Partly allowed

Gokal Ram v. State

Rajasthan HC1 Aug 2022CRLA/134/1990

Case brief

AI extract

What is this about?

High Court of Rajasthan disposed two criminal appeals challenging convictions for murder and hurt. Ghewar Ram's appeal was dismissed as deceased with no sentence consequences. Gokal Ram's appeal was partly allowed, maintaining conviction but granting probation with a bond.

What did the court decide?

Gokal Ram released on probation of good conduct for two years under Section 4 of the Probation of Offenders Act, 1958 with a personal bond of Rs. 3,00,000/- in the sum and two sureties of Rs. 1,00,000

Gokal Ram Vs State — Pension and Retirement Benefits | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 110/1990

Lrs Of Ghewar Ram

----Appellant

Versus

State	----Respondent
S.B	Connected With . Criminal Appeal No. 134/1990
Gokal Ram	----Appellant Versus
State	----Respondent
For Appellant(s)	: Mr. Jagmal Singh Choudhary, Sr. Adv. Assisted by Mr. Pradeep Choudhary. Mr. Deepak Bishnoi
For Respondent(s)	: Mr. Mahipal Bishnoi,P.P.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 27/07/2022 Pronounced on 01/08/2022

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These Criminal Appeal under Section 374 Cr.P.C. have been

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preferred praying for the following reliefs:-

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In S.B. Criminal Appeal No. 110 of 1990:-

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“It is, therefore, prayed that this Hon’ble court will be pleased to send for the record of the court below, peruse the same and after perusal, quash the conviction and sentences passed against the appellant, pass any other Orders that this Hon’ble court deems fit and proper.”

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(2 of 12)

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[CRLA-110/1990]

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In S.B. Criminal Appeal No. 134/1990:-

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“ It is, therefore, most respectfully prayed that the appeal of the appellant may kindly be allowed, the conviction and sentence passed by the learned Sessions Judge against the appellant be set aside and he may kindly be acquitted of the charges levelled against him.”

¶18

The matter pertains to an incident that occurred in the year 1985 and the present appeal has been pending since 1990. 3. The Criminal Appeals both arise out of a common controversy and assail the judgment, dated 30.03.1990, passed by the learned Sessions Court below. Brief facts of the case, as placed before this Court, are that on 07.03.1985, the complainant Jor Singh, lodged an F.I.R. at Police Station Peepad City, alleging therein that on that day, at about 10/11 a.m. while Ghewar Ram and Gokal Ram, the accused appellants herein, and two other persons, Poona Ram and Khangar @ Khangara Ram, during the ceremony of distribution of ‘ charnamrit’ at the temple of Bishnois (at Dharamshala / temple at village Ramdawas), were not allowed to participate in the same, due to some outstanding dues towards some penalty on them, which remained unpaid, the accused returned to the scene with firearms, and assaulted certain persons, resulting in injuries to P.W. 2 Munna Ram, P.W. 8 Khangara ram, P.W. 13 Bagra Ram and P.W.15 Hanuta Ram, while the brother of the complainant, Manohar Singh, died as a result of injuries sustained by him during the said incident in question.

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3.1 Charges for the offences under Section 302 and 307 I.P.C. along with 3/27 Arms Act, 1959 were levelled against the

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(3 of 12)

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[CRLA-110/1990]

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accused appellants, while those for the offences under Sections 302/34, 307/34 and 323 I.P.C. were levelled against the other two aforementioned persons.

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3.2 And that, subsequently, Poona Ram and Khangar Ram were acquitted from all the charges levelled against them therein, and while Ghewar Ram and Gokal Ram were acquitted for the offences under Sections 302 and 307 I.P.C., Ghewar Ram was convicted for the offence under Section 304 II I.P.C and Section 27 Arms Act and Gokal Ram was convicted for the offence under Section 324 I.P.C. and Section 27 of the Arms Act, 1959.

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3.3 Ghewar Ram was sentenced to 6 years R.I. along with a fine of Rs. 50/- in default of payment of which he was to undergo further 1 month R.I. and 2 years R.I. along with a fine of Rs. 50/- in default of payment of which he was to further undergo 1 month R.I., respectively, for the offences as above mentioned. While Gokal Ram was sentened to 1 year R.I. and 2 years R.I. along with a fine of Rs.50/- respectively for the offences as above mentioned.

¶25

Learned counsel for the appellant in S.B. Criminal Appeal No. 110 of 1990 (hereinafter referred to as “the first appellant”) Mr Deepak Bishnoi submits that Ghewar Ram filed a counter F.I.R. on the very same day as that of the complainant alleging firing of weapons by the deceased, Manohar Singh, and that 9 accused persons were named therein.

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4.1 It is further submitted that learned Court below erred in passing the order impugned, on the basis of the evidences placed on the record, as the testimonies of the prosecution

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(4 of 12)

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[CRLA-110/1990]

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witnesses are rife with contradictions. Furthermore, that the village was divided into two factions, and given that the prosecution witnesses belonged to the other faction, it makes their testimonies all the more unreliable.

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4.2 It is also submitted that the accused also sustained injuries as the result of the scuffle that broke out on the day of the incident in question, and that the same was not fully considered by the learned Court below before arriving at the conviction of the accused appellants herein. And that, the same is evident from the fact that the learned Court below constituted a Board to examine the injuries sustained by the accused, which stated that the accused also suffered injuries as a result of firearms being shot at them, in contradiction of the medical testimony given by P.W. 1 Dr Dinesh Purohit who stated that the accused only had injuries from blunt weapons.

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4.3 It is further submitted that the deceased was the aggressor, as also averred in the counter F.I.R. filed by the first appellant, and that the appellant acted in his right of self defence.

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4.4 It is also submitted that the bullet which resulted in the death of the deceased, Manohar Singh is not attributable to the first appellant, given that both parties, inclusive of multiple persons opened fire at each other, and therefore, singling out the first appellant and convicting him for the same, in the light of cogent evidence for the same, is unsustainable in the eye of law. And that, neither are the ingredients for a conviction under Section 304 II I.P.C. made out against the accused first appellant, as he did have the intention nor the knowledge to

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(5 of 12)

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[CRLA-110/1990]

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cause the death of Manohar Singh, as is the case of the prosecution.

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4.5 It is also submitted that the learned Court below rightly appreciated the evidence and acquitted the other accused persons, as abovementioned and although the accusedappellants were on the same pedestal as them, were incorrectly convicted for the offences as abovementioned, and that the order impugned therefore deserves to be quashed to the extent of their conviction.

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4.6 It is also submitted that the first appellant, Ghewar Ram, was granted bail by this Hon’ble Court on 02.04.1990 in S.B. Criminal Misc. Bail Application No. 119/1990 (in S.B. Criminal Appeal No. 110/1990). And that, he passed away during the pendency of the appeal, and that on 23.02.2017 this Court was informed of his demise, and his legal representatives were taken on record, vide order of this Hon’ble Court on 07.03.2017 and therefore, the appeal survives.

¶38

4.7 It is also submitted that the first appellant has suffered as a consequence of the errant conviction against him vide the impugned order, and was dismissed from service, on 13.06.1995.

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Mr. Jagmal Singh Choudhary, learned Senior Counsel assisted by Mr. Pradeep Choudhary, appearing on behalf of the appellant in S.B. Criminal Appeal No. 134 of 1990 (hereinafter referred to as “the second appellant”) submitted that the learned Court below has erred in convicting the second appellant on the basis of unreliable witness testimony.

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(6 of 12)

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[CRLA-110/1990]

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5.1 It is further submitted that it was deposed by P.W. 2 Muna Ram and P.W. 3 Harlal that the second appellant was standing at the chabutra of the temple during the incident in question, but neither of them made any such statement before the police, evident from Ex.D/3 and Ex.D/4, respectively.

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5.2 It is also submitted that in similar manner, the testimonies of witnesses P.W. 3 Khangar Ram and P.W. 13 Bangda Ram should be thrown out and disbelieved owing to the fact that the averments made by them therein were not made by them in the statements made to the police, at Ex. D/5 and Ex. D/7, and are therefore concocted and false.

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5.3 It is further submitted that the testimonies of the witnesses, as above mentioned, are contradictory as to the type of the weapon that the second appellant was allegedly armed with, and therefore the offence against the second appellant for the offences under Section 324 I.P.C. and Section 27 Arms Act, 1959 is not proven beyond all reasonable doubt.

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5.4 It is also submitted that the testimony of P.W. 19 Sajjan Sinh reveals that no bullet shells were recovered from the chabutra , further poking holes in the version of the prosecution as to the involvement of the second appellant in the incident in question.

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5.5 It is further submitted that the scuffle that broke out between the parties, was also owing to an old rivalry between the two factions in the village, and therefore the testimony of prosecution witnesses, already rife with contradictions, should be disbelieved on the said ground.

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(7 of 12)

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[CRLA-110/1990]

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5.6 It is also submitted that the second appellant, Gokal Ram, was granted bail by this Hon’ble Court on 25.04.1990 in S.B. Criminal Misc. Bail Application No. 141/1990 (in S.B. Criminal Appeal No. 134/1990).

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5.7 Learned Senior Counsel placed reliance on the judgment of this Hon’ble Court in S.B. Criminal Revision Petition No. 1084/2015 titled Shivchand and Ors. Vs. State of Rajasthan and Anr.

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5.8 Learned Senior Counsel for the second appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’ ).

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“4. Power of court to release certain offenders on probation of good conduct.—

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(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

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(8 of 12)

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[CRLA-110/1990]

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(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)…

(4)…

(5)... ”

Learned Counsel for the accused-appellants submits that the accused-appellants do not have any criminal antecedents to their discredit.

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On the other hand, learned Public Prosecutor opposes the submissions made on behalf of the accused-appellants, and submits that the learned Court below has rightly passed the impugned judgment after looking into the facts and circumstances of the present case, and the evidences placed on the record.

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Heard learned counsel for both parties, and perused the record of the case.

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This Court observes that looking into the evidences placed on the record, finds that the learned Court below has rightly proceeded with the conviction of the accused-appellants herein, and that the prosecution was able to prove its case beyond reasonable doubt.

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This Court further observes that the learned Court below, has fairly convicted the accused-appellant Ghewar Ram for the offence under Section 304 II I.P.C. and Section 27 of the Arms Act 1959, and rightly rejected the argument that no intention or motive existed on the part of the said accused appellant, as the same was baseless and without merit, owing to the facts and circumstances of the present case.

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(9 of 12) [CRLA-110/1990]

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This Court also observes that the submissions advanced on behalf of the accused-appellant Gokal Ram do not satisfy this Court to merit interference with regard to his conviction, nor bring his case within the realm of reasonable doubt to merit conviction, and the learned Court below has rightly proceeded in convicting him for the offence under Section 324 I.P.C. and the same has been proven against him, with the assistance of medical evidence and witness testimonies. Minor inconsistencies in the same, do not warrant fully disregarding the same.

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This Court takes into consideration the following judgments;

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12.1 In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC , the Hon’ble Apex Court observed as under:-

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“ The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society . In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society.”

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12.2 In Brij Lal Vs. State of Rajasthan RLW 2002 Raj 945 , a Coordinate Bench of this Court observed as under:-

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(10 of 12)

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[CRLA-110/1990]

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“ Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... ”

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12.3 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under:-

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“… The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient...”

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12.4 In Lakhvir Singh and Ors. Vs. The State of Punjab and

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Ors. (2021) 2 SCC 763 wherein the Hon’ble Apex Court of India, with regard to the application of the Probation of Offenders Act, 1958 vis-a-vis those Acts wherein a minimum sentence of imprisonment has been prescribed by the legislature, observed as under:-

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“Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where

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(11 of 12)

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[CRLA-110/1990]

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a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context.”

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This Court observes that there is no material on record that the second appellant have any criminal antecedents. 14. As an upshot of the above discussion, the conviction of accused-appellant, now deceased Ghewar Ram is maintained, and the impugned judgment is upheld, to the said extent and therefore S.B. Criminal Appeal No. 110/1990 is dismissed . However, owing to the fact that Ghewar Ram passed away during the pendency of the appeal, no consequential order with regard to his sentence is required to be passed.

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However, this Court after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon’ble Apex Court in Arvind Mohan (supra), Mohd. Hashim (supra) and in Lakhvir Singh , and by this Hon’ble Court in Brij

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(12 of 12)

¶85

[CRLA-110/1990]

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Lal (supra) deems it appropriate to extend the benefit of the Act to the accused-appellant, Gokal Ram, and therefore S.B. Criminal

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Appeal No. 134/1990 is partly allowed . While maintaining the conviction of the accused-appellant for the offences under Section 324 IPC and Section 27 Arms Act, 1959, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, with respect to the said appellant, Gokal Ram, in S.B. Criminal Appeal No. 134/1990, and directs that the appellant, Gokal Ram shall be released on probation, under Section 4 of the Act , upon his furnishing a personal bond in the sum of Rs.3,00,000/and two sureties in the sum of Rs.1,00,000/- each to the satisfaction of the learned trial court with a further undertaking that he shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellant is on bail. He need not surrender. His bail bonds stand discharged accordingly.

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All pending applications, if any, stand disposed of. Record of the learned court below be sent back forthwith.

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(DR.PUSHPENDRA SINGH BHATI), J.

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Skant/-

Gokal Ram v. State

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Gokal Ram v. State

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