Sunday, 6 October 2019

Whether offence U/S 366 of IPC can be treated as minor offence to S 366A of IPC?

Here it is useful to refer
the decision in the case of Iqbal Vs State of Kerala
(2008) Cri.L.J. 436 wherein the Hon'able Apex court in
para 9 to 11 observed as under:
“9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A
IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or knowing
that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other
than the accused; (5) that the inducement caused the girl to go
from any place or to do any act.
10. In the instant case, the admitted case of the prosecution is
that girl had left in the company of the accused of her own will
and that she was not forced to sexual intercourse with any person
other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age,
conviction u/s 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than
the accused has not been established, Section 366A
has no
application.

28. Relying upon the decision in the case of
Bhagwan Laxman Rakshe (supra) learned APP submitted that
in case, it is held that the prosecution has failed to
prove offence under Section 366A
of the IPC against
accused then accused be convicted for the offence under
Section 366 of the IPC by altering the conviction from
Section 366A
into a conviction under Section 366 of the
IPC though no charge is framed under Section 366 of the
IPC. In the said case in paragraph No.17 as referred
earlier in detail it was observed that Section 366 of the
IPC, apart from abduction or seducing a woman to compel
her marriage, interalia, deals with offence of kidnapping
with intention that the woman may be forced to illicit
intercourse. The punishment is prescribed of 10 years for
both the offences under Section 366A
and Section 366 of
the IPC and hence it would be appropriate to convert
conviction awarded under Section 366A
into conviction
under Section 366 of the IPC and as such sentence as
passed by the trial Court was maintained.

29. Here, it would be appropriate to refer three
judges decision of the Hon'ble Apex Court in the case of
Shamnsaheb M. Multtani Vs State of Karnataka (2001) 2
Supreme Court Cases 577 wherein in paragraph Nos.16,17
and 18 of the said judgment the aspect what is meant by a
minor offence for the purpose of Section 222 of the Code
of Criminal Procedure is considered. Said paragraph Nos.
16,17 and 18 read as under:“
16. What is meant by “a minor offence” for the purpose of
Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence visavis
the
other offence.


31. From the decision in the case of Shamnsaheb M.
Multtani (supra) it is clear that the test of minor
offence is not merely that the prescribed punishment is
less than the major offence and that two illustrations
provided in Section 222 of the Code of Criminal Procedure
would bring the said point home well. So also, it is
clear from the said decision that only if the two
offences are cognate offences, wherein main ingredients

are common, the one punishable among them with a lesser
sentence can be regarded as minor offence visavis
the
other offence. The ingredients of offence punishable
under Section 366A
are five as referred earlier in
paragraph No.24 (supra) and the ingredients of offence
punishable under Section 366 of the IPC are that; 1.
Kidnapping or abducting of any woman, 2. Such kidnapping
or abducting must be(
i) with intent that she may be
compelled or knowing it to be likely that she will be
compelled to marry any person against her will; or (ii)
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or (iii) by
means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may
be, or knowing that she will be, forced or seduced to
illicit intercourse. The main ingredients of these two
offences are not appearing common. The material
ingredients of offence under Section 366A
of the IPC is
the inducement of a girl under the age of 18 years with
intent that she may be or knowing that it is likely that
she would be forced or seduced to illicit intercourse and
such intercourse must be with a person other than the
accused, while material ingredients of offence under
Section 366 is kidnapping or abducting of any woman with

intent that she may be compelled or knowing it to be
likely that she would be compelled to marry any person
against her will or she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
may be forced or seduced to illicit intercourse.
Moreover, the punishment provided for both the offences
is the same and the punishment of either of these
offences is not less than the other offence. Considering
these aspects and applying the aforementioned
observations of the Hon'ble Apex Court regarding a minor
offence in the case of Shamnsaheb M. Multtani (supra) I
hold that the offence under Section 366 of the IPC cannot
be regarded as minor offence to Section 366A
of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.466 OF 2016

Bhagwat Munjabhau Hoge  Vs  The State of Maharashtra 

CORAM : S.M.GAVHANE,J.

PRONOUNCED ON : 07.06.2019



. By this appeal the appellant/accused challenges
the judgment and order dated 15.12.2015 passed by the
Additional Sessions Judge, Parbhani in Special Case
(POCSO) No.14 of 2014 thereby convicting him for the
following different offences under the Indian Penal Code

(hereinafter referred to as 'the IPC') and the Protection
of Children from Sexual Offences Act (hereinafter
referred to as 'the POCSO Act').
a] He was sentenced to suffer rigorous imprisonment for
five years and to pay a fine of Rs.5,000/,
in default of
payment of fine amount to suffer simple imprisonment for
three months for the offence punishable under Section
366A
of the IPC.
b] He was sentenced to suffer rigorous imprisonment for
10 years and to pay a fine of Rs.10,000/,
in default of
payment of fine to suffer simple imprisonment for six
months for the offence under Section 376 of the IPC.
c] He was sentenced to suffer rigorous imprisonment for
ten years and to pay a fine of Rs.10,000/,
in default of
payment of fine to suffer simple imprisonment for six
months for the offence under Section 6 of the POCSO Act.
d] The appellant was given set off under Section 428 of
the Code of Criminal Procedure for the period from
12.12.2013 to 29.01.2014 and from 02.08.2014 till date of
judgment i.e. 15.12.2015.

2. The appeal was admitted on 08.08.2016. As the
appellant is in jail and his application seeking bail was
rejected on 16.09.2016, the appeal was fixed for final
hearing.
3. Facts of the prosecution case, in short, are as
under:A]
The informant Dinkar Hoge (PW1)
father of the
victim girl (PW2)
lodged the complaint (Exh.13) in the
Police Station, Manwat, Dist. Parbhani contending that
the victim girl aged 16 years was studying in 11th std at
Manwat at the relevant time of incident. It was alleged
that on 03.12.2013 at about 08.00 p.m. after taking meals
he and his family members went to sleep. At that time the
victim girl took his mobile for charging. Thereafter, at
about 03.00 a.m. when wife of the informant woke up, it
was noticed that the victim girl was not in the house.
His wife told the said fact to the informant. Thereafter,
informant, his brother Shivaji, uncle Rambhau and Shamrao
Dengde took search of the victim girl, but she was not
found.
B] It is further case of the prosecution that in
the morning at about 06.00 a.m. informant found his

mobile outside the door and saw that there were calls on
his mobile from mobile No.9011415927 at about 00.06
hours. After enquiry he came to know that the said mobile
number is of appellant/accused. The informant made an
enquiry with the parents of the appellant in respect of
mobile and he came to know that the said mobile is of the
appellant. Father of the appellant told that the
appellant is not at home. After calling on his mobile, it
was noticed that the said mobile was switched off. The
informant ascertained that the appellant has kidnapped
the victim girl. Thereafter, he went to the police
station and lodged the complaint as above. Treating it as
FIR police registered crime No.199/2013 on 04.12.2013
against the appellant for the offence punishable under
Section 366A
of the IPC and the investigation was
commenced.
C] On 13.12.2013 the informant came to know from
the notice of Police Station, Manwat that the victim girl
is in custody of police. After enquiry with her she
informed him that on 03.12.2013 the appellant kidnapped
her by giving her promise of marriage with her. She
further informed that the appellant had taken her to
Karde Shivar, Tq. Shirur, Dist. Pune. He took one room on
rent and told to Sunil Jagdale owner of the room that

they are husband and wife. She also informed that they
resided there till 11.12.2013 and that the appellant was
misguiding her that they will get marry and he committed
sexual intercourse with her for 4 to 5 times. Thereafter,
the police had brought them to the police station,
Manwat.
D] During the investigation offences under Section
376 of the IPC and under Section 6 of the POCSO Act were
added and after completion of the investigation, the
chargesheet
was submitted in the court of JMFC, Manwat,
who committed the case to the Sessions Court, Parbhani as
the offences against the appellant were exclusively
triable by the Sessions Court being a Special Court.
E] Charge was framed against the appellant/accused
for the offence punishable under Section 366A,
376 of
the IPC and under Section 6 of the POCSO Act. He pleaded
not guilty to the charge and claimed to be tried.
F] The prosecution has examined following 9
witnesses besides the documentary evidence referred in
paragraph No.9 of the judgment of the trial Court to
prove the charge against the appellant.

1. Dinkar Baburao Hogeinformant/
father of victim
2. Durga D/o.Dinkar HogeVictim
3. Jankiram S/o. Sopanrao Moreywitness
4. Sunil S/o. Prabhu JagdaleWitness
5. Balaji S/o. Saudagar JadhavCarrier
of Muddemal
6. Dr.Deepali D/o. Shivajirao ShindeMedical
Officer
7. Pradeepkumar Namdeorao JondhaleInvestigating
Officer.
8. Dr.Md.Faizal Md.Razalu RahemaMedical
Officer
9. Dr.Sudam Tulshiram MehateMedical
Officer
G] Thereafter, statement of the appellant under
Section 313 of the Code of Criminal Procedure was
recorded. He denied to have committed the offences with
which he was charged. His defence was that the victim was
major at the time of incident and sexual intercourse is
committed with her consent. The appellant/accused
examined himself on oath at Exh.69.
H] Considering the evidence adduced by the
prosecution and the defence of the appellant the learned
judge of the trial Court has held that the prosecution
has proved the offences against the appellant with which
he was charged and convicted and sentenced him by the
impugned judgment and order as mentioned in the opening
para of this judgment. Therefore, this appeal by the
appellant.
4. I have heard Mr.Jadhav, learned counsel for the

appellant, Mr.Kutti, learned APP for respondent/State and
Mr. Dhage, learned counsel for respondent No.2 the
informant and with their assistance I have perused the
evidence adduced by the prosecution, defence and impugned
judgment and order.
5. Mr.Jadhav, learned counsel for the
appellant/accused has submitted that age of the victim
girl on the date of incident was more than 16 years and
she was major. She stayed with the appellant from
03.12.2013 to 11.12.2013. But, she did not make complaint
against the appellant. As such, according to the learned
counsel for the appellant there was love affair between
victim girl and the appellant. It is submitted that the
evidence of PWs1
to 3, 6 and 9 and the defence witness
is material on the age of the victim girl. According to
the learned counsel as per the evidence of Headmaster
(PW3)
date of birth of the victim girl is 08.07.1997 and
the date of incident is 03.12.2013. Thus on the date of
incident age of the victim girl was 16 years 4 months 25
days. The victim girl was admitted in the school of PW3
Headmaster in the 7th std. Prior to the said school she
was admitted in the Zilla Parishad School, Nagarjawala in
the 1st std. Admittedly the prosecution has not examined
Headmaster of Zilla Parishad School at Nagarjawala. In

the absence of evidence of Headmaster of Zilla Parishad
School it cannot be said that date of birth i.e.
08.07.1997 deposed by the Headmaster (PW3)
is correct
and authenticated birth date of the victim girl. It is
submitted by the learned counsel for the appellant that
ossification was carried by PW9
and Radiological opinion
as per Exh.65 is that age of the prosecutrix was 15 to
16.5 years. Thus, according to the learned counsel for
the appellant the prosecution has not proved that the
victim girl was below 16 years and below 18 years to
attract the offences alleged against the appellant. It is
submitted that the appellant has examined himself as
defence witness and on the basis of said evidence it is
proved that the victim girl was 18 years. Thus, it is
submitted that the prosecution has not proved the age of
the victim girl below 16 years.
6. Mr.Jadhav, learned counsel for the appellant
thus submitted that age of the victim girl was more than
16.5 years and hence her consent was material and hence
no offence under Section 376 of the IPC is made out
against the appellant. So also, it is submitted that the
victim girl left her house at her own and accompanied the
appellant and hence no offence under Section 366A
IPC is
attracted. So also, no ingredients of offence under

Section 366A
of the IPC have been proved by the
prosecution. It is submitted that as the victim girl was
not below 16 years presumption under Section 29 of the
POCSO Act cannot be raised in favour of the prosecution.
Thus, according to the learned counsel for the appellant
the impugned conviction and sentence recorded against the
appellant is not sustainable and the same is liable to be
quashed and set aside by allowing the appeal and the
appellant may be acquitted of the offences for which he
has been convicted and sentenced by the impugned
judgment.
7. Mr.Jadhav, learned counsel for the appellant
alternatively submitted that if the appellant is not
acquitted of the offences for which he has been
convicted, the sentence imposed upon him be reduced to
period i.e. 4 years 9 months and 19 days undergone by him
as the victim has already married and the appellant was
young boy of 23 years when the offence was committed and
it is the case arising out of the love affair.
8. Mr.Jadhav, learned counsel for the appellant to
support his submissions has relied upon the following
decisions:

a] In the case of Kundan S/o. Nanaji Pendor VS The
State of Maharashtra 2017 ALL MR (Cri) 1137 in paragraph
Nos.11 and 13 it was observed as under:
“11. Since the appellant has been charged with having
committed offence under Sections 3(a), 5(j)(ii) and 5(1) of the Act of
2002, as per Charge at Exh.4, it would be necessary to first record a
finding as to the age of “S”. As per provisions of Section 2(1)(d) of the
said Act, a child means a person below the age of eighteen years. As
noted above, the prosecutrix had stated on oath that her date of birth
was 5th January, 1997. There is no crossexamination,
whatsoever, to
this specific assertion made by the prosecutrix in her examinationinchief.
Her said statement has gone totally unchallenged. It is a settled
position of law that if a witness is not crossexamined
on a particular
portion of her deposition in her Examinationinchief,
said statement is
required to be accepted as the same is not challenged by the defence.
Reference in this regard can be made to the observations of the Hon'ble
Supreme Court in Paragraphs 13 and 14 of its decision in State of UP Vs
Nahar Singh (dead) & others [(1998) 3 SCC 861]: [1998 ALL MR (Cri)
1308 (SC)] which are quoted below:
13. It may be noted here that that part of the statement of PW1
was not crossexamined
by the accused. In the absence of crossexamination
on the explanation of delay, the evidence PW1
remained unchallenged and ought to have been believed by the

High Court. Section 138 of the Evidence Act confers a valuable
right of crossexamining
the witness tendered in evidence by the
opposite party. The scope of that provisions is enlarged by Section
146 of the Evidence Act by a allowing a witness to be
questioned. :
(1)to test his veracity.
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although
the answer to such questions might tend directly or
indirectly to incriminate him or might expose or tend
directly or indirectly to expose him to a penalty or
forfeiture.
14. The oftquoted
observation of Lord Hershell, L.C. in Browne
Vs Dunn clearly elucidates the principle underlying those
provisions. It reads thus:
I cannot help saying, that it seems to me to be
absolutely essential to the proper conduct of a cause, where
it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct his attention to the fact
by some questions put in crossexamination
showing that
that imputation is intended to be made, and not to take his
evidence and pass it by as a matter altogether
unchallenged, and then, when it is impossible for him to

explain, as perhaps he might have been able to do if such
questions had been put to him, the circumstances which, it
is suggested, indicate that story he tells ought not to be
believed, to argue that he is a witness unworthy of credit.
My Lords, I have always understood that if you intend to
impeach a witness, you are bound, whilst he is in the box,
to give an opportunity of making any explanation which is
open to him; and, as it seems to me, that is not only a rule
of professional practice in the conduct of a case, but it is
essential to fair play and fair dealing with witnesses.
Similarly, in Sarwan Singh Vs State of Punjab [(2003)1 SCC 240]: [2003
ALL MR (Cri)156 (SC)], the Hon'ble Supreme Court reiterated this
position by observing in paragraph 9 of its judgment as under:
9. …........ It is a rule of essential justice that whenever the
opponent has declined to avail himself of the opportunity to put
his case in crossexamination
it must follow that the evidence
tendered on that issue ought to be accepted.....”
Hence, following aforesaid position of law, there would be no difficulty
in accepting the unchallenged version of the prosecutrix that her date of
birth was 5th January, 1997. Though it is true, as urged by the learned
counsel for the appellant, that the initial burden to prove the age of the
prosecutrix lies on the prosecution, it is also true that if the relevant

version of the prosecutrix as regards her date of birth has gone
unchallenged, it means that the defence has accepted said statement
made on oath by the witness. Hence, there is no reason to discard the
unchallenged version of “S” that her date of birth was 5th January, 1997.
13. From the deposition of PW10,
it is clear that the last
menstrual period was stated to be on 8th January, 2013. The baby was
actually born on 23rd September, 2013 through a normal delivery. It is,
thus, obvious that the prosecutrix was hardly aged 16 years when on
account of sexual intercourse by the appellant, she had conceived. Once
her date of birth is accepted to be 5th January, 1997, it is clear that on
5th January, 2013 she was aged sixteen years of age. It is, thus, clear
from the evidence on record that she was less than sixteen years of age
when the appellant had sexual intercourse with her. In this backdrop,
therefore, the endeavor on the part of the learned counsel for the
appellant to urge that the relationship between the parties was
consensual in nature falls to the ground. As per provisions of Section
375 sixthly of the Penal Code where the age of the victim is less than
sixteen years, aspect of consent becomes irrelevant. Reference in that
regard can be made to the decision of Hon'ble Supreme Court in Satish
Kumar Jayantilal Dabgar Vs State of Gujrat [(2015) 7 SCC 359]: [2015
ALL SCR 1293]. In that view of the matter, the decisions relied upon by
the learned counsel for the appellant to indicate consent on the part of
the prosecutrix cannot be made applicable in the present facts. For the
same reason, the alternate argument made on behalf of the appellant by

referring to Section 42 of the said Act that a lesser punishment as per
the provisions of Section 376 of the Penal Code deserves to be imposed,
also cannot be accepted.”
b] In the case of S. Varadrajan Vs State of Madras 1965
AIR (SC) 942 it was held that the girl herself
telephoning the accused and accompanying him to office of
SubRegistrar
for marriage. A distinction between taking
a minor or allowing a minor to accompany. It was observed
as under:
“There is not a word in the deposition of Savitri from which an
inference could be drawn that she left the house of K. Natrajan at the
instance or even a suggestion of the appellant. In fact she candidly
admits that on the morning of October Ist, she herself telephoned to the
appellant to meet her in his car at a certain place, went up to that place
and finding him waiting in the car got into that car of her own accord.
No doubt, she says that she did not tell the appellant where to go and
that it was the appellant himself who drove the car to Guindy and then
to Mylapore and other places. Further, Savitri has stated that she had
decided to marry the appellant. There is no suggestion that the
appellant took her to the SubRegistrar's
office and got the agreement of
marriage registered there (thinking that this was sufficient in law to
make them man and wife) by force or blandishments or anything like
that. On the other hand the evidence of the girl leaves no doubt that the

insistence of marriage came from her side. The appellant, by complying
with her wishes can by no stretch of imagination be said to have taken
her out of the keeping of her lawful guardian. After the registration of
the agreement both the appellant and Savitri lived as man and wife and
visited different places. There is no suggestion in Savitri's evidence,
who, it may be mentioned had attained the age of discretion and was
on the verge of attaining majority that she was made by the appellant to
accompany him by administering any threat to her or by any
blandishments. The fact of her accompanying the appellant all along is
quite consistent with Savitri's own desire to be the wife of the appellant
in which the desire of accompanying him wherever he went was of
course implicit. In these circumstances we find nothing from which an
inference could be drawn that the appellant had been guilty of taking
away Savitri out of the keeping of her father. She willingly accompanied
him and the law did not cast upon him the duty of taking her back to
her father's house or even of telling her not to accompany him.
There is a distinction a between “taking” and allowing a minor to
accompany a person. The two expressions are not synonymous though
we would like to guard ourselves from laying down that in no
conceivable circumstances can the two be regarded as meaning the
same thing for the purposes of Section 361 of the Indian Penal Code.
We would limit ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her father's
protection knowing and having capacity to know the full import of what

she was doing voluntarily joins the accused person. In such a case we do
not think that the accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to be shown in a
case of this kind and that is some kind of inducement held out by the
accused person or an active participation by him in the formation of the
intention of the minor to leave the house of the guardian.”
c] In the case of Mukarrab and others Vs State of
Uttar Pradesh (2017) 2 Supreme Court Cases 210 it was
held that courts have always held that evidence afforded
by radiological examination is no doubt a useful guiding
factor for determining age of a person, but evidence is
not of a conclusive and incontrovertible nature and it is
subject to a margin of error. Medical evidence as to the
age of a person though a very useful guiding factor is
not conclusive and has to be considered along with other
circumstances. Ossification test cannot be regarded as
conclusive when it comes to ascertaining the age of a
person. More so, appellantaccused
herein have certainly
crossed the age of thirty years, which is an important
factor to be taken into account, as age cannot be
determined with precision. In fact, in the medical report
of appellants, it is stated that there was no indication
for dental xrays
since both accused were beyond 25 years
of age. Therefore, the age determination based on

ossification test though may be useful is not conclusive
xray
ossification test can by no means be so infallible
and accurate a test as to indicate the correct number of
years and days of a persons life.
9. Mr.Kutti, learned APP, on the other hand,
submitted that on the basis of evidence of PWs1,2,3,6
and 9 the prosecution has proved that the age of the
victim girl/prosecutrix was below 18 years and therefore,
her consent is immaterial. The medical evidence adduced
by the prosecution also supports the case of the
prosecution regarding committing rape on the victim girl
by the appellant. As the victim girl was below 18 years
age on the date of incident she was a child within the
meaning of Section 2(d) of the POCSO Act. The act of the
appellant of having sexual intercourse with her has been
proved beyond doubt on the basis of evidence of victim
girl and the medical evidence. Not only this but while
answering the question Nos. 37, 38 and 48 in the
statement under Section 313 of the Code of Criminal
Procedure the appellant in clear terms admitted that he
had sexual intercourse with the victim girl. Thus, it is
sufficiently proved that the appellant had committed
aggravated penetrative sexual assault on the victim girl
and his said act is punishable under Section 6 of the

POCSO Act. Learned APP thus submitted that the
prosecution has proved all the offences against the
appellant with which he was charged and the trial Court
has rightly convicted and sentenced the appellant for the
said offences by the impugned judgment and therefore, as
the appeal sans merit, the same may be dismissed.
10. Learned APP submitted that in case it is found
that the ingredients of offence under Section 366A
of
the IPC are not proved by the prosecution against the
appellant then in that case on the basis of evidence of
prosecution it has established offence under Section 366
of the IPC and the appellant can be convicted of the
offence under Section 366 of the IPC even in the absence
of charge under said section. To support his said
submission learned APP has relied upon the decision in
the case of Bhagwan Laxman Rakshe Vs the State of
Maharashtra 2016 ALL MR (Cri) 4414 wherein in paragraph
Nos.16 and 17 it was observed as under:
“16. The learned counsel for the appellantaccused
relied on the
case of Mohd. Nisar Vs State of Maharashtra [2006 ALL MR (Cri)
3046] (supra) and referring to observations of this Court in para
12 of that judgment, stated that, Section 366A
of the IPC could
be applied only if the minor girl was taken so as to force or

seduced her to illicit intercourse with “another person” and could
not be applied if the accused had taken her to himself commit the
forcible intercourse.
17. In the present matter, the accused was charged with
Section 366A
of the IPC. Even if the submission is to be accepted
that Section 366A
would get attracted if a minor girl is
kidnapped with intention that she should be forced or seduced to
illicit intercourse with “another person” still there appears no
reason why Section 366 of IPC should not be applied. The basic
ingredients are included in Section 366 of IPC also. Section 366
of IPC, apart from abduction or inducing a woman to compel her
marriage, interalia, deals with offence of kidnapping with
intention that the woman may be forced to illicit intercourse.
Even for such offence, the punishment prescribed is of 10 years.
In Section 366A
also, the punishment prescribed is of 10 years. It
would be thus, appropriate to convert the conviction awarded by
trial Court under Section 366A
into a conviction under Section
366 of IPC and otherwise maintain the sentence as was passed by
the trial Court.”
11. Mr.Dhage, learned counsel for respondent No.2/
informant adopted the argument advanced by the learned
APP and claimed to dismiss the appeal.

12. I have carefully considered the submissions made
by the learned counsel for the appellant, the learned APP
and learned counsel for respondent No.2.
13. Considering the ingredients of offences under
Section 366A,
376 of the IPC and under Section 6 of the
POCSO Act and conviction of the appellant for the said
offences the age of the victim girl /prosecutrix on the
date of incident i.e. on 04.12.2013 would be material.
Therefore, I would like to consider the said aspect at
the first place. To prove the age of the victim girl the
prosecution has mainly relied upon the evidence of PWs1,2,3,6
and 9, age certificate (Exh.37), Radiological
report (Exh.65) and copy of register of extract
(Exh.66/2) produced with certificate (Exh.66/1).
14. Coming to the evidence of above witnesses the
evidence of informant (PW1)
who is father of the victim
girl is that the age of the victim girl at the time of
incident was 16 years and she was studying in 11th std.
in K.K.M. College, Manwat. His said evidence has gone
unchallenged in the course of his crossexamination.
Therefore, there is no reason to disbelieve his evidence.
In the complaint (Exh.13) lodged by him on 04.12.2013 in
the police station also it is stated that age of the

victim girl was 16 years. The evidence of victim girl
(PW2)
which was recorded on 30.07.2015 is that her age
was 18 years. The incident took place on 04.12.2013 and
therefore, her age was more than 16 years and less than
18 years on the date of incident. In the crossexamination
she denied that at the time of incident her
age was 17 years 6 months to 18 years. Thus, nothing was
found in favour of the appellant in her crossexamination
to reject her evidence about her age.
15. The next is the evidence of Jankiram Morey (PW3)
Headmaster of Smt. Shakuntalabai Kanchanrao Katruwar,
Primary School, Manwat. His evidence is that the victim
girl was the student of their school. As per the
admission and general register, date of birth of the
victim girl is 08.07.1987. She took admission in their
school in 7th std. She came from Zilla Parishad Primary
School, Nagarjawala. He had brought original school
leaving certificate issued by Zilla Parishad Primary
School Nagarjawala of the victim girl. He has also stated
about Exh.25 school leaving certificate issued by his
school after victim girl had passed SCC examination in
the March, 2013. In the crossexamination
on behalf of
the accused he stated that initially admission of the
victim girl was in Zilla Parishad School, Nagarjawala and

further stated that he does not know what evidence was
given by the victim girl about her date of birth at the
time of her school admission in the Zilla Parishad
Primary School, Nagarjawala. He stated that whatever
evidence given in the said school, it may be available in
the said school. He has denied that date of birth
mentioned in the leaving certificate issued by Zilla
Parishad, Manwat is wrong. From the evidence of PW3,
it
can be said that his evidence is based on the school
leaving certificate of the victim girl issued by Zilla
Parishad School, Nagarjawala and the victim girl was
admitted in school in 7th std and her initial admission
in 1st std was in Zilla Parishad School, Nagarjawala.
Therefore, record in the said Zilla Parishad School
regarding date of birth of the victim girl was required
to be produced and proved by the prosecution. But
admittedly, said record is not produced and proved by the
prosecution. Therefore, the school record in the form of
school leaving certificate (Exh.25) of the victim girl
when she left school of PW3
after she passed 10th std
examination which shows her birth date as 08.07.1997 is
not conclusive proof of birth date of the victim girl.
16. The evidence of PW6
as regards the age of the
victim girl is that on 13.12.2013 the victim girl came in

the said hospital with police person. She carried
radiological test of the victim girl and as per the said
test her age was within 15 to 16.5 years and radiological
test was conducted and OPD papers were prepared. Said OPD
papers are at Exh.39. In the crossexamination
she stated
that she sought opinion from Radiologist about the age.
Two Xrays
were given for determination of age of the
victim girl and that she has not brought those xrays,
but she can produce the same. She has denied that by
radiological test, no accurate age can be determined.
They can give the span of the age. Error of age is
already given i.e. between 15 to 16.5 years. In
radiological test, for determination of age there may be
error of 1 to 2 years. There was no fusion of lower ends
of radius and ulna, therefore age is determined below 17
years. If that fusion would have found out, the age would
have been 17 or above. Radiologist has given opinion
about xray
examination. She has not brought the same.
She has taken entries of xray
examination from the
report of radiologist (Exh.37). It is not true to say
that the person who has taken xray
should give an
opinion about xray
examination. She has denied that
fusion is depend on nutrition and that due to nutrition
only, there will not be length of bones. She deposed that
they had determined the age on the basis of ossification

centres and not on the length of bone. She has denied
that the age of the victim girl was 18 and above and
further denied that she has shown the age of the victim
girl wrongly as 15 to 16.5 years. Thus, nothing is found
in favour of the accused in the crossexamination
of
PW6.
Therefore, there is no reason to disbelieve the
evidence of PW6.
The evidence of PW6
is further
corroborated by (Exh.37) report of the radiologist as it
shows that on 13.12.2013 probable radiological age of the
victim girl was between 15 to 16.5 years. Even
considering the error of one or two years age of the
victim girl at the material time of incident was 15 to
16.5 years and as such her age was below 18 years at the
time of incident.
17. Next evidence on the age of the victim girl is
of Dr. Mehatre (PW9)
who was working as ClassI
Radiologist Civil Hopsital, Parbhani on 13.12.2013.
According to him on the said date Xray
of the victim
girl was taken by technician and same was forwarded to
him for determination of age. He perused the xray
and
gave his radiological opinion that the age of the victim
girl is in between 15 to 16.5 years and accordingly he
issued certificate and he recorded findings as per Exh.65
and extract of original register is at Exh.66. He stated

that the margin is itself included between age 15 to 16.5
years. In the crossexamination
he denied that when he
recorded findings the age of the victim girl was more
than 18 years and that he recorded wrong findings. Thus
nothing is found in favour of the appellant in the crossexamination
of Dr.Mehatre and thus there is no reason to
disbelieve his evidence. His evidence is corroborated by
his findings Exh.65 and extract of register/certificate
Exh.66/1 and Exh.66/2 entries in the said register.
Exh.65 and Exh.66/166/
2 corroborate the evidence of
Dr.Mehatre (PW9)
regarding the age of the victim girl on
13.12.2013. Thus, on the basis of evidence of Dr.Mehatre
it can be said that including the margin the age of the
victim girl at the time of incident was between 15 to
16.5 years and as such it can be said on the basis of his
evidence that age of the victim girl at the time of
incident was less than 18 years.
18. For all the reasons discussed above on the basis
of evidence of PWs1,2,6,9
and age certificate (Exh.37),
Radiological report (Exh.65) and copy of register of
extract (Exh.66/2) produced with certificate (Exh.66/1),
I hold that the prosecution has proved that the age of
the victim girl at the time of incident was between 15
years to 16.5 years and as such she was below 18 years of

the age i.e. child within the meaning of Section 2d
of
the POCSO Act.
19. Now coming to the evidence of PWs1,2,4
and 6
and Medical Examination Report and General Physical
Examination Report of the victim girl, the evidence of
victim girl (PW2)
is that the appellant is from her
brotherhood. Before six months of incident they got
acquainted with each other. The appellant was calling her
at Manwat. Their friendship turned into love. Appellant
taken oath to marry with her. On 03.12.2013 he telephoned
on her mobile and told her that they have to go and they
have to marry. Her father came to house at 08.00 pm. She
took mobile of her father. All members of family went to
sleep. In the midnight at 12.00 hours the
appellant/accused telephoned her. After receiving phone,
she came out of the house. The appellant told her to come
with him. He had stopped one Indica car near Maruti
temple in the village. As he told her to come, she went
to him. He asked her to sit in the car. He also sat in
the car. They went to village Karde of Taluka Shirur in
Pune District. He was having his friend there. They
stayed two days at the house of his friend. He took one
room on rent in the field of village Karde. While taking
room on rent, he told to Sunil Jagdale (PW4)
that they

are husband and wife. They resided there till 11.12.2013.
The appellant was talking with her sweetly and misguiding
that they will get marry. He performed sexual intercourse
with her. He removed her clothes. He removed her top,
pant and nicker. He removed his clothes. He removed his
pant and underwear. He laid her on ground. Thereafter, he
inserted his urinal part into her urinal part. Therefore,
she was getting pain. He committed sexual intercourse on
05.12.2013. Again after two days, he committed sexual
intercourse. Again on 09.12.2013 he committed sexual
intercourse with her. On 11.12.2013 they were at house.
Police brought both of them to Shirur. She was to be
medically examined and she had menstruation. Again she
was called to hospital on 17.12.2013 and Doctor examined
her. In the crossexamination
she reaffirmed that on the
date of incident while she was sleeping in the house with
her parents and sister, the appellant called her and
therefore at her own she came out of the house and sat in
the Indica car standing near Maruti temple and that the
appellant seated her in the Indica car and that she had
not refused to sit in the car. She also stated that she
went with the accused from her house till Maruti temple
on her own accord and she had not informed the same to
her parents. She stated in the crossexamination
that the
appellant/accused has not performed marriage with her.

She denied that the appellant has not committed sexual
intercourse with her as per her will during 05.12.2013 to
10.12.2013. She has denied that the appellant has not
committed sexual assault on her. She has not denied that
her mother and father have brought pressure on her and
therefore, she has deposed false. Thus nothing is found
in favour of the appellant in the crossexamination
of
the victim girl. Thus, the evidence of the victim girl is
not shattered in her crossexamination.
20. The evidence of informant (PW1)
father of the
victim girl is to the effect that the incident took place
on 03.12.2013 and in the night on that day the victim
girl was sleeping in the house and in the night at about
03.00 am when his wife Suman got up she noticed that the
victim girl was not in the house and thereupon he
informed the same to his neighbour Shamrao Damodhar
Dendge, his brother Shivaji and uncle Rambhau and finally
he filed complaint (Exh.13) in Manwat Police Station. His
evidence also shows that after the victim girl was found
he enquired with her and she informed him that the
appellant had kidnapped her inducing her by giving
promise of marriage. So also, according to him the victim
girl informed him that the appellant has taken her to
Karde Shivar, Tq. Shirur, Dist. Pune and there the

appellant committed sexual intercourse with her. In the
crossexamination
he has denied that he is deposing
false. Thus, from his evidence, it can be said that the
victim girl informed him about kidnapping her by the
appellant and about committing sexual intercourse with
her.
21. The evidence of Sunil Jagdale (PW4)
in whose
room the victim girl and the appellant stayed nearly for
7 to 8 days has deposed that one room of his brother was
given to the appellant and the victim girl and he asked
the appellant his name and he told his name as Bhagwat
and that the victim girl was his wife. According to him
they were residing as husband and wife for 7 to 8 days
and all of sudden police came and carried them. In the
crossexamination
he has stated that the victim girl had
told that their marriage was solemnized and that she is
wife of the appellant. The appellant was going to job in
SVS company. He was going to company at 08.00 am and he
was returning at 05.00 to 05.30 pm. After the appellant
went to attend his job, the victim girl alone was staying
in the room and she has not made any complaint during her
stay. She has not made any grievance to his mother and
brother Dattatraya about the appellant. From the evidence
of this witness, it is clear that the appellant and the

victim girl (PW2)
resided as husband and wife in the
room of brother of this witness on rent at Karde, Tq.
Shirur for 7 to 8 days.
22. The evidence of Dr.Deepali Shinde (PW6)
who was
Medical Officer in Civil Hospital, Parbhani is that on
13.12.2013 the victim girl was brought in the Civil
Hospital for examination and the victim girl gave history
that she was kidnapped by the appellant and she was kept
for 10 days and during said period the appellant had
sexual intercourse for 2 to 3 times. She conducted
medical examination and asked the victim girl to come
after completion of her menses. Doctor further stated
that on 17.12.2013 the victim girl came in the hospital.
She examined her and on clinical examination she found
that hymen was ruptured and admit two fingers with
tenderness. There were no any scratches or abrasions or
any bleeding from genitals. No any injury on other body
part. She collected sample of blood, nails, pubic hairs,
vaginal swab and nail scrapings and accordingly issued
report (Exh.35). In the cross examination on behalf of
the appellant she stated that if a forcible sexual
intercourse is made against the will of the victim girl,
certainly there will be injury on external body and on
genital. Rest of the evidence of the Doctor referred to

above regarding finding that hymen was ruptured and admit
two fingers with tenderness, there were no any scratches
or abrasions or any bleeding from genitals, no any injury
on other body party and that the victim girl gave history
that she was kidnapped and the appellant had sexual
intercourse with her for 2 to 3 times during 10 days has
gone unchallenged.
23. Exh.35/1 is the Medical examination report for
sexual assault issued by Dr.Deepali Shinde (PW6)
and it
also shows the history given by the victim girl to PW6
as deposed by PW6.
Moreover, Exh.35/2 General Physical
Examination report of the victim girl issued by PW6
also
shows that the hymen was torn and vagina admit two
fingers with tenderness as deposed by PW6.
Thus, these
two documents corroborate the evidence of PW6
about the
history given by the victim girl to PWs6
about the
incident of sexual assault on her by the appellant on 2
to 3 times during 10 days period.
24. Thus, on the basis of evidence of victim girl
(PW2),
Medical Officer Deepali Shinde (PW6),
Medical
Examination Report for sexual assault (Exh.35) and
General Physical Examination (Exh.35/2) of the victim
girl, it can be said that the appellant had sexual

intercourse with the victim girl who was between 15 to
16.5 years i.e. below 18 years and it amounts to rape
within the meaning of clause Sixthly of Section 375 (a)
of the IPC, which says that a man is said to commit
“rape” if he (a) Penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; With or
without her consent, when she is under eighteen years of
age which is punishable under Section 376(1) of the IPC.
The trial Court has rightly held so.
25. Moreover, on the basis of aforementioned
evidence of the victim girl and Dr. Shinde (PW6)
and two
reports of examination issued by her, it can be said that
the appellant committed aggravated penetrative sexual
assault within the meaning of Section 5 of the POCSO Act
which is punishable under Section 6 of the POCSO Act as
the victim was child below 18 years of age within the
meaning of Section 2d
of the POCSO Act. The trial Court
has rightly held so.
26. Now, it is to be seen whether the above referred
evidence of the victim girl (PW2),
her father (PW1)
and
Sunil Jagdale (PW4)
is sufficient to state that the
prosecution has proved the offence under Section 366A
of

the IPC against the appellant. Here it is useful to refer
the decision in the case of Iqbal Vs State of Kerala
(2008) Cri.L.J. 436 wherein the Hon'able Apex court in
para 9 to 11 observed as under:
“9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A
IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or knowing
that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other
than the accused; (5) that the inducement caused the girl to go
from any place or to do any act.
10. In the instant case, the admitted case of the prosecution is
that girl had left in the company of the accused of her own will
and that she was not forced to sexual intercourse with any person
other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age,
conviction u/s 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than
the accused has not been established, Section 366A
has no
application.
11. In the result, the conviction for offence punishable u/s 366A IPC is set aside while the conviction and sentence imposed in
respect of offence punishable u/s 376 IPC is maintained.
The appeal is allowed to the aforesaid extent.”
27. On considering the evidence of the victim girl
(PW2)
her father (PW1)
and Sunil Jagdale (PW4)
it is
clear that out of five ingredients of the offence under
Section 366A
of the IPC referred to above the
prosecution has not proved ingredient No.4 that such
intercourse must be with a person other than the accused,
because in the present case on the basis of evidence of
the victim girl, her father and evidence of Dr.Shinde
(PW6),
it can be said that the appellant had sexual
intercourse with the victim girl and it is not at all the
case of the prosecution that the victim girl was induced
to force or seduce her to illicit intercourse with a
person other than the appellant/accused. Therefore, even
if the victim girl below 18 years of age was kidnapped
out of the lawful custody of her parents which amounts to
kidnap within the meaning of Section 363 of the IPC, it
cannot be said that she was induced with intent that she
may be forced or seduced to illicit intercourse with
another person within the meaning of Section 366A
of the
IPC. Therefore, applying the ratio laid down in the case
of Iqbal (supra) I hold that the prosecution has failed

to prove the offence under Section 363 of the IPC of the
appellant. Thus, finding recorded by the trial Court that
the prosecution has proved the offence under Section 366A
of the IPC against the appellant is incorrect and not
sustainable.
28. Relying upon the decision in the case of
Bhagwan Laxman Rakshe (supra) learned APP submitted that
in case, it is held that the prosecution has failed to
prove offence under Section 366A
of the IPC against
accused then accused be convicted for the offence under
Section 366 of the IPC by altering the conviction from
Section 366A
into a conviction under Section 366 of the
IPC though no charge is framed under Section 366 of the
IPC. In the said case in paragraph No.17 as referred
earlier in detail it was observed that Section 366 of the
IPC, apart from abduction or seducing a woman to compel
her marriage, interalia, deals with offence of kidnapping
with intention that the woman may be forced to illicit
intercourse. The punishment is prescribed of 10 years for
both the offences under Section 366A
and Section 366 of
the IPC and hence it would be appropriate to convert
conviction awarded under Section 366A
into conviction
under Section 366 of the IPC and as such sentence as
passed by the trial Court was maintained.

29. Here, it would be appropriate to refer three
judges decision of the Hon'ble Apex Court in the case of
Shamnsaheb M. Multtani Vs State of Karnataka (2001) 2
Supreme Court Cases 577 wherein in paragraph Nos.16,17
and 18 of the said judgment the aspect what is meant by a
minor offence for the purpose of Section 222 of the Code
of Criminal Procedure is considered. Said paragraph Nos.
16,17 and 18 read as under:“
16. What is meant by “a minor offence” for the purpose of
Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence visavis
the
other offence.
17. The composition of the offence under Section 304B
IPC is
vastly different from the formation of the offence of murder
under Section 302 IPC and hence the former cannot be regarded
as minor offence visavis
the latter. However, the position would

be different when the charge also contains the offence under
Section 498A
IPC (husband or relative of husband of a women
subjecting her to cruelty). As the word “cruelty” is explained as
including, inter alia.
“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.”
18. So when a person is charged with an offence under
Sections 302 and 498A
IPC on the allegation that he caused the
death of a bride after subjecting her to harassment with a demand
for dowry, within a period of 7 years of marriage, a situation may
arise, as in this case, that the offence of murder is not established
as against the accused. Nonetheless, all other ingredients
necessary for the offence under Section 304B
IPC would stand
established. Can the accused be convicted in such a case for the
offence under Section 304B
IPC without the said offence forming
part of the charge?”
30. Moreover, it is necessary to refer Section 222
of the Code of Criminal Procedure and it reads as under:
Section 222.When offence proved included in offence charged
(1) When a person is charged with an offence consisting of
several particulars, a combination of some only of which
constitutes a complete minor offence, and such combination is
proved, but the remaining particulars are not proved, he may be
convicted of the minor offence, though he was not charged with
it.
(2) When a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may be convicted
of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although the
attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions requisite for
the initiation of proceedings in respect of that minor offence have
not been satisfied.
31. From the decision in the case of Shamnsaheb M.
Multtani (supra) it is clear that the test of minor
offence is not merely that the prescribed punishment is
less than the major offence and that two illustrations
provided in Section 222 of the Code of Criminal Procedure
would bring the said point home well. So also, it is
clear from the said decision that only if the two
offences are cognate offences, wherein main ingredients

are common, the one punishable among them with a lesser
sentence can be regarded as minor offence visavis
the
other offence. The ingredients of offence punishable
under Section 366A
are five as referred earlier in
paragraph No.24 (supra) and the ingredients of offence
punishable under Section 366 of the IPC are that; 1.
Kidnapping or abducting of any woman, 2. Such kidnapping
or abducting must be(
i) with intent that she may be
compelled or knowing it to be likely that she will be
compelled to marry any person against her will; or (ii)
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or (iii) by
means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may
be, or knowing that she will be, forced or seduced to
illicit intercourse. The main ingredients of these two
offences are not appearing common. The material
ingredients of offence under Section 366A
of the IPC is
the inducement of a girl under the age of 18 years with
intent that she may be or knowing that it is likely that
she would be forced or seduced to illicit intercourse and
such intercourse must be with a person other than the
accused, while material ingredients of offence under
Section 366 is kidnapping or abducting of any woman with

intent that she may be compelled or knowing it to be
likely that she would be compelled to marry any person
against her will or she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
may be forced or seduced to illicit intercourse.
Moreover, the punishment provided for both the offences
is the same and the punishment of either of these
offences is not less than the other offence. Considering
these aspects and applying the aforementioned
observations of the Hon'ble Apex Court regarding a minor
offence in the case of Shamnsaheb M. Multtani (supra) I
hold that the offence under Section 366 of the IPC cannot
be regarded as minor offence to Section 366A
of the IPC.
In view of this decision of the Hon'ble Apex Court as it
appears that the decision in the case of Bhagwan Laxman
Rakshe (supra) is given on facts of the said case is of
no assistance to the prosecution to accept the argument
advanced by the learned APP that the offence under
Section 366 of the IPC is minor to the offence under
Section 366A
of the IPC to convert conviction under the
latter offence under the former in the absence of charge.
32. For the reasons discussed above, I hold that the
prosecution has failed to prove the offence under Section
366A
of the IPC against the appellant and therefore, the

conviction and sentence recorded against the appellant
for the said offence as per the impugned judgment is not
sustainable and the same is liable to be set aside and
the appellant is entitled to be acquitted of the said
offence.
33. For the reasons discussed above as the
prosecution has proved the ingredients of the offence
punishable under Section 376 of the IPC and Section 6 of
the POCSO Act against the appellant the conviction and
sentence recorded against the appellant for the said
offences is proper as it is seen that sentence imposed on
the appellant for the said offences is the minimum
punishment provided for the said offences. Thus, there is
no reason to interfere with the said conviction and
sentence.
34. Thus, the appeal needs to be partly allowed in
the light of conclusion in paragraph No.32 (supra).
Therefore, in the result, the following order is passed:
ORDER
i] Appeal is partly allowed.

ii] The impugned judgment and order dated
15.12.2015 passed by the Additional Sessions
Judge, Parbhani in Special Case (PCSO) No.14 of
2014 convicting and sentencing the
appellant/accused for the offence punishable
under Section 366A
of the IPC is quashed and
set aside and the appellant/accused is acquitted
of the said offence. Fine, if paid, by the
appellant in respect of said offence shall be
refunded to him.
iii] The impugned conviction and sentence
against the appellant for the offences
punishable under Section 376 of the IPC and
Section 6 of the POCSO Act is confirmed.
iv] Rest part of the impugned judgment
regarding the set off given to the
appellant/accused under Section 428 of the Code

of Criminal Procedure is maintained.
v] Record and proceeding in the Special Case
(PCSO) No.14/2014 be sent to the trial Court
forthwith.
[S.M. GAVHANE, J.]

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