criminal appeal

This tag is associated with 41 posts

Apex court – leniency in sentence, considering the age of the first appellant Smt. Ashi Devi, in Criminal Appeal No.1022 of 2009. In the Memorandum of Appeal herein her age is mentioned as 88. As on date she is aged 93 years. The jail certificate dated 1.4.2009 states that she was admitted to Tihar Jail on 5.2.2009. This Court granted bail to her by order dated 13.5.2009. The above shows that she has undergone a part of the sentence. Considering her old age we are inclined to modify the sentence awarded to her= Ashi Devi & Ors. .. Appellant(s) versus State (NCT of Delhi) .. Respondent(s) =2014 (June .Part) http://judis.nic.in/supremecourt/filename=41571

Apex court – leniency in sentence, considering the age  of the first appellant Smt. Ashi Devi, in Criminal Appeal No.1022 of 2009. In the Memorandum of Appeal herein her age is mentioned as 88. As on date she is aged 93 years. The jail certificate dated 1.4.2009 states that she was admitted to Tihar Jail on 5.2.2009. This Court granted … Continue reading

When sec. 304 Part II applies – “ 300. Murder.- xx xx xx Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.” The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case…..“ In this background when we consider the facts of the present case, we have no manner of doubt that Exception 4 to Section 300 of the IPC is not at all attracted. In the case in hand, the convicts had entered the room of the daughter of the deceased in midnight, molested her and the poor father, perhaps because of his age, could not do anything other than to abuse the convicts. He gave choicest abuses but did not fight with the convicts. Verbal abuses are not fight as it is well settled that at least two persons are needed to fight. Therefore, this ingredient is not satisfied. Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and accused Dusasan brought a lathi and assaulted her father.” This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion. So far as the convict, Kampa @ Sricharan Naik is concerned, he is convicted with the aid of Section 34 of the IPC. All of them have come together and participated in the crime which goes to show that these convicts shared the common intention. In the face of what we have observed above, it is clear that the High Court erred in holding that the offence for which the convicts can be held guilty shall be Section 304 Part II of the IPC. In the result, we allow this appeal, set aside that portion of the judgment of the High Court whereby it had altered the conviction of the respondents from Section 302/34 of the IPC to that of Section 304/34 of the IPC and restore that of the trial court. The respondents, if have not already undergone the sentence awarded by the trial court, shall forthwith be taken into custody to serve out the remainder of the sentence.


mere non-joining of an independent witness – not fatal to the prosecution = Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.= In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. – Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40594 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2302 of 2010   Gian Chand & Ors. …Appellants Versus   State of Haryana …Respondent J U D G M E N T Dr. B.S. Chauhan, J.   1. This appeal has been filed against the judgment and order … Continue reading

Alteration of conviction under sec302 to sec. 325 IPC = .In a sudden fight, a simple act of throwing stone does not comes under sec. 302 without the prosecution proving the intention and motive on the part of accused who has no previous score with the deceased = .In the course of that altercation appellant No.2 does appear to have hurled a stone towards the deceased which hit and injured him but there is nothing to show that the injury was by itself sufficient to cause death in the ordinary course nor is there anything to show that there was any pre-concert between the appellant-Manoj and his father to kill the deceased. In the absence of any evidence, let alone evidence that is reliable and cogent, to show that appellant No.2 intended to cause death or shared the intention to cause death with his son, it is difficult to sustain his conviction for murder punishable under Section 302 of the IPC. The prosecution has not even alleged a motive against appellant No.2. The motive based on illicit relationship between appellant-Manoj and the wife of the deceased, could hardly be attributed to appellant No.2, no matter, the incident started with an altercation in which even he got involved. The sudden fight between the appellants on the one hand and the deceased on the other, escalated into a tragedy for the deceased but the responsibility for the gruesome assault, cannot be shifted from Manoj who used a dangerous weapon like a Sword to fatally injury the deceased. The stone thrown by appellant No.2 may have triggered the incident to its ugly end but beyond that appellant No.2 cannot be attributed the responsibility of murder with or without the assistance of Section 34 of the IPC. Appellant No.2 can at best be held guilty of causing grievous hurt to the deceased punishable under Section 325 of the IPC. = The conviction of appellant No.2 is, however, altered from Section 302 read with Section 34 IPC to Section 325 IPC. Appellant No.2 has been in jail for nearly 3½ years now which sentence should, in our opinion, suf

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40529 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.852 OF 2013 (Arising out of S.L.P (Crl.) No.2597 of 2012) Manoj and Anr. …Appellants Versus State of Karnataka …Respondent J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This appeal by special leave arises … Continue reading

Rape by Police in Custody – absence of medical examination about the Rape is not fatal to the prosecution as they made efforts to get medically examined through petition, through complaint but the Doctors refused =the complainant and one Kamaljit Kaur, who were working as ‘dai’ and nurse respectively, and brought them to the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released.- in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989. – The appellants in their statements under Section 313 Cr.P.C. before the trial court, on the other hand, took the defence that the complainant (PW-3) along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. = the trial court and the High Court have recorded the findings of rape committed by the appellants on PW-3 because of her consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the Governor made within a few days of her release from Police Station on 09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW- 1, PW-2 and PW-3 have deposed that an attempt was made for a medical examination in the Civil Hospital, Balachaur, and the hospital at Saroa but the doctors refused to conduct the medical examination on account of the pressure from the appellant-Radha Krishan, but DW-11 and DW-12, the doctors in the hospital, have denied that they had refused to conduct the medical examination. The result is that there is no medical evidence to support the allegation of rape made by PW-3 against the appellants. The High Court, however, has held that as PW-3 was not a young woman, medical examination was not significant and absence of medical examination may not be sufficient to disbelieve PW-3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989 before the Magistrate and in her deposition in Court that she was detained in the night and raped by the appellants and both the trial court and the High Court have found that soon after she was released from the Police Station on 10.02.1989, she stated before her husband (PW-1) and the neighbour (PW-2) that she had been raped by the appellants and that she was bleeding profusely. The trial court and the High Court, therefore, have come to the finding of guilt of rape against the appellants relying on the evidence of PW-3 as corroborated by the evidence of PW-1, PW-2 under Section 157 of the Indian Evidence Act.= Thus, the trial court and the High Court have recorded concurrent findings of facts holding the appellants guilty of the offences under Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and the appellant- Radha Krishan guilty of the offence under Section 342 IPC also. = It has been repeatedly held by this Court that even though the powers of this Court under Article 136 of the Constitution are very wide, in criminal appeals this Court does not interfere with the concurrent findings of facts, save in exceptional circumstances where there has been grave miscarriage of justice

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40523 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 232 of 2007 Charanjit & Ors. …… Appellants Versus State of Punjab & Anr. ….. Respondents       J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave … Continue reading

Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.= We do not find any bonafides in the application of the second respondent, while seeking the permission of the Court under Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the appellant based on the subsequent incident, which took place on 30.5.2007, which resulted in the registration of the FIR in Khizersarai Police Station in case No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 Cr.P.C., by way of an afterthought. If really there was a threat to his life at the instance of the appellant and the other accused, as rightly noted by the Court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the second respondent herein and the categorical statement made before the Court below in his evidence as appreciated by the Court below was in the proper perspective, while rejecting the application of the respondents filed under Section 311 Cr.P.C. In our considered opinion, the trial Court, had the opportunity to observe the demeanour of the second respondent, while tendering evidence which persuaded the trial Court to reach the said conclusion and that deserves more credence while examining the correctness of the said order passed by the trial Court. In the light of the above conclusion, applying the various principles set out above, we are convinced that the order of the trial Court impugned before the High Court did not call for any interference in any event behind the back of the appellant herein. The appeal, therefore, succeeds. The order impugned dated 9.12.2010, passed in Crl. M.P. 12454/2010 of the High Court is set aside. The order of the trial Court stands restored. The trial Court shall proceed with the trial. The stay granted by this Court in the order dated 7.3.2011, stands vacated. The trial Court shall proceed with the trial from the stage it was left and conclude the same expeditiously, preferably within three months from the date of receipt of the copy of this order.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40520 Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2013 (@ SLP (CRL.) No.2400 of 2011) Rajaram Prasad Yadav ….Appellant VERSUS State of Bihar & Anr. ….Respondent J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. Leave granted. 2. This appeal is … Continue reading

Section 302 read with 149, 307 read with 149, as well as for offences under Sections 452, 148 and 147 IPC.= whether there was any controversy relating to the place of occurrence in order to doubt the case of the prosecution,-The I.O. found blood in the ‘Verandah’ of the third storey. He also found some pellets there. He had prepared memo Ext.Ka-7. It is also said that the incient had taken place in the ‘Verandah’ of the third storey of the house. PW-2 Smt. Zabira has clearly stated in her cross-examination that at the time of the incident all the injured were sitting in the ‘Verandah’ of the third storey. Thus, the place of occurrence was not doubtful.” ; whether there was any doubt about the death of the deceased, as submitted on behalf of the appellants. Mr. Jaspal Singh, learned senior counsel in his submissions referred to the Criminal Appeal No.752 of 2008 27 of 30 evidence of P.W.4, Dr. Irfan Ahmad, who examined the injured including the deceased at 5:45 pm on 05.09.1997 and contended that according to the doctor all the injuries were caused by firearm, that such injuries might have been caused from the distance of 40 feet, that the injuries were on the front side, that there was no injury on the head as compared to the evidence of P.W.5, the postmortem doctor, who stated categorically that injury No.1 was on the right side of the head, which might have been caused by Lathicharge, which was also the version of P.W.3. The learned counsel made further reference to Ext.A-18 by which the death of the deceased was communicated by the doctor to the police station for conducting a postmortem and the postmortem held on 07.09.1997. By making further reference to Ext.Ka-5, the postmortem report, which was issued by U.H.M. Hospital, Kanpur by one Dr. B.S. Chauhan while the name of P.W.5 the postmortem doctor who gave evidence was mentioned as Dr. P.V.S. Chauhan of Ursala Hospital, Kanpur, the learned counsel submitted that there were serious doubts as to whether it related to the corpse of the deceased and the concerned postmortem report really related to the deceased Zahiruddin in this case. Though, in the first blush, the said contention made on behalf of the appellants appear to be of some substance, on a close reading of the evidence of P.Ws.4 and 5, we find that such instances pointed out by learned counsel were all of insignificant factors and based on such factors it cannot be held that there was any doubt at all as to the death of the deceased or the injuries sustained by him as noted by P.W.4 in Exts.Ka-2, Ka-3 and Ka-4. Ext.Ka-3 is related to the deceased. Ext.Ka-5 postmortem certificate was issued by P.W.5. We should also state that nothing was put to the above said witnesses with reference to those alleged doubts relating to the death of the deceased Zahiruddin. We are not, therefore, inclined to entertain the said submission at this stage in order to find fault with the case of the prosecution.; whether there was any scope to hold that the offence would fall under Section 304 Part I or II and not under Section 302 IPC and that no other offence was made out, we can straight away hold that having regard to the extent of the injuries sustained by the deceased, P.Ws.2 and 3 and the aggression with which the offence was committed as against the victims, which resulted in the loss of life of one person considered along with the motive, which was such a petty issue, we are of the firm view that there was absolutely no scope to reduce the gravity of the offence committed by the appellants. We are, therefore, not persuaded to accept the said feeble submission made on behalf of the appellants to modify the conviction and the sentence imposed. 28. For all the above stated reasons, we do not find any merit in this appeal. The appeal fails and the same is dismissed.

published in http://judis.nic.in/supremecourt/filename=40475 Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.752 OF 2008 Rafique @ Rauf & others ….Appellants VERSUS State of U.P. ….Respondent J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. This appeal by the eight accused who were proceeded against in Crime … Continue reading

Mere Delay in sending FIR not fatal to the prosecution = where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

published in http://judis.nic.in/supremecourt/filename=40473 Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1020 OF 2004 Sheo Shankar Singh …. Appellant VERSUS State of U.P. ….Respondent CRIMINAL APPEAL NO.1021 OF 2004 Sarvajit Singh @ Sobhu …. Appellant VERSUS State of U.P. ….Respondent J U D G M E N T Fakkir Mohamed Ibrahim … Continue reading

eloped out of free will – has no place = On the aforestated aspect of the matter, she was not subjected to cross-examination at the behest of the accused. Only a suggestion was put to her, that she had persuaded the accused-appellant Jarnail Singh to take her away, in order to perform marriage with her, and for the said purpose had taken away cash, clothes and jewellery from her own residence. The aforestated suggestion was denied by the prosecutrix VW – PW6. It may still have been understandable, if the case had been, that she had consensual sex with the accused-appellant alone. But consensual sex with four boys at the same time, is just not comprehensible. Since the fact, that the accused-appellate Jarnail Singh and the prosecutrix VW – PW6 had eloped together is not disputed. And furthermore, since the accused-appellant having had sexual intercourse with the prosecutrix is also the disputed. It is just not possible to accept the proposition canvassed on behalf of the accused appellant. We, therefore, find no merit in the instant submission. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW – PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accusedappellant Jarnail Singh. – Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW – PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accusedappellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW – PW6. The prosecutrix VW – PW6, was not subjected to crossexamination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any.

published in http://judis.nic.in/supremecourt/filename=40458 Page 1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1209 OF 2010 Jarnail Singh … Appellant Versus State of Haryana … Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. The factual position on which the prosecution version is founded, commences with the … Continue reading

CHEATING – HAVING SEXUAL INTERCOURSE ON THE PROMISE OF MARRYING = The facts as they unfold from the statement of the prosecutrix Poomari (PW1) are, that even before the first act of sexual intercourse, the accused-appellant Karthick used to tease her. He also used to tell her, that he wished to marry her. The fact that he had sexual intercourse with her, when the prosecutrix Poomari (PW1) was all alone in her house, is not disputed. The prosecutrix Poomari (PW1) has confirmed in her deposition, that at the time of the first sexual intercourse with her at her house, the accused- appellant Karthick had gagged her mouth with his right hand. He had promised to marry her, by placing his hand on her head, after having ravaged her. The subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance. At the temple, for the first time the accused-appellant Karthick told the prosecutrix Poomari (PW1), that he would not marry her. The instant factual position has been confirmed by Chandran (PW9) and Ilangovan (PW10). Despite lengthy cross-examination, the accused-appellant has not been able to create any dent in the testimony of the prosecutrix Poomari (PW1). In the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) by promising to marry her. On the strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. Therefore, in the facts and circumstances of this case, it is not possible for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused- appellant Karthick with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.; NO DELAY IN FILING A CASE = there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. 18. No other submission, besides those noticed hereinabove, was advanced at the hands of the learned counsel for the appellant. For the reasons recorded hereinabove, we find no merit in this appeal. The same is accordingly dismissed.= “The accused-appellant Karthick was ordered to be released on bail by this Court vide order dated 4.4.2008. He shall now be taken into custody, to serve the remaining part of the sentence.”

‘ ‘ PUBLISHED IN http://judis.nic.in/supremecourt/filename=40457 “REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.601 OF 2008 Karthi @ Karthick … Appellant Versus State Rep. by Inspector of Police, Tamil Nadu … Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. The appellant, Karthi @ Karthick was convicted for … Continue reading

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