Madhya Pradesh High Court
Sushil Singh vs The State Of Madhya Pradesh on 3 April, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeals No. 1886 of 2010
&
2124 of 2010
Parties Name Sushil Singh and others in Cr. A No.1886 of 2010
&
Bhooriya in Cr. Appeal No.2124 of 2010
vs
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Smt. Justice Anjuli Palo
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for reporting Yes/No
Name of counsels for parties For appellants: Shri Sharad Verma with
Shri Umesh Shrivastava, Advocate in Cr. A
No.1886 of 2010.
None for the appellant in Cr. A No.2124 of
2010.
For respondent/State: Shri Ajay Shukla,
Government Advocate in both appeals.
Shri Sharad Verma with Shri Umesh
Shrivastava, Advocate for respondents No.2
to 7 in Cr. A No.1886 of 2010.
Law laid down
Significant paragraph numbers
Reserved on: 22.02.2018.
JUDGMENT
[Delivered on : .04.2018]
1. These two appeals have been filed against common judgment dated 03.09.2010 passed in Sessions Trial No.193 of 2000 by the Court of IVth Additional Sessions Judge, Chhatarpur.
2. 18 persons were prosecuted for commission of offence of murder of two persons namely; Rajaram and Sampat Bai and dacoity. One accused
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Billu S/o Chunni lal, was juvenile hence, he was tried by the Juvenile Court. 17 persons were tried before the Sessions Court. Learned Sessions Court convicted nine persons. During pendency of trial, Rajaram Singh S/o Betu Singh Thakur and Chhutan Singh S/o Rajaram Singh were died. Nine accused persons filed Cr. Appeal No.1886 of 2010 against their conviction. Complainant also filed appeal i.e. Cr.Appeal No.2124/2010 against the acquittal of other co- accused persons. Both appeals have been tagged together and heard together.
3. Prosecution story, in brief is that, on 11.06.1999, family members and other persons went to Chitrakoot on a pilgrimage. They were returning back on 13.06.1999 to their village Bansia on a tractor. Whey they reached near Harrai-captinpurwa at a place of Tikubaba, the accused persons surrounded them. They were armed with guns, Ballam, Farsa and lathis. Himmat Singh fired gun shot at Rajaram, he fell down thereafter, some accused fired gun shots at his wife and sisters. Other persons received injuries by lathis. Sampat Bai [since deceased] received injuries on her body. They had also looted ornaments of Sampat Bai and thereafter, they ran away. Bhuriya came to the village and he returned back to the spot along
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with other villagers. Thereafter, injured persons were taken back to village Basia. Report of the incident was lodged at the Police Station Chandla by Bhuriya [appellant in Cr.A No.2124/2010]. Ramaraj was died on the spot and Sampat Bai was died in the hospital. After investigation, police filed charge-sheet. Appellants and other accused persons pleaded innocence. Trial Court held appellants guilty for commission of offence punishable under Section 302/34 read with Section 396 of IPC and under Sections 25 & 27 of Arms Act. The Trial Court awarded sentence of Life on two counts while, RI one year in the last count. During the pendency of appeal one of the appellant namely; Mangal Singh S/o Lotan Singh, has been died hence, the appeal filed by Mangal Singh is abated.
4. Learned counsel for the appellants has submitted that trial Court has committed an error in relying on the evidence of [PW-1] Phool Chand and [PW-5 Bhuriya]. Both witnesses are related witnesses. (PW-5) is inimical witness, he was convicted for commission of offence of murder hence, his evidence is not reliable and trustworthy. Statements of both the witnesses were recorded under Section 161 of Cr.P.C., after six months of the incident. Prosecution did not explain inordinate delay in recording the
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statements of the aforesaid witnesses. Trial Court also relied on dying declaration of deceased Sampat Bai, the aforesaid dying declaration is not reliable. Learned counsel for the appellants further submitted that incident had occurred within the territorial jurisdiction of Uttar Pradesh Police. Trial Court had no territorial jurisdiction to try the case. There was a delay in sending the copy of FIR to the Magistrate. In support of his contentions, learned counsel relied on the following judgments.
(i) Laxman vs. State of Maharashtra, (2002) 6 SCC 710.
(ii) Jodhan Vs. State of Madhya Pradesh (2015) 11 SCC 52
(iii) Harbeer Singh vs. Sheeshpal and others (2016) 16 SCC 418
(iv) Atbir vs. Government of NCT of Delhi (2010) 9 SCC 1.
(v) Pawan Kumar vs. State of Himachal Pradesh (2017) 7 SCC 780.
5. Learned Government Advocate has submitted that PW-5 is natural witnesses. He was present on the spot. FIR was lodged promptly. Investigation of the case was handed over to the CID hence, there was delay in recording the statements of prosecution witnesses under Section 161 of Cr.P.C. Evidence of witnesses is in consonance with the medical evidence of the deceased. There is recovery of weapons from appellants. The dying declaration of Sampat Bai (since deceased) was recorded by the Doctor hence, the
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trial Court has rightly held the appellants guilty for commission of offence and awarded proper sentence. Trial Court has further analyzed the place of occurrence and held that the incident had occurred within the territorial jurisdiction of State of M.P. hence, the objection of the territorial jurisdiction has rightly been rejected by the trial Court.
6. First of all, we would like to deal with the objection in regard to territorial jurisdiction of the trial Court to conduct the trial. Trial Court has considered the aforesaid objection in paras 32 to 39 of the impugned judgment. Prosecution witnesses deposed that incident had happened near Tiku Baba a place situate between village Harrai and Captinpurwa. It is within geographical limit of State of M.P. The accused persons pleaded that incident had occurred otherside of river Ken at village Chadipati in the field of Amar Singh. The aforesaid place comes within the jurisdiction of State of U.P. (PW-1) (PW-5) and (PW-10) deposed that the incident had occurred within the jurisdiction of State of M.P. Apart from this, (PW-12) (PW-13) and (PW-14) deposed the same facts. (PW-22) V.S Parmar, deposed that the incident had occurred otherside of river Ken. This fact has been mentioned in Ex.P-62 and Ex-P-58. It is an admitted fact that from
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the place of incident in accordance with Ex-P-16, plain earth and red earth was not seized. Trial Court has further observed that even if it be decided that place of occurrence was in the State of U.P., then also in accordance with judgment of the apex Court in the case of Mangaldas Raghavji Ruparel vs. State of Maharashtra reported in AIR 1966 SC 128 because no substantial injustice has been caused to the accused persons hence, trial would not vitiate.
7. In the present case, near about 17 years have been passed. Some of the accused persons have undergone substantial jail sentence. No serious prejudice has been caused to the appellants/accused hence in view of the judgment Mangaldas Raghavji Ruparel (supra) quoted above, in our opinion, it would not be just and proper to quash the trial on the ground of territorial jurisdiction. Hence, the objection raised by the learned counsel for the appellants in this regard is hereby rejected.
8. In regard to merits of the case, prosecution examined total 30 witnesses. Defence also examined four witnesses. Trial Court placed reliance on the evidence of (PW-1) Phool Chand and (PW-5) Bhuriya while convicting the appellants. Trial Court did not find the evidence of (PW-10) Awadh Bihari, trustworthy. Trial Court placed reliance
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on the dying declaration of deceased Sampat Bai hence, we would appreciate the evidence of (PW-1) and (PW-5) and other evidence on record, medical and Investigating Officer, whether this evidence is sufficient to convict the appellants and held them guilty beyond reasonable doubt ?.
9. The next question for consideration is whether dying declaration of Sampat Bai [Ex-P-18] is reliable or not ?.
10. It is an admitted fact that statements under Section 161 of Cr.P.C., of (PW-1) was recorded on 22.01.2000. Statement of (PW-5) was also recorded under Sections 161 of Cr.P.C., on 22.01.2000 by (PW-29) R.K. Koshti. The date of incident is 13.06.1999.
11. (PW-1) Phoolchand deposed that on 11.06.1999, I and other persons my uncle Rajaram, my wife Bhuria, Surajdeen, Ramdev Shukla, Jugal Kishore and his wife, Ramswaroop and his wife, Bhagwatdeen and his wife Sonia, my grand-mother Phulia, Anut Semarani and uncle Abbu had gone to Chirakoot on a tractor. We started from Chitrakoot on 13th June 1999 at 8 O'clock in the morning to our village. When we passed Harrai village and came at the place of Tiku Baba at that time, Himmat Singh, Jai Karan, Mangal Singh, Kuwer Singh, Pappu, Munna, Billu, Babu, Kuwarpal,
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Khatrapal, Balvir Singh, Shivpal Singh, Indrapal Singh, Dhananjay Singh, Sudhir Singh, Bhumine, Rajrani and Chhutan came there. They had surrounded the tractor. My uncle Bhuria, was driving the tractor. Accused persons stopped the tractor. When my uncle Bhuria told the accused that why they are stopping the tractor, then appellants abused him. Himmat Singh, Jai Karan Singh and Mangal Singh fired gun shots. My uncle Rajaram fell down on the trolley fitted with the tractor. Himmat Singh, Jai Karan Singh and Mangal Singh armed with 12 bore guns. We ran away upto some distance and thereafter, Balveer and Shripal had also beaten other persons. Accused Chhatrapal had fired gun shot at the mouth of Rajaram. Balveer had fired gun shot on the back side of skull on Rajaram and shivpal on the otherside of the head. Jai Karan fired gun shot on the ear of deceased. Sudhir, Vardani, Babu, Dhilla, Rajaram Singh had beaten my Aunt and other persons. We ran away from the place and thereafter, on the way my uncle Ramsharan and my brother Mahendra met with us. We reached on the spot near about 7 O'clock in the evening. We loaded injured persons on the tractor and came at Police Station Chandla. Report of the incident was lodged by Bhuria. Thereafter, we went to the Hospital, my Aunt Sampat Bai and
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Shyamrani were sent to Chhatarpur Hospital. At around 4.30 Sampat Bai died. Rajaram was died on the spot. There was no reason to kill the deceased. He deposed that police prepared spot map (Ex.P-1) and I signed the same. Lathi was seized from accused Balwant by seizure memo and I singed the same. From Himmat Singh, 12 Bore gun, two cartilages and one gold chain was seized vide seizure memo Ex.P-2. He further deposed that on 22.01.2000, Constable seized bangles and lathis. Seizures were made after six months. In para 21 of his cross- examination, he deposed that police of Nehra and Chhatarpur did not record my statement. CID Officer came and recorded my statement. He further admitted that on the next day, Dy. Inspector had taken me to to middle of Harrai-Kaptin Purwa i.e. place Tikubaba. Spot map was prepared by CID persons. Dy. Inspector had taken me at the place of incident on 15.01.2000, however, I did not know the name of Deputy Inspector, he was of Laudi. Police of Nehra Police Station was also with Deputy Inspector and Deputy Inspector asked me what had happened. We were at the place of incident for half an hour. Thereafter, I had gone to the place of incident with CID persons. Other persons were also there. I signed the papers at the place of incident. My statement under Section 161 of Cr.P.C. is Ex.D-1. He
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admitted the fact that blood had come out from the injured persons on the place of incident. In para 37, he admitted that accused Himmat Singh was arrested from his house. 16 persons were travelling in the tractor-trolley when the accused persons attacked it.
12. (PW-5) Bhuria, deposed the same facts that he along his family members had gone to Chitrakoot on 11.06.1999. We were returning to our village on 13.06.1999. Near Tiku Baba place, accused persons as mentioned by (PW-1) surrounded the tractor and trolley. They stopped the tractor and thereafter, Himmat Singh fired gun shot at Rajaram which had hit him near the chest, he fell down in the trolley. I and Phllu ran away at a higher place. Other accused persons had beaten my sister-in-law (Babhi), Shyamrani, Sonia, Chhatrapal had fired gun shot at the mouth of my brother Rajaram. All the accused persons had beaten the family members. After the incident, Accused persons ran away from the spot. When we went near tractor-trolley, my brother Rajaram was laying dead. My sister-in-law (Babhi), Shyam Rani, Sampat and Sonia were in injured condition. Sampat Bai told that accused persons had taken away the gold chain of her and Rajaram and Pushpa. When we were returning back, on the way, my brother Ramsharan and nephew Mahendra met with us. We told
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the incident to them and thereafter, we went to Police Station Chandla and lodged the report at the Police Station which is Ex.P.12. I signed the same. We had taken Sampat Bai, Shyam Rani and Rajaram(since deceased) to the Hospital. Constable had come from the Police Station. Shyam Rani and Sampat were referred to Chhatarpur Hospital for treatment. I went to Allahabad. When I returned back from Allahabad, police had inquired from me and also enquired about the place of incident. Subsequently, Sampat Bai was also died. Spot map Ex-P-1 was prepared and I signed the same. Police seized Rain coat and pair of sleepers of deceased Rajaram vide seizure memo Ex-P-15 I signed the same. In his cross- examination, he admitted the fact that place of incident is 0.1 Km from Cane river. He admitted the fact that he visited the place of incident after 2-3 days with Police. Constable inquired from me about the incident. He further deposed that I could not remember what had been asked by the Constable and what I replied. I went at the spot along with the inspector at 8 O'clock in the morning. Thereafter, I met with the police after one year of the incident when Himmat Singh was arrested. After visiting place of incident, police did not inquire from me. He denied the fact that the report was
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lodged in the night. He admitted the fact that criminal case of murder has been going on against him and family members of Himmat Singh are witnesses in the aforesaid case. Statement of Pappu Singh S/o Himmat Singh has been recorded. He further admitted the fact that Sampat Bai had deposed against him in a case of murder. He further deposed that he had mentioned the fact in the FIR that accused persons had taken ornaments of his family members, however, this fact has not been mentioned in the FIR that I cannot say. He further admitted in para 59 of his cross-examination that he is convicted and awarded sentence of Life in the case of murder of Chunni Singh who was younger brother of accused-Himmat Singh.
13. (PW-23) Dr. S.S. Chourasia performed the post-mortem of the deceased-Rajaram. He deposed that on 14.6.1999 I and Dr. S.P. Shakwar performed autopsy of the deceased and noticed following injuries on the person of body of the deceased.
"(i) Entry wound on right hand of chest near excellery line 3 x 2.5 cm blackening was present on the wound.
(ii) One entry wound right side of chest just below of injury no.1blacking and tettning was present 3 x 2.5 cm.
(iii) One axicellary wound left side of nipple and left axicellary 3.5 cm. There was no blacking and tetting
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(iv) Exit wound in front of axicellary wound 3 x 2.8 cm margins outside.
(v) One Entry wound left side of hips in front of forehead 2 x 2 CM round shape margin clear cut. There was blacking and tetting.
(vi) One entry wound right side of head near ear 3 x 3 cm blacking and tetting was present."
All the injuries were caused by gun shots. Bone of left hand was fractured which was due to bullet injury. Plastic body was found inside of the chest. Deceased was died due to injuries suffered by him, mud was present in the body and the gun shots were fired within a range of 3 feet because blackening and tetting was there on the wounds of gun shots.
14. (PW-29) Mr. R.K. Koshti, conducted investigation. He deposed that I was posted as DSP on 22.01.2000 at CID Bhopal. On the aforesaid date, I prepared spot map after visiting spot Ex.P.1 and signed the same. I also seized photographs of deceased vide seizure memo Ex.P-3. From the spot, I seized bangles of red colour on 22.01.2000 vide seizure memo Ex-P/6 and signed the same. I recorded statements of Phulia Bai and Bhuria on 23.1.2000, Mahendra Kumar Agnihotri on 23.01.2000 and on 22.1.2000 witness Ram Sharan and on 22.1.2000 of Acchelal. On 22.9.1999, I received
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case diary from Inspector P.S. Tomar. Between 22.09.1999 to 22.01.2000, I did not conduct any investigation. I reached at the Police Station on 21.01.2000. I was busy in studying the case diary, hence I did not conduct any investigation between the aforesaid period. He denied the fact that he wanted to implicate certain persons falsely.
15. (PW-30) Prahlad Singh is another witness. He deposed that on 14.08.1999, I was posted at CID Bhopal. I received case diary and thereafter on 14.8.1999, I recorded statements of Shymabai on 16.8.1999, Sonia on 8.9.1999 and Awadh Bihari and Jugal Kishore.
He further admitted the fact that when he reached on the spot, he did not find any material.
16. (PW-24) B.G. Rawat is another witness. He deposed that on 26.5.2000, I was posted as SHO Incharge Police Station Nehra and I arrested Kuwarpal Singh vide arrest memo Ex.P.64. On 1.5.2000, I arrested Balveer Singh vide arrest memo Ex.P-65. On the aforesaid date, I also arrested Himmat Singh vide arrest memo Ex.P-66. Accused Balwant Singh was also arrested on the same day vide arrest memo Ex.P-67. On 12.5.2000, I arrested Indrapal Singh vide arrest memo Ex.P-68 and accused Chhatrapal Singh vide arrest
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memo Ex.P-69. On the same day, I arrested Shivpal Singh. On 16.5.2000 from the house of accused Balveer, ear ring [Jhumaki] was seized vide seizure memo Ex.P.74. He further deposed that on 8.11.2000 from the house of Sudhir Singh @ Bardani and Sushil Singh S/o Ramaram Singh and Chhutan Singh S/o Rajaram Singh, a gold chain and ear ring were seized vide seizure memo Ex-P-93. On 7.11.2000 on the memorandum of accused Sushil Singh, a chain was seized.
17. (PW-22) V.S. Parmar, deposed that on 14.6.1999, I was posted as Sub-Inspector at Police Station Nehra. On the aforesaid date, Dehati Nalishi was received from Police Station Chandla. Thereafter, I recorded FIR vide Ex.P.1 and signed the same. Panchnama of dead body of deceased Rajaram was prepared. On 18.6.1999, I seized one pair of sleeper and cord [Sutali] vide seizure memo Ex.P.35.
Thereafter, merg was registered. On the basis of merg in regard to death of deceased Sampat Bai, report Ex.P.54 was registered vide Ex.P.55, I signed the same. Dead body of the deceased-Rajaram, was sent to postmortem on 14.6.1999. I seized two cartridges of 12 Bore, two caps of 12 Bore and cartridges, four cartridges of 12 Bore and Tikli, pieces of bangles and glass, one chilam of clay vide seizure
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memo Ex.P-58. On 17.6.1999, I send the copy of the FIR to Judicial Magistrate First Class Laudi which is Ex.P-60. He denied the fact that he had made any overwriting on the Dehati Nalishi. He further admitted the fact that I prepared spot map which is Ex.P-61 and another spot map Ex.P-62. In para 17 of his cross-examination, he admitted the fact that place of occurrence is in the field of Amar Singh, village Bilharka, Police Station Naroni of Uttar Pradesh. He further deposed that I recorded statements of Jugal Kishore, Ramswroop and Surajdeen R/o Bansia.
18. (PW-21) Dr. P.N. Khare, performed autopsy of the deceased Sampat Bai. He deposed that on 15.6.1999 I performed autopsy and I noticed following injuries on the person of body of deceased:
(i) Lacerated wound on right parietal region of head. There was blood clotting two insiders were not at the place.
(ii) Lacerated wound on right forearm 3x1x1 cm.
(iii) Lacerated wound on right side of ankle 3x1x1 cm.
(iv) Scars on right wrist 3x2 cm. Blue mark on right knee.
(v) Abrasion 3 x 3 cm there was bluish scars on backside and on buttock.
Injuries were ante-mortem in nature. Cause of death of the deceased was head injury. In para 8 of his statement, he deposed that due to clotting inside the brain patient would go in comma and in
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view of the injury suffered by the deceased it was possible that she went into comma within one and half hour of the injury.
19. (PW-4) Dr. S.P. Shakyawar recorded dying declaration of deceased Sampat Bai. He deposed that on 14.6.1999, I was posted as Assistant Surgeon at Primary Health Center, Chandla. On the aforesaid date, I examined injured Sampat Bai W/o Rajaram. On the same day, I also examined Sonia w/o Bhagwan Charan Soni and injured Shyamlal S/o Natthu Bramhan, Bhagwat S/o Surajdeen Braamhan. He further deposed that on the basis of letter received from SHO Incharge Chandla Ex-P-16, I recorded dying declaration of injured Shyamrani W/o Natthu and on the letter [Ex.P.18] I also recorded dying declaration of Sampat W/o Rajaram [Ex-P-19]. It reads as under:-
"ej.kklu LFkku izk- Lok dsUnz pUnyk vkidk uke D;k gS& lEir W/o jktkjke vfXugks=h vki dgk¡ ds jgus okyh gS& ofl;k vkidks fdu yksxksa us ekjk& fgEerflag] t;dju] iIiw] eaxy flag] Bkdqj vkSj budk yM+dk] pqUuh] Bkdqj dk yM+dk vkSj dqcsj] eqYyk dk nekn] nks yM+dk jtok Bkdqj ds eSa uke ugha tkurh mijksDr yksxksa us eq>s] ekjk ;s yksx ykBh fy;s jgs vkSj cUnqd ds gqnk ekjs vkSj ykBh ekjh] ge fp=dwV ls ifjokj lgfr ykSV jgs Fks] rHkh mijksDr yksxksa us] ge yksxksa dks jkLrk jksd dj ekjk] ,oa jktkjke flag] Bkdqj ckcw] eUuk] cyohj] ol brus gh yksxksa us eq>s ekjk] vkSj] gekjh lksus dh tathj Nhu yh] vc eq>s dqN ugha dguk eSaus leLr C;ku gks'kogok'k esa fn;sA^^
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20. In his cross-examination, he admitted the fact that he did not mention in the dying declaration that what was the blood pressure and rate of pulse in the dying declaration. I recorded dying declaration when deceased was laying on a bed in the veranda of the hospital. Close relatives of the deceased were present at that time and the deceased was talking with close relatives and they were also talking with the deceased. I did not take signature of the close relatives who were present during dying declaration. He further admitted that he could not tell that whether family relatives of inured were telling the injured about the names of the persons who had committed the crime. He further admitted that in MLC Ex.P-18, pulse and blood pressure of injured has not been mentioned. I recorded dying declaration at around 2 O'clock in the night.
21. FIR is Ex.P-12. It was lodged on 14.06.1999 at around 1.20. In the FIR, names of 18 accused persons have been mentioned which was lodged by (PW-5) Bhuriya. It is further mentioned in the FIR that when the family members were returning back from Chitrakoot, near place of Tikubaba the accused persons surrounded the tractor. They stopped the tractor and encircled us. Accused Jai Kar Singh armed with 12 Bore gun, Mangal Singh 315 Bore gun, Pappu @
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Sudhir armed with Ballam, Kuber Singh armed with 12 Bore gun, Babu Singh, Munna Singh, Billu and Rajaram armed with lathi, Sudhir @ Berdani armed with Farsa, Chhutan armed with Lathi, Balvir Singh 12 Bore gun, Indrapal armed with 12 Bore gun, Dhanjay armed with Rifle. Sushil armed with Ballam, Kuwarpal Singh armed with 12 Bore gun. Chhatrapal armed with Rifle and accused Shivpal armed with 12 Bore gun.
22. Accused Himmat Singh had fired gun shot which had hit at chest of the deceased. He fell down on the trolley. His wife tried to save him. Thereafter, other accused persons were firing the gun shots and they had also beaten the injured by lathi and Ballam. After the incident, they ran away from the spot. They had also looted one gold chain of Sampat Bai, Rajaram and Pushpa and one pair ear rings [Jhumki] and other ornaments. Thereafter, we lodged the report at Police Station Chandla.
23. It is not necessary to consider other voluminous evidence on record because the trial Court has not placed reliance on the aforesaid evidence. Trial Court has placed reliance on the evidence of (PW-1) Phool Chand and (PW-5) Bhuriya and the dying
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declaration of the deceased-Sampat Bai. It is necessary to analysis the aforesaid evidence.
24. It is an admitted fact that except FIR which was lodged by (PW-5) Bhuriya statements of (PW-1) Phool Chand and (PW-5) Bhuriya under Section 161 of Cr.P.C. were recorded belatedly on 22.1.2000 i.e. after six months by (PW-29) R.K. Koshti. He specifically deposed in his evidence that he received case diary on 22.09.1999, however, he did not take any action and did not try to investigate the matter upto month of January, 2000. He was busy in studying the case diary.
25. Apex Court in the case of Harbeer Singh vs. Sheeshpal and others [2016] 16 SCC 418 has held as under in regard to delay in recording statement of the witnesses under Section 161 of Cr.P.C.
""16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were reed after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was reed on 26.12.1993 while the evidence of PW11 was reed after 10 days of incident, i.e.,
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on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in reing of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
26. The Hon'ble apex Court has held that delay in recording the statement of the witnesses is fatal, if the witness is available for
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examination when Investigating Officer visits scene of occurrence soon thereafter, it might cast a doubt upon the prosecution case.
27. Both the witnesses (PW-1) and (PW-5) have deposed that they had gone with the Police Inspector of Police Station Nehra at the place of incident after two days i.e. on 15.06.1999. Prosecution does not offer any explanation that why the Inspector who recorded FIR at Police Station Chandla (V.S. Parmar PW-22) did not record the statements of important eye witnesses one is injured witness who had gone on the spot along with him. He deposed that he enquired from Bihari, Swamideen, Ram Khilawan and Ram Singh.
28. From the aforesaid statement, it appears that prosecution has concealed vital evidence. Statements of the aforesaid witnesses may have been recorded, but those statements are not on record. No explanation has been offered by the prosecution of inordinate delay near about six months in recording the statements of important witnesses (PW-1) and (PW-5) under Section 161 of Cr. PC., particularly when they were available at the time of incident. Hence, in our opinion, the trial Court has committed an error in relaying on the statements of the aforesaid witnesses because the aforesaid witnesses have implicated 18 persons. Trial Court itself
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acquitted number of persons. It proved that the statements of the aforesaid witnesses are not reliable and trustworthy because they were recorded after a delay of six months.
29. Next evidence on which trial Court placed reliance is dying declaration of deceased Sampat Bai [Ex-P-19]. It was recorded by [PW-4] Dr. S.P. Shakyawar. He admitted in his cross-examination that he recorded dying declaration of the deceased when she was laying on a bed in the veranda of the hospital, veranda is an open place. He further admitted the fact that close relatives of the deceased were present at that time and deceased was talking with the close relatives and they were also talking with deceased. He did not depose that when he recorded dying declaration, the deceased was alone. In the dying declaration, deceased named number of persons i.e. Himmat Singh, Jaikaran Singh, Pappu, Mangal Singh Thakur and his boy, son of Chunni Thakur, son-in-law of Kuber Mulla and two sons of Rajwa Thakur. Subsequently, she also named Rajaram Singh Thakur, Babu, Munna, Balveer. Trial Court in para 78 of the impugned judgment has held that deceased Sampat Bai named in her dying declaration two sons of Mangal Singh Thakur, however, no son of Mangal Singh was made accused in the case. She also named
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son-in-law of Kuver Mulla, however, no person was prosecuted in the case as son-in-law of Kuver Mulla. It shows that deceased had named some of the persons falsely.
30. The apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh, (2017) 7 SCC 780 has held as under about dying declaration:
"26. The hub of the matter is whether the dying declaration Ex. Pw- 10/A is to be treated as realiable or not. To appreciate the validity of the dying declaration, we have requisitioned the original record and had perused the same. On a careful scrutiny of the same, we find that the Head Constable had written what the deceased had spoken and thereafter the deceased had written that the accused alone was responsible for her death. The dying declaration, as has been recorded by the Head Constable, eloquently states about the constant teasing of the victim by the accused. PW-10, Dr. Sanjay, has stood firm in his testimony that the victim was in a fit condition to speak. Despite the roving cross-examination he has not paved the path of tergiversation. The trial court, as mentioned earlier, has disregarded the testimony of PW-10 on the ground that there is no certificate of fitness. In this context, reference to the Constitution Bench decision in Laxman v. State of Maharashtra[14] would be absolutely seemly. In the said case, the larger Bench, while stating the law relating to the dying declaration, has succinctly held:-
"3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When
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it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
27. In Atbir v. Government of NCT of Delhi[15], the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:-
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction
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unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
28. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:-
"23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.
24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the
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unshattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11)."
29. Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same has been recorded in presence of the doctor, PW-10, who had appended his signature. A certificate of fitness is not the requirement of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal v. State (Government of NCT of Delhi)[16], the Court repelled the submission with regard to dying declaration made by the deceased who had sustained 100% burn injuries stating that:-
"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat[17] wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for
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that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance."
31. In the aforesaid judgment, Hon'ble Supreme Court has quoted earlier judgments of the Court passed in the case of Atbir vs. Govt (NCT of Delhi) (2010) 9 SCC 1 and held as under in regard to admissibility of dying declaration:
(A) "Dying Declaration".
"14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account."
The Hon'ble Supreme Court has clearly held that "where dying declaration is suspicious, it could not be acted upon without corroborated evidence and the dying declaration was not the result of tutoring, prompting or imagination."
32. In the present case, (PW-4) Dr. S.P. Shakyawar who recorded dying declaration of deceased Sampat Bai, has admitted that when he recorded dying declaration, Sampat Bai (since deceased) was
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talking with family members and they were also talking with Sampat Bai hence, it could not be ruled out that there was a tutoring, promting or imagination or dying declaration is based on imagination.
33. Another aspect has to be considered about the fact that whether deceased was in a fit state of mind to give dying declaration. (PW-4) Dr. S.P. Shakyawar deposed that at the time of recording dying declaration, deceased was in a fit condition to give dying declaration. However, (PW-21) Dr. P.N. Khare, who performed autopsy of the deceased in para 8 of his statement deposed that there was a head injury to the deceased and there was clotting inside the brain. He further admitted that patient would go in comma in view of the injury suffered by deceased and it was possible that she went into comma within one and half hour of the injury. Dying declaration was recorded after a period of 8 hours.
34. In view of the aforesaid facts of the case, in our opinion, it is not safe to convict the appellants on the basis of dying declaration recorded by the doctor.
35. It is also a fact that 18 persons were prosecuted by the prosecution. One was tried by the Juvenile Court. 17 persons were
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tried before Sessions Court. Learned Sessions Court convicted nine persons and acquitted eight persons on the basis of same set of evidence. Names of 17 persons are in the FIR and statements of (PW-1) Phoolchand and (PW-5) Bhuriya, who are said to be eye witnesses.
36. Next question which is kept in mind is that, appellants were arrested after quite long period of the incident and seizure was also made belatedly from them. Following dates of arrest of the appellants and seizure.
Name of the accused Date of Arrest Seizure
Sushil Singh Appellant 07.11.2000 (Ex.P-94) Lathi (Ex-P-2) and
No.1 Ballam (Ex-P-91)
Sudhir @ Bardani Singh 07.11.2000 (Ex.P-95) Farsa (Ex-P-89)
Appellant No.2
Jaikaran Singh 27.10.2004.
Appellant No.3
Mangal Singh (dead) 27.12.2006 (Ex-P-113)
Appellant No.4
Sudhir Singh @ Pappu 26.12.2006 (Ex.P-114) Ballam (Ex.P-110)
Appellant No.5
Babu Singh 24.1.2002 (Ex.P-28) Lathi (Ex.P-33)
Appellant No.6.
Himmat Singh 01.05.2000 (Ex.P-66) 12 Bore Gun, 2 live
Appellant No.7. cartridges, gold chain
(ExP-4)
Munna Singh @ Balvant 01.05.2000 (Ex.P-67)
Singh, appellant No.8
Balbir Singh 01.05.2000 (Ex.P-65)
appellant No.9
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37. Prosecution did not offer explanation that why accused persons were arrested after such a long period. There is no evidence that they were absconding or they were not available for arrest to the prosecution.
38. There are three other injured persons, who received injuries in the incident namely Sonia, Shyam Bai and Bhagwat Deen. (PW14) Sonia in his evidence deposed that she did not identify the accused persons. She deposed that was in the tractor and when the gun shots were fired, I became unconscious. At the time of incident, there was a dark, looking to the darkness, I could not identify the accused persons. She is witness of prosecution, she has not been declared hostile. She specifically deposed that there was dark and she did not identify the accused persons. Prosecution did not examine other two injured persons namely Shyam Bai and Bhagwat Deen.
39. (PW-5) Bhuriya is the brother of the deceased-Rajaram. He admitted in his cross-examination that he was convicted in a murder case, he further admitted in para 37 that Sudhir @ Bardani gave evidence against him in a case of murder. He further admitted in para 59 of his cross-examination that he has been convicted for murder of Chuuni Singh, who was younger brother of Himmat Singh.
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40. Apex Court in the case of Jodhan vs. State of Madhya Pradesh, (2015) 11 SCC 52 has held as under in regard to appreciation of evidence of interested and inimical witness.
"24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab AIR 1953 SC 364 , it has been observed thus:-
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, AIR 1952 SC54."
In the said case, it has also been further observed:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person
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against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25 In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 , the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony.
We may fruitfully reproduced a passage from the said authority:-
"An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
26 The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their
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presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross- examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy.
27. In this context, it is requisite to quote the observations made by the Court in State of Punjab v. Jagir Singh, (1974) 3 SCC 277:-
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
Hon'ble Supreme Court in the aforesaid judgments has specifically held that "if testimony after careful scrutiny is found reliable as unreliable and improbable or suspicious, it ought to be rejected when a witness has a motive or makes false implication, the
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Court before relying upon his testimony should seek corroboration in regard to material particulars."
41. Next question for consideration whether there is evidence against the other accused persons. In the present case, FIR was lodged by (PW-5) Bhuriya on the next day of incident. In the FIR, he mentioned the name of Himmat Singh, who had fired gun shot at the chest of deceased Rajaram. Aforesaid evidence is corroborated by medical evidence. Thereafter, he named all other accused persons and levelled omnibus allegation that gun shots were fired and injured persons were beaten by lathi. Hence, in our opinion, there is evidence only against Himmat Singh (appellant No.7) for causing murder of deceased Rajaram because there are omnibus allegations against all other accused persons and some of the accused persons [near about eight] have been acquitted by the trial Court on the same set of evidence, in our opinion, the evidence of (PW-1) and (PW-5) is not reliable and trustworthy to hold guilty of other accused persons except accused Himmat Singh.
42. Now, next question is whether accused Himmat Singh is liable to be convicted for causing murder of Sampat Bai. Evidence to this effect is that Himmat Singh was armed with gun. As per evidence of
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(PW-4) Dr. S.P. Shakyar, Sampat Bai did not receive any gun shot injury hence, in our opinion, accused Himmat Singh, is not liable to be convicted for commission of offence punishable under Section 302 of IPC for causing murder of deceased Sampat Bai.
43. Further question is that whether the evidence of witnesses are reliable in regard to robbery. It is a fact that accused persons were arrested after a long delay and thereafter, it is alleged that recovery of gold ornaments was made.
44. We have considered the evidence of (PW-1) and (PW-5) at length and not found the evidence is reliable and trustworthy except against the accused Himmat Singh, hence conviction for commission of offence except murder, in other cases is not reliable.
45. Consequently, the appeal filed by other accused-appellants except Himmat Singh [Appellant No.7 in Cr. Appeal No.1886/2010] is hereby allowed. Their conviction and sentence awarded by the trial Court is hereby set aside. Appeal filed by appellant Bhooriya [Cr.Appeal No.2124/2010] against acquittal of respondents, is hereby dismissed.
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46. Appeal filed by appellant Himmat Singh [Cr. Appeal No.1886/2010] is partly allowed. He is convicted for commission of offence of murder of Rajaram under Section 302 of IPC and awarded sentence of Life. His conviction and sentence awarded by the trial Court in other Sections is hereby set aside. Appellants No.3 and 9 namely; Jaikaran Singh and Balbir Singh, respectively are in jail.
They be released forthwith, if their presence is not required in any other case. Appellant No.7 Himmat Singh is also in jail, he shall undergo jail sentence as awarded by the trial Court. Rest of the appellants are on bail, their bail bonds are hereby discharged.
47. Before parting with the case, we have observed that prosecution has not performed its duty properly and diligently. Two persons were killed in the incident. There is no explanation offered by the prosecution that why there was inordinate delay in recording the statements of the witnesses even though injured eye witnesses. Although witnesses were available. It is observed that it is the duty of the prosecution to act fairly and promptly.
(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
pb
Digitally signed by PRASHANT
BAGJILEWALE
Date: 2018.04.03 02:25:29 -07'00'
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