Full Judgment Text
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PETITIONER:
RAGHUNANDAN
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT10/01/1974
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 463 1974 SCR (3) 92
1974 SCC (4) 186
ACT:
Murder--Criminal Procedure Code--Ss.162, 428 and 540--Duty
of court to put essential questions--Evidence Act, s.
165--Scope of
HEADNOTE:
All the appellants were tried for various offences under the
Penal Code. The first appellant (Cr. A. 10 of 1973) was
held guilty of the offence of murder of the deceased by
shooting him with a gun while the other appellants were held
guilty of offences under Ss. 147 and 148, 1. P. C. All the
appellants were held guilty of offences punishable under Ss.
307 and 323 read with s. 149. The first appellant was
sentenced to death while the others to imprisonment for
life. The High Court confirmed the sentences.
Allowing the appeals in part and remitting the cases to the
High Court for disposal,
HELD : Several material points escaped consideration by the
High Court. In a case of death sentence one would have
expected a closer and a more critical scrutiny and a fuller
discussion by the High Court of the evidence in the case and
of the material questions arising for decision before it
together with its decisions supported by more than what
could appear as perfunctory reasoning. [99E;100B]
(1) The more important questions emerging from a reading of
the post. mortem report regarding the contents of the
stomach of the deceased, considered in the context of the
alleged time of the murder have not been discussed at all by
the High Court. It is precisely questions of this kind
which, even if the prosecution or the defence counsel
omitted to put, the trial court could and should have put to
the doctor who conducted the post mortem to clear up the
position. If the trial Court had failed to consider their
importance, the High Court itself could and should have
taken further expert medical evidence under Ss. 540 and 428,
Cr. P. C. on this question. [9F]
(2) It is true that the ban imposed by s.. 162. Cr. P. C.
against the use of a statement of a witness recorded by the
police during investigation, appears sweeping and wide. But
at the same time, the powers of the court under s. 165 of
the Evidence Act to put any questions to a witness are also
couched in very wide terms authorising the judge "in order
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to discover or to obtain proper proof of relevant facts" to
"ask any question he pleases, in any form, at any time of
any witness, or of the parties. about any fact relevant or
irrelevant". The first proviso to s. 165, Evidence Act,
enacting that, despite the powers of the court to put any
question to a witness, the judgment must be based upon facts
declared by the Act to be relevant, only serves to emphasise
the width of the power of the court to question a witness.
The second proviso in this section preserves the privileges
of witnesses to refuse to answer certain questions and
prohibits only questions which would be considered improper
under Ss. 148 and 149, Evidence Act. Statements of
witnesses made to the police during the investigation do not
fail under any prohibited category mentioned in S. 165,
Evidence Act. If s. 162 Cr. P. C. was meant to be so wide
in its sweep it could make a further inroad upon the powers
of the judge to put questions under s. 165, Evidence Act.
If that was the correct position at least s. 162, Cr. P. C.
would have said so explicitly. Section 165, Evidence Act
was already on the statute book when s. 162, Cr. P. C. was
enacted.
It is certainly quite arguable that s. 162, Cr. P. C. does
amount to a prohibition against the use even by the court of
statements mentioned there. Nevertheless, the purpose of
the prohibition of s. 162, Cr. P. C. being to prevent
unfair use by the prosecution of statements made by
witnesses to the police during the course of investigation,
while the proviso is intended for the benefit of the
defence, it could be
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urged that, in order to secure the ends of justice, the
Prohibition, by taking into account, it 8 purpose and the
mischief it was designed to prevent as well as its context,
must, be confined in its scope to the use by parties only to
a proceeding of statements mentioned therein.
The language of s.162, Cr. P. C., though wide, is not
explicit or specific enough to extend the prohibition to the
use of the wide and special powers of the court to, question
a witness, expressly and explicitly given by s. 165,
Evidence Act in order to secure the ends of justice. A
narrow and restrictive construction put upon the prohibition
in s. 162 Cr. P. C. so as to confine the ambit of it to the
use of statements by witnesses, by parties only to a
proceeding before the court, would reconcile or harmonize
the two provisions. and also serve the ends of justice.
Therefore s. 162, Cr.. P. C. does not impair the special
powers of the court under s. 165 Evidence Act. [98A-H]
In the instant case a person who was said to be an eye
witness was not examined’ by the prosecution. But this
witness was considered so important that the trial court:
examined him as a court witness. While some of the
prosecution witnesses stated that this witness was present
at the time and place of occurrence, the witness himself
stated to the police that he was not an eye witness to the
occurrence but came there. later. This witness ought to
have been confronted by the trial court itself with his
previous statement to the police and that statement could
have been proved by the investigating officer. After that,
a better appraisal of the other evidence in the case. than
was possible now could take place. The High Court, without
considering or discussing the significance of the presence
or absence of this witness at the house at the time of the
occurrence, had merely observed that he also supported the
prosecution. If this witness was not really present the
evidence of witnesses who were prepared to state that he was
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present, though not necessarily false about the occurrences
has to be appraised less uncritically.
Emperor v. Lal Mian A. I. R. 1943 Cal, 521, approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 10 &.
11 of 1973.
Appeals by special leave from the judgment and order dated
the 28th October, 1971 of the Allahabad High Court in
Criminal Appeal, No. 351 of 1971 and Referred No. 31 of
1971.
Frank Anthony, E. C. Agrawala, M. M. L. Srivastava and
A.T.M. Sampath, for the appellants.
O. P. Rana. for the respondent.
The Judgment of the Court was delivered by
BEG. J.-The appellants Raghunandan, Ganga Sahai, Ghalendra,
Khem Singh, and Sohan Singh, in the two Criminal Appeals now
before us by special leave, were tried by a Civil & Sessions
Judge of Moradabad for various offences punishable under
Sections 147 148, 302, 307, 323 and 452 read with section
149 Indian Penal Code. Raghunandan was held guilty of the
offence of murder by shooting one Sriram with a gun on
12-12-1969, at about 1 P. m., while the. deceased was
sitting in front of his cattle shed in his outer court yard
and talking to Hari Singh, a neighbour, who was also injured
by gun shots. The appellants Ganga Sahai and Sohan Singh
were held guilty of Offences punishable under section 148
Indian Penal Code while Khem Singh and Ghalendra were found
guilty punishable under Section 147 Indian Penal Code. All
the appellants were held guilty of Offences punishable under
Section 307 and 323 read with Section 149 Indian Penal Code
and Section 452 Indian Penal Code.-
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But, no separate sentences were passed against any of the
accused persons for these Offences as Raghunandan was
sentenced to death under section 3O2 Indian Penal Code and
the other four appellants were sentenced to life
imprisonment under section 302 read with section 149 Indian
Penal Court. The High Court of Allahabad had accepted the
death reference,, and, dismissing the appeals of all the
:appellants, had confirmed their sentences.
The Trial Court as well as the High Court had recorded
concurrent findings of fact that the appellants formed
themselves into an unlawful assembly armed with a gun,
ballams, and lathis, and shot Sriram and Hari Singh, and,
also injured Smt. Brahma, P. W. 2, the wife of Hari Singh,
who is said to have covered her husband Hari Singh during
the attack, and, Durga Prasad, P.W.6, the brother of
murdered man. The prosecution case is also supported by
Bbai Singh, P.W.1, a brother of Raghunandan, and by
Rameshwar, P.W. 5, a resident of Village Karimpur, who was
said to be passing by at the time of the occurrence.
The appellants pleaded that they had been falsely implicated
due to ,enmity. They produced Gokul, D. W. 1, who deposed
about an ,occurrence which was alleged to have taken’ place
at the house of Hari Singh in the early hours of the morning
presumably of 12th of December, 1969. He stated that the
cause of the occurrence was that Rohan, the brother of Hari
Singh, had abducted Smt. Rukia of Naurangabad and brought
her to village Karimpur where she was living. He asserted
that her husband and other residents of Naurangabad forming
a party of ten to twelve, had come to take her away. Its
members were said to have been armed with a Gun, Ballams,
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and Lathis, which they were alleged to have used against
Hari Singh and the deceased Srirams and Durga Prasad. He
deposed that Sriram, Hari ’Singh, and Durga Prasad were
fired at. He stated that the Naurangabad party caught hold
of Smt. Brahma and that her husband, Hari Singh, had tried
to save her. Gokul alleged that Sriram was struck by gun
shots. He suggested that Hari Singh may also have been
,similarly injured. He stated that Durga Prasad was not
hit.
The Trial Court, which had the advantage of seeing the
witnesses depose, accepted the evidence of the four eye
witnesses who included two injured persons. It rejected the
story put forward by Gokul in defence as incredible. Apart
from the fact that the defence version did not clearly
explain the Ballam injury on Durga Prasad, the explanation
for the gun shot wounds on the chest, stomach, and forearm
of Sriram, which had resulted in his death, suggesting that
he was the ,principal target of the attack, did not quite
fit in with the defence version. The Trial Court had also
observed that the accused had reserved their defence up to
the last stage and had not revealed it ,earlier either in
the Committing Magistrate’s Court or at the time
of .;applying for bail.
It is true that what seems to be the principal motive set up
by the ,prosecution helps the defence more than it assists
the prosecution case. This was that there was rivalry for
election to the office of the Pradhan of the Gram Sabha
between Sriram deceased and Ganga Sahai,
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appellant, who was Pradhan of the village at the time of the
murder. According to the prosecution version, Sriram, who
had been a Pradhan of the village for about 8 to 10 years,
was threatened with dire consequences by Ganga Sahai if he
stood again for the office. Bhai Singh, P. W. 1, had stated
that, out of fear, Sriram did not stand for election so that
Ganga Sahai won an uncontested election and became the
Pradhan. If that was so, Ganga Sahai should have felt
obliged to Sriram for not contesting the election. There
was no suggestion that another election was near at the time
of the occurrence or that Sriram was conspiring to get Ganga
Sahai unseated.
Other motives were also set up. Ganga Sahai and other
accused persons were said to have demolished the mend of
Bhai Singh’s field and taken his land under cultivation so
that Bhai Singh had complained about it to people of his own
village and other villages. It was alleged that the accused
persons formed one set and used to threaten the family of
Bhai Singh and Sriram and Durga Prasad who were said to be
joint in cultivation and mess.’ It was also alleged that
Sriram had gone with a friend of his, named Sahi Ram, to
Police Station Bejoi to lodge a report relating to the
beating up of Sahi Ram by Sohan Singh and Raghunandan
appellants. Furthermore, Brahma, P. W. 2, had deposed that
her husband Hari Singh, who had sustained gun shot injuries
at the occurrence under consideration but had survived was
threatened by the accused persons that, if he gave evidence
against them, he would be killed. Hari Singh had actually
been murdered about 7 months before Smt. Brahma gave
evidence in Court on 11. 1 1.70. The prosecution, therefore,
suggested that the appellants formed a set-of bullies and
thought that they could do what they liked to the family of
Sriram, deceased, and its property. Enmity, as it has been
often observed, is a double edged weapon. We, therefore,
refrain from saying more than that there should be an
attempt to determine, in such a case, the direction in which
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enmities set up were more likely to operate.
If the eye witnesses could be believed it was really not
necessary to support the prosecution case by giving
satisfactory evidence of the motive to murder. The real and
more important question to decide here was whether the four
alleged eye witnesses produced, out of whom two were
brothers of the deceased Sriram, one a chance witness, and
the fourth, the injured wife of a close friend of the
deceased, who was also injured, were sufficiently reliable.
The alleged eye witnesses no doubt seem to have impressed
the Trial Court which had the advantage of seeing them
depose. There are, however, atleast two features of this
case which could provide serious grounds for suspecting the
prosecution version. We now proceed to examine these two
features.
It was repeatedly emphasised by the learned counsel for the
appellant that the post-mortem examination report disclosed
that the small intestine as well as the large intestine of
the deceased contained faecal matter and were distended with
gas whereas the stomach was found empty. It was submitted
before us that it was quite unnatural
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as 60 years (found erroneously mentioned as 80 in the
judgment of the High Court before us), would not eat until 1
p.m. during the day, or, in any case, that he would not
defecate until that time during the day when there was
nothing in evidence to show that he was suffering from
constipation. It was contended that the Trial Court had
uncritically and too easily accepted the explanation given
by the prosecution witnesses that the deceased alone had not
eaten up to 1 p.m. as he had a stream of visitors that
morning. It is apparent from the testimony of Durga Prasad
that he and his brother-in-law Jailal, C.W. 1, who was not
produced by the prosecution (although examined as a Court
witness), was also said to be staying) at the house, and to
have taken his food with Durga Prasad before 1 p.m.
We find that although Dr. J. P. Chaturvedi, P. W. 8, who
performed the postmortem examination, and Dr. D. P.
Manchanda, who had admitted Hari Singh. into the hospital on
13-12-1969 at 11-40 a.m, were examined at the Trial, no
question was put by either side to elicidate whether the
contents of the small intestine and the large intestine
could remain in that condition until 1 p.m. during the day
assuming that Sriram was quite healthy. The postmortem
examination took place at 2-40 p.m. on 13-12-1969, and the
intestines were then found distended with gas. We do not
know whether this could be their condition at 1 p.m. on 12-
12-1969 or its effect. It is precisely questions of this
kind which, even it the prosecution or the defence counsel
omit to put them, the Trial Court could and should have, put
to doctors to clear ,up the position. If the Trial Court
had failed to consider their importance, the High Court
could have and should have taken further evidence on this
matter under Section 540 Criminal Procedure Code. In a
criminal case, the fate of the proceeding cannot always be
left entirely in the hands of the parties. The Court has
also a duty to see that essential questions are not, so far
as reasonably possible, left unanswered. We are surprised
to find, from the judgment of the High Court, that the
questions mentioned above, arising out of the post-mortem
report, were not, for some reason, even mentioned there. We
find it very difficult to believe that, in a case with a
death sentence a matter of such significance, which was
noticed by the Trial Court, was not raised at all by Counsel
for the appellants. in any event, it ought to have been
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dealt with by the High Court after taking appropriate
additional expert medical evidence under Section 540 read
with Section 428 Criminal Procedure Code if that was
considered necessary before deciding it.
Another question raised by the learned Counsel for the
appellant relates to the testimony of Jailal, the
brother-in-law of Sriram. He was said to be an eye witness.
But, he was neither mentioned in the F. I. R., although he
was said to be present at the Police Station when the F. 1.
R. was lodged at 5 p.m., nor was he produced by the
prosecution. indeed, Rameshwar, P. W. 5. had stated that he
had not seen Jailal at all there. Jailal was considered so
important a witness by the Trial Court that he was examined
as a Court witness. He denied having made any statement to
the Police although it is in evidence that he did make a
statement to the Police. The Trial
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Court had not permitted the contents of that statement,
which indicated that Jailal was not an eye witness but came
there at a time when the Corpse of Sriram was being removed,
to be used to contradict his version as a Court witness.
Smt. Brahma, P. W. 2, as well as Durga Prasad, P. W. 6, the
injured eye witnesses, as well as Bhai Singh, P. W. 1,
stated that Jailal was present at the time of the
occurrence.
Learned Counsel for the appellant submitted that Jailal’s
statement before the Police suggested that he had come in
the morning, long before 1 p.m., and had found that Sriram
had already been murdered. This, it is urged indicates that
Sriram must have been murdered either by Naurangabad people
or by unknown persons during the night. We do not find
material on record to support the suggestion that Jailal
must have reached the house in the morning at a time when
Sriram’s murder had been already committed. The Trial Court
had discussed the evidence of Jailal at some length and had
opined that his name was not mentioned in the F.I.R. as be
was related to the accused persons also. That may be the
reason why Jailal was distrusted. If, however, Rameshwar,
P.W.5. a chance witness, who claimed to be present, at the
time of the alleged occurrence and to have seen it, is to be
believed, Jailal was not to be seen at all at that time at
the house. If Jailal was really not present, the evidence
of witnesses who were prepared to state, for some oblique
reason, that he was present, though not necessarily false
about the whole occurrence, has to be appraised less un-
critically. The High Court, without considering or
discussing the significance of the presence or absence of
Jailal at the house at the time of the occurrence, had
merely observed that Jailal, C.W. 1, also supported the
prosecution version.
Learned counsel for the’ appellant submitted that the
testimony of Jailal could not have been accepted by the High
Court because Jailal had not been confronted with his
previous statement before the police. He urged, relying
upon Emperor v. Lal Mian (1), that, even if the statement of
a witness, recorded by the Police during the investigation,
cannot be used for "any purpose" other than the ones
mentioned in Section 162 Criminal Procedure Code, yet this
prohobition applies only to the parties to the proceedings
and does not operate against the powers of the Court itself
when it considers the testimony of a witness to be
necessary. Although, the Trial Court considered Jailal’s
evidence important enough to examine him under Section 540
Criminal Procedure Code, yet it disabled itself from testing
its worth by putting an alleged contradiction to the witness
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on a matter of some importance, in the case.
It is urged by learned counsel for the appellants that the
powers of the Court to question a witness are regulated by
the special provisions of Section 165 of the Evidence Act
exclusively, so that a previous statement of the witness,
who is called as a Court witness, can be used by the Court
to contradict him even if it was made to the police during
the investigation. This, it is submitted, is the effect of
the special powers of the Court under Section 165 Evidence
Act.
(1) A.I.R. 1943 Cal. 521.
98
It is true that the ban, imposed by section 162 Criminal
Procedure Code, against the use of a statement of a Witness
recorded by the Police during investigation, appears
sweeping and wide. But, at the same time, we and that the
powers of the Court, under section 165 of the Evidence Act,
to put any question to a witness, are also couched in very
wide terms authorising the Judge "in order to discover or to
obtain proper proof of relevant facts" to "ask any question
he pleases, in any form, at any time, of any witness, or of
the parties, about any fact relevant or irrelevant". The
first proviso to section 165 Evidence Act, enacting that,
despite the powers of the Court to put any question to a
witness, the judgment must be based upon facts declared by
the Act to be relevant, only serves to emphasize the width
of the power of the Court to Question a witness. The second
proviso is this section preserves the privileges of
witnesses to refuse to answer certain questions and
prohibits only questions which would be considered improper
under section 148 and 149 of the Evidence Act. Statements
of witnesses made to the police during the investigation do
not fall under any prohibited category mentioned in Section
165 Evidence Act. If Section 162 Criminal Procedure Code
was meant to be so wide in its sweep as the Trial Court
thought it to be, it would make a further inroad upon the
powers of the Judge to put Questions under Section 165
Evidence Act. If that was the correct position, atleast
Section 162 Criminal Procedure Code would have said so
explicitly. Section 165 of the Evidence Act was already
there when section 162 Criminal Procedure Code was enacted.
It is certainly quite arguable that Section 162 Criminal
Procedure Code doer, amount to a prohibition against the use
even by the Court of statements mentioned there.
Nevertheless, the purpose of the prohibition of Section 162
Criminal Procedure Code being to prevent unfair use by the
prosecution of statements made by witnesses to the Police
during the course of investigation, while the proviso is
intended for the benefit of the defence, it could also be
urged that, in order to secure the ends of Justice, which
all procedural law is meant to subserve, the prohibition, by
taking into account its purpose and the mischief it was
designed to prevent as well as its context, must be confined
in its scope to the use by parties only to a proceeding of
statements mentioned there.
We are inclined to accept the argument of the appellant that
the language of Section 162 Criminal Procedure Code, though
wide, is not explicit or specific enough to extend the
prohibit on to the use of the wide and special powers of the
Court to question a witness, expressly and explicitly given
by Section 165 of the Indian Evidence Act in order to secure
the ends of justice. We think that a narrow and restrictive
construction put upon the prohibition in Sect on 162
Criminal Procedure Code, so as to confine the ambit of it to
the use of statements by witnesses by parties only to a
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proceeding before the Court, would reconcile or harmonize
the two provisions considered by us and also serve the ends
of justice. Therefore, we hold that Section 162 Criminal
Procedure Code does not impair the special powers of the
Court under Section 165 Indian Evidence Act. Consequently,
we think that the Trial Court could and should have itself
99
made use of the statement made by Jailal during the course
of the investigation. If that had been done, it is possible
that it may have affected appraisal of evidence of other
prosecution witnesses.
We also find that the Trial Court as well as the High Court
had brushed aside the objection that the blood recovered
from the place of occurrence was not sent for chemical
examination. We think that a failure of the police to send
the blood for chemical examination in a serious case of
murder, such as the one before us, is to be deprecated. In
such cases, the place of occurrence is often disputed. In
the instant case, it was actually disputed. However, such
an omission need not jeopardise the success of the
prosecution case where there is other reliable evidence to
fix the scene of occurrence.
The High Court had dealt with the contention that there was
some conflict between medical evidence and the evidence
about the distances from which shootings are said to have
taken place. It held that, if correctly interpreted,
medical evidence corroborated the accounts of eye witnesses.
But, the High Court had not similarly discussed or dealt
with the infirmities in the statements of prosecution
witnesses, which were placed before us, such as the denial
by Smt. Brahma, P. W. 2 that she went to the police station
to lodge a report in respect of the murder of Hari Singh.
It was urged on behalf of the appellants that this
deliberately mendacious denial by her was made to conceal
the fact that her report was untrue. Matters which may
shake the credibility of a witness must be taken into
account although they may not be enough to discard the whole
statement of a witness.
We have indicated a number of points on which, in a case of
a death sentence, one would have expected a closer and a
more critical scrutiny and a fuller discussion by the High
Court of the evidence in the case and of the material
questions arising for decision before it together with its
decisions on these supported by more than what could appear
as perfunctory reasoning. We have also indicated the rather
important question which was, surprisingly, not discussed at
all by the High Court, emerging from a reading of the
postmortem ,report considered in the context of the alleged
time of the murder. We think that the High Court itself
could and should have taken further expert medical evidence,
under Sections 540 and 428 Criminal Procedure Code, on this
question. For the reasons already given, we also think that
Jailal, C. W. 1, ought to have been confronted by the Court
itself with his previous statement before the police and
that statement could be proved by the Investigating officer.
After that, a better appraisal of other evidence in the case
than is possible now, on the present state of the record,
could take place.
We have anxiously considered the question Whether this is a
case in which we should consider the merits of the whole
case ourselves on the evidence on record or send it back for
further consideration and decision in accordance with the
law, as laid down above, either by the High Court or by the
Trial Court. We do not think that in a serious case of
murder such as the one before us, persons who were, if the
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prosecution case is true, acting as utterly irresponsible
and callous bullies, should be judged on the evidence as it
stands
100
without the additional evidence mentioned above by us. We
must emphasise that, whatever may be the nature of the
offence or the actions of the accused, as revealed by
evidence, the accused, are entitled to a fair trial which a
well considered judgment, dealing satisfactorily with the
material points in the case, evidences. For the reasons
given above. we think that several material points. have
escaped consideration by the High Court.
Consequently, we allow this appeal to the extent that we set
aside the judgment and orders of the High Court and sent
back the case to it for reconsideration and decision in
accordance with law as explained by us. No opinion which
may have been expressed unwittingly by us on questions of
fact would bind the Court or affect an unfettered
consideration of the merits of the respective cases of the
two sides by the High Court in accordance with the law as
laid down by us.
appeal partly allowed.
P. B. R.
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