Delhi District Court
State vs . Yamin Ali & Anr. on 25 January, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 47/12)
Unique ID case No. 02404R0158352012
State Vs. Yamin Ali & Anr.
FIR No. : 54/12
U/s : 366/363/376/34 IPC
P.S. : Adarsh Nagar
State Vs. 1. Yameen Ali
S/o Shakir Ali
R/o Jhuggie no. 33/321, Mool
Chand Colony, Adarsh Nagar,
Delhi.
2. Mohd. Salman
S/o Mohd. Saleem
R/o H No. 144748, Jahangir Puri,
Delhi.
Date of institution of case 06.07.2012
Date on which, judgment has been reserved 24.01.2014
Date of pronouncement of judgment 25.01.2014
JUDGMENT :
1. Briefly stated the case of the prosecution is that on 06.03.2012, at about 8.00 pm, PW6 Ram Kali went to PS along with her daughterin law/PW7 Smt. Vineeta and made a complaint that her granddaughter SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 1 of 19 2 (Poti)prosecutrix no. J and grand daughter (Natin) i.e. prosecutrix no. A had been missing since 04.03.2012 from 09.30 pm. The PW15 SI Afaque Ahmad recorded the statement Ex. PW6/A of PW6 Smt. Ram, made his endorsement Ex. PW15/A thereupon and got the FIR of the present case registered. The further investigation of the case were marked to PW15 SI Afaque Ahmad and during the course of investigations, he went with complainant and her daughterinlaw to her house at House no. 33/331, Mool Chand Colony, Adarsh Nagar, Delhi. Since the complainant had expressed suspicion on accused Yameen, son of her landlord, the IO made inquiries from mother and brother of accused Yameen about whereabouts of accused Yameen and they told him that accused had not come home since 2/3 days. IO made efforts to search for missing girls, but without any avail. On 08.03.2012, when PW15 was present in the PS, at about 7.00/7.15 pm, two boys and two girls came there and on inquiry, the names of said boys were revealed as accused Yameen and Mohd. Salman and name of the girls accompanying them were revealed as prosecutrix A and J respectively. Both the accused were arrested in the case. The complainant Ram Kali and her daughterinlaw Smt. Vineeta were called to PS. During the course of further investigations, the accused persons as well as both the prosecutrix A and J were got medically examined and samples collected from them by the concerned doctor, were seized by the IO and were later sent to FSL. IO also got the statements of the prosecutrix A and J recorded u/s 164 Cr.P.C and thereafter, both the prosecutrix were sent to Nirmal Chaya on an application SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 2 of 19 3 filed by the IO in this regard. After completing the investigations, the charge sheet was prepared and filed in the court, through the concerned SHO.
2. Upon committal of this case to the court of Sessions, charges for the offence under 363/366/376 IPC were framed against both the accused separately. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined 15 witnesses.
4. The PW1 Smt. Saroj Bala, produced record from the school qua the prosecutrix A and J and according to the record, produced by her, date of birth of prosecutrix A was 22.10.1998 and that of prosecutrix J was 18.08.2000.
5. The PW2, HC Banwari Lal, was posted as the duty officer at PS Adarsh Nagar at the relevant time and had registered the case FIR in the present case. He proved the computerized copy of FIR as Ex. PW2/A and endorsement made by him on rukka as Ex. PW2/B.
6. The PW3 is prosecutrix A and she deposed that she was residing with her maternal grandmother (Nani) and uncle (Mama) and that she had left studies after sixth class and used to stay at home. She further stated that SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 3 of 19 4 accused Yameen, son of their landlord, had told her that he loved her and wanted to marry her and she believed him and that her cousin sister J, daughter of her mama and mami, was also having love affair with Salman, a friend of accused Yameen. She also deposed that she and prosecutrix J had been taken, about a year prior to deposition of A in the court, by accused persons to house of accused Salman at Anand Vihar, where they stayed with parents and younger sister of accused Salman and that after a few days, accused Yameen told them that his younger brother had been confined at Police station and so, they all came to PS Adarsh Nagar on 07.03.2013. The PW3 further deposed about her medical examination and about appearing before ld. M.M for her statement u/s 164 Cr.P.C i.e. Ex. PW3/A. The prosecutrix A further deposed that accused had not asked her to marry him and was interested in having all types of relations with her (sab tarah ke samandh banane chahiye). The witness was asked to clarify her statement and in response to question in this regard, prosecutrix A stated that accused had made her to remove her clothes and removed his clothes and did wrong act with her. (Galat kaam kiya).
The witness was asked to elaborate upon what she meant by Galat Kaam and was explained that telling a lie and other such acts, would also tantamount to Galat Kaam. The witness hesitated in answering the question and keeping the age of witness in mind as well as interest and well being of minor victim in mind, the question was reframed and she was asked, if anything else had happened between her and the accused, besides they SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 4 of 19 5 both removing their clothes, The witness responded by saying that nothing further had happened. Certain leading questions were asked from the witness by ld. Addl. PP, wherein the statement of witness u/s 164 Cr.P.C, wherein she had deposed about getting married to accused Yameen on 06.03.2012, were put to her, however, she stated that she did not remember, if she had stated about getting married with accused Yameen in a temple on 06.03.2012 and her establishing physical relations with him, in her statement u/s 164 Cr.P.C.
7. The PW4 J, is the second prosecutrix in the case. She too deposed about going with accused Salman and Yameen to the house of accused Salman at Anand Vihar and staying there for four days. She further stated that parents and younger sister of accused Salman were also present in the said house besides her, prosecutrix A and the accused persons. She then stated that they returned back, when they came to know that a complaint had been filed against the accused persons at PS Adarsh Nagar. She identified her signatures on her statement u/s 164 Cr.P.C and proved the same as Ex. PW4/A. During her further examination, prosecutrix J stated that accused had established physical relations with her forcibly, while they were staying at his parents house at Anand Vihar and that he had done so, once only and that she had not tried to raise alarm or escape from the said room.
During her crossexamination by ld. Defence counsel, prosecutrix J stated that she had gone with accused Salman of her own free will and had SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 5 of 19 6 physical relations with him of her consent and had correctly stated so in her statement Ex. PW4/A. The witness was reexamined by ld. Addl. PP regarding the contradictions in her examinationinchief and cross examination about her consent for physical relations with accused and on being specifically asked, prosecutrix J again changed her stand and stated that accused had established physical relations with her forcibly.
8. The PW5, Dr. Meenakshi, examined the prosecutrix A and J gynecologically vide MLC Ex. PW5/A and Ex. PW5/B and deposed regarding the same.
9. The PW6, Ram Kali, is the complainant in the present case. She is the maternal grand mother (Nani) of the prosecutrix A and paternal grand mother (Dadi) of prosecutrix J. She deposed about missing of both the prosecutrix A and J from the house on 04.03.2012 and proved her complaint made before the police in this regard as Ex. PW6/A. She also stated that the fact that prosecutrix A and J had been taken by the accused Yameen and his friend was told to her by a relative of accused Yameen, but could not tell name of the said relative. The PW6 further deposed about being called to the PS, when prosecutrix A and J went there along with accused persons and about taking custody of both the prosecutrix from Nirmal chaya, later on.
During her crossexamination, PW6 deposed that admission of prosecutrix A was got done in school by her, while admission of prosecutrix J SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 6 of 19 7 was got done by her mother. She termed it correct that date of birth of prosecutrix A and J had been mentioned by approximation in school record.
10. The PW7 Smt. Vineeta is the daughterinlaw of PW6 Ram Kali and mother of prosecutrix J. She deposed on the lines of PW6 regarding missing of prosecutrix A and J and identified her signatures on the complaint Ex. PW6/A. During her crossexamination, PW7 also admitted that the date of birth of the prosecutrix A and J was mentioned by approximation in the school record.
11. The PW8, Dr. R.S. Mishra had given opinion regarding the sexual potency of accused persons and he proved the MLCs of the accused Yamin Ali and Mohd. Salman as Ex. PW8/A and Ex. PW8/B. He deposed that after examination, he opined that accused persons "appear not incapable for performing sexual assault.
12. The PW9, Sh. Bhupinder Singh, learned Metropolitan Magistrate, Delhi, had recorded the statement of prosecutrix A and J u/s.164 CrPC and proved the proceedings conducted by him in this regard. He proved the application filed by IO for recording of statement of prosecutrix A and J as Ex. PW9/A; the certificates given by him on the statement as Ex. PW9/B (of prosecutrix A) and Ex. PW9/C (of prosecutrix J) ; and the applications filed SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 7 of 19 8 by IO for supply of copy of the said statement as Ex.PW9/D and Ex. PW9/C respectively.
13. The PW10, HC Rakesh Kumar, was posted as MHCM at P.S. Adarsh Nagar at the relevant time. He produced Register No.19 and 21 and proved the relevant entries of deposit of samples and other articles at Malkhana and about sending them to FSL as Ex.PW10/A to Ex.PW10/C.
14. The PW11, Ct. Krishan, had taken the exhibits of the case to FSL Rohini, on directions of IO and deposed regarding the same.
15. The PW12, Ct. Mahesh Sharma had joined the investigations of the present case with the IO on 07.03.2012 and taken both the accused persons to BJRM Hospital for their medical examination and got them medically examined. He deposed that after medical examination of the accused persons, concerned doctor handed over sealed pullandas to him and on return, he handed over the same to IO, who seized the same vide memo Ex. PW12/A. He further stated that in his presence, the accused persons were arrested vide arrest memos Ex. PW12/B and Ex. PW12/C respectively and their personal search was conducted vide personal search memos Ex. PW12/D and Ex. PW12/E respectively.
16. The PW13, W/ASI Saroj deposed that on 01.04.2012, investigations of SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 8 of 19 9 the present case was assigned to her and that she got the exhibits of the case sent to the FSL Rohini through Ct. Krishan Kumar and after preparing the charge sheet, filed the same in the court. Later on, she also got both the prosecutrix examined by Medical Board at BJRM Hospital for determination of age, obtained the report of the Medical Board and filed the same before the court.
17. The PW14, Ct. Naresh had joined the investigations of the present case with PW15 SI Afaque Ahmad on 07.03.2012 and got both the prosecutrix A and B medically examined at BJRM Hospital. She deposed that after examination, concerned doctor handed over samples, in sealed condition to her, which she handed over to the IO, who seized the same vide memo Ex. PW14/A.
18. The PW15, SI Afaque Ahmad is the main Investigating officer of the present case and he stated that on 06.03.2012, at about 8.00 pm, PW6 Ram Kali came to PS along with her daughterinlaw/PW7 Smt. Vineeta and that PW6 Smt. Ram Kali stated that her granddaughter (Poti)prosecutrix no. J (inadvertently typed as prosecutrix B) and grand daughter (Natin) i.e. prosecutrix no. A had been missing since 04.03.2012 since 09.30 pm and thereafter, PW15 recorded the statement Ex. PW6/A of Smt. Ram Kali, made his endorsement Ex. PW15/A thereupon and handed it over to the duty officer/PW2 HC Banwari Lal for registration of the case. He further SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 9 of 19 10 stated that while he was busy in making detailed inquiry from PW6 Smt. Ramkali and PW7 Smt. Vineeta, PW2 got registered the case and handed over the original rukka after making endorsement Ex. PW2/B thereupon and further handed over the computerized copy of FIR Ex. PW2/A to him. He further stated that thereafter, he went with complainant and her daughterin law to her house at House no. 33/331, Mool Chand Colony, Adarsh Nagar, Delhi and that during the course of investigation, it was revealed that accused Yameen, who was son of the landlord of PW6 Smt. Ram Kali, had not come home since 2/3 days and that he recorded supplementary statement of PW6 Ram Kali and PW7 Smt. Vineeta and made efforts to search the prosecutrix A and J (inadvertently typed as prosecutrix B), without any success. The PW15 SI Afaque Ahmad further stated that on 08.03.2012, he was present in the PS and that on that day, at about 7.00/7.15 pm, two boys and two girls came to the PS and on inquiry, the names of those boys was revealed as accused Yameen and Mohd. Salman and names of the girls were revealed as prosecutrix A and J (inadvertently typed as prosecutrix B) respectively. He further deposed about the medical examination of both the accused persons as well as prosecutrix A and J and about seizure of the exhibits handed over to constables by the concerned doctors. He further deposed about arrest and personal search of the accused persons and about getting the statements of both the prosecutrix recorded u/s 164 Cr.P.C. He further deposed that he collected the age proof of accused Yameen Ali and that as there was no age proof of accused SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 10 of 19 11 Salman, his medical examination for determination of his age was got conducted upon directions given by ld. M.M. He proved the report of medical board, whereby accused Salman was examined and his age was opined to be between 20 to 22 years as on 03.05.2012 as Ex. PW15/D. He further stated that further investigations of the case were transferred to PW13 W/ASI Saroj and accordingly, he handed over the case file to her. He identified both the accused persons in the court and proved the FSL result as Ex. PX.
19. After closing of prosecution evidence, statement of accused persons Yameen Ali and Mohd. Salman were recorded u/s 313 Cr.P.C, wherein the accused persons denied the allegations of the prosecution and stated that they were innocent and had been falsely implicated in this case by the mother of prosecutrix J as well as maternal grand mother of the prosecutrix A. The accused persons declined to lead evidence in his defence.
20. Arguments have been addressed by learned counsel/Amicus Curie for the accused persons as well as learned Additional PP for the State.
21. Learned Additional PP has contended that in view of the statements of PW6 Smt. Ramkali, PW7 Smt. Ramkali and PW5 Dr. Meenakshi, prosecution has succeeded in proving its case against the SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 11 of 19 12 accused persons beyond reasonable doubt and has prayed that they be convicted for the charged offences.
22. Learned Amicus Curie/counsel for the accused persons on the other hand has contended that prosecution has miserably failed to prove its case against the accused persons and that accused have been falsely implicated in the present case by the mother of prosecutrix J and maternal grandmother of the prosecutrix A. He has further contended that from the statements of the prosecutrix A and J, it is clear that they voluntarily had gone with the accused persons and as such, no case stands proved against the accused persons. It is prayed that the accused persons be acquitted of the charged offence.
23. I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie/counsel for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
24. In the present case, accused Yameen Ali is alleged to have kidnapped prosecutrix A aged about 14 years with intent to force her or seduce her to have illicit intercourse and of having raped her on the night of 06.03.2012 at house of his friend Salman at Anand Vihar. The accused Salman is the friend of accused Yameen Ali and he is alleged to have kidnapped SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 12 of 19 13 prosecutrix J aged about 12 years, cousin sister of prosecutrix A with intent to force her or seduce her to have illicit intercourse and of having raped her on the night of 06.03.2012 at his house at Anand Vihar.
25. The investigations in the present case commenced when PW6 maternal grand mother of prosecutrix A and paternal grand mother of prosecutrix J and PW7 Vineeta, mother of prosecutrix J, reported about missing of prosecutrix A and J from the house since 04.03.2012, to the police, on 05.03.2012. The police could not trace out the whereabouts of either of the two prosecutrix despite the fact that PW6 and PW7 had expressed their suspicion on accused Yameen. Both the accused as well as the prosecutrix A and J themselves appeared before the IO PW15 SI Afaque Ahmad on 08.03.2012.
26. In order to prove that prosecutrix A and J were aged about 14 and 12 years respectively, the prosecution has examined PW1, who produced the record from the school, wherein, prosecutrix A and J were admitted in first class. As per record produced by PW1, the date of birth of prosecutrix A was 22.10.1998 and that of J was 18.08.2000. The prosecutrix A was admitted in school of PW1 on basis of admission form Ex. PW1/F and affidavit Ex. PW1/G, furnished by PW6 Smt. Ram Kali, her grandmother. The prosecutrix J was admitted in in school of PW1 on basis of admission form Ex. PW1/A and affidavit Ex. PW1/B, furnished by her mother. SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 13 of 19 14
27. It is apparent from perusal of the record produced by PW1 that no birth certificate of either prosecutrix A or J was furnished at the time of their admission in the school. Further, neither prosecutrix A nor prosecutrix J or PW6 Ram Kali or PW7 Smt. Vineeta could state anything about the correct date of birth of prosecutrix A and J. Rather, PW6 Ram Kali and PW7 Smt. Vineeta have admitted that they got the date of birth of prosecutrix A and J recorded in the school on approximation. In these circumstances, not much reliance can be placed on school certificates Ex. PW1/I and Ex. PW1/J (of prosecutrix A) and school certificates Ex. PW1/D and Ex. PW1/E (of prosecutrix J), since the prosecution has failed to prove the basis, on which, the date of birth of prosecutrix A and J was entered in school record. I am supported in my view by judgment in case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601 wherein, it has been held that no evidentiary value can be given to Date of Birth entry in absence of material on which entry is made.
28. In these circumstances, the court would be required to consider the report of medical board, which has examined the prosecutrix A and J on 17.08.2012 and opined their age to be between 1617 years. The said reports are now exhibited as Ex. PX and PY for easy reference. The date of commission of offence in the present case is between 04.03.2012 to 08.03.2012 and the prosecutrix A and J were examined on 17.08.2012, after SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 14 of 19 15 about five months of the incident, and thus computing their age by taking into consideration, the gap between their examination by the Medical Board and the day(s) of the incident(s), the age of both the prosecutrix A and J comes to be more than 151/2, but less than 161/2 years.
29. Coming to the evidence led by the prosecution to prove the charges of the kidnapping, intention of the accused persons to exploit them sexually and the alleged rape of the prosecutrix A and J by accused Yameen Ali and Salman, respectively.
30. In order to prove its charge, the prosecution has examined prosecutrix A and J as PW3 and PW4 respectively. In her statement u/s 164 Cr.P.C, the PW3 prosecutrix A has stated that she and accused Yameen Ali had married in a temple on 06.03.2012 and thereafter she established physical relations with him of her own free will. When examined as PW3, prosecutrix A stated that only wrong act/galat kam committed by the accused was that he made her remove her clothes and also removed his own clothes. The MLC Ex. PW5/A of prosecutrix A shows that she did not have any external or internal injuries and her hymen was also found intact. The prosecutrix A did not allow to take any biological samples and hence, none were sent to FSL for examination. In these circumstances, offence u/s 376 IPC does not stand proved against accused Yameen Ali.
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31. As regard, prosecutrix J, in her statement u/s 164 Cr.P.C Ex. PW4/A, the prosecutrix J has also stated that accused Salman had married in a temple on 06.03.2012 and thereafter she established physical relations with him of her own free will. She also stated that at that time, she, accused Salman, prosecutrix A and accused Yameen Ali were in one room, while parents of accused Salman were in separate room. It is noteworthy that prosecutrix A does not mention anything about the presence of prosecutrix J and Salman in the same room, where they established physical relations. When examined as PW4, prosecutrix J stated that she and prosecutrix A had gone with the accused Salman and Yameen, respectively to the house of accused Salman and stayed there with parents and younger sister of accused Salman and they returned back on their own accord on 08.03.2012. The prosecutrix J, however, kept changing her version regarding forcible sexual intercourse by the accused Salman. In her examination in chief, she claimed that accused Salman had forced himself upon her, while they were staying at his parents house. In contradiction to her statement u/s 164 Cr.P.C, she claimed during her deposition as PW4 that as no body else was present in the room, she did not raise alarm or try to escape. During her crossexamination by learned defence counsel, she admitted that she went with accused Salman with her own free will and had physical relations with him with her consent. During her reexamination by ld. Addl. PP, the prosecutrix again stated that accused had forced himself upon her. It is noteworthy that the MLC Ex. PW5/B of prosecutrix does not find mention of SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 16 of 19 17 any injury on her person. Considering that the prosecutrix J repeatedly changed her version , she is not a trustworthy witness and even otherwise, her testimony is also contrary to her statement u/s 164 Cr.P.C and to some extent version given by the prosecutrix A and no reliance can be placed on the testimony of prosecutrix J to draw conclusion of the guilt of accused for offence u/s 376 IPC
32. Coming to allegations of kidnapping and kidnapping with intent to commit sexual intercourse and/or to marry the prosecutrix, both the prosecutrix have denied that they had married the accused persons as stated by them in their respective statements u/s 164 Cr.P.C. From the statements of the prosecutrix A and J, it is clear that they had gone with the accused Yameen Ali and Salman of their own free will, without any influence, pressure or coercion by latter. They went with the accused persons from Old Delhi Railway Station to Anand Vihar and stayed in the house of accused Salman, with the parents and younger sister of Salman, making no effort to raise alarm or to run away from the said place. The prosecutrix A and J, when examined before the court as PW3 and PW4 respectively admitted this fact and thus, it cannot be concluded that accused Yameen and Salman had kidnapped the prosecutrix A and J.
33. Ld. Addl. PP has contended that since age of the prosecutrix A and J is coming to be between 151/2 to 161/2 years as per the report of the SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 17 of 19 18 Medical Board, their consent is immaterial.
34. The submissions made by ld. Addl PP cannot be sustained, since both the prosecutrix A and J were admittedly on the verge of maturity and had themselves taken decision to go with the accused persons without any kind of inducement, influence or pressure from the accused persons. In this regard, a note can be taken in a judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 wherein, the Hon'ble Delhi High Court has held that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
35. In this regard, it would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking" and SC No. 47/12 : State Vs. Yameen Ali & Anr. : Page No. 18 of 19 19 allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.
361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
36. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix were willing and consenting party and it seems that everything has happened with their sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
37.. As the prosecution has failed to bring on record any incriminating evidence against accused persons, the accused Yameen Ali and Mohd. Salman are acquitted of the charges u/s. 363/366/376 IPC in the present case. Accused persons are in judicial custody. They be released forthwith, if not required in any other case.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 25.01.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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