Bombay High Court High Court

Ms. Leena Balkrishna Nair vs The State Of Maharashtra on 13 April, 2010

Bombay High Court
Ms. Leena Balkrishna Nair vs The State Of Maharashtra on 13 April, 2010
Bench: Ranjana Desai, V.K. Tahilramani
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
               CRIMINAL APPELLATE JURISDICTION




                                                   
              CRIMINAL APPEAL NO.837 OF 2003


    Ms.   Leena    Balkrishna  Nair, )




                                                  
    Yerawada       Central    Prison )
    (Female), Pune - 411 006.        ) ...                Appellant

              Versus




                                     
                        
    The State of Maharashtra.                ...         Respondent
                       
    Ms. Latika    Newarekar,     appointed         advocate          for      the
    appellant.

    Mr. H.J. Dedhia, A.P.P. for the State.
        
     



                     CORAM: MRS. RANJANA DESAI &
                            MRS. V.K. TAHILRAMANI, JJ.

DATE ON WHICH THE ORDER IS

RESERVED : 12TH APRIL, 2010.

DATE ON WHICH THE ORDER IS
PRONOUNCED: 13TH APRIL, 2010.

JUDGMENT :- (Per Smt. Ranjana Desai, J.)

1. The appellant was tried by the Court of Sessions for

Greater Bombay in Sessions Case No.971 of 2000 for

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offence punishable under Section 302 of the Indian Penal

Code (for short, “the IPC”). By impugned judgment and

order dated 5/7/2002, the appellant was convicted for

offence punishable under Section 302 and sentenced to

suffer imprisonment for life and to pay a fine of Rs.300/-,

in default, to suffer rigorous imprisonment for one month.

Being aggrieved by the said judgment and order, the

appellant has preferred the present appeal.

2. It is necessary to give the gist of the facts. The

appellant was residing at Room No.172, Plot No.5,

Nagababa Nagar, Vashinaka, Chembur along with her

aunt DW-1 Ramani Subhash Gaikwad, deceased Aparna

and PW-1 Radhakrishnan Balkrishnan, who is the brother

of the appellant. According to PW-1 Radhakrishnan, on

29/3/2002, while he was in the grocery shop of Bhimrao

Kamble at about 7.00 p.m., his neighbour Sunita Chavan

came to the shop and informed him that she heard a

sound of throwing of stone from his room. He went to his

room and knocked the door for 2-3 times. Since nobody

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gave any response, he pushed open the door of the room.

He noticed the deceased, the daughter of his aunt DW-1

Ramani, lying in a pool of blood inside the room. He

noticed that the appellant was sitting on the cot. Nobody

else was present there.

3. PW-8 PSI Chandrakant Patil, the Investigating Officer,

who was attached to RCF Police Station, has stated in his

evidence that he received telephone message at about

5.45 p.m. that one minor girl was murdered at Nagababa

Nagar, Vashinaka, Chembur. On receipt of this

information, he, PW-9 PI Vijay Meru and his staff reached

the scene of offence. He found the dead body of minor

girl lying in Room No.172. Statement of PW-1

Radhakrishnan came to be recorded. It was treated as FIR

(Ex-8). On the basis of the said FIR, investigation was

started. PW-7 ASI Vithoba Jadhav, who had received a

wireless message on 20/3/2000 at about 5.30 p.m.

reached the scene of offence. He took over the custody of

the appellant, who was present there. After completion of

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investigation, the appellant came to be charged as

aforesaid.

4. The defence of the appellant was one of total denial.

The appellant denied the prosecution case and set up the

case of insanity. In support of her case, the appellant

examined DW-1 Ramani Gaikwad. Learned Sessions

Judge accepted the prosecution version. He came to a

conclusion that the prosecution had proved its case

beyond reasonable doubt. He also came to the conclusion

that the appellant had not been able to probabilise her

evidence that she was of unsound mind at the time of

commission of offence. In the circumstances, he

convicted the appellant as above and, hence, this appeal.

5. We have heard Ms. Newarekar, learned counsel

appearing for the appellant and Mr. Dedhia, learned A.P.P.

appearing for the State. With the assistance of learned

counsel, we have gone through the record of the case.

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6. Learned counsel for the appellant submitted that

learned Sessions Judge fell into a grave error in convicting

the appellant. Learned counsel submitted that the

evidence on record, particularly the evidence of DW-1

Ramani, completely establishes the defence of insanity

and, therefore, in view of Section 84 of the IPC, the

appellant ought to have been acquitted. Learned A.P.P.

on the other hand, submitted that no interference is

necessary with the impugned order.

7. There can be no dispute that the death of Aparna

was homicidal. PW-6 Dr. Vithal Vihurkar did the

postmortem on the deceased. He has proved the

postmortem notes (Ex-17). The postmortem notes indicate

that the deceased had inter alia suffered fracture of skull.

The cause of death is stated in the postmortem notes as

“Head injury and Brain Hemorrhage”. We have already

given the gist of the evidence of PW-1 Radhakrishnan. His

deposition makes it evident that on 29/3/2000 body of the

deceased was found lying in his room situated at

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Nagababa Nagar, Vashinaka, Chembur, in an injured

condition in a pool of blood. His evidence also establishes

that the appellant was sitting on the cot in the room and

nobody else was present inside the room. In his cross-

examination, the defence has not been able to dislodge

the above version. PW-2 Chhaya Hamidani is the pancha

to the scene of offence panchanama (Ex-10). She has

proved the said panchanama. The panchanama indicates

that there was one blood stained grinding stone lying by

the side of the deceased. PW-3 is Sunita Chavan. She is

a neighbour of PW-1 Radhakrishnan. According to her, on

29/3/2000, at about 6.30 p.m., she heard a sound of

throwing of a stone from the room of the appellant. PW-1

Radhakrishnan came there. The door of his room was

opened. According to this witness, the deceased was

lying in a pool of blood on the ground and the appellant

was sitting on a cot near her. PW-4 is Gangubai, another

neighbour of PW-1 Radhakrishnan. She has given similar

evidence. No dent is made in her cross-examination by

the defence. PW-7 ASI Vithoba Jadhav and PW-9 PI Vijay

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Meru have given the details of investigation. A careful

consideration of the evidence led by the prosecution

clearly establishes that the appellant threw the stone on

the deceased and killed her.

8. In support of her defence, the appellant has

examined DW-1 Ramani, her aunt. DW-1 Ramani has

stated that the deceased was her daughter. She had

suffered a serious leg injury. She was unable to walk and,

therefore, she had stopped attending the school. DW-1

Ramani has further stated that six months prior to March,

2000, the appellant had a feeling that somebody comes

and assaults her. She was inclined towards committing

suicide. Few days prior to March, 2000, she had run away

from the house. DW-1 Ramani had shown the appellant to

a local doctor. The local doctor had advised her to consult

a specialist but she had no money for such consultation.

DW-1 Ramani has further stated that sometimes the

appellant used to respond properly. She used to sit by

keeping her hands over her ears for long time. At such

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moment, she never used to talk to anybody and she never

used to answer anyone’s questions.

9. The evidence of the defence witness reflects the

appellant’s plea of insanity. Learned Sessions Judge has

rejected the plea of insanity. He has observed that the

defence has failed to prove that on the date of incident,

the appellant was suffering from insanity and, therefore,

the benefit of Section 84 of the IPC cannot be given to

her. Learned Judge has observed that PW-1

Radhakrishnan, the brother of the appellant has also not

given evidence of ill-health of the appellant and the

evidence of DW-1 Ramani is not sufficient to prove that

the appellant was suffering from unsoundness of mind.

10. Since we have come to a conclusion that the

evidence establishes that the appellant killed the

deceased, we now need to only examine whether the

benefit of Section 84 of the IPC can be given to the

appellant. The question is whether she has proved the

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defence of insanity and learned Judge has erred in

rejecting it.

11. Section 84 of the IPC falls in Chapter IV of the IPC

which contains General Exceptions. It excepts certain

acts done by certain persons under certain set of

circumstances from the penal provisions. Section 84

reads as under :

“84. Act of a person of unsound
mind. – Nothing is an offence which is
done by a person who, at the time of

doing it, by reason of unsoundness of
mind, is incapable of knowing the

nature of the act, or that he is doing
what is either wrong or contrary to law.”

12. Section 299 of the IPC defines culpable homicide. It

reads thus :

“299. Culpable homicide. –

Whoever causes death by doing an act
with the intention of causing death, or
with the intention of causing such bodily
injury as is likely to cause death, or with

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the knowledge that he is likely by such

act to cause death, commits the offence
of culpable homicide.”

13. Section 299 of the IPC states that for an act to be

culpable homicide, there has to be an intention of causing

death or the act should be accompanied by an intention of

causing such bodily injury as is likely to cause death, or it

should be done with the knowledge that such act is likely

to cause death. As per Section 84 of the IPC, if it is

established that by reason of unsoundness of mind, the

accused is incapable of knowing the nature of the act

committed by him which is an offence, it cannot be

termed as an offence qua him. Underlying principle of

this section is that the act contemplated therein lacks

basic ingredient of an offence which is mens rea or

criminal intention.

14. The burden of proving the existence of

circumstances bringing the case within the purview of

Section 84 of the IPC lies upon the accused under Section

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105 of the Indian Evidence Act. Illustration (a) to Section

105 of the Evidence Act reads as under :

“(a) A, accused of murder alleges that,
by reason of unsoundness of mind, he

did not know the nature of the act,

The burden of proof is on A.”

Thus the burden of proving insanity at the time

when the offence was committed lies on the accused who

pleads the defence of insanity.

15. In Dahyabhai Chhaganbhai Thakkar v. State

of Gujarat, AIR 1964 SC 1563, the Supreme Court

considered the relevant aspects of the law of the plea of

insanity. The Supreme Court observed that it is the

fundamental principle of criminal jurisprudence that an

accused is presumed to be innocent and, therefore, the

burden lies on the prosecution to prove the guilt of the

accused beyond reasonable doubt. The prosecution

has to prove beyond reasonable doubt that the accused

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caused death with the requisite intention of causing

death described in Section 299 of the IPC. This general

burden never shifts and it always rests on the

prosecution. The Supreme Court further observed that as

per Section 105 of the Evidence Act, the burden of

proving the existence of circumstances bringing the case

within any of the General Exceptions in the IPC or within

any special exception or proviso contained in any other

part of the same Code, or in any law defining the offence,

is upon the accused. The Supreme Court further observed

that the accused will have to rebut the presumption that

such circumstances did not exist, by placing material

before the court sufficient to make it consider the

existence of the said circumstances so probable that

a prudent man would act upon them. The Supreme Court

further observed that if the evidence so placed may not

be sufficient to discharge the burden under Section 105

of the Evidence Act, but it may raise a reasonable doubt in

the mind of a judge as regards one or other of the

necessary ingredients of the offence itself and if the

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judge has such reasonable doubt, he has to acquit the

accused. The relevant paragraph of the judgment of the

Supreme Court may be quoted :

“(7) The doctrine of burden of proof in
the context of the plea of insanity may
be stated in the following propositions:
(1) The prosecution must prove beyond

reasonable doubt that the accused had
committed ig the offence with the
requisite mens rea; and the burden of
proving that always rests on the
prosecution from the beginning to the

end of the trial. (2) There is a
rebuttable presumption that the
accused was not insane, when he
committed the crime, in the sense laid

down by S.84 of the Indian Penal Code:

the accused may rebut it by placing

before the court all the relevant
evidence – oral, documentary or
circumstantial, but the burden of proof
upon him is no higher than that rests

upon a party to civil proceedings. (3)
Even if the accused was not able to
establish conclusively that he was
insane at the time he committed the

offence, the evidence placed before the
court by the accused or by the
prosecution may raise a reasonable
doubt in the mind of the court as
regards one or more of the ingredients
of the offence, including mens rea of the
accused and in that case the court
would be entitled to acquit the accused
on the ground that the general burden

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of proof resting on the prosecution was

not discharged.”

In the same judgment, the Supreme Court has held

that whether the accused was in such a state of mind as

to be entitled to the benefit of Section 84 of the IPC can

only be established from the circumstances which

preceded, attended and followed the crime.

16. As directed by us, learned A.P.P. has tendered the

medical record of the appellant in this court. The case

papers of the Thane Mental Hospital indicate that the

appellant was under treatment for mental illness or

insanity. It is noted in the medical papers that her

behaviour was abnormal; she gets excited and engages

herself in irrelevant talk. It is stated that she has auditory

hallucinations and has suspicion about neighbours. There

is also Reception Order dated 19/5/2000 passed under

Section 5 of the Indian Lunancy Act IV of 1912, by the

Additional Chief Metropolitan Magistrate, 11th Court, Kurla,

Mumbai, which reads thus :

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“RECEPTION ORDER

U/sec. 5 of the Indian Lunancy Act IV of 1912)

I, the under-signed Shri D.R. Bhosale, Addl.

Chief Metropolitan Magistrate, 11th Court, Kurla,
Mumbai, upon reading report submitted by the
Superintendent, Mumbai Central Prison,
Mumbai, supported by medical opinions and the

behaviour and conduct of the accused/mentally
sick was also observed by the Judicial Officer,

whenever she was produced for the purpose of
the remand. The report appears to be well
founded. Therefore, it is accepted/allowed. The

Jail Authority is hereby permitted to lodge the
accused/mentally sick in Thane Mental Hospital
for treatment.

Sd/-

D.R. Bhosale,
Addl. Chief Metropolitan Magistrate
11th Court, Kurla, Mumbai.

Mumbai,

19.5.2000.”

17. It is pursuant to this order, that the appellant was

transferred to Thane Mental Hospital for treatment. It

appears that learned Sessions Judge had sought opinion

from the Superintendent of Institute of Mental Health,

Thane as to whether the appellant is fit for discharge and

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trial and, on 19/9/2000, a certificate was issued by the

Superintendent stating that she was fit for discharge and

trial. The question is whether on the basis of this

certificate, we could come to a conclusion that when the

appellant committed the offence, she was mentally fit

and, could know the consequences of her action. The

question further is whether we can conclude that she had

intention to murder the deceased.

18. We are unable to hold that the appellant had

intention to murder the deceased. Her brother PW-1

Radhakrishnan has stated that after the incident in

question, when he entered the room, he found the

deceased lying in a pool of blood and the appellant was

sitting on the cot. He has further stated that she was

murmuring. The fact that after committing the offence,

the appellant continued to sit and murmur is an indication

that all was not well with her mental condition. The

normal reaction of any accused in his senses would be to

run away. It is true as held by the Supreme Court in

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Sherolli Wali Mohammed v. The State of

Maharashtra (1973) 4 SCC 79 that mere fact that the

motive has not been proved or that the accused made no

attempt to run away would not by itself indicate that the

accused was insane. But that would be one of the telltale

circumstances which would go to establish insanity. In

the cross-examination, PW-1 Radhakrishnan has stated

that the appellant used to talk to herself even prior to the

incident; she used to eat less, she used to remain sick and

she was being treated in the Shatabdi Hospital six to

seven months prior to the incident.

19. DW-1 Ramani, the aunt of the appellant and the

mother of the deceased has stated that the appellant

used to feel that somebody would come and assault her

and, she was inclined towards committing suicide. She

has further stated that a few days prior to March, 2000,

she had run away from the house. According to her, she

had shown the appellant to the local doctor and he had

advised her to contact a specialist for treatment of the

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appellant. DW-1 Ramani has also stated that the

appellant did not respond properly and, at times, she used

to sit by keeping her hands over her ears for long time

and at that time, she never used to talk to anybody and

never used to answer any question. The fact that the

mother of the deceased has gone on record to say that

the appellant was ill and was getting hallucinations is

important and is a pointer to the appellant’s insanity. It

must be remembered that the appellant had killed her

daughter. Unless, it is true, DW-1 Ramani would never

have deposed about the mental condition of the appellant

suggestive of unsoundness of mind. It is pertinent to note

that the incident in question took place on 29/3/2000 and

the reception order was passed by the Additional Chief

Metropolitan Magistrate on 19/5/2000 within 50 days from

the date of incident. Certificate issued by the

Superintendent of Institute of Mental Health dated

19/9/2000 to the effect that she was fit for trial may be

the result of the treatment given to her in the Thane

Mental Hospital. But from that certificate, it cannot be

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concluded that the appellant was not insane when she

committed the crime. From the evidence of PW-1

Radhakrishnan and DW-1 Ramani, we have no hesitation

in further concluding that on the date of incident, the

appellant was mentally unsound. Her behaviour

establishes this fact beyond doubt. The prosecution has

established circumstances which preceded, attended and

followed the crime.

ig It must be remembered that the

accused does not have to conclusively prove the defence

of insanity. If the evidence adduced by the prosecution

and by the defence raises a reasonable doubt in the mind

of the court that the accused might have been insane

when she committed the offence, the accused is entitled

to the benefit of Section 84 of the IPC. We feel that

learned Judge overlooked vital evidence. He wrongly

convicted the appellant. The appellant will have to be

therefore acquitted.

20. On 1/4/2010, during the hearing of this appeal, we

were informed by learned counsel for the appellant that

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the appellant is kept in Yerwada Jail Hospital, but the

Yerwada Jail Hospital has made a proposal to the

Government that considering the type of mental illness

from which the appellant is suffering, she should be

shifted to the Mental Hospital Yerwada for further

management. On that proposal dated 30/3/2010, the

State Government had not taken any action. We noted

our unhappiness over the State Government’s lethargy

and directed that the appellant be shifted to the Regional

Mental Hospital, Yerwada and proper treatment be given

to her. We are informed that accordingly, the appellant

was shifted to the hospital and she is being given

treatment in that hospital.

21. Today, we have been shown G.R. dated 8/4/2010

whereby the appellant is transferred from Yerwada

Central Prison, Pune to Regional Mental Hospital, Yerwada,

Pune. The G.R. is accompanied by a warrant issued under

Section 30(1) of the Prisoners Act, 1900 for removal of the

appellant to the Regional Mental Hospital. The warrant

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states that the State Government has ordered that the

appellant shall be kept under medical care and treatment

in the said hospital for the remainder of the term for

which she has been sentenced to be imprisoned and if she

recovers before expiration of the term, she should be

remanded to prison under Section 30(2) of the Prisoners

Act, 1900. This G.R. and the warrant proceed on the

assumption that

the conviction of the appellant is

confirmed. As we have indicated hereinabove, the

appellant deserves to be acquitted. The G.R. dated

8/4/2010 and the accompanying warrant therefore, need

to be revoked.

22. The question is after acquittal where should the

appellant be directed to be kept. Section 335 of the

Code of Criminal Procedure 1973 (for short, “the

Code”) makes provision for detention of persons

acquitted on the ground of unsoundness of mind. It

reads thus :





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          "335.     Person acquitted on such




                                                                
          ground to be detained in safe
          custody. -      Whenever the finding
          states   that   the   accused    person




                                        
          committed     the   act   alleged,    the
          Magistrate or Court before whom or

which the trial has been held, shall, if
such act would, but for the incapacity

found, have constituted an offence, –

(a) order such person to be
detained in safe custody in such place

and manner as the Magistrate or Court
thinks fit; or

(b) order such person to be
delivered to any relative or friend of

such person.

(2) No order for the detention of
the accused in a lunatic asylum shall be

made under cluase (a) of sub-section (1)
otherwise than in accordance with such

rules as the State Government may
have made under the Indian Lunacy Act,
1912 (4 of 1912).

(3) No order for the delivery of
the accused to a relative or friend shall
be made under clause (b) of sub-section
(1), except upon the application of such

relative or friend and on his giving
security to the satisfaction of the
Magistrate or Court that the person
delivered shall –

(a) be properly taken care of and
prevented from doing injury to himself
or to any other person;





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                   (b) be     produced      for   the




                                                                    

inspection of such officer, and at such
times and places, as the State
Government may direct.

(4) The Magistrate or Court shall
report to the State Government the
action taken under sub-section (1).”

23. It is apparent from the above provision that if a

person, who has committed an offence is acquitted

because when he committed the offence, he was of

unsound mind, care must be taken to see that he is

detained in safe custody because if such person is let

loose in the Society, there is a possibility that he or she

may commit similar offences. Sub-Section (b) of Section

335 states that after acquittal, such person can be

delivered to any relative or friend of such person. The

appellant comes from poor strata of the society. The

appellant’s brother and aunt could not even give her

proper treatment. In such situation, it is not possible for

us to handover her to them. No friend has come forward

to take her custody. For the time being, for better

treatment, we have directed that she be kept in Regional

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Mental Hospital, Yerwada.

24. Section 338 lays down the procedure to be followed

where lunatics are declared fit to be released. The State

Government has a great role to play. It would be,

therefore, necessary for the prison authorities to get the

appellant examined by a competent psychiatrist. Her

current physical and mental state must be ascertained.

The doctor must give his opinion as to whether the

appellant is fit to be released from custody or whether she

needs to be kept in safe custody because she needs

further treatment. We, therefore, direct that the appellant

be got medically examined by a competent psychiatrist

and on the basis of the medical certificate issued by the

doctor, the State of Maharashtra shall take steps as laid

down in Section 338 of the Code. Such a course is

followed by this court in Nivrutti Dhondiba Shinde v.

State of Maharashtra, 1985 Cri.L.J. 449. Hence, we

pass the following order :

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ORDER

25. The impugned judgment and order dated 5/7/2002 is

quashed and set aside. The appellant – Ms. Leena

Balkrishna Nair is acquitted of the charge levelled against

her. The appeal is thus allowed.

26. The State shall revoke G.R. dated 8/4/2010 and

warrant of the same date as they proceed on the

assumption that the appellant is convicted and issue

appropriate G.R., if necessary.

27. However, we direct that the appellant shall be

detained in safe custody either in the Regional Mental

Hospital, Yerwada if she needs further treatment or in

some other appropriate jail or place and the jail

authorities shall submit a report to the State Government

forthwith whether the appellant can be released without

danger of her doing injury to herself or to any other

person and upon receipt of such a report from the jail

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authorities, the State Government shall take appropriate

steps as envisaged under Section 338 of the Code in the

matter of release of the appellant. We also direct that the

office shall send a copy of this judgment to the State

Government under Section 335(4) of the Code. We

further direct that the operative part of this judgment be

sent to the concerned jail authorities immediately.

[MRS. RANJANA DESAI, J.]

[MRS. V.K. TAHILRAMANI, J.]

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