Gujarat High Court
State Of Gujarat vs Gopalbhai Sidhabhai Sabhad (Bharvad) on 5 March, 2025
NEUTRAL CITATION
R/CR.A/1504/2009 JUDGMENT DATED: 05/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1504 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
GOPALBHAI SIDHABHAI SABHAD (BHARVAD) & ANR.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Appellant(s) No. 1
MR. BHARGAV PANDYA, APP for the appellant(s) no. 1
MR KUNAL S SHAH(5282) for the Opponent(s)/Respondent(s) No. 2
MR. KISHAN H DAIYA(6929) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/03/2025
ORAL JUDGMENT
1. The present present appeal is filed by the appellant
State under Section 378(1)(3) of the Code of Criminal
Procedure, 1973 against the judgement and order of
acquittal passed by the learned 3rd Additional District and
Sessions Judge, Surat (hereinafter referred to as “the
learned Trial Court”) in Special Atrocity Case No. 16/2007
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on 01.06.2009, whereby, the learned Trial Court has
acquitted the respondents for the offence punishable under
Sections 143, 147, 148, 149, 323, 325, 504 and 337 of IPC
and Sections 3(1)(10) of Schedule Caste and Schedule
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as “the Atrocities Act”).
1.1 The respondents are hereinafter referred to as “the
accused” as they stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The complainant – Jitubhai Dahyabhai Rathod has
filed the complaint on 17.03.2007 stating that Deepakbhai
Pravinchandra Vyas has a lease for sand mining next to his
lease and on 17.03.2007, while he was at his lease along
with Nanubhai Magjibhai Dodiya Patel, Kamabhai Delad,
Punabhai and Bikhubhai; Deepakbhai Vyas and his men
including Chandubhai Govindbhai Odh and Gopalbhai
Dodiyabhai came and abused him and used caste slurs.
That they threw stones and Deepakbhai Vyas had a stick in
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his hand and he gave three blows with the stick to him out
of which one blow was on the head and two blows were on
the hands. That they assaulted the other men with fists and
also assaulted Nanubhai with a stick and broke his left
hand and abused all of them. At that time, persons working
at the place of Dhirubhai Dahyabhai Rathod came and
saved them and they were taken for treatment to the
Government Hospital at Kamrej. The complainant filed the
complaint at Kamrej Police Station which was registered at I
– C.R. No. 64/2007 under Sections 143, 147, 148, 149, 323,
325, 337 and 504 of the IPC and Section 3(1)(10) of the
Atrocities Act.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Court of Chief Judicial
Magistrate, Surat and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Sessions Court, Surat as per
the provisions of Section 209 of Code of Criminal Procedure
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and the case was registered as Special Atrocity Case No.
16/2007.
2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and it
was verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code and a charge at Exh. 10 was framed against the
accused and the statements of the accused were recorded at
Exhs. 11 and 12 respectively, wherein, both the accused
denied the contents of the charge and the entire evidence of
the prosecution was taken on record.
2.4 The prosecution produced the following evidence to
bring home the charge against the accused.
ORAL EVIDENCE
Sr. No. PW Name of the witness Exh.
1 1 Ketanbhai Keshavlal 17
2 2 Champakbhai Thakorbhai 15
3 3 Rahulkumar Govindbhai Rathod 17
4 4 Rahulkumar Govindbhai Rathod 19
5 5 Jayantilal Kuvarji Gajjar 22
6 6 Amitbhai Ranchhodbhai Oza 26
7 7 Jitubhai Dahyabhai Rathod 29
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8 8 Nanubhai Magjibhai 34
9 9 Punabhai Gurujibhai Rathod 37
10 10 Vikeshbhai Gokulbhai Rathod 38
11 11 Ashokumar Ramjibhai Chaudhary 39
12 12 Shantilal Baburav Chaudhary 45
13 13 Hasmukhbhai Sartanbhai Ninama 48
DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
1 Panchnama of place of offence 14
2 Panchnama 16
3 Panchnama 20
4 Arrest panchnama of accused no. 1 21
5 Medical Certificate of the complainant 23
6 Medical Certificate of Nanubhai 24
Maganbhai
7 Medical Certificate of Jitendrabhai 27
8 Complaint 30
9 Caste Certificate 31
10 Arrest panchnama of accused no. 2 40
11 Medical Certificate of Nanubhai 49
Maganbhai
12 Dying Declaration 47
2.5 After the learned APP filed the closing pursis, the
further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein,
the accused denied all the evidence of the prosecution on
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record. The accused refused to step into the witness box or
examine witnesses on their behalf and stated that a false
case has been filed against them. After the arguments of the
learned APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit all the accused from the
charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant – State has
filed the present appeal mainly stating that the impugned
judgment and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
during the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
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reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya, learned
advocate Mr. K.H. Daiya for the respondent no. 1, learned
advocate Mr. Kunal Shah for respondent no. 2 and learned
advocate Mr. Sandip Patel for learned advocate Mr. Vaibhav
Vyas on behalf of the original complainant. Perused the
impugned judgement and order of acquittal and have
reappreciated the entire evidence of the prosecution on
record of the case.
5. Learned APP Mr. Bhargav Pandya jointly with learned
advocate Mr. Sandip Patel for learned advocate Mr. Vaibhav
Vyas have taken this Court through the entire evidence of
the prosecution on record of the case and submitted that
the complainant has fully supported the facts of his
complaint. The impugned judgement and order is perverse
and learned APP and learned advocate has urged this Court
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to quashed and set aside the same and find the respondents
guilty for the offences.
6. Learned advocate Mr. K.H. Daiya for the respondent
no. 1 and learned advocate Mr. Kunal Shah for respondent
no. 2 have submitted that the learned Trial Court has
appreciated all the evidences and has passed the impugned
judgement and order of acquittal which is just and proper
and no interference is required in the same. Learned
advocate for the respondents has urged this Court to reject
the appeal of the appellants.
7. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court in the case of Chandrappa
& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this
Court stated:
“While deciding an appeal against acquittal, the power of
the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence.
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However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should
assign reasons for differing with the decision of the trial
court”.
From the above decisions, in our considered view, the
following general principles regarding powers of appellate
Court while dealing with an appeal against an order of
acquittal emerge;
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before it may
reach its own conclusion, both on questions of fact and of
law;
(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’, ‘very
strong circumstances’, ‘distorted conclusions’, ‘glaring
mistakes’, etc. are not intended to curtail extensive powers
of an appellate Court in an appeal against acquittal. Such
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phraseologies are more in the nature of ‘flourishes of
language’ to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.
8. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is a presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. That the
learned Trial Court has appreciated all the evidence and
when the learned Trial Court has come to a conclusion that
the prosecution has not proved the case beyond reasonable
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doubts, the presumption of innocence in favour of the
accused gets strengthened. That there is no inhibition to re
appreciate the evidence by the Appellate Court but if after
re appreciation, the view taken by the learned Trial Court
was a possible view, there is no reason for the Appellate
Court to interfere in the same.
9. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 – Ketanbhai Keshavlal at
Exh. 13 and the witness is the panch witness of the
panchnama of the place of offence, which is produced at
Exh. 14
9.1 The prosecution has examined PW2 – Champakbhai
Thakorbhai at Exh. 15 and the witness is the panch
witness of the panchama produced at Exh. 16, whereby,
the clothes of the complainant were seized by the
Investigating Officer during investigation.
9.2 The prosecution has examined Rahulkumar
Govindbhai Rathod as PW3 and PW4 at Exhs. 17 and 19
and the witness is the panch witness of the panchama
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produced at Exh. 18 which is the reconstruction
panchnama where the accused no. 2 showed the place of
offence and the panchnama at Exh. 19 whereby the
accused no. 1 showed the place of offence.
9.3 The prosecution has examined PW5 – Dr. Jayantilal
Kuwarjibhai Gajjar at Exh. 22 and the witness is the
Medical Officer who was present at Community Health
Centre, Kamrej on the date of the incident. The witness has
stated that at 02.45 in the afternoon, Jitubhai Rathod came
for treatment and in the history, he had stated that he was
assaulted today at around 01.00 pm to 01.30 pm on the
banks of Tapi River near the Gans Machhi village by 15 to
20 unidentified persons with sticks. On examination, the
patient was conscious and he had the following injuries.
1. Tenderness with swelling on left forearm lower
1/3 region? Fracture Ulna radius
2. Abrasion on right grat toe on dorsal aspect 2 cm
in O clotted blood stain.
3. Abrasion on right 2nd toe on dorsal and medial
side 1 cm in O clotted blood stain.
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The injuries were sustained by hard and blunt
substance and the injured was referred to New Civil
Hospital for further orthopaedic opinion and treatment. The
medical certificate of the complainant is produced at Exh.
23. During the cross-examination, the witness has stated
that in the history it was stated that unknown persons had
assaulted him.
9.4 The prosecution has examined PW6 – Dr. Amitbhai
Ranchhodbhai Oza at Exh. 26 and the witness has stated
that on 17.03.2007, he was working as a Medical Officer at
Sardar Smarak Hospital at Bardoli when Jitubhai Thakor
was brought to him for treatment with alleged history of
assault injury by sticks by Mr. Dipakbhai Vyas at around
01.30 pm at Diga, Taluka Kamrej. He has four to six
stitches on the head and bandage and he had complained
to pain in left palm. The injuries could be sustained by
hard and blunt substance. During the cross-examination,
the witness has admitted that the injuries were simple and
could be sustained by a fall.
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9.5 The prosecution has examined PW7 – Jitubhai
Dahyabhai Rathod at Exh. 29 and the witness has stated
that on 17.03.2007, he was having his lunch and Deepak
Vyas, Govindbhai Odh and Gopalbhai Shivrambhai came
and abused them and hurled caste slurs to them. All of
them had sticks with them and they assaulted him with the
sticks. Nanubhai was also assaulted and his hand was
fractured. That as his injury on his head started bleeding,
all of them ran away and they were taken to the
Government Hospital, Kamrej for treatment. The
complainant filed the complaint which is produced at Exh.
30. During the cross-examination, the witness has stated
that his mother Bhikhiben has a lease at Machhi village
and he is doing the administration of that lease. That one
blow was hit to him on the head and four blows were given
on the back by Deepakbhai Chandubhai and Gopalbhai.
That he did not inform the doctor the names of the persons
had assaulted him and his complaint was recorded at the
hospital. That he had filed a complaint against Deepakbhai
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Vyas, Gopalbhai, Chandubhai, Govindbhai and two other
persons whose name he does not remember.
9.6 The prosecution has examined PW8 – Nanubhai
Magjibhai at Exh. 34 and the witness is an eye witness to
the incident and he has stated that he is working on a
salary of Rs. 100/- per day with Jitubhai at his sand
mining lease on the banks of Tapi River and on 17.03.2007
at around 01.30 pm, they along with the others were having
their lunch when Deepakbhai Vyas, Chandubhai
Govindbhai, Gopalbhai and other persons came and started
abusing them. That they threw stones and the labourers
ran away and took sticks and assaulted him and
Bhikhubhai and Jitubhai was injured on the head and he
was assaulted on the hand and they were taken to the
Government Hospital at Kamrej for treatment and
thereafter to Bardoli for further treatment. During the
cross-examination, the witness stated that at the time of
the incident, the sand was not properly filled and Jitubhai
was abusing everyone. That there are many lease
surrounding the lease of Bhikhiben and the lease of Deepak
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Vyas is on the west side of the lease of Bhikhiben. That
Deepakbhai Vyas was present at the time of the incident
and he had given the blows with a stick to Jitubhai. That
before the Medical Officer, he has stated that 15 to 20
unknown persons and assaulted them.
9.7 The prosecution has examined PW9 – Punabhai
Gurujibhai Rathod at Exh. 37 and the witness is the eye
witness to the incident who has stated that on 17.03.2007
at around 01.30 pm, he was present at the place of incident
along with Bhikhabhai, Nanubhai, Somabhai, Jitubhai, etc.
and Jitubhai was shouting at the labourers and Gopalbhai
thought that he was abusing him. The accused had sticks
and five persons including Deepakbhai, Gopalbhai,
Chandubhai and four to five others came and Deepak Vyas
hit a stick on the head of Jitubhai and on his left hand.
Nanubhai was also injured on his left hand and his hand
was fractured and both them were taken to the Government
Hospital, Kamrej for treatment. During the cross-
examination by the learned advocate for the accused, the
witness stated that five persons from Kathiyawad came and
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assaulted Jitubhai and he does not know who those
persons from Kathiyawad were. That in his statement
before the police, he has not stated the names of the
accused and Jitubhai was assaulted by Deepak Vyas with a
stick. That Deepakbhai has the lease adjacent to the lease
of Bhikhiben and both the lease are in water.
9.8 The prosecution has examined PW10 – Vikeshbhai
Gokulbhai Rathod at Exh. 38 and the witness is an eye
witness to the incident who has stated that on 17.03.2007
at around 01.30 pm, Jitubhai was shouting at them and at
that time, five persons who looked like they were from
Kathiyawad came and they thought that Jitubhai was
abusing them and they took sticks and assaulted Jitubhai
who was injured on the head and on the left hand.
Nanubhai intervened and he too was injured on the left
hand. The five persons included Gopalbhai, Deepak Vyas,
Chandubhai and Govindbhai hurled caste abuses. During
the cross-examination, the witness has stated that he
knows Deepakbhai by name and in his statement before the
police, he had stated that he does not know any of the
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accused persons. That he has not stated before the police
that the accused had used caste slurs.
9.9 The prosecution has examined PW11 – Ashokumar
Ramjibhai Chaudhary at Exh. 39 and the witness is the
Mamlatdar who has given the Caste Certificate of the
complainant. During the cross-examination, the witness
has admitted that the caste certificate is given on the basis
of the school leaving certificate.
9.10 The prosecution has examined PW12 – Shantilal
Baburav Chaudhary at Exh. 45 and the witness is the
Executive Magistrate who has recorded the dying
declaration of the complainant which is produced at Exh.
47. During the cross-examination, the witness has stated
that when he went to record the dying declaration, the
complainant was fully conscious and he could roam about
on his own.
9.11 The prosecution has examined PW13 – Hasmukhbhai
Sartanbhai Ninama at Exh. 48 and the witness is the
Investigating Officer who has investigated the offence and
has narrated in detail the procedure that was undertaken
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by him during investigation. During the cross-examination
by the learned advocate for the accused, the witness has
stated that the complainant had stated the name of Deepak
Praveenchandra Vyas but he is not in the charge-sheet as
an accused. The complainant has also stated that Deepak
Pravinchandra Vyas had given him five blows with the stick
and witness Nanubhai had also stated the same facts. The
complainant did not state the exact words that were used
by the accused and the lease of the complainant is on the
banks of River Tapi. Dahyabhai Naranbhai Machhi – the
father of the complainant was a Sarpanch of Machhi village
earlier and the complainant was a member and Bhikhiben –
the mother of the complainant was the President of Kamrej
Taluka and the complainant and all his family members are
political leaders in Kamrej area. There is a lot of
competition in the lease business and the lease of Deepak
Vyas is also situated at the same place. That the witnesses
have not stated that the accused used any caste slurs and
no charge-sheet is filed against Deepak Vyas. The accused
no. 1 – Gopal Bharwad is a member of the Bakshi Panch.
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10. On minute dissection of the entire evidence of the
prosecution, the infirmities in the evidence of the
prosecution have come on record and the complaint is filed
against 15 to 20 persons but the charge-sheet is filed only
against two persons. In the evidence of the complainant
and the other witnesses, the main allegation is made
against Deepak Vyas who has assaulted the complainant
and the injured witness with sticks and the complainant
has categorically stated that Deepak Vyas gave him five
blows but the charge-sheet is not filed against Deepak
Vyas. The complainant has stated that 15 to 20 persons
including the accused and Deepak Vyas had assaulted him
with a stick but if the medical evidence about the injuries
sustained by complainant are perused, they are all simple
injuries and no grievous injuries were sustained by the
complainant. In the evidence of the Investigating Officer, it
has come on record that the complainant was a politically
well-known person in Kamrej area and it appears on the
date of the incident that he was abusing his workers and
due to a misunderstanding the accused and others came;
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and they had a scuffle but it appears that the complainant
has exaggerated the incident. Moreover, it has come on
record that the lease of Deepak Vyas is near the lease of
Bhikhiben – the mother of the complainant and the
complainant is doing the administration of the lease and
was well known to the accused and Deepak Vyas but in the
history before the Medical Officer, he has not named any of
the assailants and has mainly stated that 15 to 20 persons
had assaulted him. Looking to the injuries of the
complainant, it appears that if 15 to 20 persons would have
assaulted him with sticks, he would have sustained many
more grievous injuries and even the say of the complainant
that five blows were given to him out of which one blow was
on the head and the remaining blows were on the hand and
back, no such injuries were found by the Medical Officer.
Moreover, the words uttered by specific accused have not
come record and the witnesses have also not stated what
were the caste slurs and abuses used by the accused.
11. In view of the settled position of law in the decisions of
Chandrappa (supra) the learned Trial Court has
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appreciated the entire evidence in proper perspective and
there does not appear to be any infirmity and illegality in
the impugned judgment and order of acquittal. The learned
Trial Court has appreciated all the evidence and this Court
is of the considered opinion that the learned Trial Court
was completely justified in acquitting the accused of the
charges leveled against them. The findings recorded by the
learned Trial Court are absolutely just and proper and no
illegality or infirmity has been committed by the learned
Trial Court and this Court is in complete agreement with
the findings, ultimate conclusion and the resultant order of
acquittal recorded by the learned Trial Court. This Court
finds no reason to interfere with the impugned judgment
and order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
12. The impugned judgement and order of acquittal
passed by the learned 3rd Additional District and Sessions
Judge, Surat in Special Atrocity Case No. 16/2007 on
01.06.2009, is hereby confirmed.
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NEUTRAL CITATION
R/CR.A/1504/2009 JUDGMENT DATED: 05/03/2025
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13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
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