due to

firing. It is also clear from the record that the two accused had locked PW-2,

a relative of PW-1 in their custody and at that time Accused No. 2 was

having a gun. In the aforesaid circumstances, when PW-1's both son fell

down, his relative (PW-2) was in the custody of the accused persons, PW-1

had indeed no other option except to approach the police station. That was

also necessary since there was also danger to the life of PW-2. In the

aforesaid circumstances, we find no reason to doubt the prompt registration

of the FIR.

19. Another submission which was made on behalf of the accused was

that PW-1 to PW-3 are interested witnesses and there are some

contradictions in their statements. It has been contended that PW-1 and

PW-2 are related to each other and also with the two deceased as both

deceased were the sons of PW-1. However, PW-3 cannot be said to be in

any way interested with PW-1 or PW-2 nor he had enmity with the accused

persons. A perusal of the evidence of PW-3 unmistakably makes it quite

clear that on the fateful day, he proceeded at 6 O'clock from his house for

grazing cattle and had reached at 8 O'clock, at `bhita' in front of petrol

pump towards east of the road along with his cattle. The incident took place

15 in the month of May and as the cattle were grazing, his presence at the place

at 8 a.m. cannot be doubted.

20. The learned counsel appearing for the accused has strenuously argued

and drawn our attention to the fact that the prosecution has not examined the

other witnesses available on the spot. However, we are unable to accept the

said contention as it is not necessary that all those persons who were present

at the spot must be examined by the prosecution in order to prove the guilt

of the accused. Section 134 of the Evidence Act provides that no particular

number of witnesses is required for proof of any fact. It is trite law that it is

not the number of witnesses but it is the quality of evidence which is

required to be taken note of by the courts for ascertaining the truth of the

allegations made against the accused. In the Takhaji Hiraji v. Thakore

Kubersing Chamansing,(2001) 6 SCC 145, at page 155, this Court

observed as follows :

"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it

16 would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakores was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non- explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tightrope dance performers. The evidence available on

17 record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incident. In our opinion non- examination of other witnesses does not cast any infirmity in the prosecution case."

(emphasis underlined)

21. Further, we cannot lose sight of the fact that ghastly acts, of the nature

and gravity as the present one, when committed in a public place may very

well create a sense of fear and shock in the minds of the witnesses and thus

prevent them from coming forward and deposing against the perpetrators of

the crime. If the testimonies of those witnesses, who have deposed during

the trial, are otherwise found to be reliable, trustworthy and cogent, the said

evidence cannot be disbelieved or discarded merely because the prosecution

has failed to examine other witnesses allegedly present on the spot.

22. Another submission which has been advanced by the learned counsel

for the accused is that the story of Accused No. 1 and Accused No. 2 locking

the PW-2 in the showroom is completely unbelievable. As discussed

18 hereinbefore, on altercation having taken place for petrol, PW-2 was

assaulted by the accused persons and forcibly taken to the showroom and

locked in there immediately thereafter. On being asked by PW-1 not to do

the same, the gun shot was fired at him but he retreated to safety. Thereafter,

when both deceased, Rajesh and Brijesh, the two sons of PW-1 reached the

spot, two consecutive shots were fired at them which resulted in their death

and thereafter again gun shot was fired towards PW-1. This fact is quite

clear not only from the evidence of PW-1 but has also been fully

corroborated by the evidence of PW-2 and PW-3. It is quite evident from the

record that a big crowd gathered at the spot. Under the said circumstances,

it was quite natural for the accused persons to keep PW-2 in their custody.

Making PW-2 captive, a fact to which PW-11, the SSI who was

investigating the case was also a witness, could well protect the accused

persons from the crowd which had come to the place of occurrence after

hearing the gunshots. Making PW-2 captive could also protect the petrol

tank from being damaged by the pressure of the agitated crowd. The

injuries were found on the body of PW-2 by the doctor who had examined

him soon after the incident at 1.50 pm on the same day.

23. The name of Surendra Kumar servant has been disclosed after his

death, for the first time in the statement under Section 313 CrPC and prior to

19 that the name of Surendra Kumar was never even referred to at any place.

The fact that Surendra Kumar was a servant at the petrol-pump at the time of

incident has not been proved by any oral or documentary evidence by the

defence.

24. In view of the aforesaid discussion, facts and circumstances of the

case, we are of the considered view that the High Court clearly erred in

reversing the order of conviction recorded by the trial Court. Accordingly,

we set aside the judgment and order of the High Court and restore the

judgment and decision of the trial Court.

25. The appeals are hereby allowed. The bail bonds of the Accused No. 1,

Accused No. 2 and Accused No. 3 stand cancelled and they are directed to

surrender before the jail authorities within 15 days from today, failing which

the authorities are directed to proceed in accordance with law.

26. The appeals are hereby allowed in terms of aforesaid order.

.............................J. [Dalveer Bhandari]

..............................J. [Dr. Mukundakam Sharma]

20 New Delhi, September 18, 2009

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