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Wasim Mohiddin Shaikh vs The State Of Maharashtra on 3 October, 2019

APPEAL-734-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.734 OF 2018

WASIM MOHIDDIN SHAIKH )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Ms.Megha Bajoria, Appointed Advocate for the Appellant.

Mr.Vinod Chate, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 3rd OCTOBER 2019

ORAL JUDGMENT :

1 By this appeal, the appellant/convicted accused is

challenging the judgment and order dated 29 th November 2016

passed by the learned Designated court under the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to

as the POCSO Act for the sake of brevity), Greater Mumbai, in

POCSO Special Case No.667 of 2013, thereby convicting him of

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offences punishable under Sections 376(2)(i) of the Indian Penal

Code as well as under Section 4 of the POCSO Act. For the

offence punishable under Section 376(2)(i) of the Indian Penal

Code, the appellant/convicted accused is sentenced to suffer

rigorous imprisonment for 10 years apart from direction to pay

fine of Rs.20,000/- and in default, to undergo further rigorous

imprisonment for 6 months. For the offence punishable under

Section 4 of the POCSO Act, he is sentenced to suffer rigorous

imprisonment for 7 years apart from direction to pay fine of

Rs.20,000/- and in default, to undergo further rigorous

imprisonment for 6 months. Substantive sentences are directed to

run concurrently by the learned trial court.

2 Facts, in brief, leading to the prosecution and the

resultant conviction of the appellant/convicted accused, can be

summarized thus :

(a) The PW1 is the alleged victim of the crime in question. She

was born on 29th June 1997. The incident in question took

place allegedly from April 2012 to March 2013. It is case of

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the prosecution that after death of father of the victim female

child/PW1, her mother started residing with her boyfriend.

The victim female child/PW1 was, therefore, constrained to

take shelter in house of her grandmother.

(b) The victim female child/PW1 fell in love with the

appellant/convicted accused and from April 2012 for a few

months, she started residing with him at his house in Morarji

Nagar, Powai, Mumbai. Thereafter, sexual relations came to

be established between them. This resulted in pregnancy of

the victim female child/PW1 in the year 2013. Thereafter,

she had aborted her foetus, after her mother took her to the

Rajawadi Hospital, Mumbai.

(c) PW3 Seema is mother of the victim female child/PW1. On

18th April 2013, she lodged report Exhibit 35 alleging

commission of rape on the victim female child/PW1 by the

appellant/convicted accused. On the basis of this report,

Crime No.00 of 2013 came to be registered at Sakinaka Police

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Station and the First Information Report (FIR) was then sent

to Police Station Powai, where Crime No.213 of 2013 came to

be registered against the appellant/convicted accused.

(d) During the course of investigation, the appellant/convicted

accused came to be arrested. Routine investigation followed.

Clothes of the victim female child/PW1 as well as that of the

appellant/convicted accused came to be seized. They were

sent for chemical analysis. The spot of the incident came to be

inspected and Spot Panchnama Exhibit 12 came to be

prepared. Birth Certificate of the victim female child/PW1

came to be collected and on completion of routine

investigation, the appellant/convicted accused came to be

charge-sheeted.

(e) The learned trial court framed and explained the Charge for

the offence punishable under Section 376(i) of the Indian

Penal Code as well as under Section 4 of the POCSO Act to

the appellant/convicted accused. He pleaded not guilty and

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claimed trial.

(f) In order to bring home the guilt to the appellant/convicted

accused, the prosecution has examined in all six witnesses

including the victim female child as PW1 and her mother

Seema as PW3. Other witnesses are official witnesses, who

investigated the crime in question. Defence of the appellant/

convicted accused was that of total denial.

(g) After hearing the parties, the learned trial court was pleased

to convict the appellant/convicted accused and sentenced

him accordingly, as indicated in the opening paragraph of this

judgment.

3 I have heard Ms.Megha Bajoria, the learned advocate

appointed to represent the appellant/convicted accused at the

costs of the State. She vehemently argued that the

appellant/convicted accused came to be convicted for the offence

punishable under Section 376(2)(i) of the Indian Penal Code

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when he was not even charged for that offence. He was charged

for commission of the offence punishable under Section 376(i) of

the Indian Penal Code. It is further argued by the learned

advocate for the appellant/convicted accused that the prosecution

has failed to establish the Charge in view of the fact that the

victim female child/PW1 and her mother have not supported the

prosecution case, in any manner. Therefore, the appellant/

convicted accused is entitled to acquittal.

4 The learned APP supported the impugned judgment

and order of conviction and the resultant sentence.

5 I have carefully considered the submissions so

advanced and also perused the record and proceedings including

oral as well as documentary evidence adduced by the prosecution.

6 Considering nature of the offence, fate of the

prosecution case hinges on the testimony of the victim female

child/PW1. It is in her evidence that she was born on 29th June

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1997. Similar is evidence of her mother PW3 Seema. This oral

evidence regarding age of the victim female child/PW1 went

unchallenged. Moreover, the prosecution has placed on record

Birth Certificate of the victim female child/PW1 issued by the

Registrar under the Registration of Births and SectionDeaths Act, 1969,

who happens to be the Health Officer of the Municipal

Corporation of Greater Mumbai. The said Birth Certificate at

Exhibit 11 shows that the victim female child/PW1 was born to

her mother PW3 Seema and her father Umesh on 29 th June 1997.

This Birth Certificate is issued under the provisions of Sections 12

and Section17 of the Registration of Births and SectionDeaths Act, 1969. As per

provisions of Rule 9 of the Maharashtra Registration of Births and

Deaths Rules, 1976, this Certificate is issued by the Sub-Registrar

acting under the provisions of the Registration of Births and

SectionDeaths Act, 1969. Section 7 thereof deals with appointment of

Registrars for each local area comprising the area within the

jurisdiction of the Municipality, Panchayat or other local authority.

It is the duty of the Registrar to register every birth and every

death which takes place in his jurisdiction. SectionThis Act mandates

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that the Registrar should discharge his duties carefully. Section 8

of this Act mandates each head of the house to report birth in the

family to the Registrar. SectionThe Act provides for maintenance of

register for recording birth and death within the local area. That is

how, certificate came to be issued by the Sub-Registrar as per

provisions of Sections 12 and Section17 of the said Act. The Birth

Certificate, as such, is issued by the Public Officer and it is a

document forming the record of the acts of the Public Officer and

therefore the same is a public document within the meaning of the

said term as per provisions of Section 74 of the Indian Evidence

Act, 1872. The same is admissible in evidence by mere

production thereof in view of provisions of Section 77 of the

Evidence Act. Section 17 of the Registration of Births and SectionDeaths

Act, 1969, provides for search of Birth Register and supply of

extract thereof by certifying the same by the Registrar or other

authorized Officer. Section 17 of the said Act provides that such

extract shall be admissible in evidence for the purpose of proving

birth or death to which the entry relates. The Birth Certificate is,

infact, the extract of Birth Register in respect of entry of birth of

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the victim child/PW1, and as such, admissible in evidence.

Section 35 of the Evidence Act, 1872, makes it clear that if entry is

made by public servant in the official book in discharge of his

official duty, then such entry becomes the relevant fact and

admissible in evidence. Section 35 of the Indian Evidence Act lays

down that entry in any public, official book, register, record

stating a fact in issue or relevant fact and made by a public

servant in the discharge of his official duty specially enjoined by

the law of the country is itself the relevant fact. To render a

document admissible under Section 35, three conditions must be

satisfied, firstly, entry that is relied on must be one in a public or

other official book, register or record, secondly, it must be an entry

stating a fact in issue or relevant fact; and thirdly, it must be made

by a public servant in discharge of his official duty, or any other

person in performance of a duty specially enjoined by law. It is,

thus, clear that the Birth Certificate issued by the statutorily

appointed competent authority is relevant and admissible. The

same is a public document and it constitutes primary evidence.

Proof of contents of a public document can be had by production

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thereof as envisaged by Section 77 of the Evidence Act. In this

view of the matter, no formal proof of the Birth Certificate issued

by the competent authority under the provisions of the

Registration of Births and SectionDeaths Act, 1969 and Rules framed

thereunder is required.

7 This court in the case of Mahadeo S/o Kerba Maske Vs.

State of Maharashtra and Anr.1 has held that Rule 12(3) of the

Juvenile Justice (Care and Protection of Children) Rules, 2007, is

applicable in determining the age of the victim of rape. Rule 12(3)

reads as under:

“Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board
or, as the case may be, the Committee by seeking
evidence by obtaining –

(a)(i) the matriculation or equivalent certificates,
if available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

1 (2013) 14 SCC 637

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(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done,
the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year. and, while
passing orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence whereof, clause (b) shall be
the conclusive proof of the age as regards such child
or the juvenile in conflict with law.”

With this evidence, the prosecution has proved the fact that at the

time of the incident in question, which took place from April 2012

to March 2013, the victim female child/PW1 was a child as

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defined by Section 2(d) of the POCSO Act and therefore, was

below 18 years of age.

8 Now let us examined whether the prosecution has

established commission of rape and penetrative sexual assault on

the victim female child/PW1 by the appellant/convicted accused.

The victim female child/PW1 seems to be a witness of truth. She

candidly stated that when she was residing with her grandmother

in April 2012, she started loving the appellant/convicted accused

and then went to reside with him at his house in Morarji Nagar,

Powai. She further stated that then physical relations developed

between them and this fact was known to all her relatives as well

as her mother – PW3 Seema. The victim female child/PW1

further deposed that she became pregnant from the

appellant/convicted accused in the year 2013 and therefore, her

mother took her to Rajawadi Hospital, Mumbai, but operation

took place at the clinic at Kurla in Mumbai. As per version of the

victim female child/PW1, she married the appellant/convicted

accused and started residing with him. She has no complains

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against the appellant/convicted accused. In the chief-examination

itself she has stated that she has come to the court for adducing

evidence with her husband i.e. the appellant/convicted accused

and in cross-examination she stated that she is pregnant from the

appellant/convicted accused. Her cross-examination reveals that

the appellant/convicted accused was prepared to marry her and

her mother was also prepared to marry her with the

appellant/convicted accused. The appellant/convicted accused

never forced her to do anything. According to the victim female

child/PW1, wheels of investigation were set in motion as her

mother lodged report because on one occasion, her mother

quarreled with the appellant/convicted accused. Thus, version of

the victim female child/PW1, cemented by the cross-examination,

shows that from April 2012, the appellant/convicted accused had

established sexual relations with the victim female child/PW1,

who at that time was 16 years of age. Those relations continued

even after April 2012 and till lodgement of the FIR in April 2013.

At this juncture, it is worthwhile to note that POCSO Act, 2012

came in force from 14th November 2012 and as such, evidence

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adduced by the victim female child/PW1 shows that the

appellant/convicted accused had committed penetrative sexual

assault on her when she was below 18 years of age.

9 PW3 Seema, who happens to be the mother of the

victim female child/PW1, has turned hostile to the prosecution

and was cross-examined at length by the learned prosecutor.

However, nothing incriminating could be brought on record from

her evidence. From her cross-examination by the prosecutor,

whatever she had stated to the police is brought on record as her

narrations to the police. Those narrations cannot become her

evidence before the court. As such, evidence of PW3 Seema is of

no assistance to the prosecution.

10 Other witnesses examined by the prosecution are

Investigating Officers, who had done their role in investigation of

the crime in question.

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11 In the case in hand, evidence available against the

appellant/convicted accused is only of the victim female

child/PW1, who had married him, apparently even before lodging

the FIR. However, evidence of the prosecution shows that the

victim female child/PW1 had not attained the age of consent at

the time of sexual intercourse with her by the appellant/convicted

accused. Hence, the prosecution has established the offence of

rape as well as penetrative sexual assault by the

appellant/convicted accused on the victim female child/PW1.

12 Now the question which falls for consideration is

whether the appellant/convicted accused is rightly convicted for

the offence punishable under Section 376(2)(i) of the Indian

Penal Code so also whether the quantum of sentence imposed on

him is proper. Perusal of the Charge at Exhibit 3 shows that the

appellant/convicted accused was charged for the offence

punishable under Section 376(i) of the Indian Penal Code with a

clear recital that he committed rape on the victim female

child/PW1 from April 2012 to March 2013. No Charge for the

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offence punishable under Section 376(2)(i) of the Indian Penal

Code was framed and explained to the appellant/convicted

accused. The offence punishable under Section 376(1) of the

Indian Penal Code was warranting punishment not below 7 years

but which could extend to imprisonment for life apart from

imposition of fine, prior to its substitution by Act No.22 of 2018.

We are dealing with the case prior to enactment of Act No.22 of

2018. Thus, at the relevant time, punishment prescribed for the

offence punishable under Section 376(1) of the Indian Penal Code

was not less than 7 years but extended up to imprisonment for life

apart from imposition of fine. However, as against this, for the

offence punishable under Section 376(2)(i) of the Indian Penal

Code, the punishment prescribed at the relevant time was not less

than 10 years but which could extend up to imprisonment for life

apart from imposition of fine. This clause (i) to sub-section (2) of

Section 376 of the Indian Penal Code came to be omitted by Act

No.22 of 2018. Thus, as no charge for the offence punishable

under Section 376(2)(i) of the Indian Penal Code was framed and

explained to the appellant/convicted accused at the relevant time,

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he ought not to have been convicted and sentenced for this serious

offence, than that of the offence with which he was charged.

13 Apart from this, evidence of the victim female

child/PW1 shows that she had joined company of the

appellant/convicted accused by starting residing with him. She

married the appellant/convicted accused. All her relatives as well

as her mother were consenting to this act of the victim female

child/PW1. Even during pendency of the trial, the victim female

child/PW1 used to attend the court along with the

appellant/convicted accused and when she was in the witness box,

she was pregnant from the appellant/convicted accused.

14 It is well settled that it is the duty of every court to

award proper sentence having regard to the nature of the offence

and the manner in which it was committed. The sentencing court

is expected to consider all relevant facts and circumstances

bearing on the question of sentence and proceed to impose a

sentence commensurate with the gravity of the offence. The

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sentence is required to be adequate, just and proportionate with

the gravity and nature of the crime. At the same time,

circumstances of the accused are also required to be kept in mind

while imposing the sentence, as one of the objects of the criminal

justice system is to rehabilitate the transgressors and the

criminals.

15 In the matter of SectionState of Himachal Pradesh vs. Mange

Ram2 the evidence on record was showing that the prosecutrix

was below 16 years of age. It is held thus in paragraph 16 by the

Honourable Apex Court while sentencing the accused in that

case :

“16 In view of the foregoing conclusions, we
reverse the findings of the learned Sessions Judge
which was confirmed by learned Single Judge and
find that the accused is guilty of the offence
punishable under Section 376 I.P.C. As regards the
sentence, we take a lenient view for the reason that
the prosecutrix and accused are related. They were
both teenagers with an age difference of about 2-3
years. Both were immature and young. Evidence
2 2000 CRI.L.J. 4027

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indicates no marks of violence at all on any part of
the body of the prosecutrix. The incident happened
in 1993. After the acquittal by passage of time, the
members of the two families must have buried their
hatchet if any arisen on account of this incident. The
learned Counsel for the respondent argued that a
further order for custodial sentence at this distance
of time may cause rapture to social harmony in the
village life and may only help to rekindle the flames
of anger which have been smouldering for so long
between near relatives. Having regard to all these
matters, we hold that sentence already undergone
by the accused would be sufficient to meet the ends
of justice, and we do accordingly.”

16 In the matter of SectionZindar Ali SK vs. State of West Bengal

and Another3 there was no love affair between the prosecutrix and

the accused but the accused was after the prosecutrix requesting

her to marry him and ultimately committed forcible sexual

intercourse with the prosecutrix. While dealing with quantum of

sentence, following are the observations of the Honourable Apex

Court in paragraph 15 of the judgment :

3 2009 CRI.L.J. 1324

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“15 This takes us to the last argument about the

quantum of sentence. The Courts below have
awarded 10 years of imprisonment and a fine of
Rs.5,000. In our opinion, considering the fact that
the incident took place about 6 years back and the
fact that the accused is behind the bars for last about
5 years, as also poverty on the part of the accused,
we feel that the sentence already suffered would be
sufficient. The sentence of fine is however,
confirmed. Fine, if recovered shall be paid to the
Prosecutrix. She shall be intimated by sending notice
to her. We, accordingly, modify the sentence. The
appeal is disposed of with this modification.”

17 In the matter of SectionPhul Singh vs. State of Haryana4, the

accused was aged about 22 years and was not a habitual offender.

He was found guilty of the offence punishable under Section 376

of the Indian Penal Code. While dealing with quantum of

sentence, following are the observations of the Honourable Apex

Court found in paragraphs 7 and 8 of the judgment :

“7 He is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife
4 1980 CRI.L.J. 8

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and a farm to look after. Given correctional courses
through meditational therapy and other measures,
his erotic aberration may wither away. A man like
the appellant has a reasonable prospect of shaping
into a balanced person, given propitious social
environs, curative and congenial work and
techniques of internal stress release or of
reformatory self expression.”

“8 In this background, we regard a four year term
of rigorous imprisonment more hardening than
habilitative, even though we deplore the sex
violence the young appellant has inflicted on his
cousin’s wife snatching a tricky opportunity. Even so,
the incriminating company of lifers and others for
long may be counter-productive, and in this
perspective, we blend deterrence with correction
and reduce the sentence to rigorous imprisonment
for two years. We wish to emphasise that the special
circumstances of this case constrain us to relent a
little on principle because the restorative approach
to sentencing has been jettisoned by the courts
below.”

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18 Lastly, in the matter of State of Rajasthan vs. N.K.

(Accused)5 the Honourable Apex Court has observed thus while

deciding the quantum of sentence for the offence punishable

under Section 376 of the Indian Penal Code.

"19 Now remains the question of sentence. The
incident is of the year 1993. The accused was taken
into custody by the police on 3.11.1993. He was not
allowed bail. During the trial as also during the
hearing of the appeal by the High Court he remained
in jail. It is only on 11.10.1995 when the High Court
acquitted him of the charge that he was released
from jail. Thus he had remained in jail for a little
less than two years. Taking into consideration the
period of remission for which he would have been
entitled and the time which has elapsed from the
date of commission of the offence, we are of the
opinion that the accused-respondent need not now
be sent to jail. It would meet the end of justice if he
is sentenced to undergo imprisonment for the period
already undergone by him and to a fine of Rs.2000/-

with further simple imprisonment of one year and
nine months in default of payment of fine as passed
by the Trial Court. The appellant is allowed time till

5 2000 CRI.L.J.2205

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1st May, 2000 for payment of fine. The accused-
respondent is on bail. The bail bonds shall stand
discharged on payment of fine as directed. Ordered
accordingly."

19 Considering the over all circumstances, the appeal

needs to be allowed by altering conviction of the

appellant/convicted accused of the offence punishable under

Section 376(2)(i) of the Indian Penal Code to the one under

Section 376(i) of the Indian Penal Code and sentence imposed on

him on this count also needs to be reduced accordingly as per the

directions of the penal statute as standing at the relevant time i.e.

prior to 21st April 2018. Similarly, keeping in view provisions of

Section 42 of the POCSO Act, the appellant/convicted accused is

not liable for punishment for the offence punishable under Section

376 of the Indian Penal Code as well as to one under Section 4 of

the POCSO Act. He is liable for punishment only under one penal

provision because at the relevant time punishment for the offence

punishable under Section 376(i) of the Indian Penal Code and

under Section 4 of the POCSO Act were the same. Hence, I feel it

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appropriate to punish the appellant/convicted accused for the

offence punishable under Section 4 of the POCSO Act.

20 It is seen that the learned trial court has awarded

excessive amount of fine to the appellant/convicted accused on

both counts. For the offence punishable under Section 376(2)(i) of

the Indian Penal Code, so also for the offence punishable under

Section 4 of the POCSO Act, he is directed to pay fine of

Rs.20,000/- each. Similarly, default sentence of six months

rigorous imprisonment is imposed on him on both counts. In view

of the facts and circumstances of this case, as discussed in

foregoing paragraphs, such heavy fine as well as default sentence

is not warranted. Therefore, the order :

ORDER

i) The appeal is partly allowed.

ii) Conviction and sentence imposed on the appellant/

convicted accused is altered in the following manner :-

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ii(a) Conviction of the appellant/convicted accused for the

offence punishable under Section 376(2)(i) of the Indian

Penal Code is altered and he is convicted of the offence

punishable under Section 376(i) of the Indian Penal Code.

ii(b) His conviction for the offence punishable under Section 4 of

the POCSO Act is maintained.

ii(c) For the offence punishable under Section 4 of the POCSO

Act, the appellant/convicted accused is sentenced to suffer

rigorous imprisonment for 7 years apart from direction to

pay fine of Rs.100/- and in default, to undergo rigorous

imprisonment for 1 month.

ii(d) In view of provisions of Section 42 of the POCSO Act, no

separate sentence is awarded to the appellant/convicted

accused for the offence punishable under Section 376(i) of

the Indian Penal Code.

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iii) The appeal stands disposed off accordingly.

(A. M. BADAR, J.)

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