Full Judgment Text
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CASE NO.:
Appeal (crl.) 1403 of 2004
PETITIONER:
Babulal Bhagwan Khandare & Anr.
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 02/12/2004
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 880/2004
ARIJIT PASAYAT, J.
Leave granted.
Appellants question correctness of the judgment rendered by a
Division Bench of the Bombay High Court, Nagpur Bench upholding their
conviction for offences punishable under Sections 302 and 307 read with
Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’). For
the former offence each was sentenced to undergo imprisonment for life
and to pay a fine of Rs.500/- with default stipulation and seven years’
rigorous imprisonment and a fine of Rs.500/- with default stipulation
for the latter offence. One Sau Kamal wife of appellant Babulal
Khandare was acquitted of all the offences with which she was charged.
The appellants were, however, acquitted of the offence of alleged
attempt to commit murder of Dinkar Shivaji Wankhede.
Prosecution version as unfolded during trial is essentially as
follows:
Deceased Shivaji Natthu Wankhade was the husband of Complainant
Vatchalabai (PW-1). Deceased Madhukar Daulat Wankhede and Ramesh Ganpat
Wankhede were the nephews of Shivaji and Vatchalabai. Injured Sudhakar
(PW-5) is the brother-in-law of Vatchalabai and deceased Shivaji. The
houses of the accused persons are situated near the house of
complainant Vatchalabai. The accused persons are cobblers and they use
Suri (a kind of knife) and Rapi for cutting the skin of cattle required
for preparing foot wear.
The incident took place on 8.8.1997 which was the day of
Nagpanchami festival. On that day at about 04.00 p.m. accused Babulal,
accused Nandulal, deceased Madhukar, Dadarao and Arun were playing
cards in front of the house of Madhukar. Some verbal exchange took
place between accused Babulal and deceased Madhukar. On noticing the
same, deceased Shivaji went to intervene and convinced all of them not
to quarrel. Thereafter accused Babulal and accused Nandulal as also
deceased Madhukar returned to their houses.
Later on the same day, around 7.00 p.m. again a verbal exchange
took place between accused Babulal, accused Nandulal and deceased
Madhukar. At that time also, deceased Shivaji tried to convince all of
them not to quarrel as it was a day of festival. Accused Babulal
uttered a song containing some filthy words. Deceased Shivaji and
Madhukar started returning home. When they were returning home, accused
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Babulal asked his wife i.e. accused No.3 Sau Kamal to bring Rapi from
the house. Accused No.3 rushed into her house, brought Rapi and handed
it over to accused Babulal, who tried to conceal the same by holding
his hand back. On seeing this, Dinkar (PW-3) gave a word of caution to
Shivaji, who turned back. Accused Babulal gave two blows of Rapi on
the abdomen of Shivaji. Due to these blows, internal organs of Shivaji
came out and he fell on the ground. Dinkar attempted to hold accused
Babulal and in that attempt, he sustained injuries to the fingers of
his right-hand. As per Vatchalabai (PW-1), accused Babulal gave two
blows of Rapi to Madhukar, one on his left leg and the other on his
chest. As per Dinkar, accused Babulal gave two blows of Suri to
Madhukar, one on his abdomen and the other on his leg. Madhukar fell
down in front of his house. The accused Babulal and Nandulal
assaulted Sudhakar. Accused Babulal gave a blow of Rapi on the abdomen
of Sudhakar and accused Nandulal gave a blow of knife on the chest of
Sudhakar. Sudhakar also fell down on the ground. Deceased Ramesh who
was present on the spot, said that the accused persons had
unnecessarily assaulted innocent persons. Thereupon accused Nandulal
assaulted Ramesh with Suri on his abdomen. The internal organs of
Ramesh came out from the abdomen. Ramesh attempted to move from the
spot, but ultimately he collapsed in front of the house of Shivaji.
On the same day, Janefal Police received a message on wireless
that there was an incident of quarrel in village Deulgaon Sakharsha and
an entry in respect of the said message came to be taken in the station
diary by Head Constable Aniruddha Nakhate. PSI Thakara who was in
charge of the Police Station, proceeded for spot. On reaching the
village, he noticed that the injured persons were already shifted to
Primary Health Centre, Janefal. PSI Thakare recorded the report given
by complainant Vatchalabai (PW-1).
Shivaji died before he was reached the hospital. Ramesh also
died prior to receiving treatment in the hospital. Madhukar was
shifted to General Hospital, Buldana where he received some medical
treatment. He succumbed to injuries in the midnight of 11th August,
1997 (night intervening 11th and 12th August). Medical treatment was
also received by injured Sudhakar and Dinkar in Primary Health Centre,
Janefal and then in General Hospital, Buldana.
The inquest Panchanamas were prepared by the police in respect of
the dead bodies of Shivaji, Madhukar and Ramesh. The clothes on the
dead bodies were taken in custody by police. Post-mortem was conducted
on the dead bodies.
On 11.8.1997 when accused nos. 1 and 2 were in the custody of
police, they gave information regarding the weapons of offence and
expressed their readiness to produce the same from their respective
houses. The memoranda of the statements given by accused Nos. 1 and 2
were prepared. Accused No. 1 Babulal produced Rapi and Suri from the
roof of his house. He also produced his blood stained clothes from his
house. Accused No. 2 Nandulal produced a knife from the roof of his
house. His clothes were already seized at the time of his arrest. All
the articles were forwarded to Chemical Analyst, Nagpur for examination
and the Chemical analyser’s report was received. On completion of
investigation, the accused Nos. 1 to 3 were charge sheeted.
On the case being committed to the Court of Session, Learned
Sessions Judge framed the charge. The prosecution examined in all nine
witnesses to further its version. Out of them three witnesses (PWs 1,
3 and 5) were claimed to be the witnesses to the occurrence.
The defence of the accused/appellants are, as revealed from the
examination of accused under Section 313 of the Code of Criminal
Procedure, 1973 (in short ’the Code’) was that deceased Madhukar and
deceased Ramesh entered their house in their absence and attempted to
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tease accused No. 3. Accused No. 3 raised hue and cry. When people
gathered, accused No. 3 complained to them about the conduct of
Madhukar and Ramesh. On arrival of accused Babulal and accused
Nandulal, accused No. 3 narrated the incident to them. Accused nos. 1
and 2 thereupon went to the house of Madhukar to enquire. At that time
Buddha people (the community to which the deceased belonged) attacked
accused Babulal and Nandulal. Since it was dark, they could not see as
to who assaulted whom. The further contention of the accused persons is
that Buddha people attacked their houses and the doors of the houses
were broken and houses were demolished.
The defence of the accused persons, as is revealed from the
suggestions made to the prosecution witnesses during their cross
examination, was that deceased Shivaji and Ramesh were drunk and Ramesh
entered the houses of accused persons to rape accused No. 3. When the
accused persons made a complaint to Buddha people as regards the
conduct of Ramesh, they made an attack on the house of accused persons.
They gave a severe beating to accused Babulal and accused Nandulal and
there was commotion during which the injuries were caused to the
deceased and the injured persons at the hands of Buddha people
themselves.
The learned Sessions Judge, Buldana accepted the case of
prosecution and held that the charges levelled against accused Nos. 1
and 2 were proved. He, therefore, convicted and sentenced the accused
Nos. 1 and 2 who are the appellants herein, as detailed above. Trial
Court analysed the evidence of the witnesses in detail, keeping in view
the fact that they were related to the deceased. The evidence of eye
witnesses PWs. 1, 3 and 5 was felt to need careful and close scrutiny.
It discarded the plea of the right of private defence as well as the
plea that Exception 4 to Section 300 applies to the facts of the case.
The order of conviction and sentence was assailed by the appellants
before the High Court.
The High Court held that the evidence of the injured eye
witnesses was cogent, credible and truthful. The High Court also
examined the evidence in great detail and came to hold that the
conclusions of the trial court were in order.
In support of the appeal, learned counsel for the appellants
submitted that the courts below have discarded the plea of right of
private defence and applicability of Exception 4 to Section 300 IPC
without properly analyzing the factual position. The defence plea was
probable and should not have been discarded. In any event, Section 34
IPC cannot be pressed into service, and more particularly so far as
appellant no. 2 is concerned.
Learned counsel for the respondent-State on the other hand
supported the judgments of the courts below and submitted that the
factual findings recorded clearly indicate the role played by each of
the accused persons. Courts below have rightly discarded the plea that
the accused were exercising right of private defence or that Exception
4 to Section 300 is applicable. Section 34 IPC has also been rightly
applied.
The Fourth Exception of Section 300, IPC covers acts done in a
sudden fight. The said exception deals with a case of prosecution not
covered by the first exception, after which its place would have been
more appropriate. The exception is founded upon the same principle,
for in both there is absence of premeditation. But, while in the case
of Exception 1 there is total deprivation of self-control, in case of
Exception 4, there is only that heat of passion which clouds men’s
sober reason and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in Exception 1;
but the injury done is not the direct consequence of that provocation.
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In fact Exception 4 deals with cases in which notwithstanding that a
blow may have been struck, or some provocation given in the origin of
the dispute or in whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of guilt upon
equal footing. A ’sudden fight’ implies mutual provocation and blows
on each side. The homicide committed is then clearly not traceable to
unilateral provocation, nor in such cases could the whole blame be
placed on one side. For if it were so, the Exception more appropriately
applicable would be Exception 1.
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 not defined in the 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. For the
application of Exception 4, it is not sufficient to show that there was
a sudden quarrel and there was no premeditation. It must further be
shown that the offender has not taken undue advantage or acted in cruel
or unusual manner. The expression ’undue advantage’ as used in the
provision means ’unfair advantage’.
Where the offender takes undue advantage or has acted in a cruel
or unusual manner, the benefit of Exception 4 cannot be given to him.
If the weapon used or the manner of attack by the assailant is out of
all proportion, that circumstance must be taken into consideration to
decide whether undue advantage has been taken. In Kikar Singh v. State
of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used
deadly weapons against the unarmed man and struck a blow on the head it
must be held that using the blows with the knowledge that they were
likely to cause death, he had taken undue advantage. In the instant
case blows on vital parts of unarmed persons were given with brutality.
The abdomens of two deceased persons were ripped open and internal
organs come out. In view of the aforesaid factual position, Exception
4 to Section 300 I.P.C. has been rightly held to be inapplicable.
Section 34 has been enacted on the principle of joint liability
in the doing of a criminal act. The Section is only a rule of evidence
and does not create a substantive offence. The distinctive feature of
the Section is the element of participation in action. The liability of
one person for an offence committed by another in the course of
criminal act perpetrated by several persons arises under Section 34 if
such criminal act is done in furtherance of a common intention of the
persons who join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such intention can only
be inferred from the circumstances appearing from the proved facts of
the case and the proved circumstances. In order to bring home the
charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or
meeting of mind of all the accused persons to commit the offence for
which they are charged with the aid of Section 34, be it pre-arranged
or on the spur of moment; but it must necessarily be before the
commission of the crime. The true contents of the Section are that if
two or more persons intentionally do an act jointly, the position in
law is just the same as if each of them has done it individually by
himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC
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109), the existence of a common intention amongst the participants in a
crime is the essential element for application of this Section. It is
not necessary that the acts of the several persons charged with
commission of an offence jointly must be the same or identically
similar. The acts may be different in character, but must have been
actuated by one and the same common intention in order to attract the
provision.
As it originally stood the Section 34 was in the following terms:
"When a criminal act is done by several
persons, each of such persons is liable for that act
in the same manner as if the act was done by him
alone."
In 1870, it was amended by the insertion of the words "in
furtherance of the common intention of all" after the word "persons"
and before the word "each", so as to make the object of Section 34
clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945
Privy Council 118).
The Section does not say "the common intention of all", nor does
it say "and intention common to all". Under the provisions of Section
34 the essence of the liability is to be found in the existence of a
common intention animating the accused leading to the doing of a
criminal act in furtherance of such intention. As a result of the
application of principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it means that
the accused is liable for the act which caused death of the deceased in
the same manner as if it was done by him alone. The provision is
intended to meet a case in which it may be difficult to distinguish
between acts of individual members of a party who act in furtherance of
the common intention of all or to prove exactly what part was taken by
each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of
Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no
injury has been caused by the particular accused himself. For applying
Section 34 it is not necessary to show some overt act on the part of
the accused.
The above position was highlighted recently in Anil Sharma and
Others v. State of Jharkhand [2004 (5) SCC 679].
In Abrahim Sheikh & Ors. v. State of West Bengal (AIR 1964 SC
1263) this Court stated that no doubt a person is only responsible
ordinarily for what he does and Section 38 IPC ensures that. But
Section 34 as well as Section 35 provide that if the criminal act is
the result of the common intention, then every person who did the
criminal act with such intention would be responsible for the total
offence irrespective of the share which he had in its perpetration.
The logic, highlighted illuminatingly by the Judicial Committee in the
illustrious case of Barendra Kumar Ghosh v. Emperor (AIR 1925 PC1), is
that in crimes as in other things "they also serve who only stand and
wait".
Section 34 has therefore been rightly applied. Only other
question which needs to be considered, is the alleged exercise of right
of private defence. Section 96, IPC provides that nothing is an offence
which is done in the exercise of the right of private defence. The
Section does not define the expression ’right of private defence’. It
merely indicates that nothing is an offence which is done in the
exercise of such right. Whether in a particular set of circumstances, a
person legitimately acted in the exercise of the right of private
defence is a question of fact to be determined on the facts and
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circumstances of each case. No test in the abstract for determining
such a question can be laid down. In determining this question of
fact, the Court must consider all the surrounding circumstances. It is
not necessary for the accused to plead in so many words that he acted
in self-defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to consider
such a plea. In a given case the Court can consider it even if the
accused has not taken it, if the same is available to be considered
from the material on record. Under Section 105 of the Indian Evidence
Act, 1872 (in short ’the Evidence Act’), the burden of proof is on the
accused, who sets up the plea of self-defence, and, in the absence of
proof, it is not possible for the Court to presume the truth of the
plea of self-defence. The Court shall presume the absence of such
circumstances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by eliciting
necessary facts from the witnesses examined for the prosecution. An
accused taking the plea of the right of private defence is not
necessarily required to call evidence; he can establish his plea by
reference to circumstances transpiring from the prosecution evidence
itself. The question in such a case would be a question of assessing
the true effect of the prosecution evidence, and not a question of the
accused discharging any burden. Where the right of private defence is
pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the further
reasonable apprehension from the side of the accused. The burden of
establishing the plea of self-defence is on the accused and the burden
stands discharged by showing preponderance of probabilities in favour
of that plea on the basis of the material on record. (See Munshi Ram
and Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat v.
Bai Fatima (AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR
1977 SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC
577). Sections 100 to 101 define the extent of the right of private
defence of body. If a person has a right of private defence of body
under Section 97, that right extends under Section 100 to causing death
if there is reasonable apprehension that death or grievous hurt would
be the consequence of the assault. The oft quoted observation of this
Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused
person to establish the plea of self-defence is not
as onerous as the one which lies on the prosecution
and that, while the prosecution is required to prove
its case beyond reasonable doubt, the accused need
not establish the plea to the hilt and may discharge
his onus by establishing a mere preponderance of
probabilities either by laying basis for that plea in
the cross-examination of the prosecution witnesses or
by adducing defence evidence."
The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as in a
civil case that the preponderance of probabilities is in favour of his
plea.
The number of injuries is not always a safe criterion for
determining who the aggressor was. It cannot be stated as a universal
rule that whenever the injuries are on the body of the accused persons,
a presumption must necessarily be raised that the accused persons had
caused injuries in exercise of the right of private defence. The
defence has to further establish that the injuries so caused on the
accused probabilise the version of the right of private defence. Non-
explanation of the injuries sustained by the accused at about the time
of occurrence or in the course of altercation is a very important
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circumstance. But mere non-explanation of the injuries by the
prosecution may not affect the prosecution case in all cases. This
principle applies to cases where the injuries sustained by the accused
are minor and superficial or where the evidence is so clear and cogent,
so independent and disinterested, so probable, consistent and credit-
worthy, that it far outweighs the effect of the omission on the part of
the prosecution to explain the injuries. [See Lakshmi Singh v. State of
Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be
based on surmises and speculation. While considering whether the right
of private defence is available to an accused, it is not relevant
whether he may have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private defence is
available to an accused, the entire incident must be examined with care
and viewed in its proper setting. Section 97 deals with the subject
matter of right of private defence. The plea of right comprises the
body or property (i) of the person exercising the right; or (ii) of any
other person; and the right may be exercised in the case of any offence
against the body, and in the case of offences of theft, robbery,
mischief or criminal trespass, and attempts at such offences in
relation to property. Section 99 lays down the limits of the right of
private defence. Sections 96 and 98 give a right of private defence
against certain offences and acts. The right given under Sections 96 to
98 and 100 to 106 is controlled by Section 99. To claim a right of
private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he had a right
of private defence which extended to causing of death. Sections 100 and
101, IPC define the limit and extent of right of private defence.
Sections 102 and 105, IPC deal with commencement and continuance
of the right of private defence of body and property respectively. The
right commences, as soon as a reasonable apprehension of danger to the
body arises from an attempt, or threat, or commit the offence, although
the offence may not have been committed but not until there is that
reasonable apprehension. The right lasts so long as the reasonable
apprehension of the danger to the body continues. In Jai Dev. v. State
of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause
for reasonable apprehension disappears and the threat has either been
destroyed or has been put to route, there can be no occasion to
exercise the right of private defence.
In order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to
his safety, the injuries caused by the accused and the circumstances
whether the accused had time to have recourse to public authorities are
all relevant factors to be considered. Similar view was expressed by
this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See:
Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja
Sekharan v. State represented by Inspector of Police, T.N. (2002 (8)
SCC 354).
As noted in Butta Singh v. The State of Punjab (AIR 1991 SC
1316), a person who is apprehending death or bodily injury cannot weigh
in golden scales in the spur of moment and in the heat of
circumstances, the number of injuries required to disarm the assailants
who were armed with weapons. In moments of excitement and disturbed
mental equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is
imminent by use of force, it would be lawful to repel the force in
self-defence and the right of private-defence commences, as soon as the
threat becomes so imminent. Such situations have to be pragmatically
viewed and not with high-powered spectacles or microscopes to detect
slight or even marginal overstepping. Due weightage has to be given
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to, and hyper technical approach has to be avoided in considering what
happens on the spur of the moment on the spot and keeping in view
normal human reaction and conduct, where self-preservation is the
paramount consideration. But, if the fact situation shows that in the
guise of self-preservation, what really has been done is to assault the
original aggressor, even after the cause of reasonable apprehension has
disappeared, the plea of right of private-defence can legitimately be
negatived. The Court dealing with the plea has to weigh the material
to conclude whether the plea is acceptable. It is essentially, as noted
above, a finding of fact.
The right of self-defence is a very valuable right, serving a
social purpose and should not be construed narrowly. (See Vidhya Singh
v. State of M.P. (AIR 1971 SC 1857). Situations have to be judged from
the subjective point of view of the accused concerned in the
surrounding excitement and confusion of the moment, confronted with a
situation of peril and not by any microscopic and pedantic scrutiny. In
adjudging the question as to whether more force than was necessary was
used in the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by detached
objectivity which would be so natural in a Court room, or that which
would seem absolutely necessary to a perfectly cool bystander. The
person facing a reasonable apprehension of threat to himself cannot be
expected to modulate his defence step by step with any arithmetical
exactitude of only that much which is required in the thinking of a man
in ordinary times or under normal circumstances.
In the illuminating words of Russel (Russel on Crime, 11th Edition
Volume I at page 49):
"....a man is justified in resisting by force anyone
who manifestly intends and endeavours by violence or
surprise to commit a known felony against either his
person, habitation or property. In these cases, he
is not obliged to retreat, and may not merely resist
the attack where he stands but may indeed pursue his
adversary until the danger is ended and if in a
conflict between them he happens to kill his
attacker, such killing is justifiable."
The right of private defence is essentially a defensive right
circumscribed by the governing statute i.e. the IPC, available only
when the circumstances clearly justify it. It should not be allowed to
be pleaded or availed as a pretext for a vindictive, aggressive or
retributive purpose of offence. It is a right of defence, not of
retribution, expected to repel unlawful aggression and not as
retaliatory measure. While providing for exercise of the right, care
has been taken in IPC not to provide and has not devised a mechanism
whereby an attack may be a pretence for killing. A right to defend does
not include a right to launch an offensive, particularly when the need
to defend no longer survived.
In the instant case, there is no material even to suggest that
the accused persons apprehended danger of any kind, much less a threat
to life. The claim of right of private defence has therefore been
rightly discarded.
When the legal position as noted above is applied to the factual
scenario the inevitable conclusion is that the courts below have
rightly found the accused appellants guilty, and no interference is
called for with the concurrent findings of fact, the conviction as
recorded and sentence as imposed.
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Appeal fails and is dismissed accordingly.