PETITIONER: SURAJ PAL Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT09/11/1994 BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) RAY, G.N. (J) CITATION: 1995 SCC (2) 64 JT 1994 (7) 352 1994 SCALE (4)897 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
FAIZAN UDDIN, J.- Since the two appeals as well as the
special leave petition arise out of the common judgment they
are being disposed of together. The three appellants,
namely, Suraj Pal, Nathi and Puran along with
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the co-accused Radha Raman, Krishanbir and Pyare were
charged and tried under Sections 395/396/397 and 412 of the
Indian Penal Code by the Additional Sessions Judge, Gurgaon
in Sessions Case No. 1 of 1979 (Sessions Trial No. 7 of
1981). The learned Additional Sessions Judge convicted the
three appellants herein as well as the co-accused Radha
Raman and Krishanbir under Sections 395/396 read with
Section 397 of the IPC and sentenced them to undergo life
imprisonment under Sections 396/397 and rigorous
imprisonment for 10 years under Sections 395/397 of the
Penal Code. They were further convicted under Section 412
of the Penal Code and each one of them was sentenced to
undergo rigorous imprisonment for two years. The co-accused
Pyare was acquitted for the offences under Sections
395/396/397 of the Penal Code but he was convicted under
Section 412 and as he was found to be a tuberculosis patient
he was sentenced to undergo rigorous imprisonment for one
year only. The three appellants herein as well as Radha
Raman and Krishanbir preferred an appeal which was dismissed
by the High Court of Punjab and Haryana, by judgment dated
5-5-1982 being Criminal Appeal No. 470-DB/81 against which
these three appeals have been preferred by the appellants
Suraj Pal, Nathi and Puran.
2.According to the prosecution nine persons including the
three appellants herein committed dacoity in the house of
one Puran Chand in the intervening night of 5-1-1976/6-1-
1976 at about 2.00 a.m. in Village Kherla, Tehsil Nuh,
District Gurgaon in which Puran Chand and his wife Ganga
Devi were murdered and their son Gian Chand, PW 22, was
seriously injured.
3.The prosecution case was that on the night of the
occurrence the deceased Puran Chand along with his injured
son Gian Chand, PW 22 were sleeping in the Baithak (room) on
the ground floor of their house while deceased Ganga Devi,
wife of Puran Chand and her daughter Usha Rani, PW 21, were
sleeping in a room on the upper storey of the said house
which is OD the outer side and towards main gate of the
compound of the house. Another daughter Gita and wife of
Gian Chand were also sleeping in another room in the upper
storey. When the three appellants along with six other co-
accused raided the house of Puran Chand in order to commit
dacoity, they pushed the door of the room in which Puran
Chand and his son Gian Chand were sleeping. Puran Chand
opened the door of his room and went out into the courtyard
when three of the dacoits opened an assault on Puran Chand
with lathies and pharsas and when his son Gian Chand, PW 22,
came out to rescue his father he too was also assaulted by
the other three dacoits. In the meanwhile Usha Rani, PW 21,
and her mother deceased Ganga Devi also woke up and switched
on the light of the room and tried to open the door of the
room in which they were sleeping but found it to be bolted
from outside. Ganga Devi then opened the door of the window
which opens into the compound of the house and as soon as
she opened the door of the window, one of the dacoits who
was standing at the main gate on the ground floor fired the
gun at her which hit Ganga Devi on her forehead and she fell
down dead on the spot. Puran Chand and Gian Chand both
raised an alarm which
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was heard by Tulsi, PW 8 and Sulekhan, PW 23. They rushed
towards the house of the victims but on hearing the gunshots
Tulsi, PW 8 took shelter against the wall of a house and saw
the nine dacoits coming out from the gali towards the house
of Puran, one of whom was carrying a gun and bandolier
around his waist. Sulekhan, PW 23, however, reached in
front of the house of deceased Puran when a gunshot was
fired which hit him in his left thigh and, therefore, he
returned back. Sulekhan again went to the house of Puran
and found Puran lying dead on the ground and Gian Chand in a
serious condition. He went to the upper storey and found
Ganga Devi lying dead in the room in upper Storey of the
house. Sulekhan went to Police Station, Nuh, on the same
night, where he lodged the first information report Ext.
PHH about the incident at 3.15 a.m. on 6.1.1976 on the basis
of which an offence under Sections 395/396/397/460 of the
Penal Code was registered.
4.After recording the first information report ASI Gurdial
Singh, PW 30, proceeded to the place of occurrence and
immediately sent injured Gian Chand, PW 22, to the Primary
Health Centre, Nuh for medical examination. He also sent
Sulekhan and one Hamida for medical examination to the
Health Centre. The Investigating Officer then prepared the
inquest reports Exts. PG-3 and PF-3 of deceased Puran Chand
and Ganga Devi respectively. He seized the blood from the
place of occurrence as well as four empty cartridges.
5.Dr M.L. Lohraiya, PW 3, performed an autopsy on the dead
body of Ganga Devi on 6-1-1976 and found three multiple
pellet marks over her forehead and face and pellets were
also found embedded in the wound. The injuries were ante-
mortem in nature. There was laceration of the brain and
haemorrhage in sub-frontal area of the brain lobe. In the
opinion of the doctor the death was due to the injury to the
brain on account of the penetration of the pellets in the
same. Dr Lohraiya, PW 3, also performed an autopsy on the
dead body of Puran Chand and found several incised wounds on
his person besides contusions and a punctured wound. All
the injuries were ante-mortem in nature and the death in the
opinion of the doctor was due to shock and haemorrhage.
6.Dr Ashok Kumar Jain, PW 4 examined the injured Gian Chand,
PW 22, on 6-1-1976 at 8.00 a.m. and found the following
injuries on his person:
1 . A contused wound over the right side of
the head.
2. Another contused wound on the left side
of the head.
3. A contused wound on left side of the
face.
4. A contused mark around the eye with
swelling.
5. A contused mark over the back of left
shoulder.
6. A contused mark over the posterior
medial aspect of right forearm with a contused
wound up to the bone and the bone underneath
seemed to be fractured.
7. A contused mark over the back of right
hand.
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8. A contused wound over the first
interphalangeal joint of middle finger of
right hand.
9. An abrasion over the ring finger of the
right hand.
10. A contused wound muscle-deep over the
posterior part of the left elbow joint.
11. A contused mark over the back of left
forearm.
12. A contused wound skin-deep in between
the ring and little finger of the left hand.
13. An abrasion over the front of right knee
joint.
7. In fact the appellant Suraj Pal was arrested in another
case in FIR No. 8 dated 4-1-1976 under Sections 460 and 302
of the IPC by the Police, Hasanpur and then it was revealed
that the dacoity in question was committed by him and his
other associates.
8. After his arrest on 5-3-1976 the appellant Suraj Pal
was interrogated by the Sub-Inspector Sis Ram, PW 38 in the
presence of the witness Suleman, PW 29 who made a disclosure
statement Ext. PHHH. In pursuance of the disclosure
statement the appellant Suraj Pal got discovered an iron Kus
which was seized as per Ext. P-54 and quilt covers which
were seized as per Ext. P-14 and Ext. P-15. After the
arrest of the appellant Nathi, on interrogation by Sub-
Inspector Khan Chand, PW 36 on 3-6-1976 he made a disclosure
statement Ext. P-88 in the presence of witnesses Gian
Chand, PW 22 and Suleman, PW 29 to the fact that he had
pawned for Rs 200 a saree, two katories, two tumblers and
one pant with one Hira Lal, PW 30. The said articles were
seized as per seizure memo Ext. P-16, Ext. P-17, Ext. P-
18, Ext. P-19, Ext. P-20 and Ext. P-21 respectively on
being produced by Hira Lal along with the pledge deed which
contained the description of all these articles. The
appellant Puran was also interrogated on 3-6-1976 by Sub-
Inspector Khan Chand, PW 36 who also made a disclosure
statement Ext. PCCC in the presence of the witness Suleman,
PW 29 to the fact that he had pledged a ring with one Nanu
Ram, PW 28 for a sum of Rs 200 and in pursuance of the said
disclosure statement, the pledge deed and the ring were
seized from the possession of Nanu Ram, PW 28 as per seizure
memo Ext. PFFF and Ext. P-26 respectively. Some articles
were also seized on the basis of disclosure statement of
other accused persons which are not before us in these
appeals and, therefore, it is not necessary to make a
description of the same.
9. After the arrest of the appellants and other accused
persons the prosecution wanted to hold an identification
parade in order to afford an opportunity to the appellants
and other accused persons to take part in the test parade in
which the witnesses Usha Rani, PW 21, Gian Chand, PW 22 and
Tulsi Ram, PW 8, had to identify them but the appellants and
other accused persons declined to offer themselves for test
identification on the ground that they were shown to the
witnesses. The appellants made a statement before the
Executive Magistrate, Shri M.S. Rao, PW 1 and Sub Divisional
Magistrate, Shri I.D. Kaushik, PW 11 that since they were
shown
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to the witnesses they are not prepared to participate in the
identification parade. Consequently the parade could not be
held.
10.Thereafter the appellants and other accused were put on
trial. The appellants pleaded not guilty and claimed to be
tried. They took the plea that they were falsely implicated
on account of enmity and party faction in their respective
villages. The appellant Suraj Pal filed several documents
which were marked as Exts. DA to DC which are copies of the
applications made to the Judicial Magistrate, Palwal making
allegation that he had been shown to the witnesses. There
is also an application addressed to the Inspector General of
Police, Haryana stating that he was brought from Mathura to
Palwal and was tortured. There is also an application
addressed to the Judicial Magistrate, Palwal complaining
that third degree methods were used against him with a view
to extract confession. The appellant Nathi had examined
Harish Singh, DW 1, Sarpanch of the village, MLA Chandan
Singh, DW 2 and Anand Singh, DW 3, the Civil Nazir of the
Court of Sub-Judge, Gurgaon. The first two witnesses were
examined on the point that the appellant Nathi was a man of
means owning agricultural land and they never heard any
complaint against him. The third witness Anand Singh, DW 3,
produced the record of disbursement of diet money to show
that Suraj Mal, PW 27, Suleman, PW 29 and Hira Lal, PW 30
were stock witnesses of the Police.
11.On analysing the evidence of the witnesses examined by
the prosecution the trial court convicted and sentenced the
appellants and others as said above in the earlier part of
this judgment. On further appeal by the appellants and
other convicted accused the High Court agreed with the
appreciation of evidence made by the learned trial Judge and
accepting the finding recorded by the trial court maintained
the conviction and sentence awarded to the appellants herein
against which these three appeals have been directed.
12.The learned counsel appearing for the appellants urged
that the incident had occurred at midnight and there was no
light at or around the place of occurrence in order to
enable Usha Rani, PW 21, Gian Chand, PW 22, and others to
see the miscreants who had actually committed the dacoity
and, therefore, the trial court as well as the High Court
have committed a serious error in accepting the prosecution
evidence that these appellants were amongst the miscreants
who were identified as such. After a close scrutiny and on
analysing the evidence the two courts below have also
considered this contention and rejected the same by holding
that there was sufficient electric light in the house of
deceased Puran as well as on the street which enabled the
witnesses to see and identify the miscreants including the
appellants. This finding is home out from the evidence of
Usha Rani, PW 21, and her brother Gian Chand, PW 22, who
were the inmates of the house and Gian Chand was severely
thrashed by the dacoits. A perusal of the evidence of Usha
Rani, PW 21, goes to show that on hearing the alarm of the
incident she and her mother deceased Ganga Devi both woke up
and her mother switched on the light of the room in which
they were sleeping and opened
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the window of the room overlooking the compound and the
street outside. Gian Chand, PW 22 deposed that at the time
of occurrence the electric light of the courtyard as well as
that of the verandah of the house and the street light were
on. He also deposed that the light of one of the rooms in
the upper Storey was also on. Not only this but Tulsi Ram,
PW 8 who resided near the house of Puran had rushed towards
the house of Puran on hearing the raula but kept away and
witnessed the incident by hiding himself against a wall near
the house due to fear of his life and limb as gunshots were
being fired has also testified the presence of enough light.
He deposed that at the time of occurrence the electric light
on the street was on and he saw the nine miscreants coming
from the street leading to the house of deceased Puran Chand
and one of the miscreants was carrying gun and bandolier.
It is thus clear that there was sufficient electric light in
order to enable the witnesses to have a full view of the
miscreants including the three appellants.
13.Learned counsel for the appellants next submitted that
the prosecution had not pressed the evidence regarding the
identification of articles said to have been seized from the
appellants as the Sarpanch Bhobal who held the test
identification was not examined as a witness by the
prosecution and the evidence of Sulekhan, PW 23 with regard
to some of the articles was found to be unacceptable and,
therefore, the conviction of the appellants rests entirely
on the dock identification of the appellants by the
prosecution witnesses. Learned counsel made a vociferous
attack on the findings recorded by the two courts below by
contending that Usha Rani, PW 21 and Gian Chand, PW 22 in
the facts and circumstances of the case were not in a
position to see and identify the miscreants including the
appellants who are said to have committed the dacoity
coupled with two murders. It was urged that Usha Rani, PW
21, was in the upper storey and according to the prosecution
evidence after her mother was shot dead when she tried to
peep outside from the window she was warned by the
miscreants that she should keep herself inside otherwise she
would also meet the same fate and, therefore, she could not
have dared to look outside and see the miscreants or the
appellants or any of them. Regarding Gian Chand, PW 22, the
learned counsel submitted that he had sustained so many
injuries on his person that he fell unconscious and,
therefore, it was not possible for him also to see the
dacoits in order to enable him to identify them later during
the investigation or in the court while the appellants were
in the dock. It was further contended that the incident had
occurred in January 1976 and evidence of these witnesses
came to be recorded after five years and, therefore, in the
absence of test identification parade it was not possible
for these two witnesses to have remembered the description
and features of the appellants so as to enable them to
identify them in the dock, after such a long lapse of time.
It was further submitted that the appellants were within
their right in declining to submit themselves for test
identification parade and legally they could not be
compelled to submit themselves for the test parade. It was,
therefore, submitted that the two courts below were not
justified in accepting their evidence on the basis of dock
identification.
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14.Before dealing with the various contentions advanced by
the learned counsel for the appellants as referred to above,
we shall first state the object, purpose and importance of
the test identification parade. It may be pointed out that
the holding of identification parades has been in vogue
since long in the past with a view to determine whether an
unknown person accused of an offence is really the culprit
or not, to be identified as such by those who claimed to be
the eyewitnesses of the occurrence so that they would be
able to identify the culprit if produced before them by
recalling the impressions of his features left on their
mind. That being so, in the very nature of things, the
identification parade in such cases serves a dual purpose.
It enables the investigating agency to ascertain the
correctness or otherwise of the claim of those witnesses who
claimed to have seen the offender of the crime as well as
their capacity to identify him and on the other hand it
saves the suspect from the sudden risk of being identified
in the dock by such witnesses during the course of the
trial. This practice of test identification as a mode of
identifying an unknown person charged of an offence is an
age-old method and it has worked well for the past several
decades as a satisfactory mode and a well-founded method of
criminal jurisprudence. It may also be noted that the
substantive evidence of identifying witness is his evidence
made in the court but in cases where the accused person is
not known to the witnesses from before who claimed to have
seen the incident, in that event identification of the
accused at the earliest possible opportunity after the
occurrence by such witnesses is of vital importance with a
view to avoid the chance of his memory fading away by the
time he is examined in the court after some lapse of time.
15.In the present case it may be noted that the appellant
Suraj Pal was arrested on 5-3-1976 and was admittedly
brought from Mathura Jail to Palwal Sub-Jail by the Police
of Hassanpur as another case against him was registered in
that police station. An application Ext. PA was moved by
the Sub-Inspector Sis Ram, PW 38 to the Sub-Divisional
Magistrate on 17-3-1976 for his identification while the
appellant Suraj Pal was already in judicial lock-up. This
application was marked to the Executive Magistrate on 17-3-
1976 itself and the Executive Magistrate fixed 23-3-1976 as
the date for identification of the appellant Suraj Pal. But
when the Executive Magistrate Shri M.S. Rao, PW 1 went to
the Sub-Jail, Palwal where the appellant Suraj Pal was
lodged, the appellant Suraj Pal tendered him an application
Ext. PA-3 declining to get himself identified on the ground
that he had been shown to the witnesses. The appellants
Nathi and Puran along with some other co-accused were also
lodged in Palwal Sub-Jail by the Mathura Police. On 24-5-
1976 an application Ext. PC was made to the Sub-Divisional
Magistrate, Palwal for holding the identification parade of
the appellants Nathi, Puran and the co-accused Krishanbir.
This application was also marked to the Executive
Magistrate, Shri M.S. Rao, PW 1 who fixed the holding of
identification parade at 5.00 p.m. same day in the Palwal
Sub-Jail but Shri Rao for some reason could not hold the
parade. Consequently the Sub-Divisional Magistrate, Shri
Kaushik, PW 11 himself went to the Palwal
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Sub-Jail next day but appellants Nathi and Puran and the co-
accused Krishanbir declined to stand the test of
identification. Their statement to that effect was recorded
by Shri Kaushik, PW 11.It is thus clear from this evidence
that though the prosecution was anxiously taking steps to
hold the test identification parade but the appellants
themselves declined to submit themselves for test parade.
It is true that they could not have been compelled to line
up for test parade but they did so on their own risk for
which the prosecution could not be blamed for not holding
the test parade. The reason given out by the appellants for
declining to stand the test of identification was that they
were shown by the police to the witnesses but this
allegation has been found to be baseless and unfounded by
both the courts below. We have perused the evidence in this
behalf and find that there is absolutely no basis to say
that the appellants or any of them were shown to the
witnesses. If the appellants in exercise of their own
volition had chosen not to stand the test of identification
without any reasonable cause, they did so on their own risk
for which they cannot be heard to say that in the absence of
test parade, dock identification was not proper and should
not be accepted, if it was otherwise found to be reliable.
16.Now adverting to the evidence of the eyewitnesses it is
clear from the statement of Usha Rani, PW 21, and her
brother Gian Chand, PW 22, that there was sufficient light
and they had enough opportunity to look at and see the
accused persons on the night of occurrence and, therefore,
there was no difficulty for them to identify the appellants
in the dock during the course of their evidence. Gian
Chand, PW 22, was sleeping in the Baithak in the ground
floor of the house where his deceased father Puran was also
sleeping. He deposed that they had retired to bed at about
9.30 p.m. after bolting the door of their room from inside.
He also stated that the main gate of the house was also
bolted. Deceased Ganga Devi, the mother of Gian Chand and
his sister Usha, PW 21 had slept in a room on the upper
Storey and his wife Mithilesh Kumari along with his other
sister were sleeping in another room on the upper Storey
when at about 2.00 a.m. in the night the miscreants pushed
the door of the room in which Gian Chand and his father
Puran were sleeping. Gian Chand deposed that his father
Puran woke up, opened the door and as soon as he went out
into the courtyard he was attacked by three miscreants who
opened an assault on his father with lathies and pharsa and
when Gian Chand, PW 22 himself came out to rescue his
father, three other miscreants attacked him. He further
deposed that one of the miscreants was standing at the main
gate of the house having a gun with him who was of dark
complexion, well-built and wearing a red turban. He also
stated that the electric light in the verandah and courtyard
were on and so also was the street light. Gian Chand also
stated that after he was seriously injured he went back into
the Baithak (room) and fell on a cot. He stated that the
miscreants fired the gunshots one of which had hit his
mother. The dacoits broke open the locks and removed the
articles from the house and after they left the house, the
village folks came to their house. He also identified the
appellants herein and others who were facing the trial to be
the miscreants
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who had committed the murder of his parents and committed
the dacoity in his house. He identified the articles seized
from the appellants as belonging to his family. Gian Chand,
PW 22, had seen the miscreants in electric light when three
of them were assaulting his father. Therefore he himself
was assaulted by other three miscreants. The number of
injuries on his person go to show that he was thrashed and
battered for quite some time and he had sufficient time and
opportunity to look at the dacoits. It was, therefore, not
difficult for him to identify the appellants with the
lasting impression that was left on his mind.
17.The second eyewitness of the occurrence is Usha Rani,
PW 21. She deposed that she along with her mother was
sleeping in the upper storey of the house when at about 2.00
a.m. on the night of occurrence they woke up on hearing the
noise (raula) created by the dacoits. She stated that her
mother deceased Ganga Devi put on the light of the room and
tried to open the door but it was found to be bolted from
outside. Ganga Devi then opened the door of the window
which opened into the compound of the house. She deposed
that the dacoit standing at the main gate of the compound on
the ground floor fired his gun which hit her mother on the
forehead as a result of which she died on the spot. Usha
Rani further deposed that thereafter when she peeped through
the window the same person carrying the gun and standing
near the main gate of the compound commanded her to go back
and sit quietly otherwise she would also meet the same fate.
This part of the evidence of Usha Rani was attacked by the
learned counsel for the appellant by contending that after
her mother was shot dead it was improbable that Usha Rani
would have dared to peep outside endangering her own life
and this part of the evidence has been introduced by the
prosecution in order to show that the witness had seen the
miscreants so that she may identify the miscreants at a
later stage. We are unable to accept these submissions. In
our opinion when the witness had sensed that the dacoits had
raided and ransacked the house and her mother was shot dead
it was quite natural for the witness to look around and see
what was happening there in order to take steps to escape
and save her own life.
18.The criticism of the learned counsel for the appellants
that no description of features and particulars of the
dacoits was given in the FIR which goes to show that there
was no light and the witnesses had not seen the dacoits and,
therefore, it was not possible for them to identify. Hence
the dock identification should be rejected on this account.
We are unable to persuade ourselves to accept this
contention also for the reason that admittedly the FIR Ext.
PHH was lodged by Sulekhan, PW 23 who had not seen the
entire occurrence. According to the evidence of Sulekhan,
PW 23, on hearing the raula on the night of occurrence when
he was proceeding towards the house of Puran Chand someone
fired a gunshot which hit him on his thigh and, therefore,
he hid himself and went to the house of Puran only after the
miscreants had gone away. In these circumstance:; Sulekhan,
PW 23, who lodged the FIR, could not have given the details
and description of the features of the dacoits. As regards
the presence of light at the time and
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place of occurrence we have already discussed and found that
there was enough light there.
19.This brings us to the question of recovery of
incriminating articles from the possession of the
appellants. The appellant Suraj Pal, as said earlier, made
his disclosure statement on the basis of which quilt covers
Ext. P-14 and Ext. P-15 are said to have been seized. But
the trial court as well as the High Court found that there
is some discrepancy in the evidence with regard to the two
articles and therefore, both the courts below did not feel
it safe to rely on this part of the evidence with regard to
these two items. But so far as the recovery of
incriminating articles from the possession of the appellants
Nathi and Puran is concerned, the same has been found to be
reliable and satisfactory. The appellant Nathi had pawned
the stolen articles with Hiralal, PW 30, which were seized
from Hiralal at the instance of the appellant Nathi.
Similarly the appellant Puran had pledged the stolen
articles with one Nanu Ram, PW 28, which were seized from
Nanu Ram at the instance of Puran along with the pledge
deeds. The High Court has discussed the evidence relating
to disclosure statements and the seizures of these articles
from these two appellants at length in para 16 of the
judgment and accepting the same recorded the finding that
the prosecution has proved the recovery of these articles
from the appellants immediately after the commission of the
crime which have been proved to be the articles belonging to
the family of deceased Puran Chand. We have also
scrutinised the evidence and find ourselves in agreement
with the conclusions recorded by the High Court.
20.In the light of the aforesaid discussion we find that
there are no grounds to interfere with the conclusions
recorded by the two courts below with regard to the three
appellants before us and, therefore, the two appeals and the
special leave petition deserve to be dismissed and the same
are, accordingly dismissed.
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