Citation : 2018 Latest Caselaw 327 ALL
Judgement Date : 3 May, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Criminal Appeal No.722 of 2007
Vishwa Nath @ Khedu ...... Appellant/Accused (In Jail)
Versus.
The State of U.P. ...... Respondent.
***
Hon'ble Shabihul Hasnain, J.
Hon'ble Dinesh Kumar Singh, J.
(delivered by Hon'ble Shabihul Hasnain, J.)
This criminal appeal has been filed against the judgment and order dated 1.3.2007, passed by the Sessions Judge, Ambedkarnagar, in Sessions Trial No.23 of 2002, under Sections 302/201 I.P.C. and Section 3(2)(5)(6) S.C/S.T. Act in Case Crime No.99 of 2002, Police Station Raje Sultanpur, District Ambedkar Nagar sentencing and convicting the accused/appellant in the following terms :
(i) Under Section 302 I.P.C. read with Section 3(2)(5)(6) S.C./S.T.Act convicting the appellant for life and Rs.10,000/- as fine and in the event of non-payment of fine, the appellant would further undergo one year's imprisonment.
(ii) Under Section 201 I.P.C. for three years' rigorous imprisonment.
All the sentences were ordered to run concurrently.
Heard Sri Praveen Tripathi, learned counsel for appellant as well as learned Additional Government Advocate and perused the record.
The prosecution story, in brief, is that complainant Basudha who belonged to Scheduled Caste and resident of village Tandwa Jalal, P.S.Raje Sultanpur, District Ambedkarnagar gave a written report Ext.Ka-1 on 11.8.2002 at about 20.30 at Police Station Raje Sultanpur, District Ambedkar Nagar to the effect that his wife Smt.Saroj alias Ramjani had gone to the house of son of his maternal uncle Ram Sewak in village Durgupur, Police Station Jahangirganj about 20 days' ago. On 9.8.2002 he came to know that his wife had accompanied Vishwanath alias Khodu Kurmi (who is accused/appellant in the present appeal), to his house at village Gram Karauli Lathouri, Police Station Raje Sultanpur, with whom she was having illicit relations since many days. On 11.8.2002, when Basudha in search of his wife reached Gram Karauli Lathauri, he came to know that Vishwanath alias Khodu has murdered his wife and hidden the dead body in the house.
On the basis of the above information a Chik F.I.R. Ext.Ka-8 was lodged against the accused Vishwanath alias Khodu under Sections 302, 201 I.P.C. and 3(2)(5) S.C./S.T.Act
Sri K.K.Srivastva, Up Zila Magistrate, Tahsil Alapur District Ambedkar Nagar on 12.8.2002 prepared Panchayatnama Ext.Ka-10, photograph of dead body Ext Ka-11, Ext.Ka-13, Ext.Ka-14, seal specimen Ext.Ka-13, R.I. Ext.Ka-14, letter C.M.O Ext.Ka-15 and sent the dead body for post mortem at Community Health Centre, Tanda.
On 12.8.2002 at 2.00 p.m. Dr.V.N.Singh has conducted post mortem of deceased Smt.Saroj alias Ramzani. Under his writing and signature he prepared the post mortem report which is Ext.Ka-2. According to his report on external examination of the dead body he found that the dead body was two days' old. Her skin was peeled out and there was swelling on the face of the deceased. Her eyes were closed, tongue was out and blood was oozing out of nose. Teeth were present, fingers were closed and hairs were coming out of dead body.
On internal examination of the deceased, following wounds were found :
(i) There was swelling on the neck, skin was peeling out on the swelling. Internal muscles were congested in which blood was clotted.
(ii) Nostril was congested in which blood mixed fluid was present. Skull was intact. Blood was clotted in temporal region. Membrane and blood pleura both lungs were congested. Spleen was congested. Stomach was empty. Gases and fecal matters were found to be present in the small and large intestines. Bile juices present in the gallbladder. Urethra was empty.
In the opinion of Dr.V.N.Singh, P.W.4 death was caused due to anti mortem injuries and asphyxia. He opined that the death of the deceased may be caused in the night of 11.8.2002.
After investigation, the Investigating Officer filed charge sheet against accused Vishwanath alias Khodu Ext.K-4 under Sections 302,201 I.P.C. and Section 3(2)(5) of S.C./S.T.Act in the court, which the accused denied and demanded trial of the matter.
In support of its case the prosecution has examined P.W.1-Basudha, P.W.2 Suryapati Verma, P.W.3 Ram Nihal Verma, P.W.4- Dr.Major V.N.Singh, P.W.5-Ram Kailash Singh, P.W.6- Vinod Kumar Singh, P.W.7- K.K.Srivastava, A.D.M.Kushi Nagar.
Statement of accused under Section 313 Cr.P.C. was recorded in which he denied the charges levelled against him stating therein that he is innocent and he has been falsely implicated in the above case. He specifically denied that he does not live in the house from where the dead body has been recovered.
P.W.1-Basudha, complainant has stated on oath that accused Vishwanath alias Khodu is the resident of his nearby village Karauli Lathouri. His wife Saroj alias Ramzani deceased had gone to the house of son of his maternal uncle at village Durgupur 20 days before the date of incident. When his wife went to village Durgupur, he was present at his house and he came to know about her death after 20 days of her departure from his house. Her dead body was hidden in the house of Vishwanath. He and his wife had gone to the place of Vishwanath for labour work before the incident. He was informed by the police of Police Station Raje Sultanpur that his wife had been murdered and when he reached the police station, accused Vishwanath was present there. Her wife often used to go to the house of Vishwanath for labour work which created suspicion in his mind that he has murdered his wife. He does not know whether his wife had illicit relations with accused or not and why did he kill her wife. Nobody has told him about her going from the house of Ram Sewak to the house of Vishwanath nor did he ever see that his wife had illicit relations with Vishwanath. When he went to the police station Vishun Dev had accompanied him. Inspector of Police Station Raje Sultanpur was also present there. He asked Vishundev to write the information of the incident and he wrote whatever he said. He was cross examined by the defence.
In his cross examination P.W.1 Basudha accepted that he or his wife never quarreled with accused regarding labour work. He never saw his wife with accused in compromising position. He never heard from anybody else that his wife had illicit relations with the accused. He had never doubted about her character. Even Ram Sewak, son of his maternal uncle has never told that his wife has gone to the house of Vishwanath. Ram Sewak only told that his wife had gone from his house. Nobody told him about the murder of his wife by the accused and hidding the dead body in the earth of the house of the accused. When his wife went to the house of Ram Sewak he did not go to the house of Ram Sewak at Durgupur for about 20 days as Ram Sewak's wife was in family way so his wife went to his house. In between these twenty days neither Ram Sewak came to his house nor did he meet him anywhere. Ram Sewak told that your wife had lived here at my house for about twenty days. Further, he stated that first of all the police of Police Station Raje Sultanpur called him at the police station and told him that his wife had been murdered. There the police told him to lodge the report. The police informed him that the body of your wife is hidden in the ground of house of Vishwanath. It is not correct to say that accused had illicit relations with my wife. If it is written in the report, it is wrong. The day I lodged the report in the Police Station, the same day before that a police constable had come to my house. Before this I had no information about the murder of my wife. It is incorrect to say that two days before lodging of the report I knew that my wife had been murdered and the dead body is lying in the ground of house of accused Vishwanath. It is true that if the police did not inform me that Vishwanath had murdered his wife and hide her dead body in the courtyard of the house of Vishwanath then I would not have the known the fact. In this regard I had written in the report whatever the police had told me.
It has been argued on behalf of the appellant that he has been convicted on the strength of Section 27 of the Evidence Act. The Sessions Judge has held that the recovery of the dead body was made by the Police at the pointing out of the appellant.
Section-27 of the Evidence Act has been used very flagrantly in a number of cases by the police. It will be necessary to understand the implications and ramification of use of Section 27 of the Evidence Act.
For convenience, it would be proper that Section-27 of the Evidence Act may be looked into. Accordingly it is quoted herein below :-
"Section-27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
We find that Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was due and accordingly it can be safely allowed to be given in evidence. The following are the requirements or condition for application of Section 27 of the Evidence Act :
(1) That consequent to the information given by the accused, it led to the discovery of some fact stated by him.
(2) The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused.
(3) Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.
(4) The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e., the knowledge of the accused of the place where the object was produced and the knowledge that it was there.
(5) Only such portion of the information as is distinctly connected with the said discovery is admissible.
(6) The discovery of the fact must relate to the commission of some offence.
Section 27 of the Evidence Act is virtually borrowed from Taylor's Treatise on the Law of Evidence as pointed out by the Full Bench of Allahabad High Court in the vintage decision in Queen Empress v. Babulal, 1884 Indian Decisions, 6 Allahabad 510. The passage in Taylors Evidence (which is found in paragraph 902 of Vol I of 1931 Edn.) is as follows :
"902 (i). When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confesses that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this pasrt at least of the statement cannot have been false."
In State of Rajasthan v. Chhote Lal and others, reported in 2012 CRI.L.J.1214, their Lordships dealing in a case covered under Section 27, have observed in para-6 that "learned counsel appearing for the State contended that these findings are not correct and are not based upon proper appreciation of evidence. We do not find any merit in this contention primarily for the reason that Exhibit P-42 had disclosed two very important facts. First that the deceased had been killed and second that the dead body was lying in a well. This itself was sufficient indication to fact that the dead body was lying in the well and the Investigating Officer ought to have recovered the body at the very initial stage of the investigation rather to await of making of the alleged disclosure statement by the accused of a fact which was publicly known. Another aspect of the case is that even the recovery of the weapon is doubtful. The way the recovery has been shown is correctly held by the High Court as not reliable."
Again in Madhu v. State of Kerala, reported in 2012 CRI.L.J.1230, it has been held that "the factual position that recovery of stolen ornaments would be made by the police was a matter of common knowledge well before the confessional statements were made. The said statements recorded vide Exhibits P-9 and P-10 are inadmissible inspite of the mandate contained in Section 27 of the Indian Evidence Act for the simple reason, that they cannot be stated to have resulted in the discovery of some new fact. In the factual background of the controversy in the case referred, the gold ornaments which eventually came to be recovered by the police, allegedly at the instance of accused, may well have been planted by the police. On account of the fact that the confessional statements made by Madhu-accused no.1 and Sibi-accused no.2, which is the main linking factor in the circumstantial evidence of the prosecution version of the controversy, being inadmissible as the same cannot be proved against them, the Court was of the view that the prosecution's case stands fully demolished. In view of inadmissibility of evidence which was taken into consideration by the Trial Court, as well as, the High Court to implicate the accused with the commission of the offence alleged against them, shall have to be reconsidered on the basis of the remaining evidence."
In the recent judgment of Manju Singh v. Dharmendra and another, (2018) 1 SCC (Cri) 792, in para-14 Hon'ble Supreme Court has held that "the next aspect for our consideration is the recovery of the country-made pistol and an empty cartridge. To begin with, it is undisputed from the ballistic report that the gun was the same from which the shot was fired and also the formal witnesses stood the test which established that the gun was recovered in their presence. The prosecution strongly relied on this evidence and even the trial court was convinced by this piece of evidence. However, the High Court pointed out the relevant provision i.e. Section 27 of the Evidence Act, 1872, and clarified that it is not the material recovery which has to be proved, but the disclosure based upon which the recovery is made. The pivotal fact is making of the statement to the police which leads to recovery. The High Court rightly pointed out that during the investigation, no statement disclosing the fact/material to be discovered was proved before the court. In our opinion, the High Court is correct to point out this serious lacuna."
Learned counsel for appellant has referred to the statements of D.W.1-Pramod Pandey, resident of same village and eyewitness to the recovery of dead body and D.W.2-Ram Saran Verma, who is also living in the same village, both have not supported the case of prosecution and clearly stated that the "Khandharnuma" house from where the dead body of Smt.Saroj alias Ramzani was recovered was situated 100 meters west to the house of Raghunath where the appellant was living with her family and he has no connection with the above house nor did the deceased used to go to his house. These statements have not been demolished in the cross examination. Hence the onus under Section 106 of Evidence Act could not have been levelled upon the accused.
In the present case we find in the statement of complainant that one Constable from Police Station Raje Sultanpur has visited in his house in the village same day on which the F.I.R. was lodged before making the F.I.R. When the complainant reached the Police Station Raje Sultanpur on 11.8.2002 the appellant was present there.
It has been argued on behalf of the appellant that the arrest of the appellant has been shown early in the morning at about 5.30 a.m. on 12.8.2002 but on the contrary the complainant had deposed in the trial that when he reached the police station to lodge the report (First information report on 11.8.2002), the appellant namely Vishwa Nath was present there, meaning thereby that the appellant was arrested prior to 11.8.2002 but by manipulation the actual arrest of the appellant was shown to have been made on 12.8.2002 at 5.30 a.m. by the police of P.S. Raje Sultanpur . The complainant had also deposed in the trial court on 6.8.2003 in his statement (cross examination) that at the first instance, the police of police station Raje Sultanpur had informed him at the police station that his wife had been done to death and her dead body has been burried in the house of the appellant. Under these circumstances the contents of concluding portion of the First Information Report (also of the "Tahrir") becomes completely false that the complainant had gone on 11.8.2002 to village Karauli Lathauri to make the trace of his wife. But on being informed by the police and also on saying by the police of police station Raje Sultanpur at the police station to the complainant to have the report lodged, the first information report was lodged at the police station. The prosecution had not declared this PW-1, the complainant, as hostile though he had not supported the prosecution case.
It has also been argued that Sub Inspector Vinod Kumar Singh, the then Station Officer of Police Station Raje Sultanpur as Investigating officer has deposed in his statement during trial in the Court on 3.1.2006 that the investigation of the case was allotted to be done by the Deputy Superintendent of Police, Circle Officer, Tanda, District Ambedkar Nagar (as per rule). But initially and primarily the investigation was started by the Station Officer and the statements of the informant-complainant namely Basudha and that of the scribe of the First Information Report were recorded under Section 161 Cr.P.C. at the Police Station under directions by the Circle Officer. It has further been argued that the Circle Officer was not empowered to delegate the powers conferred on and bestowed upon him as a Deputy Superintendent of Police (Gazetted Officer) and as such, the Deputy Superintendent of Police/Circle Officer was not in a position legally to direct the Station Officer to start with the investigation and to record the statements of the witnesses. The Sub Inspector namely, Vinod Kumar Singh, has further deposed in his statement in the trial court that the appellant Vishwa Nath @ Khedu was arrested at about 5.30 a.m. on 12.8.2002, who made confessional statement before him.
It has been forcefully argued that the complainant namely Basudha reached police station Raje Sultanpur on 11.8.2002 at about 8.30 p.m. to lodge a report about this incident. The appellant was present at the police station on 11.8.2002. It makes the whole story of the police doubtful and appears to be manufactured to fasten the appellant with this crime. Even the trial court could not and did not weigh the evidence before reaching a verdict by which the appellant has been awarded life imprisonment. It has been further pleaded that both the Investigating Officers (the Station Officer and the Circle Officer) are liable to be charged with perjury for preparing false documents and their testimony is not believable. The confessional statement was not given by the appellant and the Investigating Officer has himself on his own initiative written the so-called confessional statement in the case diary. Thus the basis on which the appellant has been held guilty is erroneous and hence he deserves that the sentence awarded against him be set aside and he be acquitted from the charges levelled against him.
It has also been argued that S.D.M.Alapur, District Ambedkar Nagar was allegedly informed by the Station Officer on R.T. set about the dead body having been burried in the earth in the house of the appellant. Station Officer deposed in his statement in the trial court that he had reached the scene of occurrence on 12.8.2002 at about 7.00 a.m. along with the appellant and the S.D.M. Sri K.K.Srivastava had reached the scene of occurrence at about 9.00 a.m. but contrary to it the S.D.M. in his cross examination stated that he had reached the spot at about 4.00 or 4.30 a.m. on 12.8.2002 and he had received the information in the night about 3.00 a.m. on 12.8.2002 that the dead body is burried in the house of the appellant. According to the G.D.entry and also the version of the Police while the appellant was arrested at 5.30 a.m on 12.8.2002 how and under what circumstances the Sub Divisional Magistrate was informed at about 3.00 a.m. as the S.D.M. has deposed that he reached the spot at 4.00 or 4.30 a.m. on 12.8.2002. Keeping in view that the complainant had deposed in his statement in the trial court that when he reached the police station on 11.8.2002, the appellant was present there and the Darogaji was also present at the police station, the whole case looks fabricated. The complainant reached the police station on 11.8.2002 to lodge the report and the FIR was lodged same day i.e. 11.8.2002. It all makes the time of arrest of the appellant i.e. 5.30 a.m. on 12.8.2002 fictitious and wrong. It also strengthens the argument that the appellant was arrested before 12.8.2002 and all these shortcomings give rise to strong suspicion that whole story was concocted by the police of Police Station Raje Sultanpur and the alleged confessional statement was fraudulently recorded in the case diary on which the whole story was depending. The Sub Divisional Magistrate in his statement before the trial court deposed that he was there only for one hour and during this period he was unable to get the inquest report etc. prepared and the digging out the dead body as alleged and preparing recovery memoes was really a time taking matter.
It has been argued on behalf of the appellant that the witnesses of so-called recovery are inimical to the appellant who due to village partybandi and enmity generated on election of Gram Pradhan came forward against the appellant to avenge their old enmity. He is innocent and has been falsely implicated and fastened to the crime.
It has been argued that both the Investigating Officers never made any inquiry pertaining to the ownership of the house from where as alleged the dead body is said to have been recovered. They did not consult and peruse the family register of the village maintained and kept by the Gram Pradhan or the Secretary of the Gram Panchayat. If they would have done so, the reality as to whom that house belongs could have come out. The house in question is said to have in a dilapidated condition and does not belong to the appellant at all and it was not inhabitable and fit to be dwelt in also. The appellant was living in another house and was not occupant of the house from where the dead body was allegedly recovered. The appellant had deposed in his statement under Section 313 Cr.P.C. that he was living in another house at that time. It has been argued that the investigation of the case was started by the DSP-Circle Officer Alapur from 26.8.2002 i.e. with an abnormal delay of about 15 days which is against the law and rule. He recorded the statement of the complainant Basudha again. Such stale statements can in no way be relied upon. He examined Vishun Deo, the writer of the Tahrir on which the FIR was prepared and he also examined the SDM after 3.9.2002, meaning thereby after a delay of about 22 days of the alleged F.I.R. Such negligence is always condemnable and always strengthens the rise of suspicion in the investigation.
It has been argued by the learned counsel for the appellant that the deceased was having illicit relation with so many persons. Some other miscreants might have done the deceased to death and due to partybandi following the Gram Pradhan elections the appellant has been fastened with the crime. He further stated that recovery of the dead body in the presence of a Magistrate does not mean and determine that the crime of murder was committed by the appellant, while the whole story concocted by the police has since been proved as futile and rather false and fabricated under the aforesaid facts. If the facts and reasons mentioned above are taken into consideration, the appellant proves to be innocent and faultless in the case. But the learned trial court did not apply its mind in assessing and weighing the evidence. The judgment is full of errors, shortcomings and suffers from infirmities. The learned trial court did not consider the shortcomings committed during investigation.
Learned trial court was not careful and thoughtfully cautious in assessing and evaluating the evidence put forth by the prosecution and the defence evidence was put completely aloof rather it was put off by the trial court. It has been argued on behalf of the appellant that the investigation of the murder case has been done on wrong, false and fabricated facts, which exclusively based on fraudulent manipulations. They are highly tainted and far from the reality and genuineness and which are present on the record specially in the statements of the Station Officer and Sub Divisional Magistrate and also in the General Diary as well as case diaries of the case.
The second ground of conviction is based on the premise that the dead body was recovered from the house allegedly belonging to the house of Vishwanath, hence the lower court has put the burden upon the accused to explain how the body was found in his house. Now let us examine Section 106 of the Evidence Act, which reads as follows :
" Section 106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
It is well settled that though a fact is exclusively in the knowledge of the person has to be explained by him yet it is also established that the court cannot shift the burden of proof on the accused.
Let us examine the principles of Section 106 Evidence Act in the light of the facts of this case. The accused Vishwanath has categorically denied in his statement under Section 313 Cr.P.C. that he reside in the house where the dead body was found. In the statements of the witnesses, it has also come that it was a dilapidated house (khandharnuma). In the light of this statement the assertion of the accused that he was not living there in absence of anything contrary on record appears to be true. The prosecution has neither taken any pains to prove that accused Vishwanath was present in the house at the time of the death as declared by the doctor in the post mortem report nor have established this fact by any other evidence that accused Vishwanath was actually living in that house and using it as his residence. If we analyze Section 106 of Evidence Act, it envisages a fact to be in the exclusive knowledge of the person and not because he is generally supposed to know about it. The whereabouts of the accused on the date of the incident or at the time of death of the deceased have not been ascertained by the prosecution. The prosecution could not pinpoint that the accused was actually in the house at the time of death of the victim. The lower court has erred in assuming that since the house belonged to the accused appellant, therefore, liability lies under Section 106 with the accused to explain the circumstances.
On examination of the judgment we find that the lower court has convicted the appellant on two main grounds; first is that the dead body has been recovered from the premises which belongs to the appellant, hence it was the duty of the appellant to have explained how the body was recovered from his house and secondly that the dead body was recovered at the pointing out of the appellant.
So far as the position under Section 106 Evidence Act is concerned the appellant had submitted at the very first occasion under Section 313 Cr.P.C. that he was not living in that khandharnuma house (dilapidated). The prosecution has made no attempt to prove that the appellant was residing in a normal manner. They have not even proved that the accused-appellant was present on the day of the incident or even few days prior to that. There is no evidence on record to show that the fact of death of victim should have been in the exclusive knowledge of the appellant. During investigation it has come that he used to live in another house which also belongs to him. So far as the pointing out is concerned, we have examined the implications of the recovery under Section 27 of the Evidence Act. We have no hesitation in holding that the alleged recovery which has been made was at the pointing out of the accused-appellant is not admissible. In fact even prior to lodging of the F.I.R., the police was in the know of the fact and they themselves called the appellant to come and lodge the F.I.R.
We have recorded in the earlier part of the judgment that in the cross examination the complainant himself has stated that he had lodged the F.I.R. on the line which was dictated to him by the Police Officers at the Police Station Raje Sultanpur. He has also said that even the fact that his wife had illicit relations with the accused-appellant was not in his knowledge prior to this fact is being told to him by the Police.
First Information Report is a tutored F.I.R. by the police itself and the recovery under the circumstances cannot connect and bind the accused-appellant with the help of Section 27 of the Evidence Act. The finding of the lower court, on both these counts, appears to be in a cursory and routine manner. In-depth study of the facts and their relevance under the law have not been examined by the lower court.
We do not agree with the findings recorded by the trial court and feel that the ground for convicting the accused-appellant were based on cursory appreciation of facts and law. The appellant has already spent eight years in jail which cannot be compensated.
The appeal is, thus, allowed. The impugned judgment and order dated 1.3.2007 is set aside. The accused-appellant is acquitted of the charges levelled against him. The appellant is on bail. He need not surrender. Sureties are discharged.
Order Date :- 3.5.2018 (Dinesh Kumar Singh, J.) (Shabihul Hasnain, J.)
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