Citation : 2022 Latest Caselaw 4166 Kant
Judgement Date : 11 March, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.1608 OF 2016
BETWEEN:
U. KRISHNAPPA,
S/O. LATE MUNIYAPPA,
AGED ABOUT 67 YEARS,
R/O KALLAHALLI VILLAGE,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT - 561 114.
... APPELLANT
(BY SRI. A.N. RADHAKRISHNA, ADVOCATE)
AND:
1. M.N. DEVARAJ,
S/O. NANEPPA,
AGED ABOUT 35 YEARS,
MASHENAHALLI VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT - 563 125.
2
2. STATE OF KARNATAKA,
BY CHINTAMANI POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI VEERANNA G. TIGADI, ADVOCATE FOR R1:
SRI VIJAYAKUMAR MAJAGE ADDL.SPP FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 372 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF ACQUITTAL PASED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA
(SITTING AT CHINTAMANI) IN S.C.NO.74/2013 DATED
18.02.2016 ACQUITTING THE RESPONDENT
NO.1/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498(A) AND 304(B) OF IPC AND SECTIONS 3
AND 4 OF THE DOWRY PROHIBITION ACT AND
CONVICT THE RESPONDENT NO.1/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 498(A) AND
304(B) OF IPC AND SECTIONS 3 AND 4 OF THE DOWRY
PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J, DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is filed by the complainant who is the
father of the deceased against the impugned judgment
and order of acquittal dated 18.02.2016 made in SC
No.74/2013 on the file of the II Addl. District and
Sessions Judge, Chikkaballapura, sitting at Chintamani,
acquitting the accused under the provisions of Sections
498A, 304B, 306 of IPC and read with Sections 3 and 4
of the Dowry Prohibition Act. But in the operative
portion, the wrong provisions are mentioned.
2. It is the case of the prosecution that PW6 -
Krishnappa who is the resident of Kallahalli Village,
Hosakote Taluk lodged a complaint as per Ex.P3 on
12.08.2012 at about 5.00 p.m., alleging that his second
daughter Munilakshmamma has given in marriage to
one Devaraju - accused - resident of Mastenahalli
Village and their marriage was performed on
24.02.2012 at Doddakunte Anjaneya Swamy Temple of
Kaiwar. At the time of marriage, he has given 42 grams
long chain, 40 grams necklace, 6 grams ring and 12
grams hangings to his daughter Munilakshmamma as
gift and given 25 grams neck chain, 8 grams finger ring
and Rs.1,20,000/- to Devaraju as dowry and marriage
has been performed by the parents of the accused at
their own cost.
3. It is the further case of the prosecution that
from the date of marriage, his daughter was residing
with her husband. After five months of her marriage,
the husband (son-in-law and his parents) started
harassing her daughter to bring additional dowry and in
this regard sent his daughter 4 to 5 times to his house
and advised about 20 days prior to the date of incident
and the accused asked the complainant to give amount
to dug a bore well and that he will return the same. At
that time, he borrowed loan and gave to the accused a
sum of Rs.25,000/- and further the accused has dug the
bore well and got the water and he has got the
documents regarding the ornaments given to the
accused Devaraju. It is further case of the prosecution
that on 12.08.2010 at about 9.00 a.m., accused called
him and informed that his daughter Munilakshmamma
at about 7.00 a.m., got set the fire and she was in a
position to die and taking her to the hospital. When he
came to the village of the accused, he enquired with the
neighbours and came to know that his daughter was
died and Devaraju and his family members left his
daughter in the house and ran away, thereby lodged a
complaint to the jurisdictional police as per Ex.P3. The
jurisdictional police registered a case in Crime
No.173/2012 under Section 498A, 304B read with
Sections 3 and 4 of the Dowry Prohibition Act. The
jurisdictional police after investigation, filed charge
sheet against the accused.
4. After the committal of the matter to the
learned Sessions Judge, the learned Sessions judge
secured the presence of the accused and framed the
charges, explained to the accused in the language
known to him, who pleaded not guilty and claimed to be
tried.
5. In order to prove the case of the prosecution, the prosecution examined in all 13
witnesses as PWs.1 to P13 and marked documents at
Exs.P1 to P14. After considering the both oral and
documentary evidence on record, the learned Sessions
Judge framed three points for consideration.
Considering the both oral and documentary evidence on
record, the learned Sessions Judge has answered Points
No.1 and 2 in 'negative' and Point No.3 in
'affirmative' holding that the prosecution failed to
prove that the parents of the deceased have given 25
grams neck chain, 8 grams finger ring and
Rs.1,20,000/- as dowry. The accused has caused
physical and mental harassment in order to bring
dowry, thereby committed the offence under the
provisions of Section 498A of IPC read with Sections 3
and 4 of the Dowry Prohibition Act. Further recorded the
finding that the prosecution has failed to prove beyond
reasonable doubt that the accused caused physical and
mental harassment in order to bring dowry from the
matrimonial house in addition to the cash and
ornaments given at the time of marriage. Thereby,
Munilakshmamma poured kerosene on herself and got
set the fire, thereby committed an offence under the
provisions of Section 304-B of IPC and thereby the
learned Sessions Judge answered Point No.3 in the
'affirmative' and acquitted the accused for the
aforesaid offence. Hence, the present appeal is filed.
6. We have heard the learned counsel for the
parties.
7. Sri. A.N. Radhakrishna, learned counsel for
the complainant contended with vehemence that the
impugned judgment and order of acquittal passed by
the trial court acquitting the accused is erroneous and
contrary to the material on record, cannot be sustained
and liable to be set aside. He would further contend that
it is the specific case of the complainant - PW6 that his
daughter Munilakshmamma was given married to the
accused and a sum of Rs.1,20,000/- cash, gold ring and
long chain and necklace was given to his daughter -
deceased Munilakshmamma at the time of marriage.
The said material fact has not been considered by the
trial court, thereby proceeded to acquit erroneously.
8. He would further contend that after three
months of the marriage, the accused came to the house
of the complainant and demanded Rs.50,000/- to dig a
bore well and accordingly, PW6 - father of the deceased
has borrowed loan a sum of Rs.25,000/- from his
brother-in-law Sri. Anjanappa - PW7 and paid the said
amount to the accused. The said material has not been
considered in a proper perspective. He would further
contend that PW6 - the complainant has stated in his
cross-examination that his daughter was subjected to
ill-treatment since one month, which clearly depicts that
the accused was demanding dowry and giving
harassment after the marriage. The said evidence has
not been considered before passing the acquittal order.
Therefore, the impugned judgment and order of
acquittal cannot be sustained. He would further contend
that the learned Sessions Judge proceeded to acquit the
accused mainly on the basis of the presumptions and
assumptions ignoring the fact of payment of dowry by
way of cash and golden ornaments and presumption,
has to be drawn under the provisions of Section 113B of
the Indian Evidence Act as the deceased died within 7
years after the marriage. Therefore, he sought to allow
the appeal.
9. Per contra Sri. Veeranna G. Thigadi, learned
counsel for accused/respondent No.1 while justifying the
impugned judgment and order of acquittal passed by
the trial court and sought to dismiss the appeal.
10. Per contra, Shri. Vijayakumar Majage,
learned SPP for respondent No.2/State submits that the
trial court considering both the oral and documentary
evidence on record, has come to the conclusion that it
was only the customary gift, it cannot be considered as
dowry harassment and nothing has been produced
before the court to prove that it was a dowry
harassment, thereby sought to dismiss the appeal.
Sri. Vijay Kumar Majage, learned SPP for respondent
No.2/State fairly submits that the State has not filed
any appeal against the order of acquittal. But he
supported the contentions urged by the learned counsel
for the appellant/complainant and south to allow the
appeal.
11. In view of the rival contentions urged by the
learned counsel for the parties, the only point that
would arise for our consideration is:
"Whether the complainant has made out a case
to interfere with the impugned judgment and order of
acquittal passed by the trial court acquitting the
accused under the provision of Sections 498-A, 304-B
and 306 of IPC and read with Sections 3 and 4 of the
Dowry Prohibition Act?"
12. We have given our anxious consideration to
the arguments addressed by the learned counsel for the
parties and perused the entire material on record
carefully.
13. In order to re-appreciate the entire material
on record, it is relevant to consider the evidence of the
prosecution witnesses and material documents relied
upon:
(a) PW1 - Manjunath - Panchayath
Development Officer issued the House Demand Extract
as per Ex.P2 along with Ex.P1 - letter, supported the
case of the prosecution.
(b) PW2 - Sri. S.L. Krishna Murthy who
registered the case on the basis of the complaint lodged
by PW6 as per Ex.P3, supported the case of prosecution.
(c) PW3 - K. Bhavya who is the own sister of
the deceased and daughter of the complainant also
deposed about demanding dowry, causing harassment to
the deceased and deposed that the accused told that he
intended to marry her as a 2nd wife. She supported the
case of prosecution.
(d) PW4 - Somashekar is an independent
witness who deposed about the demand of dowry and
causing physical and mental harassment to the deceased
and turned hostile.
(e) Sri. K.L. Babu who is the panch witness to
the Inquest mahazar and turned hostile.
(f) PW6 - Krishnappa who is the complainant
and father of the deceased who stated on oath regarding
the complaint averments stated on oath that he has
given Rs.1,20,000/-, neck chain, finger ring to the
accused and long chain, one necklace, finger ring and
hangings to his daughter as customary gifts at the time
of marriage and he was taking care of his daughter.
Thereafter both his daughter and son-in-law came to
him, requested for an amount of Rs.50,000/- and told
that he will return the same. Thereafter PW6 borrowed a
sum of Rs.25,000/- from his brother-in-law PW7 -
Anjanappa and given to him. In the cross-examination,
he has admitted that from the date of marriage till the
accused died, the accused and his family members were
harassing his daughter, but has not lodged any
complaint to the jurisdictional police. He has further
admitted in the cross-examination that he has given
Rs.1,20,000/- cash, neck chain and finger ring to his
son-in-law as varopachara (customary gift) and he has
given gold ornaments to his daughter as gifts.
(g) PW8 - Kaluram and PW10 - Shankar who
deposed about purchase of golden articles by PW7 under
Ex.P9, supported the case of the prosecution. PW9 -
Patalappa was also present at the time of negotiation
before the marriage and he was also present in the
marriage, supported the case of prosecution. PW11 -
Anjineyareddy is the panch witness to the spot mahazar,
supported the case of prosecution.
(h) PW12 - B. Ramesh - Investigating Officer,
who investigated the case and filed charge sheet.
(i) PW13 - Nagaraj who is the evidence to the
Inquest Panchanama-Ex.P8 supported the case of
prosecution.
14. On careful reading of the complaint - Ex.P3,
on 12.08.2013, though according to the complaint, the
accused and his parents harassed, assaulted and
abused the deceased and sent her to her parents' house
4 to 5 times, her father has not lodged any complaint.
He further stated that he has paid a sum of Rs.25,000/-
to the accused for digging of bore-well 20 days prior to
the unfortunate incident, but no material produced in
whose presence he has paid a sum of Rs.25,000/- to
the accused. Neither produced any material to show
that the father of the accused has dug the bore well and
got the water nor receipt to that effect. In the cross-
examination, he has admitted that whatever amount
paid and ornaments given to the accused as customary
gifts as well as to his daughter, he has also admitted in
the cross-examination, he has not lodged any complaint
to the jurisdictional police. Even though the accused
sent his daughter 4 to 5 times to bring the additional
dowry, he has not lodged the complaint. Admittedly, in
the present case, the prosecution has not examined any
neighbours to prove the alleged ill-treatment or
harassment of dowry given to the deceased. PW6 -
complainant has admitted in the cross-examination that
whatever the cash and gold ornaments given to the
accused and his daughter at the time of marriage was
customary gifts and he has admitted that the marriage
was performed by the accused and his parents.
15. The evidence of PWs.3, 6, 7 clearly depicts
that PW6 has given customary gifts to the accused and
his daughter at the time of marriage, which does not
amounts to dowry and the same is admitted by PW6 in
his cross-examination that the gifts given to the
accused and his daughter are customary gifts to the
newly married couple.
16. Under the Provisions of Sections 3(2)(a) and
(b) of the D.P. Act, depicts the presents which are given
at the time of a marriage to the bride (without any
demand having been made in that behalf) and presents
which are given at the time of a marriage to the
bridegroom (without any demand having been made in
that behalf) will not comply to sub section (1) after
commencement of the Act - imprisonment, penalty for
giving or taking dowry. PW6 who has given the cash
and gold ornaments has admitted in the categorical
terms that it was a customary gifts to both bride and
bride grooms i.e., for newly wedded couple given at the
time of marriage, thereby the prosecution has failed to
prove the provision of Sections 3 and 4 of the Dowry
Prohibition Act, 1961.
17. In order to prove the harassment under
Section 498-A of IPC, absolutely there is no material
produced by the prosecution about the harassment as
admitted by PW6 in the cross-examination that though
the accused and his parents demanded for dowry and
sent the deceased to her parents' house 4 to 5 times,
the complainant has not lodged any complaint and
admittedly either none of the witnesses have deposed
about the constant harassment or assault on the
deceased by the accused or his parents and no
complaint is lodged to that effect, as admitted by PW6
nor it is evident from any of the neighbours or owner of
the house where deceased and accused were residing to
prove the harassment. There is no material to prove the
physical and mental harassment in order to bring
dowry, to attract Section 498-A of IPC.
18. In order to attract Section 304-B of IPC,
presumption could be raised only on the following five
aspects :
(a) death took place within 7 years one month
from the date of marriage.
(b) Such death took place in normal
circumstance.
(c) Woman subject to cruelty by husband or
relatives.
(d) Such cruelty, harassment was for or in
connection with any demand of dowry and
(e) Such cruelty, harassment was soon before
her death.
19. In the present case, it could be seen from
Ex.P3 - complaint and evidence of PW6 - father of the
deceased, the death took place within seven years from
the date of marriage by deceased herself poured
kerosene oil on her and set the fire and the deceased
was not subjected to the cruelty or harassment by the
husband or his relatives and such cruelty, harassment
was not for or in connection with any demand of dowry
as alleged by the prosecution and such cruelty or
harassment was not soon before her death.
20. Admittedly, the deceased was not subjected
to any cruelty or harassment. There is no complaint
either by the deceased or by her parents as admitted by
PW6 in the cross-examination. The expression 'soon
before her death' used in the substantive Sections 304B
IPC and 113B of the Evidence Act was considered by the
Hon'ble Supreme Court in the case of Hira Lal -vs-
State (Government of NCT of Delhi) reported in (2003)8
SCC 80, wherein at paragraph-8 it is held as under:
8. Section 304B IPC which deals with dowry death, reads as follows:
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub- section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In
order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
21. The Provisions of Section 113-B of the
Evidence Act is also relevant for the case at hand. Both
Section 304B IPC and Section 113-B of the Evidence Act
were inserted as noted earlier by Dowry Prohibition
(Amendment) Act 43 of 1986 with a view to combat the
increasing menace of dowry deaths. Section 113-B
reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."
The necessity for insertion of the two
provisions has been amply analysed by the Law
Commission of India in its 21st Report dated 10-
8-1988 on "Dowry Deaths and Law Reform".
Keeping in view the impediment in the pre-
existing law in securing evidence to prove dowry-
related deaths, the legislature thought it wise to
insert a provision relating to presumption of
dowry death on proof of certain essentials. It is in
this background that presumptive Section 113-B
in the Evidence Act has been inserted. As per the
definition of "dowry death" in Section 304B IPC
and the wording in the presumptive Section 113-B
of the Evidence Act, one of the essential
ingredients, amongst others, in both the
provisions is that the woman concerned must
have been "soon before her death" subjected to
cruelty or harassment "for or in connection with
the demand of dowry". Presumption under
Section 113-B is a presumption of law. On proof
of the essentials mentioned therein, it becomes
obligatory on the court to raise a presumption
that the accused caused the dowry death.
22. Though the learned counsel for the
complainant/appellant contended with vehemence that
the evidence of PWs.3, 6 and 7 is consistent with the
demand of dowry, in the cross-examination of PW6 who
is the complainant - father of the deceased in
categorical terms has admitted that whatever cash,
ornaments given to both bride and bride grooms at the
time of marriage was customary gifts, thereby the
provisions of either Section 498-A and 304-B of IPC or
Sections 3 and 4 of the Dowry Prohibition Act was not
proved by the prosecution beyond reasonable doubt. In
the absence of any oral and documentary evidence with
regard to the involvement of the accused, the trial court
is justified in acquitting the accused for the aforesaid
offences made out under Section 498A and 304B of IPC
and Sections 3 and 4 of the Dowry Prohibition Act.
23. The material on record clearly depicts that
the prosecution failed to prove beyond reasonable doubt
the payment of Rs.1,20,000/- and gold ornaments to
the accused as dowry and physical and mental
harassment given to the deceased was dowry
harassment as contemplated under the provision of
Section 498-A, 304-B of IPC and Sections 3 and 4 of the
Dowry Prohibition Act, thereby the learned Session
Judge considering the entire material on record, has
rightly recorded the finding that the prosecution failed
to prove beyond reasonable doubt the allegations
against the accused. Paragraphs 27, 28 and 29 of the
judgment of the trial court reads as under ;
"Para 27 - There is no evidence and material placed by the prosecution to prove that after the marriage, there was demand of dowry by the accused or even prior to the marriage or as on date of marriage negotiation. The PW 6 and 9 have deposed that they have given amount and gold ornaments to the accused as Varopachara. The said varopachara is not a dowry as same reported in 2011 Crl.reports page 183 KAR as referred on. Under circumstances the prosecution has failed to prove that the accused demanded the dowry in connection with the marriage and PW 6 has paid the samed. As already discussed above there was no demand of dowry. He had demanded amount in order to dig the borewell for better cultivation and good yield. In other words it is for the development of agriculture. There fore it is not demand of dowry.
Para 28 - Even there is no specific evidence and sufficient material that the accused demanded and expressed his intention to marry PW 3 Bhavya during the life time of deceased and caused physical and mental harassment to the deceased in this regard.
Para 29 - No doubt the document shows that he has purchased the ornaments as per Ex.P9 in the name of PW 7. PW6 has stated in his complainant Ex.P3 that he has got document for purchase of golden ornaments. These documents shows that golden ornaments purchased in the name of PW 7 Anjinappa, who is the brother in law of PW 6. These documents are not in the name of PW 6 Krishnappa. No doubt PW 7 is the brother-in-law of PW 6, he might have purchased the these ornaments. But it is not the case of prosecution that the entire amount paid by PW 6 to purchase these ornaments. No doubt PW 7 Anjinappa might have assisted to purchase these articles. He ought have get the bills in the name of Pw 6 Krishnappa. Even assuming that these articles purchased by PW 6 through PW 7, the prosecution has failed to prove that the accused has demanded dowry in connection with and prior to the marriage or at the time of negotiation of the marriage. Under the circumstances the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Hence prosecution has failed to prove that soon before the death of deceased there was physical and mental
harassment in connection with demand of dowry and there fore the deceased committed suicide."
24. After re-assessing the oral and documentary
evidence on record, we are of the considered opinion
that the impugned judgment and order of acquittal
passed by the trial court acquitting the accused for the
offence punishable under Sections 498A, 304B and 306
of IPC and Sections 3 and 4 of the Dowry Prohibition Act
is sound and reasonable. The scope of appeal filed by
the complainant is very limited unless this court while
considering the material on record finds that the
findings of the learned Sessions judge are perverse. The
Appellate Court has power to review and re-appreciate
the entire evidence on record. This court would be
justified in reversing the judgment of acquittal only if
there are substantial and compelling reasons and when
the judgment of the trial court is found to be perverse
judgment. This court cannot interfere with the judgment
and order of acquittal passed by the trial court. On the
basis of the evidence on record, this court should not
disturb the finding of the trial court recorded. In the
present case the reasons assigned and conclusion of the
trial court are sound and proper. Our view is fortified
with the dictum of the Hon'ble Supreme Court in the
case of Arulvelu and Another vs. State represented
by the Public Prosecutor and another reported in
2009 (10) SCC 206 as held as under ;
"Para 40 - Unquestionably, the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by aforementioned judgments of this Court. The accused is presumed to be 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. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court."
25. On re-appreciation of the entire oral and
documentary evidence on record and in the light of the
dictum of the Hon'ble Supreme Court stated supra, we
find no ground to interfere with the impugned judgment
and order of acquittal, in the peculiar facts and
circumstances of the case.
26. For the reasons stated above, the point
raised in this appeal is answered in the 'negative'
holding that the appellant/complainant has not made
out any ground to interfere with the impugned
judgment and order of acquittal of the accused under
the provisions of Sections 498-A and 304-B of IPC read
with Sections 3 and 4 of the Dowry Prohibition Act in
exercising the power conferred under Section 372 of
Cr.P.C.
27. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal filed by the
complainant/PW6 is hereby dismissed as
devoid of merits.
(ii) The impugned judgment and order of
acquittal dated 18.02.2016 made in SC
No.74/2013 on the file of the II Addl.
District and Sessions Judge,
Chikkaballapura, sitting at Chintamani,
acquitting the accused under the provisions
of Sections 498A, 304B, 306 of IPC read
with Sections 3 and 4 of the Dowry
Prohibition Act is hereby confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
SNC
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