Delhi District Court
State vs . Rohtas Etc. on 6 August, 2008
1
IN THE COURT OF MS. REENA SINGH NAG: ADDL. DISTRICT &
SESSIONS JUDGE: KKD: DELHI
SC No.332/04
FIR No. 768/98
PS. Seelampur
U/s. 363/366/376/342/506/34 IPC
State vs. Rohtas etc.
Date of Institution: 4-11-04
Date of arguments: 4-8-08
State Date of decision : 6-8-08
Vs
1 Rohtas Kumar S/o Ram Bhool
R/o D-380, Ashok Nagar Delhi
2 Ram Bhool S/o Leela Ram
R/o D-1/7AA-696, gali no. 7A,
Ashok Nagar Delhi
3 Man Mohan S.o Ram Bhool
R/o D-380, Ashok Nagar, Delhi
4 Kiran Singh S/o Sh. Kartar Singh
R/o B-1048, Gali No. 10, Kanti Nagar, Delhi
5 Nirmala W/o Manmohan
R/o D-380, Ashok Nagar Delhi
6 Babloo @ Balwant Singh S/o Shri Khushal Singh
R/o C/o Ashok Kumar, M Block,
162, Shakarpur, Delhi
JUDGMENT
1. Prosecution version is that on 21.10.98 at 10 a.m accused Rohtas and Babloo in furtherance of their common intention kidnapped prosecutrix ( name withheld) aged 15 years from the lawful guardianship of her father when she was going to her maternal grand mother's house 2 at Kanti Nagar, with intent that prosecutrix may be seduced to illicit intercourse with Rohtas or knowing it to be likely that she will be so seduced to illicit intercourse with Rohtas and they both took her to a rented room in Jagat Puri where she was wrongly confined and concealed and subjected to rape by Rohtas thereby accused Rohtas and Babloo committed offences under section 363/366/342/34 IPC and accused Rohtas in addition committed offence under section 376 IPC.
2. This is also the prosecution version that when prosecutrix was confined in the tenanted premises at Jagat Puri, accused Ram Bhool, Manmohan, Kiran Singh and Nirmala visited that premises on 25.10.98 and in furtherance of their common intention they all threatened the prosecutrix with the pistol type article to kill her parents and forced her to write some documents under coercion and thereby they also committed offence punishable under section 506/34 IPC.
3. After due investigation, charge sheet was filed and after committal charge was framed against accused Rohtas and Babloo under section 363/366/34 IPC, under section 342/34 IPC and against accused Rohtas under section 376 IPC and against Ram Bhool, Manmohan, Kiran Singh and Nirmala under section 506/34 IPC on 16.5.05 by the then Ld ASJ Sh. B R Kedia to which all the accused persons pleaded not guilty and claimed trial.
4. In support of its case prosecution has examined the following witnesses.
5. PW1 is Ashok Kumar father of prosecutrix who has supported the prosecution version by testifying that his 14 years daughter was found missing as she did not reach her grand mother's house at Kanti 3 Nagar where she was supposed to go on 21.10.98. After searching for his daughter he on next day lodged a missing report at PS vide Ex.PW1/A wherein he named Rohtas as suspect as he was also found missing from his house which was opposite his in laws house at Kanti Nagar. His daughter was recovered after about one week when she narrated the entire incident.
6. PW2 is prosecutrix who has also endeavored to support the prosecution and interalia testified that at the relevant time she was studying in 8th class and was 15 years old. On the fateful day on 21.10.98 when she was going to her grand father's house at Kanti Nagar after taking permission of her parents at 10 a.m, on the way at Gali No.13, Braham Puri accused Rohtas met her on a two wheeler and asked her as to where she was going. He stated that he would drop her at Kanti Nagar as he was also going towards that side. As per this witness accused was acquainted with her as he was residing in front of the house of her Nani. She took the lift. On the way at Shyam Lal college another boy Babloo joined them and occupied the back seat of scooter. He was identified by prosecutrix in the court correctly. Her version is that instead of taking her to the house of her Nani accused Rohtas took her to Jagat Puri despite her asking to drop her at her Nani's place upon which Rohtas threatened her to kill her brother and father and asked her to keep silence. She was taken to a house at Jagat Puri and told the house owner that they both were married. Since she was under threat so she kept mum . She was taken in a room from where Babloo left. Thereafter. accused Rohtas closed the door and committed rape and also threatened her with a pistol. Prosecutrix claims that she was never left alone in that room as either Rohtas or Babloo used to stay with her as a guard. She was confined in that room for 7/8 4 days during which period she states that she was continuously raped by accused Rohtas. As per her both the accused used to bring food from hotel turn by turn.
7. She has further testified that during that period of confinement accused Manmohan ( brother of Rohtas, Ram Bhool father of Rohtas, Nirmala wife of Manmohan and one Kiran Singh alongwith Manju sister of Rohtas ) came to that room and threatened her with a pistol type article, to write some letters against her brother and parents and they also obtained her signatures on some blank papers and thereafter they left.
8. Her version is that on 29.10.98 accused Rohtas left her and on the same day her Mama, her father, her nana and police officials came to that room when she was sleeping there. She was brought to PS Seelam Pur where her statement was recorded. Thereafter she was taken to GTB Hospital for medical examination. Her statement was recorded before ld Magistrate (under section 164 Cr.P.C) vide Ex.PW2/A and thereafter her custody was given to her parents. She has been subjected to lengthy cross examination by all the accused persons.
9. PW3 is Madan Lal Sharma maternal grand father of prosecutrix who has also supported the prosecution version. As per him he learnt about the missing of prosecutrix from father of prosecutrix on 22.10.98 and he also learnt from police that one boy Rohtas had detained prosecurtrix in his house at Jagat Puri with the help of one Babloo. He stood witness to recovery of prosecutrix on 29.10.98 from Jagat Puri house and he proved the recovery memo of prosecutrix as Ex.PW3/A with his signature at point B thereon. He also proved seizure 5 memo of birth certificate of prosecutrix vide Ex.PW3/B with his signature at point A and personal search memo and arrest memo of Babloo as Ex.PW3/C and D and personal search memo and arrest memo of accused Manmohan as Ex.PW3/E and F. He identified accused Rohtas in the court correctly. As per him prosecutrix was recovered from the house of one Solanki at Jagat Puri at about 7/8 a.,m when she was all alone in that room and door was bolted from out side.
10. PW4 is Kanchi Pershad who had given the room at Jagat puri on rent to accused Rohtas whom he identified in the court correctly. While taking the room on rent in the morning of 21.10.98 accused had represented that he was married and he also gave reference of two/three respectable persons. As per this witness in the evening of that day he brought the prosecutrix in that room and started living there. Sometime another boy whom he identified in the court (Babloo) used to visit accused Rohtas and he was represented as servant of Rohtas. After about one week of their stay,. Family members of prosecutrix and police officials came there and took back prosecutrix with them. He identified his signature on recovery memo of prosecutrix vide Ex.PW4/A.
11. PW-5 is Dr. Raj Pal radiologist from GTB Hospital who on the basis of examination of prosecutrix conducted on 21.10,.98 opined that bonny age of prosecutrix was above 17 years and below 19 years. He proved his report as Ex.PW5/A with his signature at point A.
12. PW6 is Om Parkash from school of the prosecutrix who proved the application for admission of prosecutrix in school as Ex.PW6/A and the copy of admission register concerning prosecutrix on 8.4.94 as Ex.PW6/B and copy of school leaving certificate as Ex.PW6/C 6 and copy of certificate under the signature of Vice Principal of School ( Pran Kishori) as Ex.PW6/D. As per school record the date of birth of prosecutrix was 5.4.84. Original records were returned after perusal.
13. PW7 is Inspector Shanti who had conducted the personal search of accused Kiran Singh vide ex.P{W7/A when on 16.5.04 he himself came in the CAW Cell. His disclosure statement was proved as Ex.PW7/B. During his one day PC remand, on 18.5.04 accused Kiran Singh had pointed towards the nala ( drain) at Jagat Puri where he had thrown the katta. However, same could not be recovered. Pointing memo was proved as Ex.PW7/C. This witness also arrested accused Ram Bhool from his house at Ashok Nagar in presence of constable Sudhir on 19.5.04 and proved his personal search memo vide Ex.PW7/D. As per this witness on 29.5.04 accused Rohtas was arrested and produced in the court by officials of New Delhi Special Staff so she came to the court and moved an application for interrogation and formal arrest of accused Rohtas.. she identified accused Rohtas in the court and proved the application as Ex.PW7/E and his disclosure statement as Ex.PW7/F and application for his PC remand as Ex.PW7/G and pointing out memo of House No.B 133 Solanki Tent House Second Floor vide Ex.PW7/H and arrest memo of Rohtas vide Ex.PW7/J. She also proved the arrest of accused Babloo on 9.6.04 in presence of Madan Lal vide Ex.PW3./D and his personal search memo vide Ex.PW3/C and disclosure statement vide Ex.PW7/K. Further investigation was handed over to SI Radha Pandey.
14. PW8 is Dr.Banarsi from GTB Hospital who had examined accused Rohtas on 31.5.04 brought by constable Yoginder and proved his MLC vide Ex.PW8/A and as per him there was nothing to suggest 7 that patient was not capable of performing sexual intercourse.
15. PW9 is SI Mukesh Kumar who has recorded the FIR and proved the same as Ex.PW9/A.
16. PW10 is SI Aditya Ranjan who was handed over the case file on 24.6.99 and he remained in charge of the case till 12.9.99 during which period accused could not be traced despite his best efforts. He handed over the case file to SHO on 12.9.99 as he went on training.
17. PW11 is SI Ajay Kumar who has initially investigated the case after registration of FIR and collected the birth certificate of prosecutrix. He also got the statement under section 164 Cr.P.C of prosecutrix recorded by MM. Prosecutrix was got medically examined at GTB Hospital through lady ( SPO) Sheela and latter had handed him over the sealed parcels stated to be containing vaginal swab and the sample seal with the MLC which were seized vide memo Ex.PW11/A.
18. PW12 Sh.Paramjit singh ld Magistrate who has recorded the statement under section 164 Cr.P.C of prosectrix vide Ex.PW2/A. He proved the certificate with regard to satisfaction that prosecutrix was making the statement voluntarily vide Ex.PW12/A and the correctness of the proceedings vide Ex,.PW12/B and endorsement on the application moved b y IO for giving him a copy of proceedings vide Ex.PW12/C.
19. PW13 is constable Jai Ram who has joined the investigation on 31.5.04 and 8.6.04 and has testified on the line of PW7 SI Shanti and PW3 Madan Lal.
820. PW14 is HC Satinder Kumar who joined investigation on 19.7.04 with ASI Jagdish Pershad and ASI Radha Pandey and woman constable Durga. Police party was taken to Khekra District Bagpat UP by Sh. M L Sharma and on his pointing out accused Man Mohan was apprehended who on seeing the police party tried to slip. He proved the arrest memo of Man Mohan as Ex.PW3/F and his personal search as Ex.PW3/E, identifying his signatures thereon at point B. On 20.7.04 vide Ex.PW14/A accused Man Mohan had pointed out the place of occurrence i.e. house at Jagat Puri.
21. PW15 is constable Kishan Pal who has joined the investigation on 9.6.04 with PW7 and corroborated her and identified his signature on pointing out memo of the place of occurrence of accused Babloo vide Ex.PW7/R, at point B.
22. PW16 is SI Radha Pandey who has corroborated PW14 as regards arrest of accused Man Mohan. As regards accused Nirmala she proved her arrest memo as Ex.PW16/A in the court as on 23.7.04 accused Nirmala had surrendered in the court.
23. PW17 is constable Sudhir Kumar who has supported the prosecution version mutatis mutandis and testified about the arrest of Kiran Singh. He proved his arrest memo vide Ex.PW17/B. He also proved the arrest memo of Ram Bhool on 18.5.04 vide Ex.PW17/B.
24. Pw18 is HC Ram Bir who had arrested accused Rohtas on 12.3.04 as PO and proved his arrest memo as Ex.PW18/A and personal search memo as Ex.PW18/B. He proved the kalandra as Ex.PW18/C. 9
25. PW19 is Dr. Rashmi who proved the MLC of prosecutrix in the hand writing of Dr. Abha as Ex.PW19/A. As per MLC on 29.10.98 at 1 p.m patient was brought by constable Sheela ( PC) PS Seelam Pur with alleged history of rape by Rohtas. According to patient she was taken away by un known person to a home and had intercourse there, last intercourse day being yesterday. Clothes were not preserved as she had already changed clothes after last intercourse. After closure of prosecution evidence accused persons were individually examined under section 313 Cr P C wherein they individually pleaded innocence while denying the prosecution version. Accused Ram Bhool while not denying his arrest from his house stated that due to enmity with Madan Lal, grand maternal father of prosecutrix, he was falsely implicated in this case. He also stated that during those days Madan Lal was his neighbour.
26. Accused Rohtas pleaded alibi on the ground that on 21.10.98 he had gone to his in laws house at village Kondli and remained there up till 25.10.98 and due to old enmity between his family and family of maternal grand father of prosecutrix he has been falsely implicated in this case.
27. Accused Babloo stated that he was arrested when he had gone to PS.
28. Accused Man Mohan Singh stated that he had gone to his in laws house and on return wife of Madan Lal inquired from him about his brother Rohtas and when he stated that he had gone to the house of his in laws then she threatened him to implicate in a false case.
1029. Claim of accused Nirmala is that due to enmity between the two families as referred by accused Rohtas she has been falsely implicated. She also pleaded alibi by claiming that she had gone to her parental home during those days.
30. Accused Kiran Singh attributed enemity to the girls side while pleading innocence. As per him maternal grand father of prosecutrix namely Madan Lal Sharma used to reside in front of house of Ram Bhool and there was enemity between them. In the year 1997-98 Ram Bhool contested election of councilor in which he being from the same caste supported Ram Bhool whereas Madan Lal supported one Paarvez Miya. Madan Lal asked Ram Bhool not to contest election against Parvez Miya. Parvez Miya lost that election. In addition thereto in the year 1998 a quarrel had ensued between Madan Lal and Ram Bhool as Ram Bhool objected to tethering of Buffalos at the door of Ram Bhool by force and accused Kiran Singh sided with Ram Bhool in such objection. As per Kiran Singh, Madan Lal, Kanchi Parshad and Parvez Miya were informers of police.
31. Except for accused Kiran Singh no other accused opted to lead any evidence in their defence despite opportunity. Kiran Singh also closed his defence evidence on 3.3.08 without leading any defence evidence.
32. I have heard arguments from both the sides and gone through the case file. Ld. Defence counsel Sh. Lamba has vehemently pleaded for acquittal of accused persons on the grounds inter-alia that prosecution story appears to be false and concocted and prosecutrix is not believable for the reasons that she claimed that she did not change 11 her clothes since the time of kidnapping but in FIR there is no mention of details of clothes or colour thereof; that her clothes did not get blood stains; that there is no medical opinion about her rape; that she did not bear any interior or exterior injury on her person; that provisions of section 100(4) Cr.P.C were not followed while effecting her recovery. Other lacuna pointed out by defence are that no documentary proof was taken to show that accused Rohtas took the room on rent; that whereas PW3 Madan Lal stated that he came to know from police about detention of prosecutrix but PW11 SI Ajay Kumar stated that Madan Lal himself informed the police; that no wearing apparel of prosecutrix or accused Rohtas were found from the tenanted room; that bone age of prosecutrix is 17 to 19 years but she claims herself to be 15 years in age; that it is illogical that prosecutrix would not attempt to get away from the room although it was bolted from in side as per her 164 Cr.P.C statement; that there are discrepancies in the statement of recovery PWs on procedural aspect. Ld. APP on the other hand has stated that prosecuitrix has supported the core of prosecution version and she has been corroborated by other PWs; that the discrepancies in the testimony of the witnesses inter se and vis a vis the prosecution version are minor in nature and do not carry any weight. Thus the submission of ld APP is that prosecution case stands proved beyond all shadow of reasonable doubt.
33. In order to bring home, the guilt of the accused persons, prosecution is not only required to established that an offence has been committed. It has also to bring home the point that the same has been committed by the accused person charged of the offence. Thirdly whereas prosecution is required to prove that offence has been 12 committed by the accused person beyond all shadow of reasonable doubts but accused persons are not required to prove their defence beyond all shadow of reasonable doubt. They have to only show that there defence is probable. The defence can be led by accused person by leading defence evidence or by putting appropriate suggestions during cross-examination of the witnesses.
34. While appreciating the prosecution witnesses it has to be assessed if they are wholly reliable or partially reliable or unreliable. Their demeanour is also to be noted while recording the judgment and it has also to be seen whether there is any enemity or ill-will attributed to the witnesses examined by the prosecution. In a case of rape the prime question for determination is whether prosecutrix is minor or major and secondly whether the sexual intercourse is there against the will of the prosecutrix.
35. In this case prosecution version is that prosecutrix was aged 15 years on the date of incident i.e 21/10/98. The school record produced by PW-6, of the prosecutrix reflects her date of birth as 05/04/84 whereas the radiological bone age of prosecutrix as per PW-5 Dr. Raj Pal radiologist from GTB Hospital vide his report Ex.PW5/A is above 17 years and below 19 years as on 21/10/98. In his cross examination PW-6 from the school of the prosecutrix admitted the suggestion that no birth certificate of prosecutrix was filed with the application for admission and only the school leaving certificate of earlier school was submitted. It can thus be seen that only on the basis of the school leaving certificate the age of the prosecutrix has been shown as 05/04/84. IO has not taken pain to obtain the original birth certificate of the prosecutrix from the earlier school or from the father of the 13 prosecutrix. It is also not on record as to on what basis whether on the basis of affidavit or original birth certificate admission was secured of the prosecutrix for the first time in the school. As such, the school record cannot be believed in toto when pitched against the radiological age which gives the difference of 4 years at the maximum as bone age of the prosecutrix has been given as above 17 years and less than 19. Even if the lower limit of bone age is considered as the age of prosecutrix this also becomes material since any sexual intercourse by a girl above 16 years of age with consent is not rape in the eye of law. A beneficial construction has to be given to the accused persons in view of the bone age of the prosecutrix adduced by prosecution itself and prosecutrix is being held as above 16 years of age.
36. Now the next question is whether from the facts and circumstances, of the case, can it be held that prosecutrix was raped by the accused Rohtash against her will. The girl went missing on 21/10/98 at 10 am. However, FIR was lodged on 22/10/98 at 5.10 pm and doubt was expressed on Rohtash. It is admitted case of the prosecution and the accused that grand mother (nani) of prosecutrix lived in the neighbourhood of Rohtash. Father of prosecutrix has in his cross- examination admitted that on the day when he went to his in-laws house, his father in-law was not available there and thereafter, he (father in law) came on the next day and then police complaint was lodged. He has also stated that as accused Rohtash was also found missing that is why he was named in the complaint. This ipso facto shows that girl and boy Rohtash might be earlier interacting with each other about which parents of prosecutrix and her maternal side grand parents were aware of and that is why on prosecutrix having gone missing, they looked for Rohtash and found him also missing which aroused their doubt. Let us now 14 advert to the testimony of the prosecutrix. As per her on that day she had left for going to her Nani's house after taking permission from her parents and just outside her house at gali No.13, accused met her on two-wheeler. On the asking of the accused as to where she was going she replied that she was going to the house of her Nani at Kanti Nagar and on the offer of accused to drop her there, she sat on the scooter. She did not raise any alarm all the way when accused diverted the route. She alleges that accused threatened to kill her brother and father so she kept mum. However, in her 164 Cr.P.C statement made to Ld. MM on 30/10/08 she has not attributed any such threatening to accused. Her same statement reflects that room at Jagat Puri was already taken on rent and when they both reached before the landlord, he (Rohtas) disclosed to him that they were already married. Even at that juncture prosecutrix did not rebut the accused by revealing the landlord that she was not married to accused but she without any protest went with accused to live in that room, albeit she alleges that subsequently in the room accused tied chunni on her mouth and raped her when Babloo, who rode the scooter on the way, and accompanied them, left the room. In this context the testimony of the landlord needs to be referred i.e PW- 4 Kanchi Prasad. He has supported the prosecution version as regards arrival of accused Rohtash as a tenant with prosecutrix whom he has named in his testimony. The room was taken on rent in the morning whereas prosecutrix was brought there in the evening and as per him, other boy whom he identified as Babloo also used to visit the room sometimes. He did not state that in the evening Babloo was accompanying Rohtas and prosecutrix when they come for living in the tenanted room. In his cross-examination he stated that accused Rohtas had come all alone for taking the room on rent. Since he did not stay at the house all the time so, he could not tell if prosecutrix moved out from 15 the room during her stay there. He also stated that none of the other accused visited that rented room in his presence. He also added that prosecutrix did not tell him at any point of time, if she was brought there forcibly. The version of the prosecutrix that she was terrorised when she was taken to PW 4 Kanchi Prasad for living in rented accommodation, is an afterthought and cannot be believed when no such plea was raised during her 164 Cr.P.C statement recorded on 30/10/08. The version of the prosecutrix in the court that she was never left alone as either accused Rohtash or accused Babloo stayed there as a guard does not find corroboration from testimony of PW-4 and from the last circumstances of her recovery when she was found alone in that room. In her cross-examination she admitted that she did not disclose the fact of rape or threatening by Rohtash to Babloo. During the period of her stay there, tea and snacks were brought from outside from hotel. She also claimed that while being subjected to rape her hands were tied by the accused and this fact she has stated to police and Ld. MM, however this fact is not mentioned in her 164 Cr.P.C statement. She also claimed that she did not change her wearing clothes during the period of stay in that room and that these clothes and undergarments were not taken by the police. On her intake of meal as per her papers were being used as utensils. She stated that when police opened the door it was bolted from outside and that she did not raise any alarm when she was alone before the arrival of the police. She also claims that police brought her to the PS from there without conducting any proceedings in that room. She also admits that she was not sleeping when door was bolted from outside. However, in her 164 Cr.P.C statement she stated that at that time she was sleeping and that on the night of 28/10/98 at 8 pm Rohtash stated that he was going home and on 29/10/98 her maternal uncle (Mama) got the door opened, who had brought the police. If we 16 believe her 164 Cr.P.C statement it can be inferred that door was not bolted from outside. This is a strange fact as she was all alone confined in that room while she claims in her testimony before this court, that it was bolted from outside. She had the golden opportunity by banging the door to bring the attention of outsider to her so that she could be rescued from there as at that time she was not aware that police would be shortly arriving. If we believe her 164 CrPC statement it gives the inference that on the night of 28 & 29/10/98 , accused Rohtas was away from that room and she was sleeping in that room which was bolted from inside and her maternal uncle got the same opened. Otherwise she would have mentioned that door was broken open from outside as it was locked by accused Rohtas while leaving her alone. Her conduct / inconsistent stand casts doubt on the veracity of her version. Her conduct in keeping mum throughout the episode from the day when she left her parental home till her recovery gives no other inference except the one that she was a consenting party to the sexual intercourse and probability cannot be ruled out that under social compulsion after her recovery she implicated the accused Rohtash and also implicated other accused persons against whom she alleges that during her stay in that room all the remaining accused whom she named in her testimony alongwith Manju sister of Rohtash came to her room and threatened her with a pistol type article and also threatened her to write some letters against her brothers and parents and they also obtained her signatures on blank papers. Such assertion by the prosecutrix also does not find corroboration from the other evidence adduced on record through the mouth of PW-4 and official witnesses since there is no recovery of any such blank papers having signature of the prosecutrix or the pistol. She has not specified as to how these accused persons gained entry in the room. She did not raise any alarm even at that time as when they 17 entered it is not the case that they immediately showed pistol to her so this version is also not believable. It seems that Rohtas had gone to the tenanted house with prosecutrix with a pre-plan. Although she claims that force was used for tying her up but during her medical examination no external injury was found on her person. It seems that prosecutrix had lived there with her consent and after her recovery to save her honour she has come out with the version as narrated to the investigating agency.
37. As per PW-2 Madan Lal father of the prosecutrix he learnt from the police that accused Rohtash has detained prosecutrix in his house at Jagat Puri with the help of accused Babloo whereas PW-11 SI Ajay Kumar had stated that he learnt the same from PW-2 Madan Lal. This discrepancy is also not palatable.
38. In view of foregoing discussion , star witness i.e prosecutrix is held to be a wholly unreliable witness since facts and circumstances of the case as revealed through her examination gives no other inference except that one that she voluntarily in concert with accused Rohtas left the parental home and voluntarily had sexual intercourse with accused Rohtas. Her age is also held to be above 16 years . All the accused persons are acquitted of the offences charged with.
39. Accused Rohtas be released from J/C if not wanted in any other case. Bail bonds of accused persons on bail are cancelled , their surities discharged. File be consigned go Record Room.
Announced in open Court ( REENA SINGH NAG)
Dt: 06/08/08 Addl. Sessions Judge,
KKD, Delhi
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