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Rajesh vs State Of Kerala on 26 February, 2019






CRL.A.No. 772 of 2015








Crl.Appeal No.772/15




Crl.Appeal No.772/15



Shaffique, J.

This appeal has been preferred by the appellant Rajesh

challenging the judgment of conviction and order of sentence

passed by the Additional Sessions Judge – II (Special) by which

the appellant is found guilty for offences under Sections 450, 302

and 307 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and was

sentenced to undergo imprisonment for life and to pay a fine of

`1,00,000/- (Rupees One Lakh only) with a default stipulation of

rigorous imprisonment for one year for offence under Section 302

of I.P.C. and also sentenced to suffer imprisonment for life and to

pay a fine of `50,000/- (Rupees Fifty Thousand only) with a

default sentence of rigorous imprisonment for six months for

offence under Section 307 of I.P.C. and further sentenced to

undergo rigorous imprisonment for 10 years and to pay a fine of

`25,000/- (Rupees Twenty Five Thousand only) with a default

direction of rigorous imprisonment for three months for offence

under Section 450 of IPC. All sentences were directed to run

concurrently. It was further directed that if fine amount is

realized, `1,00,000/- (Rupees One Lakh only) should be paid to
Crl.Appeal No.772/15


PW2 as a compensation under Section 357(1)(b) of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C’).

2. The case of the prosecution is that on 29/10/2011 at

06.30 P.M., the appellant/accused with an intention to commit

murder, criminally trespassed upon the house of the deceased

Gopi Mohanan which was situated at Elampally kara in Anickadu

village and that he with the knowledge and intention of causing

death of Gopi Mohanan, attacked him with a weapon like chopper

and inflicted fatal injuries over his forehead, chest, stomach and

other parts of his body while he was in his bed room near to the

kitchen of the house and caused the death of Gopi Mohanan and

further that the appellant/accused inflicted fatal injuries to PW2

who is the wife of the deceased Gopi Mohanan with the same

weapon with the intention and knowledge that his acts would

cause death of PW2 and thereby attempted to commit murder of


3. Prosecution examined PW1 to PW18 as witnesses,

marked Exts.P1 to P16 series and identified material objects MO1

to MO9. During 313 examination, the appellant herein submitted

that he is innocent and that he was falsely implicated by PW1 to
Crl.Appeal No.772/15


PW3 due to their enmity towards him. While examining

prosecution witnesses, Exts.D1 and D2 were marked. No defence

evidence is adduced.

4. Learned counsel appearing for and on behalf of the

appellant Smt.Miji John argued that the appellant is innocent in

this case. He is falsely implicated. Witnesses of the prosecution

are highly interested witnesses and they were on inimical terms

with the appellant. The nature of incident shows that the attack

on the victims was one done by more than one person. The

alleged recovery is a fabricated one. Trial Court erred in its

appreciation of evidence. She pleaded for extending benefit of

doubt to the appellant and argued for an acquittal. She placed

reliance on the verdict of the Supreme Court in Kuna @ Sanjaya

Behera v. State of Odisha (AIR 2017 SC 5364) and also the

judgment of the Division Bench of the Chhattisgarh High Court in

Jagjeet Ram and Others v. State of Chhattisgarh (2018 KHC

4587) to support her arguments.

5. The learned Senior Public Prosecutor Sri.Alex

M.Thombra submitted that prosecution proved the case against

the appellant beyond reasonable doubt. PW2 and PW3 deposed
Crl.Appeal No.772/15


how the appellant unleashed brutal attack on the deceased and

PW2. The injuries were brutal. Direct evidence is sufficiently

corroborated by medical, scientific, recovery and other evidence.

All the material available proves beyond doubt the involvement

of the appellant in the crime. He mercilessly butchered his own

father-in-law. Court below is justified in finding the appellant

guilty for all the charged offences and also in awarding of

sentence and hence he pleaded for non-interference by this


6. Evidence adduced by the prosecution, in short, are as


PW1 is the son of the deceased and PW2. He gave Ext.P1

FIS based on which PW17 registered Ext.P10 FIR on 30/10/2011 at

03.00 A.M. PW2 is the wife of the deceased and an injured eye-

witness. PW3 is the daughter of the deceased and the wife of the

appellant. She is an eye-witness to the incident. PW4 helped PW1

to take the injured to the hospital. PW5 is an autorickshaw driver

in whose auto the appellant had travelled from Neyyattusseri

junction to Oorali bhagom immediately after the incident. It is to

PW6 a neighbour that the appellant had allegedly given an extra-
Crl.Appeal No.772/15


judicial confession soon after the incident. PW7 proved Ext.P2

mahazar prepared for the seizure of sim card used by the

appellant. PW8 is an attestor to Ext.P3 scene mahazar. PW9 is an

attestor to Ext.P4 inquest report prepared by PW18. PW10 is the

Doctor who examined PW2 at 07.30 P.M. on 29/10/2011 and

issued Ext.P5 wound certificate. Ext.P16 series case records from

the hospital and Ext.D1 contradiction are marked through PW10.

PW11 is an attestor to Ext.P6 mahazar for the recovery of MO3

weapon. He is declared hostile to the prosecution. MO2 is also

proved through this witness. PW12 is the one who helped the

police to recover the weapon from the well after emptying the

well. PW13 is a social worker who is an attestor to Ext.P7

mahazar for the seizure of MO1, MO2 and MO4. PW14 is the

Village Officer, Anickadu who prepared Ext.P8 scene plan. PW15

is the Doctor who conducted the autopsy of the deceased and

issued Ext.P9 certificate. PW16 is the Scientific Assistant of FSL

Unit attached to DCRB, Kottayam. He visited the place of

occurrence and collected five items from the spot and handed

them over to the investigating officer. PW17 recorded Ext.P1 FIS

of PW1 and based on the same registered Ext.P10 FIR. He took
Crl.Appeal No.772/15


Ext.P1(a) body note of PW2 at Medical College Hospital. Ext.D2 is

the death intimation from Medical College to the police. PW18 is

the C.I. of Police, Ponkunnam. He took over the investigation on

30/10/2011 and prepared Ext.P4 inquest report at 09.00 A.M. on

the same day. Ext.P3 is the scene mahazar prepared at 03.30 P.M.

through which MO5 to MO8 were seized. On 01/11/2011 at 10.45

A.M, he recovered MO3 from the well of the appellant and it was

seized as per Ext.P6 mahazar. With the help of PW12 he

recovered MO1, MO2 and MO4 based on Ext.P7(a) confession

statement of the appellant. Ext.P7 is the mahazar prepared for

the same. Ext.P13 series is the property list. Ext.P14 is the FSL

report and Ext.P15 is the chemical analysis report. He completed

the investigation and filed the charge-sheet.

7. There is no dispute to the fact that the deceased

herein is Gopi Mohanan who is the husband of PW2, father of PW1

and PW3 and father-in-law of the appellant. Ext.P4 is the inquest

report. PW15 is the Doctor who conducted the post-mortem

examination of the deceased on 30/11/2011 at 1.50 P.M. and

issued Ext.P9 certificate. He deposed that he noted the following

ante-mortem injuries on the corpse of Gopi:-
Crl.Appeal No.772/15


“1. Incised wound 4×0.5 cm muscle deep obliquely placed
on forehead, its lower front end 4 cm above inner end of
left eyebrow and 1 cm outer to midline.

2. Incised wound 1×0.2 cm muscle deep obliquely
placed on the right side of forehead 1.5 cm outer to mid
line and 0.5 cm above eyebrow.

3. Incised wound 2.5×0.5 cm muscle deep on the right
upper eyelid.

4. Incised wound 7×1-1.2 cm bone deep horizontally
placed on the right side of face its inner end 3 cm outer to
ala of nose. The maxilla bone underneath was seen cut.
Brain showed subarachnoid haemorrhage involving right
parietal lobe.

5. Incised wound 5×1 cm muscle deep obliquely placed
with bevelled margin on the right side of back of head and
neck, its upper outer end 6 cm outer to midline and 8 cm
above root of neck.

6. Incised penetrating wound 4×1.5 cm obliquely
placed on the left side of front of chest its upper outer
sharply cut end 14 cm below collar bone and 5 cm inner to
the nipple at the 8 O’clock position. Penetrating through
fifth left intercostal space, the wound terminated by
making an incision 3 cm long on inner border of lower lobe
of left lung. The left lung was pale and collapsed. The
pericardial sac of heart showed infiltration with blood. Left
chest cavity contained 500 ml. of blood. The track of the
wound was directed backward, downward and to right for
a depth of 5 cm.

7. Incised penetrating wound 7×2 cm obliquely placed
across the front of chest with its right lower front sharply
cut end at the level of costal margin and 19 cm below
collar bone. The left back upper end showed two parallel
Crl.Appeal No.772/15


tailing 1.5 cm long, 0.5 cm apart. Penetrating through the
right lower costal margin and abdominal wall the wound
terminated by cutting the left lobe of liver 7×1 cm
involving its full thickness. The wound was directed
backward, downward and to the left for a total minimum
depth of 10 cm. Abdominal cavity contained one litre of

8. Curved superficial incised wound 23 cm long skin
deep obliquely placed across the right side of front of
shoulder and left chest its right upper end 1.5 cm above
collar bone.

9. Superficial incised wound 5 cm long oblique on the
right side front of abdomen, its upper inner end 0.5 cm
outer to midline and 2 cm below costal margin.

10. Incised wound 2.5x 1 cm, muscle deep horizontal on
left side of front of lower abdomen 7 cm outer to midline
and 4 cm below upper prominence of hip bone.”

According to him, the injuries sustained to the head, chest and

abdomen resulted in the death of Gopi Mohanan. He further

opined that all the injuries noted on the body of the deceased

could be caused by MO1 chopper. Injury nos. 4, 6 and 7 are

sufficient in the ordinary course of nature to cause death. He also

stated that it is possible to inflict stab wounds using MO1. Hence

from these evidence, it can safely be concluded that the death of

Gopi Mohanan was a homicide.

8. PW10 is the Doctor who examined PW2 in the Medical

College Hospital, Kottayam on 29/10/2011 at 07.30 P.M. Ext.P5 is
Crl.Appeal No.772/15


the wound certificate issued by her. She deposed that the

following injuries were noted on PW2:-

“1. Incised wound 5x2x2 cm x right parietal region

2. Incised wound 5x2x2 cm posterior part of right side of


9. According to her, the injuries noted are on the vital

parts of the body and they are grave in nature. Those incised

wounds could be caused by MO1. Ext.P16 series is the case

record of her treatment in Medical College Hospital. Ext.P1(a) is

the body note of PW2 prepared by PW17 in Medical College

Hospital. Even keeping the oral testimony aside, these evidence

clearly shows that PW2 had sustained fatal injuries on her body

on 29/10/2011 during the course of the same transaction in which

attack was unleashed on the deceased.

10. The only question remaining is who caused the said

fatalities on the above victims. It can be seen that the appellant

is convicted for offence under Section 302 for murdering Gopi

Mohanan who is his father-in-law. He is also found guilty for

offence under Section 307 for attempting to murder PW2

Ponnamma who is his mother-in-law. He was sentenced to suffer

life imprisonment for both offences. As far as Section 450 is
Crl.Appeal No.772/15


concerned, he is sentenced to suffer rigorous imprisonment for

10 years. All sentences were with fine and default imprisonment

stipulation. To arrive at its conclusion, Court below inter alia

heavily relied on the oral evidence of PW2 and PW3. The most

important question under consideration is whether the Court

below is justified in arriving at its verdict in the backdrop of

available evidence.

11. Coming to the evidence in detail, PW2 is the wife of

the deceased and mother-in-law of the appellant. She is an

injured eye-witness. She stated that the incident happened on

29/10/2011 at 06.30 P.M. Herself, her husband, son and daughter

were living in Mohanavilasom Veedu. The appellant married her

daughter Nisha (PW3) in the year 2006 and during 2011 they

were living separately. There were frequent quarrels between

them. Initially, both of them resided in the house of the appellant.

Later, they shifted to Vanchimala on rental basis. There the

appellant tried to commit suicide. PW3 was taken back home. A

case was registered against the appellant. Later, as per the

direction of the Court, for the purpose of reconciliation, they

stayed together in a house near to the house of PW2. There also
Crl.Appeal No.772/15


the appellant continued his quarrelsome attitude. One day,

hearing the hue and cry, PW1 rushed to the house of the

appellant. The appellant inflicted cut injuries on PW1 and a

criminal case was lodged in connection with that incident.

Thereafter, PW3 was staying in PW2’s house. A divorce petition

was filed before the Family Court, Ettumanoor. On the date of

incident, PW2 along with her daughter PW3 had gone to the

Family Court in connection with the said case. The appellant was

also present in Court. It is her version that the appellant

threatened both of them. They told the same to her husband (the

deceased herein). Then her husband told her that at around

03.30 P.M. on the same day, the appellant had called him over

phone and threatened. At about 06.30 P.M., her husband was

taking coffee and she went to grind coconut near the stone kept

for the purpose which was near the kitchen of the house. PW3

was present in the kitchen at that time. At that time she saw the

appellant standing there. She asked the appellant why he was

standing there. Then the appellant took a weapon which

resembled a chopper used for slicing meat and inflicted cut

injuries on the right side of the neck of PW2. PW3 tried to save
Crl.Appeal No.772/15


her by attempting to take her to the kitchen. Then the appellant

inflicted a cut injury with the same weapon on the upper part of

the right ear of PW2. PW3 managed to draw PW2 into the kitchen.

At that time her husband (the deceased) rushed to the spot. As

he reached kitchen, the appellant had pushed him to the cot and

started cutting him with the chopper indiscriminately. It is her

version that the appellant had inflicted cut and stab injuries on

the face and chest of the deceased, stabbed at the forehead and

also on the chest. First stab was inflicted on the chest and the

chopper was drawn back. Thereafter he was stabbed on the

abdomen also. Seeing the horrible stabbing and cutting, PW3

went into the nearby room and closed the door. PW2 got into

another room near the hall and closed the door. The appellant

had broken the door of the room in which PW3 had entered. Then

PW3 ran away. The appellant made a hole in door of the room in

which PW2 had entered. He had broken the glass of the window

on the back side. After sometime, as there was no noise, PW2

came out and went near to her husband and sat with him. Her

husband was seen lying on the cot in a pool of blood. After

sometime, PW1 her son reached there with some people and her
Crl.Appeal No.772/15


husband was taken to hospital. She was also taken to the

hospital. It is her version that the appellant was wearing a cream

colour shirt and white dhothi at that time. She identified MO1 as

the weapon used for inflicting injuries on them. According to her,

the reason for the attack was the filing of Court case against the

appellant by her daughter(PW3). There was electric light at that

time in their house. She was treated as in-patient in hospital for 5

to 6 days. During cross-examination, she denied the suggestion

of the defence that the attack on them was done by a group of

people and not the appellant. Questions were directed to the

effect that there was no light at the relevant time and that the

witnesses were not able to identify who the assailants were. PW2

categorically denied the said suggestion. She also denied the

suggestion that the injuries on her was sustained as a result of

her being jammed between the door and doorpost. She stood

firm in her version in the chief examination.

12. PW3 is the daughter of the deceased and PW2. She

was the wife of the appellant. Their marriage took place on 30 th

April 2006. She stayed at her matrimonial home for a few years.

A child was born in the wedlock. Then they shifted to Vanchimala
Crl.Appeal No.772/15


for rent. According to her, the appellant was in the habit of

quarrelling with and beating her after consuming alcohol. During

their stay at Vanchimala, the appellant came in a drunken state

and quarrelled and attempted to commit suicide. So, she went

back to her parental home. She filed a petition for divorce and

there was a family counselling also. As they were advised to live

together, a house was taken for rent near to her parental house

and they began to stay there. But the appellant continued his

alcoholism and assault on PW3. On 16/07/11, the appellant came

after consuming alcohol and started manhandling her. PW1 who

is the brother of PW3 came there and the appellant had inflicted

cut injuries on the lower leg of PW1. The appellant thereafter left

the house. PW3 and the child began to live with her parents. A

case was registered against the appellant by PW3 for harassment

and cruelty. According to PW3, the incident happened on

29/10/2011. PW3 and PW2 went to the Family Court in connection

with the case on that day. The appellant was also present there.

They were called for counselling. After the same, the appellant

threatened PW2 that he would ‘show’ them. Both PW2 and PW3

left the Court taking a different route. They got into a bus and
Crl.Appeal No.772/15


reached home. At that time her father was not there at home. By

06.00 P.M., her father reached there. They told the incident to

father. At that time her father told her that the appellant had

called him at about 03.30 P.M. on the same day and threatened

him also. Thereafter, PW3 went to the kitchen. PW2 gave a cup of

coffee to Gopi Mohanan (the deceased). Then PW2, for grinding

coconut, went out through the kitchen door. It is the version of

PW3 that she heard her mother PW2 telling “Why are you

standing here?” It was about 06.30 P.M. As she went there, she

saw the appellant inflicting cut injuries on the neck of PW2 using

a chopper resembling one used for slicing meat. She caught hold

on the left hand of PW2 and pulled her inside. She tried to close

the door also. But PW2 did not fully get in, as her head was still

outside. At that time the appellant had inflicted cut injury on the

upper part of the right ear. PW3 pulled her mother into the

kitchen. The appellant forcefully pushed the kitchen door open

and entered in. Hearing hue and cry, her father came to the spot.

The appellant stabbed him on his abdomen. Then he pushed him

on to the cot and began to stab on the forehead, chest and on

different parts of the body. She also deposed that she had seen
Crl.Appeal No.772/15


some other weapons also with the appellant. PW2 ran into a

nearby room on the eastern side and closed the door. PW3 also

ran into another room on the western side. At that time the

appellant had broken open the door of the room in which PW3

was. Her father told her to raun away. As the appellant’s attention

was diverted, PW3 ran for her life and reached the house of CW4.

She stated the incident to CW4. CW4 called PW1 and told the

incident. After some time, PW1 came to the house of CW4 along

with Roy. She narrated the incident to PW1. PW1 went to the

place of incident and had taken the injured to hospital. She

identified MO1 as the weapon used for inflicting injuries on the

victims. According to her, the appellant committed all these

violence because of his enmity developed towards her parents

out of the conception that it were her parents who persuaded her

to lodge case against the appellant. She stated that MO1 was

shown to her by the police. Nothing material is brought out in

evidence to discredit her version regarding the over act, motive

and conduct of the appellant.

13. This is a case in which there is evidence of eye-

witnesses. PW2 and PW3 are natural and probable witnesses. The
Crl.Appeal No.772/15


incident happened in the dwelling house of the victims and that

too at 06.30 P.M. The contention of the learned counsel for the

appellant that no independent witnesses from neighbourhood

were examined is flimsy and is only to be discarded in the facts

and circumstances of this case. It is settled that the prosecution

has the prerogative to examine or not to examine any witness to

prove a fact and can even give up any witness. S.134 of the

Evidence Act is clear on the aspect that it is not the number of

witnesses but the quality of their evidence that matters.

Testimonies of PW2 and PW3 corroborate each other in material

particulars. They deposed the incident in detail. Their evidence is

credible and reliable. The said evidence are amply corroborated

by evidence of PW1, PW4 and PW5 in other aspects as detailed


14. As far as the identity of the assailant is concerned, the

defence put forth a case that the attack was carried out by more

than one person and the witnesses were not able to identify the

assailants as there was no light available. To hold their argument,

the defence relied on Ext.P5 issued by PW10 Doctor who treated

PW2 on 29/10/2011 at about 07.30 P.M. which is the most
Crl.Appeal No.772/15


contemporaneous document. In Ext.P5, it is recorded that assault

was by identifiable persons. Counsel for the appellant argued that

Ext.P5 clearly shows that the actual assailants were other

persons, not the appellant herein. But we do not find any reason

to agree with the said argument in the light of available evidence.

PW10 deposed that the said history was not spoken to by PW2.

She recorded the same based on hearsay. PW2 also did not have

a case that she deposed to PW10 about the identity of the

assailant. That apart, no trace of evidence is placed on record to

show that more than one person is involved in the commission of

offence. On the other hand, evidence available shows that it was

the appellant who committed the overt acts as alleged by the

prosecution. The case of the appellant is that he was not even

present at the time of offence at the place of occurrence. It is

proved to be false.

15. Appellant was also found guilty by the trial Court for

attempting to murder PW2. First and second limb of Section 307

of IPC reads as follows:

“307. Attempt to murder.–Whoever does any act with
such intention or knowledge, and under such circumstances
that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either
Crl.Appeal No.772/15


description for a term which may extend to ten years, and
shall also be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is
hereinbefore mentioned.”

16. It is well established that for attracting offence under

Section 307 of IPC, it is not necessary that injury capable of

causing death should have been inflicted. The most crucial factor

to be considered is whether the facts and circumstances of the

case reveal the guilty intent or knowledge of the accused to

commit offence as detailed in Section 307 of IPC. It is a question

of fact to be gathered from the attending circumstances of each

case. It is in evidence that the appellant herein inflicted injuries

on the vital part of the body of PW2 i.e., neck and head with a

deadly weapon like MO1 chopper. It is also in evidence that he

was carrying more than one weapon with him. There was no

provocation at all from the victims. Obviously, PW2 is an injured

eye-witness. She suffered fatal injuries on the vital part of her

body in the incident. Evidence would show that after attacking

the deceased brutally, the appellant tried to break the door of

the room in which PW2 was sheltered herself. What would have

happened had he been succeeded in opening the door we do not
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know. His acts and subsequent conduct as deposed to by the

witnesses would show that he had the intention to kill PW2

though could not succeed. She lost her husband in the incident.

We don’t think she would falsely implicate another person by

sparing the real culprit. We are of the view that in the case at

hand, the circumstances under which the attempt to inflict fatal

injuries were carried out would bring the deeds of the appellant

under Section 307 of IPC.

17. On appreciation of evidence, it can be seen that

motive for the crime is clearly established by the prosecution

through the evidence of PW1 to PW3. Evidence on record would

show that the appellant had premeditation to commit the offence.

He planned it in such a way that he carried with him four deadly

weapons (MO1 to MO4), lurked near the dwelling house of the

victims by the dusk of the day and attacked the victims

indiscriminately. It can be seen that the appellant had broken

open the door of the room in which PW3 was locked herself up.

He tried to assault her also. Luckily for the appellant, no charge

was framed by the trial Court for the said offence.

18. The appellant was not staying with the victims herein.
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He was at loggerheads with them. He threatened PW2 and the

deceased on the date of incident. There is no cross-examination

on that point. It is also in evidence that the appellant carried

weapons of offence with him to the house of the victims. These

acts of the appellant and the ultimate result of his trespass into

the house loudly speak of his intentions and the purpose with

which he entered into the dwelling house of the victims. Hence

we would conclude that the Court below is justified in convicting

the appellant under Section 450 of IPC.

19. Having gone through the evidence of two eye-

witnesses PW2 and PW3 and other materials on record, we are of

the view that the prosecution proved the case against the

appellant beyond reasonable doubt. It is crystal clear that it was

the appellant who had broken into the dwelling house of the

victims, it was he who had inflicted fatal injuries on PW2 who is

his own mother-in-law and it was he who had inflicted as many as

nine incised wounds which resulted in the death of his father-in-

law. Medical evidence already detailed would corroborate the

detailed oral testimony of the witnesses. The weapon of offence

was recovered at the instance of the appellant from a well. The
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place of concealment is revealed by the disclosure statement of

the appellant. The weapon is found to be stained with human

blood. Court below did not rely on the alleged extra-judicial

confession made by the appellant to PW6 which we also do not

rely. The evidence of PW1 and Ext.P1 FIS given by him sufficiently

corroborate the evidence of PW2 and PW3 to the extent that PW2

was seen injured with the deceased who was lying in a pool of

blood in the house in which the incident took place. Evidence of

PW5 shows that the appellant hired his autorikshaw to travel from

Neyyattusseri junction which is near the scene of occurrence to

Oorali bhagom soon after the incident. We do not find any error in

the finding of the trial Judge. The incident was so unfortunate.

Appellant acted in a cruel manner. No interference is called for.

The appeal is therefore dismissed.






Rp True copy JUDGE

P.S. To Judge

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