Judgment:
Criminal Appeal No. 101 OF 2006
B. Sudershan Reddy, J.
The appellant along with six others
was tried by the Court of Sessions for the offence punishable under
Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC')
and sentenced to undergo life imprisonment and to pay a fine of Rs.
2,000/-. He was also convicted for the offence punishable under Section
364 IPC and sentenced to undergo rigorous imprisonment for 5 years and
to pay a fine of Rs. 1,000/- and in default of payment of fine, to
undergo rigorous imprisonment for 3 months. Further, he was convicted
for the offence punishable under Section 201 IPC and sentenced to
undergo rigorous imprisonment for 1 year and to pay a fine of Rs.
1,000/- and in default of payment, to undergo rigorous imprisonment for
3 months. All sentences were directed to run concurrently. The Sessions
Court acquitted accused Nos. 2, 3, 4 and 5. The appeal of the appellant
was dismissed by the High Court of Karnataka by the impugned judgment,
however, accused Nos. 6 and 7 were acquitted by the High Court of all
the charges leveled against them. In this case we are concerned with the
sole appellant (Accused No. 1).
2. The conviction of the appellant is based on circumstantial evidence.
3. In brief, the case of the prosecution is that the deceased-Yankanna
Balakannavar had illicit intimacy with the wife of the appellant Smt.
Hanamawwa (PW 19). Deceased was working as the driver of the tractor of
the appellant during 2001. The appellant's suspicion about the deceased
having illicit intimacy with his wife led to serious misunderstanding
between them because of which, deceased left his job as the tractor
driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos.
6 and 7 went in the car of the appellant to the house of the deceased.
He was not at home. The appellant and accused Nos.6 and 7 told deceased
Yankanna's mother Yallawwa (PW-10) that they required the services of
her son in connection with digging of a borewell in the land of the
appellant. When deceased Yankanna returned home within half an hour, he
was immediately taken by the appellant and accused Nos. 6 and 7 with
them. On that night, deceased-Yankanna did not return home.
On the next day, Yallawwa (PW-10)
went in search of her son but could not find him. On questioning, the
appellant informed PW-10 that he had brought back deceased Yankanna at
about 11.00 p.m. on the same night and had left him in the village. Not
satisfied with the answer given by the appellant, PW-10 went to accused
Nos. 6 and 7 and inquired about the whereabouts of her son but they also
did not give any satisfactory answer. Thereafter, PW-10 and her nephew-Kamanna
Parameshwar (PW-18) went in search of the deceased Yankanna and in the
process, made inquiries in nearby villages namely Dadanatti, Rugi,
Chabbi etc. but could not find him.
4. On 21.7.2001, Inspector of Bilagi Police Station (PW-29) received
information that there was a dead body found floating in the Ghataprabha
river. Immediately, he rushed to the place and found the dead body of a
person near the pump house. The dead body was taken out from the river.
It was found that the head and rest of the portion of the body had been
severed. The body was highly decomposed and the bones were exposed.
The legs of the dead body were found
folded and tied with a rope. The body was tied by another rope at the
place of neck also. Inspector of police (PW-29) lodged information with
regard to the same and the same was registered as Crime No. 91/2001 of
Bilagi Police Station for the offences punishable under Section 302 and
201 of the IPC. The First Information Report is exhibit P-23 dated
21.7.2001. Thereafter, PW-29 conducted inquest in the presence of PW-1
and 2 and sent for the medical officer to conduct the post mortem
examination. Dr. Sabu Satihal, Medical Officer, KIMS, Hubli (PW-21)
conducted the post mortem examination. The Medical Officer could not
confirm as to whether the body was that of a male or female since the
genital portion had been highly decomposed. However, there was underwear
found on the body which was taken out and the body was preserved for two
days for identification.
5. In the meanwhile, PW-10 along
with PW-18 had gone to Kaladgi police station and lodged a complaint on
22.7.2001 inter alia alleging that her son was working as a tractor
driver for about 3-4 years with the appellant and about 3 months back,
her deceased son left the job on account of some disputes between them.
She suspected that there was some dispute between her son and the
appellant, accused Nos. 6 and 7 since they were frequently roaming
around her house, making inquiries about her son. She made inquiries
with her deceased son in that regard who did not respond. She
apprehended that the appellant may cause harm to her son. It is further
alleged that about 11 days back i.e. on 12.7.2001, herself, the deceased
and Lacchavva-wife of the deceased (PW-11) were sitting in their house
and at that time the appellant, accused Nos. 6 and 7 came to her and
stated that they required her son in connection with digging of a
borewell in the land of the appellant. The deceased refused to go but
they took her son forcibly and the same was noticed by her neighbours.
It was about 8.00 p.m. Thereafter, her son did not return to home.
She made inquiries with the
appellant who stated that he had dropped her son in the village at 11.00
p.m. Other accused also did not give any satisfactory explanation. She
suspected that the said three persons might have killed her son. On the
basis of the said information a case was registered by
sub-Inspector(PW-28), Kaladgi Police Station as Crime no. 50/01 for the
offence under Section 364 read with 34 IPC. Intimation of detection of
dead body in Ghataprabha river was flashed to the neighbouring police
stations and the same was received by Kaladgi police station and in
furtherance of the same, PW 10 and PW-11 were taken to the place. PW-10
identified the body as that of her son Yankanna on the basis of the
underwear found on the body. On 26.7.2001, appellant and accused Nos. 2
and 3 were arrested. In furtherance of the voluntary information given
by the appellant, PW 29 could ascertain the places where the deceased
had been taken by the appellant and other accused, who were involved in
the incident as well as the place where the dead body of Yankanna had
been thrown into river. Weapons of offence were also recovered on the
basis of the voluntary information furnished by the appellant. As it was
revealed that the incident occurred within Kaladgi limits, PW-29
submitted the entire papers on 8.8.2001 to Kaladgi Police Station for
further investigation. Police Inspector of Bagalkot police station
(PW-26) took up further investigation on 9.8.2001 and filed charge sheet
against the appellant and accused Nos. 2 to 7 for offences punishable
under Sections 143, 147, 148, 354, 302, 201 read with 149 of the IPC.
6. The accused pleaded not guilty of the charges and claimed to be
tried. The prosecution, in order to establish the case, examined in all
30 witnesses. No witness was examined on behalf of the accused. The
learned Sessions Judge found that the materials were not sufficient and
no case was made out as against accused Nos. 2 to 5 and consequently,
acquitted them of all the charges. The remaining accused namely
appellant and Accused Nos. 6 and 7 were convicted for the offences
punishable under Section 302 , 364, and 201 of the IPC. On appeal, the
High Court allowed the appeal of accused Nos. 6 and 7 and acquitted
them. The High Court dismissed the appeal of the appellant and confirmed
the conviction and sentences imposed as against the appellant.
7. We have elaborately heard the learned counsel appearing for the
appellant as well as for the State.
8. Shri Sushil Kumar, learned senior counsel for the appellant contended
that the High Court committed a serious error in holding that the burden
shifted to the appellant to show what happened to the deceased in view
of the evidence of PW-10 and PW-11 that he took the deceased and this
amounts to requiring the accused to prove his innocence. He pointed out
another error committed by the High Court in coming to the conclusion
that the appellant with the help of some others (not the other accused
who had been acquitted) were responsible for committing the murder of
the deceased-Yankanna. The learned counsel submitted that the chain of
circumstances is not complete and, therefore, the conviction of the
appellant cannot be sustained. Further contention of the learned counsel
was that assuming that the prosecution has been able to establish the
circumstance of being last seen together, namely, the deceased having
left with the appellant on 12th July, 2001, that by itself, could not
connect the appellant with the commission of crime in the circumstances
of the case.
9. On the other hand, the learned counsel for the State submitted that
the evidence of PW-10 and 11 which is consistent and the circumstances
in which the dead body was found in the river clearly indicated that the
dead body had been thrown into Ghataprabha river after committing murder
of the person and the identification by PW-10 that the dead body was
that of Yankanna, the chain of events is complete and in the absence of
any explanation by the appellant, only conclusion to be arrived at is
that the appellant was responsible and liable for the murder of the
deceased-Yankanna.
10. Having heard learned counsel for the parties and on perusal of the
record, we find that the prosecution miserably failed to establish the
charge against the appellant.
11. It is required to notice that most of the witnesses namely, PW Nos.
1 to 9, 13, 14, 15, 6, 17, 19, 23 and 30 had turned hostile and did not
support the prosecution case. The whole case of the prosecution rests on
the evidence of the mother and wife of the deceased (PW Nos. 10 and 11)
and the police officers ( PW Nos. 28 and 29). We may proceed now to
consider the evidence of PW Nos. 10 and 11 in somewhat detail.
12. PW-10, in her evidence, stated that the appellant along with accused
Nos. 6 and 7 came to her house at about 8.00 p.m. and took her son
Yankanna as his assistance was required in connection with digging of a
borewell in the land of the appellant. Thereafter, her son has not
returned. She had searched for her son in neighbouring villages but
could not find him. The appellant and accused No. 6 came along with her
and also searched for the deceased-Yankanna. Thereafter she and her
relatives demanded the appellant to produce the deceased Yankanna.
Having waited for about 5-6 days, she filed a written complaint, written
through PW-18 addressed to Kaladagi Police Station marked as exhibit
P-6. The police traced the dead body of Yankanna. It was found in
Anagwadi river. She specifically states that "I saw the body and his
head was chopped off and hands and legs were cut-off and the rope was
tied to the body. I saw and identified the underwear (M.O.1) and
identified the body as it belongs to my son." she suspected the
appellant had committed the murder of her son. She further stated that
when she insisted the appellant to produce her son, the appellant told
her deceased Yankanna had illicit connection with his wife - Hanamawwa
(PW-19) - "because of that he killed my son".
13. In the cross-examination, she
stated in categorical terms that at the time of arrival of the appellant
at her house, her son Yankanna was not present at home and only half an
hour later he returned home and immediately the appellant took him away.
Prior to the arrival of the deceased, she and the appellant and PW-11
were present in the house. The appellant took the deceased and went
away. She accepted that on receipt of information about floating of a
dead body in the Ghataprabha river, she went there and identified the
dead body as that of her son. She did not file any complaint to the
Bilagi Police Station. Bilagi Police Station took her to Kaladgi Police
Station in the police jeep where she lodged Exhibit P-6.
14. In Exhibit P-6 (FIR), it is stated by PW-10 that her deceased son
Yankanna left his job about 3 months prior to the date of the incident.
It is further stated in the Exhibit P-6 that on 12.7.2001 in the evening
she was sitting in her house along with the deceased and his wife-Lacchavva
(PW-11) and that time the appellant, accused nos. 6 and 7 came to her
house and she invited them inside. She did not state that her son was
not present when the appellant along with other accused came to her
house and her son returned home only after half an hour. In exhibit P-6
there is no mention of her coming to the Ghataprabha river and anything
about the identification of the dead body of her son. Had she really
identified the dead body of her son on 21.7.2001 nothing prevented her
from referring to it in exhibit P-6. In her evidence, she stated that
she did not claim the dead body of her son nor the police told her to
take away the body of the deceased. She did not attend the funeral of
her son.
15. PW-11 is none other than the
wife of the deceased. She stated in her evidence that about 3 years ago
at 8.00 p.m., appellant with two others came to her house and took away
her husband with them. Thereafter, her husband did not return home. That
after 7-8 days having received the information about a dead body
floating in the Ghataprabha river, PW-10 and herself went and saw the
dead body and found it to be of her husband. PW-10 filed the complaint
to the police. According to her, appellant suspected that her deceased
husband had illicit intimacy with his wife because of that, appellant
and accused No.2 took her husband and committed the murder. Looking at
M.O.1 first time in the court, she identified the same as underwear of
her husband. It is admitted by her in the cross-examination while she
was waiting in Bilagi police station, her mother-in-law (PW-10) went and
saw the dead body of her husband and she came and told her that it was
the dead body of her husband Yankanna. On the next day, she along with
PW-10 went to Kaladagi police station where PW-10 filed the complaint
Exhibit P-6. She did not see the body of her husband. She did not
perform the funeral. She further stated in her evidence, it is the
police who told her that there was illicit relationship between deceased
and Hanamawwa, wife of the appellant.
16. PW-29, Inspector of Police,
Bilagi police station stated in his evidence that on receiving
information on 21st July, 2001 about floating a dead body at the
Northern bank of Ghataprabha river near the pump house, went there and
found one unknown dead body was floating in the Ghataprabha river near
the pump house. He returned to the Bilagi police station and lodged
information exhibit P-22. On that basis he registered the case as Crime
No. 91/01 for the offence under Section 302 & 201 IPC and dispatched the
first information report to the court at 1430 hours and again proceeded
to the spot where the dead body was found. The dead body was taken out
of the river. It was in a highly decomposed condition. He summoned the
Medical Officer (PW-21) to conduct post mortem examination at the spot
and thereafter buried the body there itself. He also says that he got
the photos of the body taken prior to 'cremation'. Post mortem
examination was conducted at the spot itself by PW-21 between 4.45 p.m.
to 6.15 p.m. It is on 24th July, 2001, PW-10 to 12 came to the police
station Bilagi and he had shown M.O. 1 (underwear), M.O. 6 (Waist
thread) and photos to PW-10 to 12 based on which they identified the
dead body as that of Yankanna. He undertook further investigation and
arrested the accused. He claims to have made certain recoveries. It is
on 8th August, 2001 he made over the case for further investigation to
the C.P.I of Bagalkot, Rural Circle through Kaladgi police station.
17. The evidence of PW-10 is full of contradictions apart from being at
variance with exhibit P-6 (FIR) lodged by her before the Kaladgi police
station and the evidence of the Investigating Officer (PW-29). In
Exhibit P-6 she stated that her deceased son was taken away forcibly by
the appellant, accused nos. 6 and 7. In the FIR, PW-10 does not say that
the deceased-Yankanna was working with the appellant as tractor driver
but in her evidence she stated that deceased-Yankanna was working with
the appellant. In the first information report she does not say anything
about the illicit relationship of deceased-Yankanna and appellant's
wife-Hanamawwa(PW-19). She merely stated that there was some dispute
between the appellant and the deceased but in evidence, she stated that
the appellant told her that deceased-Yanakanna had illicit connection
with his wife-Hanamawwa (PW-19) because of that he killed her son.
PW-11, Lacchawa-wife of the deceased admitted in her cross-examination
that she learnt that there was illicit relationship between the deceased
and the wife of the appellant only when the police told her. She
asserted that PW-10 filed a complaint to the police "as we came to know
about the illicit relationship between the deceased and Hanamawwa-wife
of the appellant through police."
18. On an analysis of the evidence referred to herein above, we find it
very difficult to believe the evidence of PW-10 and PW-11. They are not
trustworthy witnesses. It is doubtful as to how and in what
circumstances exhibit P-6 came into existence. If PW-10 had seen the
dead body and identified it as that of her son there is no reason why
she could not have stated about it in exhibit P-6. If one goes by the
contents of exhibit P-6 it becomes clear that she knew nothing about the
dead body found in the Ghataprabha river. The question of identifying
the dead body as that of her son does not arise. PW-29, in his evidence,
stated that PW-10 to 12 identified the body as that of deceased-Yankanna
only on the basis of M.O. 1 (underwear) and M.O. 6 (Waist thread) and
some photos on 24.7.2001. No photographs are marked as material objects.
It is difficult to believe that one could identify the highly decomposed
and mutilated dead body as that of deceased-Yankanna when the Medical
Officer (PW-21) was not even in a position to say whether the dead body
was that of a male or female. It is only the Forensic Expert (PW-22) who
stated the body as that of a male after examining the bones. PW-10 and
11 assert that dead body was identified by PW-10 even on 21st July, 2001
but PW-29 says that dead body was buried immediately after the post
mortem examination. Exhibit P-6 is obviously got into existence may be
after prolonged consultation with the police. The dead body remained
unidentified.
19. PW-11's evidence is also not
trustworthy. She states, in her evidence, that Bilagi police came in a
jeep and informed her and PW-10 that a dead body was found in the river
and thereafter, she and PW-10 went to Bilagi police station but she did
not see the dead body of her husband. She was waiting in Bilagi police
station but PW-10 and her father-in-law went to saw the dead body of her
husband. But her father-in-law (PW-12) does not say that he saw the body
of his son. Next day they went in police jeep to Kaladagi police station
where PW-10 lodged first information report (exhibit P-6). The version
given by PW-11 is also highly artificial and cannot be accepted. It is
difficult to believe that she did not go to the spot where the body was
found. It is difficult to reconcile the statements of PW-10 and PW-29.
It is doubtful that PW-10 at all had seen the dead body of her son.
PW-29, in his evidence, stated that he could not trace the relatives of
the dead person since it was highly decomposed and had therefore got
buried the body on 21.7.2001 itself. Thus in effect no one identified
the body buried on 21.7.2001 as that of Yankanna.
20. Yet another aspect of the matter
is that there is no explanation as to why no complaint has been made
ever since 12th July, 2001 when Yankanna was forcibly taken away till
lodging the first information report on 22nd July, 2001 at 1900 hours.
21. There is no convincing evidence placed by the prosecution to show
that there was motive and that the deceased Yankanna had illicit
relationship with Hanamawwa (PW-19) wife of the appellant. Be it noted,
PW-19 also turned hostile and did not support the prosecution case. In
this regard, the evidence of PW-11 gains some significance wherein she
admitted that the complaint was filed only after they were informed by
the police about the illicit relationship of the deceased-Yankanna and
Hanamawwa (PW-19). No witness has spoken about the alleged illicit
relationship between the deceased and PW-19 except PW-10 and 11 who got
the information from the police.
22. Next, we shall refer to the
evidence of PW-21 who conducted the post mortem examination. It is in
his evidence that the body was highly decomposed, head was missing, both
legs were flexed and tied with rope over the abdomen. Hands were
missing. Survival bone was exposed, external genitalia was highly
decomposed and unable to make out sex organs. He could not make out as
to whether the body was of a male or female, age and cause of death,
time of death, he accordingly preserved the samples and sent to the
Forensic Expert. The Forensic Expert examined as PW-22 stated that he
received a sealed box containing bones from PW-21 and on opening the
box, he found 8 human bones as mentioned in his report. They were of
male body. He admitted that by examining the bones, exact age of the
deceased cannot be given. Even the time of death cannot be given
exactly.
23. In the light of the evidence
available on record, can it be said that the circumstances of last seen
together by itself and necessarily lead to the inference that it was the
appellant who committed the crime? The High Court took the view that
accused Nos. 6 and 7 are entitled to the benefit of doubt though, PW-10
stated in her evidence that the appellant, accused Nos. 6 and 7 took her
son Yankanna on the fateful day. No motive was shown with regard to
accused Nos. 6 and 7 for their involvement in the crime. It is under
those circumstances, the High Court said that the burden shifts to the
appellant to show as to what happened to the deceased-Yankanna. In our
considered opinion, the High Court committed serious error in arriving
at such conclusion. The first information report lodged by PW-10 itself
is highly doubtful. PW-10's evidence itself does not reveal any
circumstances to hold that the prosecution has established the charge
against the appellant.
The appellant's failure to offer any
explanation in his statement under Section 313 Cr.P.C. is not a
circumstance to hold appellant guilty of the charge. The prosecution has
failed to establish as to when the death of Yankanna took place, it
could be at any time between 12th July, 2001 to 21st July,2001. There is
nothing on record to show as to what transpired between 12th July, 2001
to 21st July, 2001. Mere non-explanation on the part of the appellant,
in our considered opinion, by itself cannot lead to proof of guilt
against the appellant. Learned counsel for the State relied upon the
decision in Mohibur Rahman & Anr. Vs. State of Assam [ (2002) 6
SCC 715] which in fact is in support of the defence and nor the
prosecution. "The circumstance of last seen together does not by itself
and necessarily lead to the inference that it was the accused who
committed the crime. There must be something more establishing
connectivity between the accused and the crime. There may be cases where
on account of close proximity of place and time between the event of the
accused having been last seen with the deceased and the factum of death
a rational mind may be persuaded to reach an irresistible conclusion
that either the accused should explain how and in what circumstances the
victim suffered the death or should own the liability for the homicide.
In the present case there is no such proximity of time and place.
As already noted the death body has
been recovered about 14 days after the date on which the deceased was
last seen in the company of the accused. The distance between the two
places is about 30-40 kms. The event of the two accused persons having
departed with the deceased and thus last seen together (by Lilima
Rajbongshi, PW6) does not bear such close proximity with the death of
victim by reference to time or place. According to Dr. Ratan Ch. Das the
death occurred 5 to 10 days before 9.2.1991. The medical evidence does
not establish, and there is no other evidence available to hold, that
the deceased had died on 24.1.1991 or soon thereafter. So far as the
accused Mohibur Rahman is concerned this is the singular piece of
circumstantial evidence available against him. We have already discussed
the evidence as to recovery and held that he cannot be connected with
any recovery. Merely because he was last seen with the deceased a few
unascertainable number of days before his death, he cannot be held
liable for the offence of having caused the death of the deceased. So
far as the offence under Section 201 IPC is concerned there is no
evidence worth the name available against him. He is entitled to an
acquittal."
24. In the present case also, there
is no proximity of time and place. We have already noted that the dead
body, even if it is to be accepted, was that of the deceased-Yankanna,
had been recovered after 10 days after the date of which the deceased
was last seen in the company of the appellant. This singular piece of
circumstantial evidence available against the appellant, even if the
version of PW-10 is to be accepted, is not enough. It is fairly well
settled that the circumstantial evidence in order to sustain the
conviction must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused. It is true as has been
held by this Court in Lakshmi & Ors. Vs. State of U.P. [ (2002) 7
SCC 198] that it is not an inflexible rule that the identification of
the body, cause of death and recovery of weapon with which the injury
may have been inflicted on the deceased though are factors to be
established by the prosecution but it cannot be held as a general rule
and broad proposition of law that where these aspects are not
established, it would be fatal to the case of the prosecution and in all
eventualities, it ought to result in acquittal of those who may be
charged with the offence of murder provided the charges against the
accused otherwise can be established on the basis of the other reliable
and trustworthy evidence.
25. There is no reliable and
trustworthy evidence in the present case. The High Court in the present
case took the view that as to what happened to the deceased-Yankanna was
within the knowledge of the appellant and he having failed to explain,
and mutilated body of Yankanna having been found, having shown that
Yankanna had been murdered, the only conclusion one can arrive at is
that the appellant with the help of some others committed the murder of
Yankanna, cut off head and some part of the body and threw the body in
Ghataprabha river. Too many surmises and conjectures! it is highly
dangerous to convict any accused on the basis of which the High Court
has chosen to do so.
26. It is not the case of the prosecution that the appellant together
with some unidentified persons kidnapped the deceased-Yankanna and
killed him. The specific case of the prosecution is that the appellant
along with accused Nos. 2 to 7 committed the crime of kidnapping and
murder of the deceased.
The trial court as well as the High
Court gave the benefit of doubt to the rest of the accused. The High
Court in the circumstances could not have propounded a new theory that
the appellant with the help of some others may have committed the murder
of Yankanna. Neither there are any circumstances nor any evidence
available on record to take such a view in the matter in order to
convict the appellant. The decision of this Court in Khujji @
Surendra Tiwari Vs. State of Madhya Pradesh [ (1991) 3 SCC 627] upon
which, the reliance has been placed by the learned counsel for the State
to sustain the conviction of the appellant has no application whatsoever
to the facts and situation in the present case. It was the case where
this Court on an independent appreciation of the evidence of the three
eye-witnesses came to the conclusion that several persons had
participated in the commission of the crime including the appellant but
for some reasons all other accused except the appellant therein were
acquitted of the charge under Section 302 read with 149 IPC.
This Court took the view that in the
absence of the State appeal, it is not possible to interfere with their
acquittal but this Court was not bound by the facts found proved on the
appreciation of evidence by the courts below and is, in law, entitled to
reach its own conclusion different from the one recorded by the courts
below on a review of the evidence. It is under those circumstances, this
Court sustained the conviction of the appellant under Section 302 IPC
with the aid of Section 34 and 149 IPC and maintained the sentence
awarded to him. In the present case, there is no evidence available on
record to arrive at any conclusion that accused Nos. 2 to 7 were also
involved in the commission of the crime though they were acquitted by
the trial court. We, accordingly, hold that the judgment have no
application to the present case in hand.
27. For all the aforesaid reasons,
we hold that the prosecution did not establish the charges framed
against the appellant under Sections 302, 364 and 201 IPC. The
conviction and sentence awarded against the appellant is, accordingly,
set aside and he is acquitted of all the charges. He is ordered to be
released forthwith unless required in any other case.
28. The appeal is, accordingly,
allowed.
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