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IN THE COURT OF IV ADDL. CHIEF METROPOLITAN MAGISTRATECUM
ADDITIONAL MAHILA MAGISTRATE, VIJAYAWADA.
Present: Dr. Y. BINDU MADHAVI,
IV Addl. Chief Metropolitan MagistratecumAddl. Mahila Magistrate, Vijayawada.
Tuesday, this the 27th day of December, 2022
C.C No. 99 of 2016
Between: The State: Rep.by SubInspector of police, Kankipadu P.S., Vijayawada City. …Complainant
And
Gudise Kristu Raju @ Elisela Raju, S/o. Bala Raju, aged 40 years, Mala, R/o. Door No.135, Tammalampadu Village, Janardhanapuram Panchayat, Pedaparupudi Mandal, Krishna District … Accused This case is coming on 16122022 for final hearing before me in the presence of the Learned APP for the State and of Smt. Malathi, learned counsel for the accused and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The SubInspector of Police, Kankiipadu, police station laid charge sheet against the accused in Crime No.7/2016 for the offence punishable U/Sec.354B, 509 & 506 of IPC.
02.Before adverting to the brief facts of the prosecution case, it is germane to mention the brief history of the case. Originally the charge sheet was laid by arraying the accused U/Secs.354B, 506 and 509 of IPC.
After adducing the evidence of the defacto complainant as Pw.1, the learned APP has filed a petition vide Crl.M.P.No.1419/2018 U/Sec.216 of
Cr.P.C. for adding the charges U/Secs.354, 354A of IPC. Accordingly, the said petition was allowed vide its orders dated 24.06.2018 by adding charges U/Secs.354, 354A of IPC while deleting the charges U/Secs.509 and 354B of IPC. Thus, the charges were framed on 08.05.2018 for the offence punishable U/Secs.354, 354A of IPC. Nevertheless, the original charges were framed on 09.01.2018 for the offence punishable
U/Secs.354B, 509, 506 of IPC. As stated supra Sections 354B, 509 of
IPC were deleted. Thus, it was then coming for consideration before this court for charges U/Secs.354, 354A and 506 of IPC. It is pertinent to mention that this Court has disposed of the case by the learned predecessors predecessor in office by convicting the accused for the offence punishable U/Sec.354B IPC while acquitting under sections 509 and 506 2
IPC (due to inadvertence, the accused was convicted on the deleted charge)
Aggrieved by the same, the accused preferred appeal against the judgment
dated 12.09.2018. The Honorable VII Additional District and Sessions
Judge, Vijayawada by its judgment remanded the matter to dispose of the
Crl.M.P.No.836/2018 which was filed by the learned counsel for the
accused to recall Pw.1, since the said petition was kept pending,
pronounced the Judgment. Accordingly, this court after giving opportunity
to the accused to cross examine Pw.1, heard arguments and posted for
Judgment.
03.Now the brief facts of the case are as follows: that the defecto complainant is the resident of Tenneru Village, Kankipadu Mandal. On 05.01.2016 during the earlier hours, after completion of the prayer, while she was proceeding to her house at Tenneru from Jagannadhapuram
Village, at about 5.00 am, the accused followed her from Tenneru
Ankalamma Temple, spoke to her in an indecent manner and with filthy language, caught hold of her hand and pulled her. She escaped from him and while she was proceeding to her house, the accused followed her for 30 minutes and made her to on the road and caused fear to defacto complainant. At that time Pw.2 who is her villager proceeding from
Komatigunta Locks side on his motorcycle, she stopped him and informed about the behaviour of the accused. The accused escaped from the scene.
Thereafter, Pw.2 dropped the defacto complainant on his motorcycle at her house and informed about the incident to her husband/Pw.3. Pw.4 and
Pw.5 were very much present at the scene at the time of incident.
04.On 09.01.2016 at about 9:30 p.m., Pw.1 came to the police station and presented the report. Basing on the report of Pw.1, Pw.6/HC 710 registered the same as case Cr.No.7/2016 under sections 354B, 509 & 506 of IPC. She conducted the investigation, inspected the scene of offence, prepared rough sketch, examined the witnesses under section 161 of Cr.P.C. and recorded their statements, followed the arrest procedure under section 41A of Cr.P.C. and after completion of the investigation,
Pw.7/SI of Police laid the charge sheet.
05.This case was taken on file against the accused for the offence punishable U/Sec. 354A, 354 and 506 of IPC.
06. On appearance of the accused before the court, copies of case documents were furnished to the accused s contemplated U/s. 207
Cr.P.C, issued summons.
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07.The accused was examined U/s.239 Cr.P.C., for the accusation levelled against them, for which they denied the same. Charges
U/Secs.354A, 354 and 506 of IPC were framed against the accused, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried. Later, the charges were altered from
U/Secs. 354B, 509 & 506 of IPC to U/Secs.354A, 354 and 506 of IPC.
08.During the course of trial, on behalf of prosecution, Lws.1 to 6/Katuri Rani, Boddu Ramesh, Katuri Prasad, Jutturi Ravi, Muvva
Ramesh and B. Rani were examined as Pws 1 to 6 and Exs.P1 to P3 were marked. Ex.P1 is Report. Ex.P2 is FIR. Ex.P3 is Rough Sketch. The learned
APP has given up the evidence of Lw.7/J.R.K. Hanish Babu as he filed only charge sheet.
09.Pw.1 testifies about the alleged acts of accused towards her, which made her to file the present report. Pw.2 to 5 who are the husband and eye witnesses of the incident also testifies on the same lines of Pw.1 about the alleged indecent behavior of the accused towards Pw.1. Pw.6 testifies that he registered the report as FIR, got recorded the statements of the witnesses, visited the scene of offence, prepared rough sketch, followed the arrest procedure and about filing of charge sheet by Lw.7/S,I of Police.
10.After completion of prosecution side evidence, the accused was examined under Sec.313 Cr.P.C., by explaining the incriminating circumstances levelled in the evidence of the prosecution witnesses against him in Telugu, for which, he denied the same and reported no defence to adduce on his behalf.
11.Heard arguments of the learned APP and the learned counsel
for the accused, perused the material available on the record.
12. Now the point for determination is:
“Whether the prosecution is able to prove the guilt of the accused for the offences punishable U/Ss. 354A, 354 and 506 of IPC beyond reasonable doubt”? Point
13.In order to constitute the guilt of the accused U/s 354 IPC the prosecution shall establish that accused assaulted or used criminal force against Pw.1 with an intent to outrage her modesty. Further it is also the duty of the prosecution to prove that the accused made physically contact and advances involving unwelcome and explicit sexual overtures Pw.1 and demanded her for sexual favours to establish the guilt of the accused 4
U/s.354A of IPC. Further it is also the duty of the prosecution to prove its case that accused threatened Pw.1 to constitute the offence under section 506 IPC.,
14.Unfolding the case of the prosecution, the prosecution has examined Pws.1 to 6 on its behalf. Pw.1 is the defacto complainant who gave report against the accused before Kankipadu P.S. Pw.2 is the eye witness. Pw.3 is husband of Pw.1. Pws.4 and 5 are the eye witnesses. Pw.6 is the investigating Officer.
15.Before adverting to the main discussion, it is pertinent to refer
Sections 354, 354A, of IPC.
Sections 354 and 354A IPC read as under:
"354. Assault or criminal force to woman with intent to outrage her
modesty. --Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
354 A. Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts--
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both
16.In order to substantiate the version of the prosecution that accused with an intend to outrage the modesty of Pw.1, used criminal force or assault, or followed Pw.1, demanded for sexual favours, made physical contact and advances involving unwelcome and explicit sexual overtures, the prosecution has examined Pws.1 to 4. Pw.1 deposed in her evidence that on 05.01.2016, while she was going to Tenneru Village, the accused followed her and when she reached near Ankalamma Temple, the accused suddenly caught hold of her hand and pulled her towards 5 sugarcane field, then she begged him and stated that she belongs to same village and she is wife of one Prasad, for which he stated that he would enjoy her sexually only for 02 to 05 minutes and talked with her indecently, then she pushed him and started running by saying
Kapadandi, kapadandi (help, help) after 01 Km, she found bike lighting and she stopped the bike and identified the said person belongs to her village by name Boddu Ramesh(PW.2). Then he asked her as to what had happened, she informed the above incident to him. The said Ramesh/Pw.2 tried to search for the accused, but he already escaped. Later, she presented the report.
17.In support of the said version, prosecution examined the said
Boddu Ramesh as Pw.2, he deposed in his evidence that on 05.01.2016 at about 5.00 am, while he was going on his bike to his fields at Tenneru, when he reached Ankalamma Temple, Pw.1 was running towards his bike and stopped his bike, when he questioned her, she informed that accused caught hold of her hand and tried to take her forcibly towards fields. By that time accused was there and on seeing him he ran away. Then he dropped Pw.1 at her house.
18.Further prosecution examined Pws.3 to 5 who are the husband of Pw.1 and members of the vicinity of the scene of offence. Pw.3 deposed in his evidence that Pw.1 is his wife, on 05.01.2016 early morning after completion of prayers, while she was returning to Tenneru Village from Jagannadham Village, when reached near Ankalamma temple, the accused caught hold of the hand of Pw.1 and tried to drag her into the sugarcane fields and asked her to satisfy his lust for half an hour. She escaped from his clutches and started running, by that time Pw.2 was coming on his bike, She stopped him and explained the situation. On that the accused escaped from there. Pw.2 brought Pw.1 and handed over to him. She narrated the incident to him.
19.Pws.4 and 5 deposed in their evidence that on 05.01.2016 during early hours, while they were loading sugar cane into the lorry at
Tenneru Road in the fields. They heard cries of one lady, then both Pws.4 and 5 came to the road and found Pw.2 was taking Pw.1 on his bike and the accused was running towards Sugarcane fields. On that they followed
Pws.1 and 2 until the village and Pw.2 dropped Pw.1 at her house and
Pw.1 has narrated the incident to her husband that while she was returning to village the accused followed her and caught hold of her hands and tried to drag her into the fields by saying to satisfy his lust and that 6 she escaped from his hands and started running but accused followed her, meantime she found Pw.2 and with his help she came to the house. He also found the blouse of Pw.1 was torn and her hair was disturbed.
20.At this juncture, the learned defense counsel vehemently argued that the evidence of PW.1 is inconsistent from that of her earliest version and her evidence is full of improvement. Further also contended that the evidence of PW.3 cannot be relied since he is not the eye witness to the incident. Furthermore, it was also contended that the evidence of
PW.2 also cannot be relied since it is the very case of the prosecution that
before Pw.2 could stop his bike accused ran away from scene where as the
version of Pw.2 that he witnessed the accused is nothing but a blatant lie.
Furthermore the presence of Pws.4 and 5 at the scene is doubtful.
21.As seen from Ex.P1 report, it was averred that during the early hours of 05.01.2016 while Pw.1 was returning on walk from
Jaganndapuram village to Tenneru village, at about 5.00 AM after attending prayer, accused started following her from Komitigunta village and from Tenneru Amkalamma Temple, accused started chasing Pw.1, talking in an indecent manner, caught hold of her hand and pulled her, she escaped from the hands of accused, yet he chased her for 30 minutes and made her to run on the road. In the meanwhile, Pw.2 was coming on his motor cycle from komitigunta lakulu, she stopped him and while explaining the incident to him, accused escaped from the agricultural fields.
22.Thus, as seen from Ex.P1 report, accused chased Pw.1, caught hold of her hand, pulled her hand, talked in an indecent manner. Where as Pw.1 in her evidence before the court deposed that accused caught hold of her hand and pulled her towards sugarcane field, then she begged him and stated that she belongs to same village and she is wife of one Prasad, for which he stated that he would enjoy her sexually only for 02 to 05 minutes and talked with her indecently, then she pushed him and started running by saying Kapadandi, kapadandi (help, help) after 01 Km, she found bike lighting and she stopped the bike and identified the said person belongs to her village by name Boddu Ramesh (PW.2). Then he asked her as to what had happened, she informed the above incident to him. The said Ramesh/Pw.2 tried to search for the accused, but he already escaped.
23.It is true Pw.1 improved her version that accused pulled her towards sugar cane field, then she begged him and stated that she belongs to same village and she is wife of one Prasad, for which accused stated 7 that he would enjoy her sexually only for 02 to 05 minutes and talked with her indecently, then she pushed him and started running by saying
Kapadandi, kapadandi (help, help). However her evidence is consistent that accused followed and chased her. Also it is consistent that accused caught hold of her hand and she escaped from his clutches. Furthermore, he also chased her for quite some time. Though it is contended that PW.1 improved her version with regard to accused demand for sexual favour and advances involving unwelcome and explicit sexual overtures, no omission was marked and nothing has been suggested to Pw.6/investigating officer.
Thus, it cannot be said either an improvement or contradictions or omissions.
24.In so far as evidence of PW.2 is concerned, learned defense counsel vehemently argued that the earliest version of PW.2 does not reveal that he witnessed the accused. Further, there is no chance of witnessing the accused being the alleged incident took place in January.
Upon perusing the cross examination of Pw.2 nothing was elicited except the suggestions, which was categorically denied by him. Further no animosity between himself and the accused was attributed to Pw.2. Thus, his evidence is consistent and cogent. In so far as the evidence of Pw.3 is concerned, he is not the eye witness to the incident and he is a hearsay.
Further with regard to the evidence of Pws.4 and 5, their evidence is consistent and corroborating that they witnessed Pw.2 is taking Pw.1 in his motor bike and accused was running towards sugar cane fields. Not even a single suggestion was put to them disputing their very evidence.
Furthermore, no intrestedness has been attributed to Pws.3 to 5. Hence it is clear from the evidence of Pw.1, 2 and 4 & 5, the accused followed Pw.1.
Further it is also clear from the evidence of Pw.1 that accused demand for sexual favours and physical contact and advances involving unwelcome and explicit sexual overtures.
25.Another plea upraised by the learned defense counsel is that there is delay in setting the criminal law into motion and that Ex.P1 report was given with a coloured version due to previous disputes. Therefore, this court has to look into whether as contended by the learned defence counsel that there is any delay in Ex.P1 report with a colored version. In each and every case the delay in Ex.P1 report is not fatal. It all depends upon the circumstances of each and every case. Though there is delay in lodging the FIR it cannot be said that the defacto complainant willfully impleaded the accused. In this regard there is no hard and fast rule that 8 any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the trauma undergone by the victims, the distance of the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. In this connection it will be useful to take note of the following observation made by Apex Court in Tara Singh & Ors. v. State of Punjab,
AIR 1991 SC 63 : "The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
26.Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances. Further there may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to 9 the explanation of the factum of delay. Further it must be established that that the delay has given an opportunity to the informant to fabricate the
FIR.
27.The present factual scenario is to be tested on the touchstone of the aforesaid principles. On perusing Ex.P1 the incident had taken place during the early hours at 5.00 AM on 05.01.2016 but it was registered on 09.01.2016 at about 9.30 P.M and there is reason mentioned as per clause 8 of Ex.P2 FIR that the delay was due to discussion held with the elders.
Unlike in IPC cases, when the offence was committed against women that to an offence against a rustic woman, it cannot be expected that she would go to the Police station directly soon after the incident. It is known fact generally in villages if any such untoward incident had happened, they would try to settle the matter amicably. There are Catina of decision of our own Hon'ble High court that unlike in IPC cases, the offence against woman that to an offence against rustic woman it cannot be expected that she would directly come to the Police station soon after the incident. In the present case on hand, it is evident from the material on record that she raised dispute in the presence of elders. When such is the circumstance that to when it depends upon the family prestige and other sociological impacts, it cannot be expected on the same day, they would rush and present the report. Furthermore in the entire crossexamination of Pws.1 and Pw.6 investigating officer, there is not even a single suggestion that there is delay in presenting the report with coloured version, had it been his suggestion, then there would be opportunity to Pw.1 or Pw.6 to explain the reason for such delay so also for the investigating officer to explain the reason for the delay in registering Ex.P2 FIR. Thus, this contention of the accused is devoid of merits.
28.However to prove the offence under 354 IPC, The two necessary ingredients of Section 354 IPC are 'assault' or 'use of criminal force' to any woman and with the intention to outrage or knowing it to be likely that he will thereby outrage her modesty. Sections 350 and 351 IPC define 'criminal force' and 'assault' as under:
350. Criminal force.--Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person 10 present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
29.Thus when the modesty of a woman is outraged or it is likely to be outraged coupled with an assault or criminal force, Section 354 IPC would be attracted. Though assault can be by mere gesture or preparation intending or knowing that it is likely that such gesture or preparation will cause any person present to apprehend use of criminal force. This is an act more than mere physical contact with advances involving unwelcome and explicit sexual overtures. Ingredients of Section 354 IPC would show that the same mandate an actus reas of assault or criminal force with an intention to outrage or likely to outrage the modesty whereas a mere physical contact with advances as noted above would attract Section 354A
IPC. Though in certain situations there may be cases where there may be an overlap of both Sections 354 and 354A IPC however, there may be cases which may exclusively fall either in Section 354 or Section 354A IPC. Here in this case, as discussed supra, the accused has demanded for sexual favours and made a physical contact by caught hold of her hand and advances involving unwelcome and explicit sexual overtures. But the prosecution could not put forth that the accused used criminal force or assault to outrage the modesty of Pw.1.
30.In view of the aforesaid circumstance this court is of considered view that the prosecution is successful in establishing that the accused has committed the offence punishable under section 354 A IPC while it has failed to prove the offence under section 354 IPC.
In so far as offence under Section 506 of IPC is concerned, it is
pertinent to mention Section 506 of IPC
506. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
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31.To prove the offence punishable U/Sec.506 of IPC, Pw.1 did not state that accused threatened her with dire consequences. None of the prosecution witnesses did testify that accused threatened Pw.1. Further, no material has been placed by the prosecution to establish the alleged threat of the accused towards Pw.1.
32.Thus, as discussed above, the prosecution established the charge against accused for the offence punishable U/s.354A of IPC while the prosecution could not establish the offence punishable U/Secs.354 and 506 of of IPC against the accused. Accordingly, this point is answered.
33.In the result, this court find the accused is guilty for the offence punishable U/s.354A of IPC, accordingly, he is convicted under
Section 248 (2) of Code of Criminal Procedure for the said charge. Further, this court find the accused is not guilty for the offence punishable
U/Secs.354 and 506 of IPC, accordingly, he is acquitted under Section 248 (1) of Code of Criminal Procedure for the said charges
Typed to dictation to the Stenographer, corrected and pronounced by me in the open court, on this the 27th day of December, 2022.
IV Addl. Chief Metropolitan Magistratecum Addl. Mahila Magistrate, Vijayawada.
34.Heard the accused regarding the sentence:
35.Accused represented that he is the sole bread winner of the family, having wife and children, further he is suffering with ill health, he hs no other person to look after his welfare. Further, he has old aged parents, further they are suffering with illhealth, he has to look after them. Hence, prayed the court to take lenient view with regard to the of sentence.
36.This court is of the view that the accused cannot be given benefit of either 360 Cr.P.C or the provisions of probation of offenders Act and this court intends to impose punishment on the accused.
37.However in view of the facts and the circumstances of the case, the representation by the accused considering the age of the accused gravity of the offence, this court intend to take lenient view with regard to the quantum of sentence and inclined to lesson the sentence. Hence, the accused is sentenced to undergo rigorous imprisonment for a period of 56 days and to pay a sum of Rs.5,000/ towards fine in case of default, 12 sentence to undergo simple imprisonment for a period of one month for the offence punishable U/sec.354A IPC, out of the fine amount of Rs.5,000/ shall be given to the Pw.1 towards compensation U/sec.357 Cr.P.C after the appeal time is over.
38.As per the office note put up by the B.C the period of detention undergone by the accused i.e., 56 days set off U/sec.428 Cr.P.C. the accused was also informed about his right of appeal against this judgment to the Hon’ble Metropolitan Sessions court Vijayawada and also informed about his right to free legal aid to prefer appeal, for which he reported that he has means to engage an advocate office is directed to supply the free copy of the judgment forth with to the convicted.
Sd/XXXXX IV Addl. Chief Metropolitan Magistratecum Addl. Mahila Magistrate, Vijayawada.
APPENDIX OF EVIDENCE
Witnesses examined
For Prosecution. For Defence. P.W.1: Katuri Rani…None… P.W.2: Boddu Ramesh P.W.3: Katuri Prasad P.W.4: Jutturi Ravi P.W.5: Muvva Ramesh P.W.6: B. Rani
Documents marked
For Prosecution: Ex.P.1: Report Ex.P.2: FIR Ex.P.3: Rough Sketch
Sd/XXXXXX IV Addl. Chief Metropolitan Magistratecum Addl. Mahila Magistrate, Vijayawada.
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