Full Judgment Text
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PETITIONER:
DHARMA RAMA BHAGARE
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA
DATE OF JUDGMENT13/12/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 476 1973 SCR (3) 92
1973 SCC (1) 537
ACT:
Criminal Trial-Evidence-Alleged discrepancy between medical
evidence and testimony of eye-witnesses whether justifies
acquittal F.I.R. whether can be used to contradict
statements of witnesses other than the marker thereof-
Sentence of death-No leniency when only reason for killing
is difference of religion.
HEADNOTE:
The appellant v.-as convicted by the Sessions Judge of
offences under ss. 148,323 and 302 I.P.C. The High Court
maintained his conviction and confirmed the sentence to
death. in appeal by special leave to this Court it was
contended that (i) the evidence of the eye-witnesses went
against the medical evidence and thereof the former was
wrongly relied on by the courts below; (ii) the evidence of
the three eye-witnesses on which the conviction of the
appellant was based was contradicted by the F.I.R. lodged by
S, one of the victims of the incident and therefore should
not have been relied on; and (iii) the sentence of death
passed against the appellant was excessive.
Dismissing the appeal,
HELD:(i) The fact remained that an arrow was actually
found ,underneath A’s dead body and according to the doctor
the injury on the ,deceased could be caused by that arrow.
The mere fact, therefore that in the opinion of the doctor
the arrow with the hook, unless skillfully pulled out of the
wound was likely to cause more damage was not a sufficiently
strong factor to reject the testimony of the three eye-
witnesses believed by the courts below and about whose
trustworthiness there could ’be no reasonable doubt.
(ii)The F.I.R. could only discredit the testimony of S
whose evidence had not been relied upon to support the
appellant’s conviction. The F.I.R. could by no means be
utilised for contradicting or discrediting the other
witnesses who obviously could not have any desire to spare
the real culprit and to falsely implicate the appellant.
The evidence of the eye-witnewes believed by the two courts
appeared to be free from any serious infirmity justifying
its rejection. The case was obviously not one in which any
reasonable doubt could be cast on the testimony of the eye-
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witnesses on the mere ground that S who apparently in his
attempt to save himself from the fierce indiscriminate
assault by the assailants was not able carefully to see and
remember as to in what manner and ’by what weapon his
parents and eldest brother had been killed.
(iii)The relevant considerations in determining the
sentence, broadly stated, include the Motive for, and the
magnitude of, the offence and the manner of its commission.
In this case the victims of the assault had given no offence
to the appellant or his associates. They were actually runni
ng in panic on seeing the mob, to save themselves.
The commission of offences motivated only by the fact that
the victim professes a different religious faith could not
be treated with leniency.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 281 of
1971.
Appeal by special leave from the Judgment and order dated
May 18, 1971 of the Bombay High Court in Cr. A. No. 262 of
1971 and confirmation case No. 57of 1971.
S. K. Dholakia and R.C. Bhatia, for the appellant.
H. R. Khanna and B. D. Sharma, for the respondent.
DUA, J. The appellant in this appeal by special leave
(accused no. 1 in the trial court) was convicted by the
Second Additional Sessions Judge of Thana of offences under
ss. 148, 323 and 302, I.P.C. and was sentenced to death
under S. 302 and to various terms of rigorous imprisonment
under ss. 148 and 323 of the said Code. The High Court
maintained his conviction and confirmed the sentence of
death. He has now appealed to this Court and Shri Dholakia,
learned counsel appearing in support of this appeal, has
addressed lengthy arguments challenging both the conviction
and the sentence.
This case is an off-shoot of the unfortunate communal riots
which occurred on May 7, 1970 in the town of Bhiwandi in
Thana District in the State of Maharashtra. Though the
trouble originally-started in the town of Bhiwandi it spread
to the neighboring towns and villages. In the Thakurpada of
Tansa village there lived one Abdul Khalil aged about 55
years along with his family members. This was the only
Muslim family in Thakurpada. He and his wife Sahebi had ten
children. Their names and ages in the order of seniority
are : Shaukat (son) about ’2’3 years, Shamsuddin (son, who
has appeared as P.W. 1) about 19 years, Kasam (son) about
17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam
(son) about 11, Fatma (daughter) about 9, Hamshera
(daughter) about 4, Salim (son) about 3 and Nazar (son about
4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all
three used to work in Nevigation Company at Mohilla about 2-
21 miles away from Tansa. Abdul Khalil was a truck driver
and Shaukat, a clearner. As communal trouble spread to
other places in the district, some danger to the Muslim
families in Tans a-’village was also apprehended. In that
village there were perhaps about 5 or 6 Muslim families. On
the outskirts of this village there is the great Tansa lake
which supplies water to Bombay city. Mr. Khatkhate, a
Hydraulic Engineer is in charge of that lake. He has an
office on the site with several employees of the Municipal
Corporation of Bombay working under him living on the site.
Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned
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him that there was a likelihood that he and the members of
his family might be attacked and that they should leave
Tansa village and go to a safer place. As
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a result of this warning, Abdul Khalil and the members of
his family abandoned their home and left Tansa village at
about 6 p.m. on May 12, 1970. They went into the forest
area surrounding the great Tansa lake and encamped on a
hilock known as Maholi hillock about 2 1/2 miles away from
the village. They spent the night at the hillock but having
run short of water in the morning they shifted at about 10
a.m. on May 13, 1970 to the Nursery area of Tansa lake which
is near the water’s edge. This spot was about three or four
furlongs away from Tansa village. They spent most of the
day there. In the evening at .about 6 or 6.30 Shamsuddin,
the. second son, went a little distance away from the family
members to ease himself when he saw a mob of about 30 or 35
persons armed with axes, spears and sticks coming from the
side of the Tansa lake towards the place where Abdul Khalil
and his family were staying. Seeing the mob approaching
them Shamsuddin ran back to his parents and informed them
about what he had seen. The mob was raising shouts. The
members of Abdul Khalil’s family feeling frieghtened started
running in different directions. They roughly formed
themselves into three groups. One group consisted of Kasam,
Hanif, Nizam, Salim and Hashma, the other consisted of’
Jubeda, Fatma and their mother Sahebi who was also carrying
in her arms the baby Nazir and the third group which was the
last to leave the spot consisted of Khalil and Shaukat. As
these two persons were the last to leave the spot the mob
had in the meantime come close to them. They thus became
the first target ,of the attack by the mob. The appellant
Dharina Rama Bhagare, who was armed with a bow and arrows
shot an arrow at Khalil which pierced him in the back.
Khalil fell down and was surrounded by other assailants, who
started belabouring him. Abdul Khalil’s eldest son Shaukat
seeing his father being attacked went to rescue him but he
had hardly gone a few paces when another arrow discharged by
the appellant struck him at his back near his right
shoulder. Shaukat also fell down as a result of the injury
caused by the arrow about two or three paces away from his
father. He was also assaulted by some members of the mob.,
On seeing her husband and her eldest son being thus
assaulted Sahebi raised alarm but she was also attacked by
the appellant who shot the third arrow at her. This struck
her on the left side above the waist with the ’result that
she also fell down with her infant child in her arms. She
died instantaneously. Some of the other members of Khalil’s
family hid themselves behind the trees or Karvandi bushes
round about the spot whereas some of them were still running
away to save themselves. Jubeda, the young daughter on
seeing her father, mother and brother being shot at with
arrows, shouted. This apparently annoyed the appellant who
picked up a stone and flung it at her, thereby causing an
injury on hear head. Budhya,
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one of the accused, also struck a blow at her with an iron
bar thereby injuring her right hand. Shamsuddin who was
hiding himself behind a tree was noticed by some of the
accused persons. Budhya accused ran towards him and
assaulted him with the butt end of-an- axe. Some of the
other accused persons also assaulted him with the result
that Shamsuddin lost consciousness. Thereafter the
assailants left the scene, of occurrence and went away. As
a result of this occurrence three members of this family
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died on the spot whereas two members suffered injuries.
After regaining consciousness Shamsuddin and the surviving
members of the family seeing their parents and eldest
brother dead, were so terrified that they left the dead
bodies at the scene of the occurrence and picking up their
belongings proceeded on foot towards Shahpur town in the
Taluk headquarters where one Gafoor, a brother-in-law of
Shamsuddin lived. Sending Kasam, Hanif and Nazir to the
house of Gafoor, Shamsuddin himself along with others went
to the police station. At the police Station there was only
a head constable by name Bendhari (P.W. 4) who found
Shamsuddin not in a fit condition to make a statement.
Shamsuddin, who had sustained many injuries, was soaked in
blood. The headconstable, therefore, after making an entry
to this effect in the Station Dairy, sent Shamsuddin and
Jubeda to Shahpur dispensary for treatment. At about 10
O’clock in the morning of May 14, 1970 the police Sub-
Inspector in charge of the police station, Dattatreya Potdar
(P. W. 13), came to the police station and on being
apprised of Shamsuddin and Jubeda having gone to Shahpur for
treatment he sent for Shamsuddin from the dispensary and
recorded the first information report, Ex. 4. After
registering the offence he took up investigation. He sent
for Kasam from Gafoor’s house and proceeded with him to the
scene of the occurrence, reaching there at about 2 p.m. They
remained there till about 5 p.m. The Sub-Inspector prepared
panchanamas of the dead bodies and of the scene of the
offence. The scene of the offence was about 400 ft. away on
the southern side of Tansa lake in the area known as
Nursery. Underneath the dead body of Abdul Khalil was found
an arrow which had blood-stains on it. The exact words of
the panchanama relating ,to the recovery of this arrow are :
"There is seen an arrow and a bow pressed in the stomach
between both the legs of the deceased. On taking the arrow
out it is found that its length is 5" and is of iron". On
examination by the Chemical Analyser the stains on this
arrow were found to be of human blood. Thereafter the three
dead bodies were sent through constable Mahadik to the
Medical Officer at Shahpur for postmortem examination.
After proceeding to Tansa village the Sub-Inspector arrested
the appellant along with eight other persons at about 8 p.m.
They were accused nos. 1 to 9 in the trail court. The
following morning, that is, May 15, 1970
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the P.S.I. recorded the statements of Kassam and Jubeda.
Hanif was also called but as he was crying all the time he
was not able to make any statement. On May 16, 1970 the
appellant made a statement leading to the recovery of a bow
and four arrows from a spot in Karvandi shrubs about 85
paces away from his house. The recovered bow and four
arrows were exhibited as 11, 11a, 12a, 12c and 12d. These
articles were hidden under dry leaves. One of the arrows
had, blood gains on it but on examination the stains being
disintegrated it could not be said if they were of human
blood. The statement of Hanif was recorded by Vishwanath,
Police Inspector in July, 1970 after he had taken over the
investigation.
The Additional Sessions Judge, Thana, who tried the case
relied on the evidence of Kasam (P.W. 2), Jubeda (P.W. 3)
and Hanif (P.W. 5). These witnesses, according to the trail
court, had not displayed any tendency to introduce falsehood
in their statement though it felt that the evidence of Hanif
(P.W. 5) should be read with a certain degree of care and
caution because of his statement having been. recorded by
the investigating authorities more than two months after the
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occurrence. For accepting Hanif’s evidence, therefore, the
trail court required corroboration. With respect to the
evidence of Shamsuddin (P.W. 1), however, the trail court
felt that it was not safe to rely on his testimony because
his statement in court was at variance with the statement in
the information lodged by him with the police. On the basis
of the testimony of P.Ws. 2, 3 and 5 the trail court came to
the conclusion that the appellant was definitely present at
the scene of occurrence with bow and arrows and was a member
of the unlawful assembly and further that he had shot the
arrows at Abdul Khalil, his eldest son Shaukat and his wife
Sahebi, the three deceased victims of the unfortunate
occurrence. In that court’s opinion the three witnesses had
no reason to screen the real offenders and to falsely
implicate the appellant.
The appellant (Dharma Rama Bhagare, accused no. 1 in the
trial court) and Budhya Dhaklya Valvi (accused no 7 in the
trial court) appealed to the High Court. It may be recalled
that during the investigation one arrow had been found
underneath the dead body of Khalil and four arrows were
recovered at the instance of appellant. As already
observed, the arrow recovered at the scene of occurrence had
blood-stains on it which were on examination found to be of
human origin whereas one of the four arrows recovered at the
instance of the appellant was found on examination to have
on it blood-stains but being disintegrated it could not be
said if they were of human origin. It appears that there
was some confusion in putting the exhibit
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marks on the arrows and the bow produced in evidence. The
High Court, in the circumstances, considered it necessary to
have the matter clarified by taking additional evidence. By
means of an order dated April 27, 1971 the High Court
required the trial court to recall the investigating officer
(P.W. 13) and the two witnesses P.Ws 6 and 10 and have the
matter clarified. The counsel- for the accused appearing in
the High Court also expressed a desire to ask some more
questions from Dr. Deshpande (P.W. 12). This request was
granted. The High Court thus disposed of the appeal and the
murder reference after taking into consideration the
additional evidence received under s. 428, Cr. P.C. The High
Court, after appraising the evidence on the record did not
see any cogent reason for not accepting the evidence of the
three eye witnesses believed by the trial court. That court
was also unable to find any reason why these witnesses
should falsely implicate the accused persons. From the
nature of the occurrence and its surrounding circumstances,
in its opinion, there could not be any independent eye
witnesses present and in a position to depose about the
complicity of the accused persons. The locality where the
occurrence had taken place being uninhabited and the only
persons present being the assailants and their victims it
was not possible normally to expect any independent eye
witness. The recovery of a bow and four arrows received at
the instance of the appellant were also held to support the
prosecution version as these arrows were similar to the one
recovered from the scene of the occurrence. The High Court
further took into consideration the circumstance that the
bow and four arrows were found concealed in a place where
they are normally not kept. The appeal was accordingly
dismissed.
In this Court Shri Dholakia the learned counsel appearing in
support of the appeal has very strongly challenged the
conclusions of the two courts below. He has advanced two
principal contentions. According to him the prosecution
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case that three deaths were caused by arrows like the one
found at the scene of occurrence conflicts with the medical
testimony because the medical evidence shows that it was not
possible to cause by such an arrow the injuries found on the
dead persons. The learned counsel complains that neither
the trail court nor the High Court examined the medical
evidence from this point of view. In the second place,
according to learned counsel, the conclusions of the two
courts below are irrational and both the courts have not
cared to attach proper importance to the first information
report which was lodged by Shamsuddin who had also himself
appeared as an eye witness in the case. According to
learned counsel, Shamsuddin had all along been with the
other members of the family with the result that the initial
version given by him to
8-L63ISupCII73
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the police which constituted the first information report
must be considered to have been given by him after knowing
all the facts from the other members of the family who
claimed to have witnessed the occurrence and appeared as
witnesses in court. This version as contained in the first
information report must, according to the submission, be
held to contradict the evidence given in court by the other
eye witnesses as well. On this premise, according to Shri
Dholakia, the prosecution evidence must be considered to be
unacceptable and it cannot form safe basis for holding the
appellant guilty of the offence charged. Indeed, the
learned counsel went to the length of submitting that the
appellant has been involved not as a result of the
observation by the prosecution witnesses of what actually
happened at the time of the unfortunate assault on the
victims but as a result of calculated deliberation to
falsely implicate him.
So far as the first point is concerned main reliance has
been placed on the examination of Dr. Vinayak Deshpande
(P.W. 12) when he was recalled pursuant to the order of the
High Court dated April 27, 1971 under s. 428, Cr. P.C. We
have been taken through that evidence which was recorded on
May 4 and 5, 1971 along with the evidence originally
recorded but we am unable to find anything in the doctor’s
testimony which would show that the injuries sustained by
the three dead persons could not be caused by the kind of
arrows recovered from the scene of occurrence and from near
the appellant’s house at his instance. The real argument is
founded on the opinion of P.W. 12 where he states that the
Injuries sustained by Abdul Khalil and injuries sustained by
Sahebi could be caused by an arrow with or without a hook
and that the removal of arrow with the hook from the injury
would be likely to cause more damage to the abdominal wall
and also to the internal organs. Both in the case of Sahebi
and Abdul Khalil the doctor did not notice any injury to the
abdominal wall which could have been caused while pulling
out the arrow. Relying on this part of the evidence,
according to Shri Dholakia, all the recovered arrows which
are alleged to have caused the injuries to the deceased
persons having been found out of the dead bodies should
have, caused severe internal’ damage expected by the doctor
and since no such damage was discovered by him the injuries,
as a result of which the deceased persons died, must have
been caused by some weapon other than the arrows with hooks.
It has been suggested that the injuries might well have been
caused by someone with a spear. The appellant, it has been
emphasised, is not stated to have used a spear. We are
wholly unable to sustain this sub. mission on the existing
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record. The doctor also explained in his evidence on which
reliance is placed that if the arrow with a hook is removed
skilfully out of the injury then it may not
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cause more damage to the abdominal wall when removed out of
the injury though if it is removed forcibly it may do so.
It is also noteworthy that all the arrows recovered did not
have hooks on them. The circumstances in which and the
person by whom the arrow was removed from the body of Abdul
Khalil is not known. When the investigating officer went
there it had already come out of the wound and was lying
underneath the dead body pressed near the stomach between
both the legs of the deceased. Any attempt by this Court to
determine whether the arrow had come out IV itself as a
result of some movement of the injured body after receiving
the arrow injury whether before or during Abdul Khalil’s
last moments of life or whether someone from amongst the
party of the accused had attempted to remove it but was for
some reason unable to, do so or whether the arrow had come
out of the body in some other way, would be mere speculation
and it would be unfruitful to hazard a guess. We are not
unmindful of the fact that the doctor has stated in his
additional evidence that if the arrow with the hook is shot
at from a distance with force it would not come out from the
injury without being pulled out by someone and also that
looking at the injuries of Abdul Khalil and Sahebi the
arrows must have been shot at with force. But the fact
remains that an arrow was actually found underneath Abdul
Khalil’s dead body and according to the doctor the injury on
the deceased could be caused by that arrow. The mere fact,
therefore, that in the opinion of the doctor the arrow with
the hook, unless skilfully pulled out of the wound was
likely to cause more damage is, in our opinion, not a
sufficiently strong factor which should persuade us on the
existing record to reject the testimony of the three eye
witnesses believed by the courts below and about whose trust
worthiness we do not entertain any reasonable doubt. It is
noteworthy that this contention was not raised either in the
trail court or in the High Court. Indeed, during the cross-
examination of Dr. Deshpande (P.W. 12) even when he was
recalled no straight and direct question was put to him, if
keeping in view the nature of the injuries on Abdul Khalil
and Sahebi and the recovered arrows and assuming that the
arrows causing the injury had not been taken out skilfully,
he could confidently depose that the injuries in question
were not possible to be caused by these arrows. It is also
pertinent to point out that from the order dated April 27,
1971, it does not appear that the counsel for the appellant
specifically desired to clarify this point from the doctor.
The submission now forcefully advanced by Shri Dholakia
appears to us to be an afterthought and in any event is
clearly not supportable on the medical evidence. We are,
therefore, unable to reject the testimony of the eye-
witnesses merely on the medical evidence to which our
attention has been drawn.
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In so far as the information lodged with the police by
Shamsuddin is concerned both the courts below have not
considered it proper to reject the testimony of the other
three eyewitnesses on the ground of variance between their
statements in court and the contents of the said
information. The first information report, it may be
pointed out, is never treated as a substantive piece of
evidence. It can only be used for "corroborating or
contradicting its maker when he appears in court as a
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witness. Its value must always depend on the facts and
circumstances of a given case. In the present case its
value has not been considered to be of much significant
because of the nature and circumstances of the occurrence
and the extent and nature of the injuries suffered by
Shamsuddin who quite naturally must have been subjected to a
very severe shock. The surviving members of the family
could not go back to their home even after the occurrence
and felt compelled to trek the whole night on foot to find
shelter in the house of Gafoor at Shahpur where they reached
the following morning. In these circumstances the contents
of the F.I.R. made by Shamsuddin have rightly not been given
any importance by the trail court and by the High Court.
The F.I.R. can only discredit the testimony of Shanisuddin
whose evidence has not been relied upon for supporting_ the
appellant’s conviction. The F.I.R. can by no means be
utilised for contradicting, or discrediting the other
witnesses who obviously could not have any desire to spare
the real culprit and to falsely implicate the appellant.
The evidence of the eye-witnesses believed by the two courts
appears to us to be free from any serious infirmity
justifying its rejection. The case is obviously not one in
which any reasonable doubt can be cast on the testimony of
the eye-witnesses on the mere ground that Shamsuddin who
apparently in his attempt to save himself from the fierce
indiscriminate assault by the assailants was not able
carefully to see and remember as to in what manner and by
what weapon his parents and eldest brother had been killed.
That they were actually killed during the occurrence in
question is undisputed., Equally undisputed is the nature of
injuries found on their bodies. We are, therefore, unable
to agree with Shri Dholakia that the prosecution case should
be thrown out on the mere ground that in the first
information report an altogether different version was given
by Shamsuddin. The evidence of Shamsuddin as given in
court, it may be recalled, has not been relied upon for
sustaining the appellant’s conviction. We accordingly feel
little hesitation in agreeing with the concurrent conclusion
of the trial court and the High Court that the appellant
was responsible for killing the three deceased persons.
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The last contention by Shri Dholakia relates to the question
of sentence. According to him the present is not a case for
extreme penalty. We are unable to agree. The question of
sentence is a matter of judicial discretion. The relevant
considerations in determining the sentence broadly stated,
include the motive for, and the magnitude of, the offence
and the manner of its commission. In this case the victims
of the assault had given no offence to the appellant or his
associates. Indeed the unarmed innocent members of this
family had to leave their heath and home and were actually
at the moment of the offence running in panic, on seeing the
mob, to save themselves, when the three senior most members
were shot with arrows from behind and killed. One of the
victims was a woman with a baby in her arms. The only
reason for these murders is the profession of different
religious faith by the victims. According to the
investigating officer, P.W. 13, Abdul Khalils residential
house had also been set on fire on May 12 at 8.30 p.m. In
our country where the Constitution guarantees to all
individuals freedom of religious faith, though, belief and
expression and where no particular religion is accorded a
superior status and non subjected to hostile discrimination
the commission of offences motivated only by the fact that
the victim professes a different religious faith cannot be
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treated with leniency. They are no only destructive of our
basic traditional social order founded on toleration in
recognition of the dignity of the individual and of other
cherished human values, but have also a tendency to mar our
national solidarity. We are, therefore, wholly unable to
find any cogent reason for reducing the sentences imposed by
the trial court and confirmed by the High Court. The appeal
accordingly fails and is dismissed.
G.C. Appeal
dismissed.
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