Tuesday 2 January 2018

Whether offence U/S 498A of IPC can be proved on basis of dying declaration?

 Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disunited from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

11. The evidence of PW 2 Antakala is not only sketchy, vague and inherently unreliable due to proved omissions, the evidence is inadmissible since the evidence is entirely hearsay. PW2 is not a witness to the alleged illtreatment. The illtreatment is said to be narrated to her by the deceased. Similarly, the evidence of PW3 and PW4 is entirely hearsay and inadmissible for reasons spelt out supra.

The evidence of the family members of the deceased is mostly if not entirely inadmissible and section 32(1) of the Indian Evidence Act does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under section 498-A of IPC, is concerned. However, even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under section 498-A of IPC.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 17 and 74 of 2000

Decided On: 07.09.2017

Purushottam Sitaram Bakal and Ors. Vs.The State of Maharashtra

Hon'ble Judges/Coram:
R.B. Deo, J.



1. The appellants in Criminal Appeal No. 17 of 2000 faced trial for offence punishable under sections 306 and 498-A read with section 34 of Indian Penal Code (for short 'IPC'). They have been acquitted of offence punishable under section 306 read with section 34 of IPC and have been convicted of offence punishable under section 498-A read with section 34 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/-.

The State is challenging the acquittal of the accused for offence punishable under section 306 of IPC and accused are challenging the conviction under section 498-A read with section 34 of IPC. Criminal Appeal 17 of 2000 and Criminal Appeal 74 of 2000, assailing the judgment dated 20.12.1999, in Session Trial 65 of 1997 delivered by Additional Sessions Judge, Washim, have been heard together and are decided by this common judgment.

2. Heard Shri. S.A. Bramhe, learned counsel for appellants in Criminal Appeal 17 of 2000 and Shri. H.R. Dhumale, learned Additional Public Prosecutor in Criminal Appeal 74 of 2000 for the State.

3. Saraswati, late wife of appellant 1, Purushottam (appellants shall be referred to as 'accused' hereinafter) expired on 22.5.1997 at village Tiwali. The prosecution contends that Sarswati committed suicide by consuming poison. Natthu Jadhav, the father of Sarswati lodged First Information Report (for short 'FIR') (Exh. 23), on 23.5.1997, pursuant to which offence punishable under section 498-A and 306 read with section 34 of IPC was registered at Shirpur Police Station.

4. The gist of the prosecution case is that Sarswati was harassed by the accused to coerce her to fulfil unlawful demand of colour TV, cooler and Rs. 10,000/-. The FIR states that whenever Sarswati used to visit the maternal house, she used to disclose the harassment to which she was subjected, to the informant and other family members.

The investigation led to filing charge-sheet before the learned Magistrate who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh. 14). The accused pleaded not guilty and claimed to be tried. The prosecution examined six witnesses including the father, mother, uncle and sister of the deceased Sarswati. The defence of the accused is total denial.

5. The learned Sessions Judge has held that the prosecution has not proved that Sarswati committed suicide. The learned APP Shri. H.R. Dhumale, contends that the finding of the learned Sessions Judge is manifestly erroneous and is contrary to the dictum of the Hon'ble Supreme Court in Bhupendra v. State of Madhya Pradesh MANU/SC/1159/2013 : (2014) 2 SCC 106. The learned APP contends that the reasoning of the learned Sessions Judge, that in view of the report of the Chemical Analyzer that on examination of viscera, no general and specific chemical was detected, suicidal death is not proved conclusively, is a reasoning which is clearly flawed. The learned APP would contend that there is ample evidence on record including the FIR, the spot panchanama and the Post Mortem Report which proves that Sarswati consumed poison. He would urge, that the learned Sessions Judge fell in serious error on relying only on the negative report of the Chemical Analyzer to hold that suicidal death is not established. Per contra, Shri. S.A. Bramhe, learned counsel for the accused would urge, that the finding recorded by the learned Session Judge does not prove that Sarswati committed suicide, is a possible and plausible view and certainly not perverse. The learned counsel for the accused does not dispute the proposition that it is not necessary for the prosecution to wait for the report of the Chemical Analyzer even if such report is sought. However, the learned counsel would urge, that once the prosecution receives the report of the Chemical Analyzer and the Chemical Analyzer's report is relied upon by the prosecution by filing the same in the trial and inviting the accused to admit the contents thereof, the prosecution is bound by the report of the expert. The learned counsel would contend that the judgment of the Hon'ble Supreme Court in Bhupendra v. State of Madhya Pradesh, is distinguishable on facts. The Hon'ble Supreme Court was considering a factual scenario in which the Chemical Analyzer's report was sought but then was awaited and the defence contended that in the absence of the report of viscera examination, death due to consumption of poison is not established. The Hon'ble Supreme court was pleased to articulate that the consumption of poison can be established by other evidence, and absence of viscera report is not necessarily fatal to the prosecution case. The learned counsel for the accused would urge, that while absence of viscera report may not be fatal to the prosecution case, if there is no direct ocular evidence on record to suggest suicidal death due to consumption of poison, a negative viscera report is certainly fatal.

6. Be it noted, that in the present case, the viscera examination report was sought for and the report which was received and filed alongwith charge-sheet was negative. The prosecution filed the Chemical Analysis Report, invited the accused to admit the contents thereof and the Chemical Analysis report is proved on admission. It is axiomatic that the prosecution in a sense relied on the Chemical Analysis report. It is not the case of the prosecution that the viscera examination report is not conclusive or untrustworthy due to any reason. The learned Session Judge has held that offence under section 306 of IPC is not proved on the premise that suicidal death by consumption of poison is not sought. I would not be inclined to take a different view, even if arguendo, two views are possible. The viscera examination report is negative and poison is not detected. The finding of the learned Session Judge, is certainly not perverse. I do not see any merit in the State appeal challenging the acquittal of the accused for offence under section 306 of IPC.

7. The accused have been convicted for offence punishable under section 498-A which reads thus:-

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purpose of this section, "cruelty" means

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

8. The ingredients of section 498-A of IPC are articulated in Girdhar Shankar Tawade v. State of Maharashtra MANU/SC/0361/2002 : (2002) 5 SCC 177, thus:

"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislature: whereas Explanation (a) involves three specific situations viz. (I) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A."

"17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereupon - the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl's in laws' place and requests the husband to treat her well - at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day".

9. Cruelty for the purpose of section 498-A of IPC is statutorily defined. Cruelty which may be constitute a matrimonial offence may not necessarily be the cruelty envisaged under explanation (a)(b) to section 498-A of IPC. The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the Hon'ble Supreme Court on the scope and ambit of section 498-A of IPC.

The prosecution case entirely rests on the testimony of the four family members of the deceased, namely, PW1 Natthu Jadhav(father), PW2 Antakala Jadhav (mother), PW3 Vishwanath Jadhav (uncle) and PW4 Vimal Shinde (sister). PW1 Natthu deposes that as and when deceased Sarswati used to visit to her parental home, she used to narrate the instances of illtreatment. The evidence of PW 1 on the illtreatment, to the extent the evidence is hearsay, is not admissible and the said aspect shall be dealt with at a later stage in the judgment. PW1 states that the accused used to say that since Sarswati came to their house as bride, accused were facing poverty. PW1 further states that the accused demanded colour TV and Rs. 10,000/- and that the harassment to Sarswati was due to the said demand. Be it noted, that the harassment is not directly witnessed by the PW1 who is essentially deposing on the basis of the conversation which he and Sarswati allegedly had when Sarswati used to visit the parental home. Similarly, the general allegations of illtreatment in paragraph 3 and 4 of the examination in chief are also hearsay in as much as the deposition is based on what Sarswati allegedly narrated to PW1 on 4.5.1997 and 8.5.1997. The evidence of PW1 is not reliable or trustworthy and is marked by serious proved omissions which partake the character of contradiction. The evidence is even otherwise too sketchy, general and grossly insufficient to prove cruelty within the meaning of explanation (a) and explanation (b) of section 498-A of IPC.

The evidence which is based on what Saraswati narrated is hearsay and is not admissible under section 32(1) of the Indian Evidence Act, 1872. The prosecution has not proved that Sarswati committed suicide. PW1 asserts that deceased Sarswati narrated the instances of illtreatment when she met her family members. The statements attributed to the deceased are clearly inadmissible since the death of Sarswati is neither homicidal nor suicidal. Section 32(1) of Evidence Act, is an exception to the rule of hearsay and statements of a person who dies, whether the death is a homicide or a suicide, are made admissible if the statements relate to the cause of death, or explain circumstances leading to the death. In view of the finding recorded by the learned Sessions Judge that suicidal death is not proved, and which finding I am not inclined to disturb, the statements attributed to deceased Sarswati are not statements which are admissible under section 32(1) of the Indian Evidence Act and to the extent the evidence of PW1 and other family members is hearsay, the evidence is clearly inadmissible.

10. It would be apposite to refer to the following observations in Bhairon Singh v. State of Madhya Pradesh, MANU/SC/0908/2009 : 2010 ALL SCR 213:

"4. The legal position relating to the admissibility of evidence under section 32(1) has come up for consideration before this court time and again. It is not necessary to multiply the authorities in this regard as reference to a three judge Bench decision of this court in Sharad Birdhichand Sarda v. State of Maharashtra, MANU/SC/0111/1984 : (1984)4 SCC 116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding the application of rule under section 32(1) Evidence Act, Fazal Ali, J. culled out the legal position as follows:

"(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect as indicated above, the Indian Evidence Act, in view of the peculiar condition of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice".

"(2) The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32".

(3) The second part of clause (1) OF Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

5. Varadarajan, J. on the other hand referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence, (fourteenth edition) and Ratanlal Dhirajlal in their Law of Evidence (1982 Reprint). This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1):

"....The position of law relating to the admissibility of evidence under Section 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of Evidence (1982 Reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these: Woodroffe and Amir Ali's Law of Evidence, Fourteenth Edn.:

"Page 937: Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross- examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source.

Page 941: What is relevant and admissible under clause (1) of this section (Section 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.

Page 945-946: A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. (MANU/SC/0055/1963: AIR 1964 SC 900.) Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause. (ILR 1901 25 Bom.45.)

Page 947: Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death' do not mean 'caused his death'. The expression 'any of the circumstances of the transaction which resulted in his death' is wider in scope than the expression 'the cause of his death'. The declarant need not actually have been apprehending death. (MANU/MP/0010/1964 : AIR 1964 MP 30.)

Page 947: The expression 'circumstances of the transaction' occurring in Section 32, clause (1) has been a source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of Their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (MANU/PR/0001/1939 : AIR 1939 PC 47) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder.... But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.

Page 948: 'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes the evidence of all relevant factors. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible.

Page 949: The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. [(1939) 66 IA 66.] 'Circumstances of the transaction which resulted in his death' means only such facts or series of facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and Dhirajlal (1982 Reprint)

"Page 94: Circumstances of the transaction: General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible. [(1939) 66 IA 66] (18 Part 234.)

Page 95: Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant's death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the 'circumstance' can only include the acts done when and where the death was caused....

Dying declarations are admissible under this clause."

"10. The only evidence to bring home charge under Section 498A, IPC, is that of PW-4 and PW-5. In their deposition PW-4 and PW-5 stated that their sister told them that accused was torturing her as he wanted that her brothers arrange a job for him or the house at Ganj Basoda is given to him or a cash of Rs. 1 lac is given to enable him to do some business. They deposed that as and when their sister come to their house, she would tell them that accused used to insert cloth in her mouth and give beatings for dowry. The trial court as well as the High Court relied on the evidence of PW-4 and PW-5 and held that charge under Section 498A, IPC, against the accused was proved. Apart from the statement attributed to the deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to Ranjana Rani @ Raj Kumari was concerned".

"11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under Section 498A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence".

The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted".

"12. We are fortified in our view by the decision of this Court in Inder Pal v. State of M.P. MANU/SC/3407/2000 : (2001) 10 SCC 736, wherein this Court considered the matter thus:

"4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498-A IPC. PW 1 father of the deceased and PW 8 mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of the appellant. PW 4 sister of the deceased and PW 5 a relative of the deceased have also spoken more or less on the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken of anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due to commission of suicide".

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disunited from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

11. The evidence of PW 2 Antakala is not only sketchy, vague and inherently unreliable due to proved omissions, the evidence is inadmissible since the evidence is entirely hearsay. PW2 is not a witness to the alleged illtreatment. The illtreatment is said to be narrated to her by the deceased. Similarly, the evidence of PW3 and PW4 is entirely hearsay and inadmissible for reasons spelt out supra.

The evidence of the family members of the deceased is mostly if not entirely inadmissible and section 32(1) of the Indian Evidence Act does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under section 498-A of IPC, is concerned. However, even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under section 498-A of IPC.

Criminal Appeal 17 of 2000, is allowed and the accused are acquitted of offence punishable under section 498-A read with section 34 of IPC. Criminal Appeal 74 of 2000 is dismissed.

The bail bonds shall discharged and fine paid by the accused, if any, shall be refunded.

Criminal Appeal 74 of 2000 and Criminal Appeal 17 of 2000 are disposed of accordingly.





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