Chattisgarh High Court
Jagdish vs The State Of Chhattisgarh on 19 September, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1577 of 2022
Jagdish, S/o Bhaddelal Sahish, aged about 36 years, R/o
Village - Tavla, Police Station - Baradawar, District - Janjgir
Champa (C.G.)
---- Appellant
(In Jail)
Versus
The State of Chhattisgarh, through Police Station - Sakti, District
Janjgir Champa (C.G.)
---- Respondent
(Cause Title taken from Case Information System)
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For Appellant : Ms. Anjali Singh Chouhan, Advocate.
For Respondent-State : Mr. Wasim Miyan, Panel Lawyer
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Hon'ble Shri Ramesh Sinha, Chief Justice and
Hon'ble Shri N.K. Chandravanshi, Judge
Judgment on Board
(19.09.2023)
Per N.K. Chandravansh, J.
1. As we proceed to hear the matter finally with the consent of
learned counsel for both the parties, I.A. No. 2/2022, application for
suspension of sentence and grant of bail stands disposed of.
2. This criminal appeal filed by the appellant-accused under Section
374(2) of Cr.P.C. is directed against the impugned judgment of
conviction and order of sentence dated 14.09.2021, passed by the
learned First Upper Sessions Judge, Shakti, District Janjgir-Champa in
Sessions Trial No. 04/2018, whereby the appellant-accused has been
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convicted for offence under Section 302 of the IPC and sentenced to
undergo imprisonment for life and fine of Rs.1,000/-, in default of
payment of fine, to further undergo R.I. for 6 months.
3. Case of the prosecution, in brief, is that on the fateful day i.e. in the
evening of 30.11.2017, Nehru Shrivas and Narayan Bareth came in the
Bada-Bhajiaya shop of one Koyal Patel, who is said to be the eye-
witness to the incident, in Basti Baradwar at about 7.30 pm and
demanded Bada Bhhajia. At the same time, accused/appellant had also
come to have breakfast alongwith his two friends in the said shop.
There, when appellant/accused Jagdish stated that “as he is Kotwar of
villlage Talwa, no one can do any harm to him”, then Nehru Shrivas told
him that why are you bullying him and he himself is the Nai Thakur of the
said village and on account of hot-talk between appellant/accused and
Nehru Shrivas, dispute arose between them and, thereafter, accused
alongwith his friends namely Ramakant & Omprakash left the place on a
motorcycle to go to village Talwa, at that time, accused jumped from the
motor-cycle and came to the Bada Bhajia shop of Koyal Patel and
attacked upon Nehru Shriwas with a sharp edged weapon knife ( Gupti)
on his forehead, as a result thereof, he sustained head injuries
thereafter, he was taken to CHC Hospital, Shakti for treatment where he
died during the course of treatment. Based on the said report of
informant – complainant – Narayan Bareth (PW-2), who is also the eye
witness to the incident, FIR bearing Crime No. 322/17 for the offences
punishable under Sections 294, 506-B and 302 of the Indian Penal
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Code (henceforth “IPC“) were registered in Police Station Baradwar,
District Janjgir Champa. Inquest on the body of the deceased was
conducted vide Ex.P-3. Spot map was prepared by the Investigating
Officer vide Ex.P-5. On the basis of memorandum statement of
accused/appellant (Ex.P-10), one blood stained knife was seized from
the accused vide seizure memo (Ex.P-11), the accused was arrested on
01.12.2017 vide arrest memo (Ex.P-26). Site map was prepared vide
Ex.P-6. Statements of the witnesses were recorded, blood stained soil &
plain soil were recovered from the place of occurrence vide Ex.P-12.
The body of the deceased was sent for post mortem. Dr. Prashan Singh
Bais (PW-12), Medical Officer, CHC, Shakti, District Janjgir-Champa
conducted post mortem of the body and vide his report Ex.P-16, he
found following injuries :-
(1) Two wounds with stitches on face, first on frontal region
above brows in the size of 4 x0.5/1 cm. From the said injury,
the internal bond was visible, it was broken and there were
blood clots in that injury
(2) Deep swelling was present around the right eye. Bone
under right eye got fractured.
(3) The bone above the nose was fractured. Size of nose
injury was 2. 5 x0.5 x 3 cm deep. The said injury appears to
have been caused by a hard and sharp object.
(4) One cannula was present in left wrist.
On internal examination, the doctor found that there was a fracture
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in the skull and rest of head was normal. In the Opinion of the doctor, the
cause of death is extensive head injuries and internal bleeding leading
to obstruction of wind pipe, mode of death is asphyxia and nature of
death is homicidal. Jacket, full pant, full shirt and knife seized at the
instance of the appellant were sent to FSL, Bilaspur, human blood was
found on clothes and knife seized from the appellant.
4. After investigation, the police filed charge-sheet in the court of
Judicial Magistrate First Class, Shakti, who in turn, committed the case
to the Court of Sessions, from where first Upper Seesions Judge, Shakti
received the case on transfer for trial.
5. Charges were framed against the accused/appellant under
Sections 294, 506 part-II & 302 of the IPC and its contents were read
out and explained to him, he abjured his guilt and entered into defence
that he has not committed any offence and he has falsely been
implicated in crime in question.
6. In order to bring home the offence, the prosecution examined as
many as 16 witnesses and exhibited 34 documents. Statement of
accused under Section 313 of the Code of Criminal Procedure, was
recorded in which, he stated that he is innocent and has been falsely
implicated. Apart from this, the appellant examined himself as DW-1 and
one Udal Sidar (DW-2) and exhibited two documents as Exs. D-1 & D-2
in support of his defence.
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7. The trial Court upon appreciation of oral and documentary
evidence available on record, by its judgment dated 14 th September,
2021 has acquitted the appellant/accused of the offences under
Sections 294 & 506 part -II of the IPC whereas convicted him for offence
under Section 302 of the IPC and sentenced him as mentioned in
opening paragraph of this judgment. Against which, instant criminal
appeal has been filed.
8. Ms. Anjali Singh Chouhan, learned counsel appearing for the
appellant submits that the learned trial Court is absolutely unjustified in
convicting the appellant for offence under Section 302 of the IPC, as the
prosecution has failed to prove the offence beyond reasonable doubt.
He further submits that if the case of the prosecution is taken as it is,
then also the appellant is said to have caused injuries to the deceased in
spur of moment. There was no motive or intention on the part of the
appellant to cause death of the deceased and the dispute arose when
Nehru Shrivas (since deceased) and Narayan Baretj came came for
breakfast, at the same time, accused/appellant also came there for
breakfast and on account of some hot-talk with regard to their status in
the Village and only on account of sudden quarrel, under heat of passion
and in anger, the appellant caused injuries to the deceased, which
caused his death. Therefore, the case of the present appellant fall within
the purview of Exception 4 to Section 300 of IPC and the act of the
appellants is culpable homicide not amounting to murder and, therefore,
it is a fit case where the conviction of the appellant for offence under
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Section 302 of the IPC can be converted/altered to an offence under
Section 304 (Part-I or Part-II) of the IPC. Further, as appellant is in jail
since 01.12.2017 and he has completed near about 5 years and 9
months, therefore, considering the period he had already undergone, he
be awarded the sentence of the period already undergone by him.
Hence, the present appeal deserves to be allowed in full or in part.
9. On the other hand, Mr. Wasim Miyan, learned Panel Lawyer for the
respondent/State supports the impugned judgment and submits that it is
not a case where the appellant’s conviction under Section 302 of the IPC
can be altered/converted under Section 304 Part-I or Part-II of the IPC
and as such, the instant criminal appeal deserves to be dismissed.
10. We have heard learned counsel appearing for the parties,
considered their rival submissions made herein-above and also went
through the records with utmost circumspection.
11. The first question for consideration would be, whether death of
deceased was homicidal in nature ?
12. The trial Court after appreciating oral and documentary evidence
available on record particularly relying upon the statement of Dr.
Prashant Singh Bais (PW-12), who conducted postmortem, has come to
the conclusion that the cause of death is extensive head injuries and
internal bleeding leading to obstruction of wind pipe and death was
homicidal in nature. After hearing learned counsel for the parties and
after considering the submissions as also occular & documentary
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evidence available on record, we are of the considered opinion that the
finding recorded by the trial Court that death of deceased Nehru Shrivas
was homicidal in nature is the finding of fact based on evidence
available on record. It is neither perverse nor contrary to record. We
hereby affirm that finding.
13. Now, the next question for consideration would be whether the
accused-appellant herein is the perpetrator of the crime in question,
which the learned trial Court has recorded in affirmative by relying upon
the testimony of eye witnesses to the incident namely Koyal Patel
(PW-1) & Narayan (PW-2), other witnesses namely Sarita (PW-04), who
is wife of deceased, Ramwati (PW-03), who is mother of deceased &
Yadram (PW-5), who is uncle (Chaha) of the deceased.
14. Koyal Patel (PW-1) has stated in his court statement recorded on
oath that at the time of incident, Narayan Bareth (PW-2) and deceased
came in his shop, after sometime, appellant alongwith his two friends
also came there, whom he gave Bada Bhajiya. Subsequently, quarrel
took place between deceased and the appellant and they assaulted
each other. He has clearly stated in his deposition that appellant
assaulted on forehead of deceased by knife and, therefore, blood was
oozing out. He has further stated in his deposition that he called
Yaadram, who is uncle of deceased, and they took the deceased to the
Hospital, where he died. He has denied suggestion of learned defence
counsel that he has not seen the incident and assaulting the deceased
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by appellant, rather he has stated in cross-examination also that due to
assault made by appellant by knife, deceased fell on the road.
15. Narayan Bareth (PW-2), with whom deceased has gone in the
shop of Koyal Patel, and was present on the spot during incident, has
also supported the statement of Koyal Patel. He has stated in his
deposition that during scuffle between appellant and the deceased, he
pulled the deceased and friends of the appellant separated them from
him (Nehru Shrivas). Subsequently, appellant along with his friends
were going in the motorcycle, at that time, the deceased was abusing
and, therefore, appellant jumped from the motorcycle and assaulted the
deceased by knife on his head, thereafter, he informed uncle and mother
of deceased and took him to the Hospital. In cross-examination,
although this witness has admitted that deceased was in intoxicated
condition, but he has denied the suggestion of learned defence counsel
that there was darkness, therefore, he could not have seen the assault
made upon the deceased, rather in cross-examination also this witness
has clearly stated that the appellant came running and assaulted the
deceased by knife and, therefore, deceased had fell.
16. Although Koyal Patel (PW-1) and Narayan Bareth (PW-2) have
admitted in their cross-examination that on the date of their cross-
examination, brother of deceased had also come in the Court but only
because of their such admission, their statements cannot be discarded.
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17. Ramwati Shrivas (PW-3), who is mother of deceased, Sarita
(PW-4), who is wife of deceased and Yaadram Shrwas (PW-5), who is
uncle of the deceased. They have stated that on being informed about
the incident, they reached on the spot immediately and took the
deceased in the Hospital in injured condition where he succumbed to the
said injuries.
18. Although these witnesses are eye-witnesses to the incident, but
they immediately reached the spot and Ramwati Shrivas (PW-3) has
also stated that Narayan Bareth (PW-2) had informed that appellant
assaulted the deceased by knife.
19. Thus, Koyal Patel (PW-1) and Narayan Bareth (PW-2) have
supported the case of the prosecution stating that it is the appellant, who
assaulted the deceased by means of knife, as a result of which, he
sustained head injuries and succumbed to those injuries while treatment
in the hospital. Nothing has been elicited in cross-examination of
aforesaid witnesses to discard their aforesaid statements. Their
statements also get some support from deposition of Sarita (PW-4),
Ramvati (PW-3) and Yaadaram Yadav (PW-5), who immediately
reached on the spot and saw the deceased lying soaked in a blood with
injuries on his forehead.
20. On the basis of memorandum statement of appellant (Ex.P-10),
one Button Daar knife was seized from the appellant vide seizure memo
( Ex.P-11) and one jacket, which he was wearing was also seized from
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him by putting it off vide seizure memo Ex.P-13. These facts have been
supported by Investigating Officer C. Kerketta (PW-13), which has also
been supported by Babulal (PW-8) and Rewadas (PW-9). In FSL report
(Ex.P-25), in aforesaid two articles i.e. knife (A) and Jacket (B), blood
reported to be found and even in jacket (B), human blood has also been
reported to be found. These facts also support deposition of eye
witnesses that appellant assaulted the deceased, therefore, blood
stained knife and jacket were seized from him.
21. In instant case, appellant has examined himself as (DW-1) and
Chhotu Sidar (DW-2), who have only stated in their deposition that at the
time of incident, they were going from Baradwar to village Talwa and no
quarrel had taken place near the shop of Koyal Patel between deceased
and the appellant, but only on the basis of their plain statements,
deposition of eye-witnesses and other circumstances appearing against
the appellant cannot be discarded.
22. As such, in view of the foregoing discussion, we find that the trial
Court has rightly held vide its impugned judgment that it is the
appellant/accised, who has caused injuries over the body of deceased
by means of knife and caused his death. Accordingly, we hereby affirm
the said finding also.
23. The aforesaid finding brings us to the next question for
consideration, whether the case of the appellant is covered within
Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not
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amounting to murder and his conviction can be converted to Section 304
Part-I or Part-II of the IPC, as contended by learned counsel for the
appellant ?
24. The Supreme Court in the matter of Sukhbir Singh v. State of
Haryana 1 has observed as under:-
“21. Keeping in view the facts and circumstances of the
case, we are of the opinion that in the absence of the
existence of common object Sukhbir Singh is proved to
have committed the offence of culpable homicide without
premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and did not act in a cruel or
unusual manner and his case is covered by Exception 4
of Section 300 IPC which is punishable under Section 304
(Part I) IPC. The finding of the courts below holding the
aforesaid appellant guilty of offence of murder punishable
under Section 302 IPC is set aside and he is held guilty
for the commission of offence of culpable homicide not
amounting to murder punishable under Section 304 (Part
I) IPC and sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.5000. In default of
payment of fine, he shall undergo further rigorous
imprisonment for one year.”
25. The Supreme Court in the matter of Gurmukh Singh v. State of
Haryana 2 has laid down certain factors which are to be taken into
consideration before awarding appropriate sentence to the accused with
reference to Section 302 or Section 304 Part II of the IPC, which state as
under :-
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
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“23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case
has to be seen fro its special perspective. The relevant
factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur
of the moment;
(c) The intention/knowledge of the accused while
inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the
victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the
accused;
(g) Whether the injury was caused without
premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting
the injury and the force with which the blow was
inflicted;
(i) The criminal background and adverse history of
the accused;
(j) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the
death was because of shock;
(k) Number of other criminal cases pending against
the accused;
(l) Incident occurred within the family members or
close relations;
(m) The conduct and behaviour of the accused after
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the incident.
Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure that
he/she gets proper medical treatment ?
These are some of the factors which can be taken
into consideration while granting an appropriate
sentence to the accused.
24. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our considered view,
proper and appropriate sentence to the accused is the
bounded obligation and duty of the court. The endeavour
of the court must be to ensure that the accused receives
appropriate sentence, in other words, sentence should be
according to the gravity of the offence. These are some of
the relevant factors which are required to be kept in view
while convicting and sentencing the accused.”
26. Likewise, in the matter of State v. Sanjeev Nanda 3, their
Lordships of the Supreme Court have held that once knowledge that it
is likely to cause death is established but without any intention to
cause death, then jail sentence may be for a term which may extend
to 10 years or with fine or with both. It has further been held that to
make out an offence punishable under Section 304 Part II of the IPC,
the prosecution has to prove the death of the person in question and
such death was caused by the act of the accused and that he knew
that such act of his is likely to cause death.
27. Further, the Supreme Court in the matter of Arjun v. State
of Chhattisgarh 4 has elaborately dealt with the issue and observed in
paragraphs 20 and 21, which reads as under :-
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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“20. To invoke this Exception 4, the requirements that are to
be fulfilled have been laid down by this Court in Surinder
Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC
(Cri) 348], it has been explained as under :(SCC p. 220, para
7)
“7. To invoke this exception four requirements must be
satisfied, namely, (I) it was a sudden fight; (ii) there was
no premeditation; (iii) the act was done in a heat of
passion; and (iv) the assailant had not taken any undue
advantage or acted in a cruel manner. The cause of the
quarrel is not relevant nor its I relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a decisive
factor but what is important is that the occurrence must
have been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a person in
the heat of the moment picks up a weapon which is
handy and causes injuries, one of which proves fatal, he
would be entitled to the benefit of this exception
provided he has not acted cruelly.”
21. Further in Arumugam v. State [(2008) 15 SCC 590 :
(2009) 3 SCC (Cri) 1130], in support of the proposition of law
that under what circumstances Exception 4 to Section 300
IPC can be invoked if death is caused, it has been explained
as under : (SCC p. 596, para 9)
“9. …. ’18. The help of exception 4 can be invoked if
death is caused (a) without premeditation; (b) in a
sudden fight; (c) without the offender’s having taken
undue advantage or acted in a cruel or unusual manner;
and (d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that the
“fight” occurring in Exception 4 to Section 300 IPC is not
defined in the Penal Code, 1860. It takes two to make a
fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the
parties had worked themselves into a fury on account of
the verbal altercation in the beginning. A fight is a
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combat between two or more persons whether with or
without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it
is not sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that the offender has not taken undue advantage
or acted in cruel or unusual manner. The expression
“undue advantage” as used in the provisions means
“unfair advantage”.
28. In the matter of Arjun (supra), the Supreme Court has held that if
there is intent and knowledge, the same would be case of Section 304
Part-I of the IPC and if it is only a case of knowledge and not the
intention to cause murder and bodily injury, then same would be a
case of Section 304 Part-II of the IPC.
29. Further, the Supreme Court in the matter of Rambir v. State
(NCT of Delhi) 5 has laid down four ingredients which should be
tested to bring a case within the purview of Exception 4 to Section 300
of IPC, which reads as under:
“16. A plain reading of Exception 4 to Section 300 IPC
shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage
or acted in a cruel or unusual manner.”
30. Reverting to the facts of the present case in light of principles of
5 (2019) 6 SCC 122
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law laid down by their Lordships of the Supreme Court in the above-
stated judgments (supra), it is quite vivid that as per evidence of
eyewitness namely Koyal Patel (PW-1) and Narayan Bareth (PW-2),
deceased with his friend (Narayan Bareth) and appellant alongwith his
friends were present in the shop of Koyal Patel (PW-1) and have some
Bada Bhajiya. It is also apparent from the deposition of Narayan Bareth
(PW-2) that he and deceased had consumed liquor and, therefore,
deceased was in a heavy in-toxicated condition. It has also been proved
that due to trivial issue, deceased and appellant assaulted each other
and on being separated to them, appellant was going alongwith his
friends in the motorcycle, despite that the deceased was abusing him
and, therefore, appellant jumped from the motorcycle and assaulted the
deceased by means of knife, therefore, he sustained as many as four
injuries on his head and subsequently, he succumbed to the said injuries
in the hospital.
31. Facts and evidence brought on the record clearly demonstrate that
there was no premeditation on the part of the appellant to cause death
of deceased Nehur Shriwas and only because of some trivial dispute,
altercation took place between them and out of that anger and in heat of
passion, appellant assaulted the deceased by knife, resultantly, he
received grievous injuries on his vital part and succumbed to the injuries
in the hospital.
32. Injuries and weapon, by which, the injuries is caused by the
appellant further demonstrate that he must have had knowledge and
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intention that such injuries inflicted by him, that too, on his head may
likely to cause death of the deceased Nehru Shrivas, as such, his case
would fall within the purview of Exception 4 of Section 300 of IPC, as the
act of the appellant herein completely satisfies the four necessary
ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a
sudden fight; (ii) there was no premeditation; (iii) the act was committed
in a heat of passion and (iv) the appellant had not taken any undue
advantage or acted in a cruel or unusual manner.
33. In view of the aforesaid discussion, conviction of the appellant
under Section 302 of the IPC as well as the sentence awarded to him by
the learned trial Court is hereby set aside. Considering that there was
no premeditation on the part of the appellant to cause death of the
deceased but the injury caused by him was sufficient in the ordinary
course of nature to cause death, therefore, instead of Section 302 IPC,
the appellant is convicted for offence punishable under Section 304
Part-I of the IPC and award him the sentence of ten years rigorous
imprisonment and the fine sentence imposed by the learned trial Court
and other orders shall remain intact.
34. The appellant is stated to be in jail, he shall serve out the sentence
as modified by this Court.
35. The criminal appeal is partly allowed to the extent indicated herein-
above.
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36. Let a copy of this judgment and the original record be transmitted
to the trial court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(N.K. Chandravanshi) (Ramesh Sinha)
Judge Chief Justice
Dubey/-
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