Citation : 2021 Latest Caselaw 2479 Kant
Judgement Date : 29 June, 2021
Crl.A.100092/2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JUNE, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100092/2017
BETWEEN:
The State Of Karnataka,
By Ilakal Police Station,
Represented by
Addl. State Public Prosecutor,
High Court Of Karnataka,
Dharwad Bench.
...Appellant
(By Sri. V. M. Banakar, Addl. SPP)
AND:
1. Lokappa S/o. Gurappa Pujari
Age: 71 years, Occ: Priest,
R/o: Balakundi Tanda, Tq. Hungund,
Dist. Bagalkot.
2. Neelappa S/o Lokappa Pujari
Age: 28 years, Occ: Labour,
R/o: Balakundi Tanda.
Crl.A.100092/2017
2
3. Vitthal S/o Pandappa Pawar
Age: 30 years, Occ: Labour,
R/o: Hulageri Tanda,
Kushtagi Taluk.
4. Sheela W/o Vitthal Pawar
Age: 27 years, Occ: Household Work,
R/o: Hulageri Tanda,
Kushtagi Taluk.
5. Seeta W/o Anand Pawar
Age: 26 years, Occ: Household Work,
R/o: lmaranal, Yalaburga Taluk,
Now residing at Balakundi Tanda.
...Respondents
(By Sri. S. L. Matti, Amicus Curiae for R1 to R5)
---
This criminal appeal is filed under Section 378(1) & (3) of
Cr.P.C., seeking to grant special leave to appeal and to set aside
the judgment and order of acquittal dated 05.04.2016 passed by
the II Addl. District and Sessions Judge, Bagalkot in
S.C.No.76/2012 whereby the respondents/accused were acquitted
of the offences punishable under Sections 143,147,302,504 and
506 R/W 149 of IPC and to convict the respondents/accused for the
offences punishable under Sections 143, 147, 302, 504 and 506
R/w 149 of IPC.
This appeal having been heard and reserved for judgment on
23.06.2021, coming on for pronouncement of judgment this day,
J.M.Khazi J., delivered the following:
Crl.A.100092/2017
3
JUDGMENT
The State has filed this appeal under Section 371(2) of the
Code of Criminal Procedure challenging the judgment and order
dated 05.04.2016 in S.C.76/2012 on the file of the II Addl. District
and Sessions Judge, Bagalkot. Vide the impugned order, the
learned Sessions Judge has acquitted all the accused persons i.e.,
accused No.1 to 5 of all the charges.
2. For the sake of convenience the parties are referred to
their rank before the trial Court.
3. Accused No.1 is the father-in-law, accused No.2 is the
brother-in-law, accused No.3 is the co-brother and accused Nos.4
and 5 are the sisters-in-law of the deceased Vasu Chavan. The
allegations against the accused persons are that, on 03.02.2012 at
about 7.15 pm, when deceased went to the house of accused No.1
and requested him to send his wife with him, accused persons
quarreled with him saying that they will not send her with the
accused and abused him in filthy language and poured kerosene on
him and set fire as a result of which accused sustained severe burn
injuries and while undergoing treatment, on 23.02.2012 at 6.30 Crl.A.100092/2017
am he died on account of the burn injuries suffered and thereby
accused persons have committed the offences punishable under
Sections 143, 147, 302, 504, 506 r/w. section 149 of IPC.
4. Immediately after the incident, the deceased Vasu
Gangappa Chavan was shifted to Government Hospital Ilkal and on
the information received from the hospital, the Investigating
Officer has visited the hospital and recorded his statement in the
presence of the duty doctor. Based on his statement, case is
registered against the accused persons. Since the doctors at the
Government Hospital Ilkal advised the injured to be taken to
Kerudi hospital, Bagalkot, he was shifted to the said hospital.
While he was undergoing treatment at Kerudi hospital, at the
request of the Investigating Officer, Taluka Executive Magistrate
has recorded the statement of the deceased Vasu Chavan. This is
the second dying declaration, first being the statement of the
deceased given before the Investigating Officer. Both dying
declarations are recorded in the present of the medical officer, who
has certified that the deceased who was under treatment was in a
fit condition to give his statement.
Crl.A.100092/2017
5. During the investigation, the Investigating Officer has
recorded the statements of witnesses including the sisters of the
deceased as well as the wife of the deceased, who according to the
prosecution is an eyewitness. However, the sisters and other
neighboring witnesses are not eyewitnesses. The neighbors have
come to the scene of occurrence, hearing the cries, whereas the
sisters have come to the hospital and seen the deceased while
undergoing treatment.
6. The Investigating Officer has drawn the spot mahazer
and seized kerosene-can and other incriminating articles from the
scene of occurrence. After the deceased succumbed to the burn
injuries, he has drawn the inquest, inasmuch as the dead body was
subjected to post mortem examination. He has arrested accused
No.1 to 3 and after completing investigation, charge sheet is filed
against accused No.1 to 5 as detailed above.
7. When the charges were framed against accused
persons, while recording their plea, they have pleaded not guilty
and claimed to be tried.
Crl.A.100092/2017
8. In support of the prosecution case, in all 26 witnesses
are examined as PWs. 1 to 26, Exs.P1 to P48 and MOS. 1 and 2 are
marked on behalf of the prosecution.
9. Accused persons have got marked portion of the
statements of PWs. 8 and 10 as Exs. D1 and D2.
10. During the course of the statement under Section 313
Cr.P.C the accused persons have denied the incriminating materials
against them. At the time of his statement under section 313
Cr.P.C. accused No.1 has produced the Xerox copy of the M.O.B file
pertaining to deceased Vaasu Chavan and it is taken on record.
The accused persons have not chosen to lead any evidence on their
behalf.
11. After hearing the arguments, the learned Sessions
Judge was pleased to acquit the accused persons of all the charges
holding that the prosecution has failed to establish the allegations
against the accused persons beyond reasonable doubt.
12. Aggrieved by the impugned judgment and order of
acquittal, the State has filed this appeal.
Crl.A.100092/2017
13. We have heard the arguments of the learned Addl.
State Public Prosecutor for the appellant and the learned counsel
representing the accused persons and perused the record.
14. During the course of the argument, learned Addl. State
Public Prosecutor submitted that the impugned judgment and order
of acquittal passed by the trial court is contrary to law, fact and
evidence on record and as such it is not sustainable in the eye of
law and liable to be set aside.
15. He submitted that, immediately after the incident, PWs.
7, 8 and 10 who are the sisters of the deceased and PW11 - an
independent witness, have visited the hospital and through the
injured they came to know about the incident and involvement of
the accused persons in pouring kerosene and setting on fire to him.
16. The learned Addl. SPP submitted that, after receiving
the information from the hospital, immediately PW24 - PSI of Ilkal
Police Station visited the hospital and in the presence of the doctor,
who was treating the deceased, has recorded the statement as per
Ex.P23 and registered the case. He further argues that, similarly,
after the deceased was shifted to Kerudi hospital Bagalkot, at the
request of the Investigating Officer, PW21 - the Taluka Executive Crl.A.100092/2017
Magistrate visited the hospital and in the presence of the duty
doctor, has recorded the dying declaration of the deceased as per
Ex.P29 and both Exs. P23 and P29 being the dying declaration of
the deceased are admissible in evidence and based on these two
documents alone, the accused persons are liable for conviction and
the trial Court has erroneously refused the rely upon these
documents.
17. The learned Special Public Prosecutor further submitted
that, the trial Court has acquitted the accused persons on the
ground that there are contradictions and omissions in the evidence
of PW24, ExS.P23 and 29. The said reasoning is against the
evidence on record and the same is perverse and not sustainable in
the eye of law. On the basis of the evidence placed on record, it is
a fit case to convict the accused persons. The trial Court has not
assigned any proper and acceptable reasons for discarding the
evidence of the material witnesses and prays to allow the appeal.
18. On the other hand, learned counsel representing the
accused persons submitted that the prosecution has failed to prove
the motive for accused persons to take the extreme step of causing
the death of deceased by pouring kerosene or setting him on fire.
Crl.A.100092/2017
On the other hand, learned counsel submitted that, it was the
deceased himself who poured kerosene and set himself on fire
when accused No.1 refused to give him money, which he had with
him, after selling the property and hence the deceased has falsely
implicated the accused persons and supporting the impugned
judgment and order, he has sought for dismissal of the appeal.
19. The undisputed facts are that, accused No.1 is the
father-in-law, accused No.2 is the brother-in-law, accused No.3 is
the co-brother and accused Nos.4 and 5 are the sisters-in-law of
the deceased Vasu Chavan. PW9 - Prema Chavan is the wife of the
deceased. It is also not in dispute that the marriage of the
deceased Vasu Chavan with Prema Chavan took place about four
years prior to the date of incident. Initially they stayed at Ilkal and
after about one year, deceased and his wife Prema Chavan went to
Bengaluru and were stating there. The deceased was working as
driver.
20. It has come in the evidence of witnesses that, about 20
days prior to the date of incident, the wife of deceased i.e., Prema
Chavan had come to Ilkal i.e., to her parents house as there was
some festival and on the date of incident, the deceased came to Crl.A.100092/2017
take back his wife. While the prosecution has set up a case that,
when the deceased went to the house of accused No.1 and
requested him to send his wife with him, the accused persons
refused and said that his wife will not be sent with him and when
the deceased insisted upon and sat there saying that he will not
move unless and until his wife accompanies him and being
enraged, accused persons poured kerosene and set him on fire.
21. On the other hand, the defence, through the evidence
of the wife of the deceased, i.e., PW9 - Prema Chavan has set up a
defence that the deceased was addicted to bad habits, such as,
drinking, gambling and incurred debts and he was also involved in
serious criminal cases and only on account of those criminal cases,
he went to Bengaluru and that in Bengaluru also he continued with
his bad habits and criminal activities. The defence has further
contended that, at the relevant point of time, accused No.1 had
sold some of his immovable properties and was in possession of
cash of `8,00,000/- and the deceased was insisting upon accused
No.1 to give him some money so that he would repay the loan and
satisfy his creditors and when accused No.1 did not agree, the
accused threatening that he is going to implicate all of them in
false case, deceased himself poured kerosene over his person and Crl.A.100092/2017
set himself on fire and in the dying declaration he has made false
allegations against accused persons.
22. In the light of two dying declarations recorded in the
presence of medical officers, now it is to be seen whether the
prosecution has established the guilt of the accused beyond
reasonable doubt and at the same time whether he has proved that
the accused persons had a strong motive to eliminate the
deceased. On the other hand, in the light of the specific defence
taken by the accused persons, it is to be examined whether the
deceased had a strong motive to falsely implicate the accused
persons.
23. The fact that the deceased sustained injuries due to
pouring of kerosene and setting on fire, in the house of accused
No.1, is not in dispute. While the prosecution claim that, it is the
accused Nos. 1 to 3, who poured kerosene on the deceased and set
him on fire and accused Nos. 4 and 5 were shouting that he should
die, according to the defence, it is the deceased himself, who
poured kerosene and set himself on fire. Therefore, the evidence
of the prosecution with regard to the spot mahazer, seizure of the
kerosene-can from the scene of occurrence, the FSL report with Crl.A.100092/2017
regard to the contents of the can, the sketch of the scene of
occurrence, the inquest, the post-mortem report regarding the
cause of death, are all established, in spite of the fact that the
defence has cross-examined at length, the witnesses on these
aspects. Therefore, we directly come to the motive aspect of the
prosecution case.
24. To prove the motive, the prosecution has relied upon
the evidence of PW7 - Taravva Rathod, PW8 - Hema Rathod and
PW10 - Ratnabai Rathod. They are the sisters of the deceased.
Admittedly, when the incident took place, they were not present at
the scene of occurrence. However, their evidence prove the fact
that, when the deceased came from Bengaluru, he stayed in the
house of PW7 - Taravva Rathod, while PW8 - Hema Rathod had
claimed that he stayed in her house. It appears the houses of
these witnesses are nearby and as a brother he might have visiting
them and in that way they have stated that he stayed in their
house. On the other hand, PW11 - Ratnabai Rathod is also the
sister of the deceased, but she was staying at Bengaluru and after
coming to know about the incident, she visited him. In their
evidence, all the three sisters of the deceased have stated that
they came to know about the incident through the deceased.
Crl.A.100092/2017
Admittedly, they were not eyewitnesses to the incident. While PW7
Tara Rathod has stated that, on the date of incident, for the first
time the deceased went to the house of accused No.1 to bring his
wife and on the same day, the incident took place, on the other
hand, PW8 - Hema Rathod has stated that, on Wednesday at 4.00
pm, the deceased went to the house of accused No.1 and that day
he came back saying that the accused persons were not ready to
send his wife and again on the next day he went to the house of
accused No.1 and on that day also he came back saying that they
are refusing to send his wife. She has further stated that, again on
the date of incident i.e., on Friday also the deceased went to the
house of accused No.1 saying that he is having some work in
Bengaluru and therefore he wanted to take his wife with him and
on that day at 7.30 pm, through telephone, he came to know that
accused Nos. 1 to 5 have set the deceased on fire and that the
injured i.e., her brother has been admitted to the hospital and
along with PW7 - Taravva Rathod, she went to the hospital and
saw them.
25. Now coming to two dying declarations at Exs. P23 and
29. Ex.P23 is recorded by the Investigating Officer, whereas
Ex.P29 is recorded by the Taluka Executive Magistrate. Before Crl.A.100092/2017
recording the statement of the deceased, both of these witnesses
have taken the opinion of the Medical Officer, who was treating the
deceased, regarding his condition to give statement. During the
course of his statement before these two witnesses, the deceased
has categorically stated that, accused Nos. 1 to 3 have poured
kerosene and set him on fire, when he insisted that he will not
leave the house unless and until they sent his wife with him and
has also stated that accused Nos.4 and 5 were shouting and
saying, "he should die, he should die".
26. It is pertinent to note that, during the course of both of
these statements, the deceased has specifically stated that, along
with accused Nos. 1 to 5, two more persons were there, who are
involved in commission of the offence and responsible for pouring
kerosene on him and setting him on fire. During investigation, the
Investigating Officer, in spite of conducting the detailed
investigation, is not able to ascertain who are the two other
persons. It is pertinent to note that, though the incident took
place on 03.02.2012, the deceased survived till 23.02.2012 i.e., for
a total period of 20 days and the evidence placed on record makes
it evident that, throughout he was able to speak and communicate
with others. In spite of it he is unable to name the other two Crl.A.100092/2017
persons, who are responsible for pouring kerosene and setting him
on fire. Admittedly, the deceased has not made any allegations
against his wife. Who are the other two persons, who involved in
the crime has remained a mystery and in the absence of clarifying
the said aspect, it creates a doubt as to the motive of the deceased
involving two other persons without naming them.
27. It has come in the evidence of PW5 Kamala Chavan,
PW7 - Taravva Rathod, PW8 - Hema Rathod, PW10 Ratnabai
Rathod and PW11 - Bhadrappa Lamani that the relationship
between the deceased and his wife Prema Chavan was very cordial.
All these witnesses in unequivocal terms have deposed that,
absolutely there was no problem between the deceased and his
wife and their relationship was very cordial. In fact during the
course of their evidence, PW9 - Prema Chavan, wife of the
deceased has specifically deposed that, when the deceased i.e., her
husband came to take her back to Bengaluru with him, she readily
agreed, but the deceased did not take her and on the other hand
as he was demanding money from accused No.1, he refused to
leave the house without taking the money. When the relationship
between the deceased and his wife was very cordial and there was
absolutely no impediment for her to accompany him to Bengaluru, Crl.A.100092/2017
what was reason for the deceased not taking her and leaving the
house of accused No.1 is not forthcoming.
28. They were married since four years and all this period,
the wife of the deceased i.e., Prema Chavan was living with him.
Such being the case, absolutely there was no necessity for the
deceased to take permission of either accused No.1 or other
accused to take his wife with him. This creates doubt as to the
veracity of the say of the deceased that the accused persons
refused to send his wife with him and when he protested, they
reacted by pouring kerosene on his person and setting him on fire.
The deceased is not coming up with a strong reason for the
accused persons allegedly pouring kerosene and setting him on
fire. Even though PW24 - Bahuddin Guddekar - PSI, who
conducted initial investigation and recorded the statement of the
deceased at the earliest point of time as per Ex.P23, nowhere has
questioned the deceased as to the reason why the accused persons
allegedly refused to send the wife of deceased with him. Though
he has recorded the statements of some of the witnesses, he has
not elicited the reasons for the accused persons allegedly refusing
to send the wife of the deceased with him. During the course of
the dying declaration recorded by the Taluka Executive Magistrate Crl.A.100092/2017
at Ex.P29, PW21 Nagaraj, the Taluka Executive Magistrate has also
not elicited the reason as to why the accused persons refused to
send the wife of the deceased with him. PW26 - U Sharanappa,
who conducted the further investigation and filed charge sheet, has
also not made any attempts to ascertain the reasons for the
accused persons allegedly not allowing the deceased to take his
wife with him and on the refusal of the deceased to budge, they
allegedly took the extreme step of pouring kerosene on him and
setting him on fire.
29. In the absence of giving a cogent and convincing
reasons or the motive on the part of the accused persons in
refusing to send the wife of deceased with him, the contents of the
dying declaration with regard to the intention of the accused
persons in taking the extreme step of pouring kerosene on the
deceased and setting him on fire, it does not stand to reason and
such flimsy reason for the accused persons taking extreme steps
cannot be accepted.
30. Moreover, the conduct of accused No.1 as well as the
wife of the deceased in taking him to the hospital, initially to the
Government Hospital, Ilkal and thereafter to Kerudi Hospital, Crl.A.100092/2017
Bagalkote, is contrary to the allegations that accused No.1 was
involved in such a heinous crime of trying to eliminate the
deceased by pouring kerosene and setting him on fire along with
the remaining accused persons. Even though during the course of
her examination-in-chief, PW.7 Taravva Rathod, sister of the
deceased, claimed that she and her sisters shifted the deceased to
the Ilkal hospital, during her cross-examination, she has stated
that, when she went to the hospital, already PW.9 Prema Chavan,
wife of the deceased and accused No.1 Lokappa Pujari, the father-
in-law of the deceased, were present outside the hospital and they
were the one who shifted the deceased to the Ilkal hospital. Even
PW.8 Hema Rathod, the other sister of the deceased, has also
stated that it was accused No.1 who shifted the deceased to the
hospital. Though PW.10 Ratnabai Rathod has stated that it is the
sisters of the deceased who shifted him to the hospital, it is an
admitted fact that, at the time of incident, she was at Bengaluru
and on coming to know about the incident, she came to Ilkal and
she had no first hand information as to who shifted the deceased to
the hospital.
31. Now coming to the defence taken by the accused
persons that the deceased himself poured kerosene on his person Crl.A.100092/2017
and set on fire to threaten accused persons, especially accused
No.1 as he refused to give him money. To establish the allegations
of false implication, the accused relied upon the evidence of PW9 -
Prema Chavan, who is no other than the wife of the deceased.
During the course of her evidence, she has specifically stated that,
when the deceased came to take her back to Bengaluru and even
though she was readily agreed to go with him, the deceased told
that, since he has incurred heavy debts, she should get some
money from her father and when both of them went and requested
accused No.1 to advance some money to the deceased, accused
No.1 flatly refused and therefore, deceased gave a threat that he is
going to commit suicide. She has specifically stated that, at
around 7.30 pm, while she and the deceased were sitting outside
the house, deceased went inside saying that he is going to drink
water and after some time he started shouting and when she saw
from the window, she found her husband engulfed in fire and when
she opened the door, he came out and fell in the front yard and
she poured water and in 108 Ambulance she shifted him to the
hospital. She also stated that, accused No.1 came to the hospital
and enquired about the deceased.
Crl.A.100092/2017
32. PW.9 Prema Chavan i.e., the wife of the deceased is
treated as hostile for the prosecution and during course of her
cross-examination she denied that accused persons poured
kerosene on her husband and set him on fire. Having regard to the
fact that this witness is the daughter of accused No.1 and sister of
accused No.2 and other accused are also her close relatives, it is
doubtful whether she has given statement before the Investigating
Officer implicating accused persons. On the other hand, during the
course of her cross-examination on behalf of the accused persons,
she has admitted the suggestions that the deceased was addicted
to bad habits and he used to gamble and had incurred heavy debts
and also he was involved in criminal cases and as such, police have
opened a M.O.B file against her husband. In fact her evidence is
supported by PW5 Kamala Chavan, who is stated to be the
neighbor of the accused persons. During the course of her
examination-in-chief she has stated that she came to know that it
was the deceased who himself set on fire by pouring kerosene and
during her cross-examination by the prosecution, she has denied
the suggestion that the accused persons refused to send the wife
of the deceased with him and when he insisted upon, they poured
kerosene and set him on fire. During the course of her cross-
Crl.A.100092/2017
examination by the defence, she has admitted that the deceased
was addicted to vices and had incurred heavy debts and he was
also involved in criminal cases and for this reason he had gone to
Bengaluru and after repeating the same things in Bengaluru, he
once again came back to Ilkal etc. Except suggesting that, since
the accused persons are also the residents of the same tanda, she
is giving false evidence to support them, the prosecution has not
placed any material on record as to the reason why this witness
has deposed regarding the deceased being addicted to vices and
had incurred debts and he was also having criminal cases
registered against him.
33. At this stage, it is relevant to note the evidence of
PW11 - Bhadrappa Lamani, who is the senior uncle of the
deceased. He has also deposed that the relationship between the
deceased and his wife was very cordial. He has deposed that,
before going to the house of accused persons to bring his wife,
deceased requested him i.e., Bhadrappa Lamani to accompany him
and when he expressed his inability, the deceased alone went to
the house of accused persons and stayed for three days, and later
he came to know that accused persons have burnt him. It is
pertinent to note that, during his cross-examination by the Crl.A.100092/2017
defence, suggestions were made that the deceased was addicted to
vices, namely he was gambling and he was drunkard and he had
incurred heavy debts and there were criminal cases pending
against him and police were searching for him, this witness has not
denied the said suggestion and on the other hand, expressed
ignorance. As the senior uncle of the deceased, he must be in the
knowledge of these facts.
34. The contention of the defence that there were several
cases pending against the deceased and M.O.B file was opened
against him is supported by the evidence of PW26 - U Sharanappa,
who has conducted later part of the investigation and filed the
charge sheet. During his cross-examination, he has admitted that
there were number of criminal cases pending against the deceased
and M.O.B card i.e., modus operandi card was opened. Of course
he has denied that, because of the pendency of criminal cases
deceased committed suicide. As noted earlier, during the course of
his 313 statement, accused No.1 has produced photocopy of M.O.B
file pertaining to deceased, according to which he was involved in a
kidnapping case and robbery case. This piece of evidence that the
deceased was involved in criminal cases and he had incurred debts,
supports the defence that, at the relevant point of time, accused Crl.A.100092/2017
No.1 had sold some land and was in possession of `8,00,000/- and
deceased wanted him to help by giving him substantial sum of
money for repaying the debts which he had incurred and when
accused No.1 did not budge to his request, he took the extreme
step of pouring kerosene on himself and setting on fire and has
falsely implicated the accused persons.
35. Though the prosecution has established the fact that
the dying declaration of the deceased was recorded first by the
Investigating Officer and subsequently by the Taluka Executive
Magistrate, the prosecution has failed to establish the motive for
the accused persons to take the extreme step of eliminating the
deceased who was the husband of the daughter of accused No.1.
On the other hand, the material placed on record by the defence
through cross-examination of the prosecution witnesses as well as
the photocopy of M.O.B record pertaining to the deceased supports
the defence that, having in dire need of money to wriggle out of
the situation, in all probabilities the deceased has tried to threaten
the accused persons by attempting to commit suicide and falsely
implicated the accused persons. However, on the analysis of the
oral and documentary evidence placed on record by the
prosecution, we have no hesitation to hold that the prosecution has Crl.A.100092/2017
failed to establish the strong motive for the accused persons to
take the extreme step of eliminating the deceased, who was no
other than the son-in-law of accused No.1 and close relative of
remaining accused persons. On the other hand, the defence has
established that the deceased had strong motive to falsely
implicate the accused persons.
36. From the above discussion, we find that this is not a fit
case to interfere with the conclusions arrived at by the trial Court
and acquitting the accused persons. In the result, the appeal filed
by the state fails and accordingly, it is dismissed.
We place on record the valuable assistance rendered by the
learned amicus curie. We direct the High Court Legal Services
Committee to pay `15,000/- as remuneration to the learned
amicus curie for the able assistance.
Sd/-
JUDGE
Sd/-
JUDGE gab
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