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Capital Punishment: Justice For Murder Or Murder For Justice

India is a developing country with increasing rate of crime each and everyday. The increase in crime might also be to the inadequacy of punishment and the ineffectiveness of the punishment. There are several types of punishment like death penalty, fine, life imprisonment etc. Death penalty is deemed to be the highest and severe form of punishment. From this paper it is also evident that death penalty is also an ancient practice to punish people.

The forms of capital punishment and the laws governing the same in counties like UK, USA and South Africa are discussed in this paper. This paper has dealt in detail about the types of offences for which death penalty is imposed and the laws relating to death penalty. Since death penalty involves in taking away a life of a person the judiciary has exercised it's at most conscience in exercising the power to grant death penalty and by the way of judicial interpretation it has become a rule to impose death penalty in the "rarest of rare case.

This paper has analyzed the doctrine of rarest of rare case in light of the case laws and the drawbacks of the above doctrine. This paper also talks about the pros and cons to evaluate the need of dead penalty in light of reformative and preventive theory. This paper has given some suggestions on Reformation of capital punishment laws to reduce the crime rate and also enhance the efficiency of the punishment in reducing the crime rate and to also render justice.

India is one of the countries often facing terrorist attacks and crimes. It is the greatest challenge to the Government to reduce crimes with the limited police and protection force as the population in the country is large. The motive of the person to do the crime is the prime basis for punishments. Intention to impose punishments on the accused is two-fold. The first is obviously to render justice to the affected parties by way of punishing the accused. The second intention is to send strong messages to the citizens that they should not try any offensive act and no one will be spared by the application of the law.

Capital punishment is nothing but an offender sentenced to death by the court of law for criminal offenses. Capital punishment has been awarded for the most grievous crimes against humanity.
Due to the radical changes in the mindset of the lawmakers, due to the civilization approach and to give due consideration to human rights the death sentences are almost rare in our country and it is declared only for the rarest of the rare cases.

Though our constitution guarantees the Right to life and no one has the right to take other's life under Article 21, yet still, capital punishment finds a place in statute and practice. This paper would deal with how and why capital punishment still finds a place in the statute.

History of death penalty

The death penalty laws were first established in Eighteenth Century B.C. in the Code of King Hammurabi of Babylon, for 25 different crimes. Death sentences were carried out per that code. Some of the common methods of execution at that time were boiling, burning at the stake, hanging, beheading, drawing and quartering. Some of the capital offenses are marrying a Jew, not confessing to a crime and treason.

The dynasties changed and democracy still follows the practice of imposing the death penalty for administering justice. The principle followed by the Mauryan Dynasty to punish a convict was an eye for an eye, a hand for a hand, etc. The later dynasties followed different types of punishments even went to the extent of stamping the head of the convict by an elephant which was very brutal.

There was an alarming rise in the number of capital crimes in Britain. In Britain By 1700s, stealing, cutting down a tree, and robbing a rabbit warren are some of the offenses for which the death penalty was imposed. Due to the severity of the death penalty, the juries decided not to convict defendants if the offense was not serious. This lead to the reforms of Britain's death penalty. From 1823 to 1837, the death penalty was obviated for over 100 of the 222 crimes punishable by death.

Capital punishment is an ancient sanction. The death penalty has been an integral part of the punishment in all countries for heinous crimes. History of human civilization reveals that capital punishment has never been discarded as a mode of punishment. If a citizen murdered another roman citizen of equal status he or she is not sentenced to death but were more often fined or exiled, and if they were executed they were beheaded, which was regarded as a more honorable way to die.

This finds support in the observation made by Sir Henry Marine who stated that Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the

The procedure of questions" Guillotining in France, beheading in middle east countries, execution by electrocution in Russia, etc were other forms of the death penalty which were prevalent in the world

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 which has listed several capital crimes. It remained in effect after independence in 1947. Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949 are the first convicts who were hanged for criminal conspiracy.

The modern abolitionist movement started with the works of great Italian criminologists, Cesare Beccaria which convinced many statesmen of the uselessness and inhumanity of capital punishment. During the discussions on the adoption of the French Penal Code in 1791, there was a vigorous debate for the abolishment of the death penalty.

In the 19th century, the abolitionist movement grew with eminent jurists like Bentham and Romilly supporting such ideas. Michigan in 1846 was the first state to abolish capital punishment followed by Venezuela and Portugal in 1867. The abolishment of the death penalty was promoted during the drafting of the Universal Declaration of Human Rights in 1948 as a goal for civilized nations.

In India currently, the death penalty is been bestowed for rarest of the rare cases from the ruling of Bachan Singh v. the State of Punjab in the year 1980.

Laws relating to the Death Penalty

There are two broad categories of law which impose the death penalty. They are:
  1. Indian penal code 1860
  2. Special or local legislations
The court is empowered to declare the death penalty wide Section 53 of Indian Penal code. This provision talks about the various types of punishment to which the offenders are liable to.

The death penalty is also provided under Indian penal code:

  1. Wagering or attempts to wage war or abetting the waging of war against the state.
  2. Abetting mutiny actually committed
  3. Giving of fabricating false evidence whereby an innocent person suffers death.
  4. Threatening or inducing any person to give false evidence resulting in the conviction and
    death of an innocent person
  5. Murder
  6. Abetment of a suicide by a minor, insane person or intoxicated person
  7. Attempted murder by a serving life convict
  8. Dacoity [armed robbery or banditry] with murder
  9. Murder commited by a life convict.

The death penalty is also provided under various special laws:

  1. Unlawful Activities Prevention Act, 1967 (as amended in 2004)
  2. Defense and Internal Security of India Act,1971
  3. Defense of India Act, 1971
  4. Commission of Sati (Prevention) Act,1987
  5. Narcotic Drugs and Psychotropic Substances (Prevention) Act,1985
  6. Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA)
  7. Prevention of Terrorism Act 2002,(POTA)
  8. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989
  9. Explosive Substances Act, 1908 (amended in 2001)
  10. Arms Act, 1959 (amended in 1988)
  11. Laws relating to the Armed Forces, for example, the Air Force Act 1950, the Army Act 1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992.

The doctrine of rarest of rare case

The law of the land is that death sentence can be awarded only in those cases which death takes place in a brutal, heinous, diabolical form which disturbs the collective conscience of the community such that it will anticipate the holders of judicial power to impose the death penalty to the accused who committed such crime.

The principle of rarest of the rare case was invented by a judicial interpretation by Article 141 of the constitution where the honorable apex court has the right to interpret the laws and its interpretation is final and binding. The Supreme Court of India cannot abolish the death penalty or amend the laws of which are already there in the Statute.

Thus Supreme Court can restrict the imposition of the death penalty only by cautious interpretation of Article 21 which envisages the doctrine of the rarest case and carefully reduce the scope of the death penalty. As the media and social networks are proactive and clueless, tremendous responsibility is bestowed on the Supreme Court to bring balance between the rarest of the rarest and others.

To ascertain whether a case falls within the purview of rarest of the rare case the court has framed the test of aggravating and mitigating circumstance:
Based on the reliance of Bachan Singh case following circumstances are considered as aggravating circumstances

Aggravating circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion:
  1. if the murder has been committed after previous planning and involves extreme brutality; or
  2. if the murder involves exceptional depravity; or
  3. if. the murder is of a member of any of the armed forces of the Union or a member of any police force or any public servant and was committed-
    (i) while such member or public servant was on duty; origin consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of the murder he was such member or public servant, as the case, maybe, or had ceased to be such member or public servant; or
    if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had assisted a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of CrPC

Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances
  • That the offense was committed under the influence of extreme mental or emotional disturbance.
  • The age of the accused. It the accused is young or old, he shall not be sentenced to death.
  • The probability that the accused would not commit criminal acts of violence would constitute a continuing threat to society.
  • The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
  • That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offense.
  • That the accused acted under the duress or domination of another person.
  • That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
  • In the aggravating circumstance, the bench can impose the death penalty on its will but in the case of a mitigating circumstance, the court can't impose the death penalty under the doctrine of rarest of rare case.

Analysis of the constitutional validity of death penalty

The constitutional validity of section 302 was challenged in the apex court in the capital punishment came into question for the first time in the apex court in the case of Jagmohan Singh v State of Uttar Pradesh. section 302 of IPC was challenged as violative of articles 14, 19 and 21 of the constitution because it didn't follow the due procedure to be followed. It was also contended that the procedureunder the CrPc only prescribed aand confined to finding of guilt and not imposing a death sentence.

The Supreme court held that the court has the discretion in choosing between the life imprisonment and death penalty based on the facts and circumstance of the case and the basis of the nature of crime brought on record on trial. In Rajendra Prasad v. State Of UP Justice Krishna Iyer stressed that the death penalty is violative of articles 14, 19 and 21.

Second, the Court held that neither Section 302 of the IPC nor Section 354(3) of the CrPC, violated Article 21.The Constitution's framers were conscious of the existence of the death penalty for murder. Therefore, even though capital punishment violated the right to life it would be justified the if due procedure for fixing such punishment is fair and reasonable.

The court adjudged Sec 354(3) in light of Maneka-principles and concluded 354(3) was not arbitrary to be held violative of article 21 and 14 of the constitution. The court clearly held that capital punishment should be imposed only in the rarest of rarest case and only during gravest cases of extreme culpability and the situation or the circumstance of the offender should be paid utmost diligence.

In Deena vs. Union of India the constitutional validity of section354(5) I.P.C. was challenged on the ground that hanging by a rope was barbarous, therefore violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed hanging as a mode of fair execution which is just and reasonable procedure within the meaning of Art- 21 and hence is constitutional. In Sher Singh vs. the State of Punjab the three judges of The SC held that death sentence is constitutionally valid and permissible within the constraints of the rule laid in the case of Bachan Singh and hence stands as a valid law of the land. Guidelines issued in landmark judgments for imposing the death penalty.

The main cases which framed guidelines are:
  1. Bachan Singh v. the State of Punjab
  2. Machi Singh v. the State of Punjab

In the case of Machi Singh and other v State of Punjab SC has laid down a five-point formula based on how the murder was committed and the motive, nature, and magnitude of the crime and the personality of the victim to impose proper sentence.
  1. Manner of Commission of Murder
    The way in which the offence of murder was committed. If it was committed with extreme brutality such as burning the victim alive or cutting body into pieces, or subjected inhuman act of torture or cruelty, it would be a fit case to be considered as rarest of rare cases.
  2. Motive for Commission of murder
    When the motive behind murder discloses depravity and miserliness e.g. Crime being committed for material gain, murder by hired assassin, cold blood murder for inheriting property, of murder of a person under control of the murderer.
  3. Anti-Social or Socially abhorrent nature of the crime
    When the murder is socially abhorrent such as bride burning or killing of the case after raping, murder of a members of a scheduled caste, dowry death. It also includes murder which is not done for personal reasons but to arouse social wrath.
  4. Magnitude of Crime
    When the magnitude of the offence is enormous as in the case of multiple murder or wiping out all male murders or wiping out all male members of a family or large number of a particle caste, community and when the crime is enormous in proportion.
  5. The personality of the Victim of murder
    When the victim of murder is:
    (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder,
    (b) a helpless woman or a person rendered helpless by old age or infirmity
    (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust
    (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

The Supreme Court, in Bachan Singh v. State of Punjab, had laid down that life imprisonment is the rule and death sentence is an exception and thus, certain guidelines should be followed before a court may award death penalty:
  1. Only in the gravest cases of extreme culpability, this extreme penalty of death may be awarded;
  2. The circumstances of the offender along with the circumstances of the crime have to be taken into consideration.
  3. When the sentence of life imprisonment seems inadequate having regard to the nature and circumstances of the crime, only then death sentence may be awarded; and
  4. The aggravating and mitigating circumstances have to be balanced.

Criticism of Rarest of Rare doctrine

The rarest to rare doctrine can be criticized on several grounds. One such ground is ambiguity in the application of the doctrine. The death penalty given in one case is not similar to that of the other case having the same facts and circumstances. This can be highlighted based on a few examples. Bharu Singh v. the State of Rajasthan and Amruta v. State of Maharashtra are the classic examples of such ambiguity. In both of these cases, the accused suspected his wife and killed her. However, in the former case, the accused was given capital punishment while in the latter case the Court did not consider it to be a case for death penalty

Another set of examples is Dhanajoy Chatterjee v. State of West Bengal, Kumudi Lai v. State of Uttar Pradesh and State of Maharashtra v. Suresh. Both of them involved rape and murder of a teenage girl yet the Apex Court pronounced different verdicts. Dhananjay Chatterjee was sentenced to death. In the Kumudi Lal case court did not impose a death penalty on the accused for rape and murder of the 14-year-old girl however the offender of rape and murder of a 4 year old child was acquitted in Suresh case.

In the horrifying case of Santosh Kumar Singh v Union Territory of Delhi(Mattoo Murder case), though Santosh Kumar Singh was convicted of raping the victim and breaking every bone in her body his behavior was still not considered savage enough to label the case rarest of rare. Similarly, in the celebrated case of State v Sushil Sharma, the apex court did not impose death peanlty on the offender only on the ground of jealousy that led him to murder his wife.

There appears no valid justification for making a distinction between life and death between similar sets of facts. The two cases of Om Prakash v State of Haryana and Shiv Ram v State of Uttar Pradesh. In the former case, the accused was acquitted inspite of murdering 7 people to wreak vengeance over a plot of land however the offender in the latter case was convicted with death sentence for murdering five people including a 10 year old boy. Thus, one can visualize that there may be situations where a miscarriage of justice might take place in some cases under similar circumstances.

Arguments for and against death penalty:

Everything should be analyzed in light of its advantages and disadvantages to make a sensible decision. Pros and cons convey the necessity of having a death penalty and its effects on removal and imposing are as follows:

  1. It deters criminals to commit the crime
    The abolishment of the death penalty resulted in a 7% increase in the crime rate in other countries. Countries that follow capital punishment record a lower percentage of crime rates though there hasn't been a significant reduction in crimes.
  2. The death penalty costs the government less as compared to other punishment
    Portents say that capital punishment costs less from an economical point of view as compared to other punishments. In other punishments, a huge cost is incurred for homing the prisoners in jail and it is a huge burden on the government to look after their well being which includes food clothing and medical expenses.
  3. It provides justice to victims and their families
    It is said that the death penalty provides justice and satisfaction to the victims and their families and avoids them to take law in their hands. It is often witnessed that the victim's family takes the law into their hand and starts committing the same crimes which lead to an endless path of revenge. Hence death sentence ends the crimes and brings peace in the society.

Unlawful Activities and growing crime in the Prison

It is stated that capital punishment prevents overcrowding in prison and helps to eliminate prisoners who are dangerous to society. The recent reports about the activities of prisoners in the prison are quite alarming and dangerous to the nation. The behavior of offenders who deserves death sentence tends to influence offenders of small crimes and instigate them to commit greater offenses which might be great harm to society. This spoils the administration and decorum in the Prisons.

  1. Moral argument
    There are many oppositions against the death penalty coupled with humanitarian and religious grounds. It tells that no religion allows a person to take the life of another except the act of god. Determining the life of a person is the prerogative act of God and no human being can exercise it.
  2. Legalized killing
    It is been argued that the death penalty is nothing but a legalized killing. When the court decides that committing murder is an offense, it should not resort to the same by branding it as punishment for the crime committed. The convicted person is deprived of an opportunity to correct himself and doesn't render an opportunity for reformation.
  3. Cruel and inhumane act
    Capital punishment also violates article 21 of the Constitution and infringes articles 3&5 of the UN declaration of human rights. Hanging by the neck was challenged in the case of Deenadayal v Union of India and ors because it is inhumane and barbarous. For this, the SC stated that hanging by neck till he is dead is relatively a less painful method of a death sentence.
  4. Unjust and discriminatory
    The death penalty is always referred to as unjust and discriminatory. It is because convicts who can afford to prove them wrong will have a proper defense against them. But convicts who are poor and not able to afford cannot prove them wrong and will be wrongly convicted. When an innocent is being punished then it is the failure of our law thus making it unjust and discriminatory.

Long delays leading to extreme agony

The country is witnessing an undue delay in the process of law in these cases which is badly affecting the psychological position of the accused and the relatives of the victims. Most of the situations it ends up with the favorite note that the delayed justice is the denied justice. This tells that due to long delay in death row, it increases the person's anxiety and affects the person psychologically. This is a psychological perspective that tells capital punishment is not needed.

Position in other countries

The death penalty is not only imposed in India but also in other countries. Unlike India other countries differ in the form of giving the death penalty which is analyzed as follows:

Position in united states of America

Capital punishment or the death penalty was prevailing in the United States until 1972. From 1972 to 1976 the united stated of America abolished the death penalty from the case of Furman v. Georgia. In this case, it was found that the death penalty was given unconstitutionally and cruelly which violated the eighth amendment of the United States constitution. The Supreme Court has never feint the death penalty to be per se unconstitutional. It was also found that the punishment severs deterrent as well as retributive principles.

After 1976 the court in the case of Gregg v. Georgia brought in a procedure that divided the trial of capital crimes into guilt-innocence and sentencing phases. First, the courts will observer whether the person is guilty or otherwise not convicted for first-degree murder, then the death penalty will not be given.

Then secondly, the courts will determine whether any statutory aggravating factor or any mitigating factor exists. Some jurist expects the presence both statutory and mitigating factor and then it is decided as to whether death or life imprisonment to be imposed, with or without parole. From this death penalty was bought in again. Thus 35 out of 50 states have reinstated capital punishment in their respective states.

Position in South Africa

In South Africa, capital punishment was abolished under section 277 of the Criminal Procedure Act, 1927 from the judgment of Makwanyane v Muhunu as it was against their constitution. An eleven judge bench was formed for fabricating a judgment in this case and all the judges drafted individual opinions regarding the death penalty. Ten out of eleven judges stated that the death penalty is a cruel, inhumane act or punishment.

Position in United Kingdom

The death penalty was a very common punishment in the United Kingdom in the 17th century. The common law of UK was called the ‘bloody code' as at a point punished 220 wrongdoers with the death penalty, including being in the group of Gypsies for one month, burly evidence of malice in a child aged 7-14 years of age and blacking the face or using a costume whilst committing a crime.

The Murder (Abolition of Death Penalty) Act 1965 suspended the death penalty in England, Scotland and many other places for murder for five years and substituted it with life imprisonment. Even after that in some cases, the death penalty was given in the United Kingdom.

Then finally in 2003, the UK abolished the death penalty completely in all cases. There was no death penalty given after 1964 after the case of Allen and Evans which was a murder case. Both were presented in the court for the murder of John West. During the trial, the court posed the question as to who was the killer and it was found that both were equally responsible thus giving the death penalty for both of them. After that, the UK has not seen death as a punishment. Thus the law of the UK in the death penalty has shown extremes, from aggressively hanging out to abolishing.

  1. Proper law should be laid down:
    Many statues insist on the death sentence. But interpretation as to the Doctrine of  Rarest of Rare is always subjective. The judgments in this respect also depend upon the personal traits of the judges about the peaceful and civilized society. This lacks a common acceptable code of law. The courts are just finding the facts and consequences of the offenses and interpreting the available statues to render justice. Since the courts don't have the power to make laws, it is only the lawmakers who should have clarity and campaign for the same to legislate a uniform law that should be practiced.
  2. The decision must be taken with due care:
    The Parliament and the Courts should consciously bring in uniformity as to the interpretation of the statues and follow common code to conclude. The courts punish by relying on the precedents which might have different facts and circumstances in the present case and might lead to a miscarriage of justice. It is said that jurist while giving capital punishment should do it with due care it is because even though the person had caused grievous crime and if there is an indication of chance that the person will not cause such harm again and does not have any previous record of such behavior then death penalty need not be sentenced. So capital punishment has to be imposed with due diligence and care.
  3. Death penalty ought not to be delayed after its pronouncement:
    In Triveniben v. the State of Gujarat the SC held that the death penalty can be delayed but only on reasonable grounds such that the accused gets a fair trial. Sufficient time should be granted to the accused for an appeal of a sentence of death to the higher courts so that it doesn't refuse him the opportunity of being heard and leads to the fair process of trial. Once capital punishment is imposed by the apex court and on the refusal of pardon by president execution of a death sentence should not be delayed as it might lead to disbelief in the justice rendered by the court.
  4. No age limit should be prescribed for imposing death penalty:
    In our country, there is an age limit for the death penalty. People who come under juveniles do not have the death penalty. But if they do a heinous crime like rape, murder, etc which falls under the category of rarest of the rare case it means that while committing the offense he has sufficient amount of understanding for the act he was committing and on this ground he must be awarded capital punishment and thus using age as a defense should be discouraged.
  5. No pardoning power for terrorist:
    The law should send a clear signal that the terrorist acts of state and national leaders will never be pardoned by law and should be tried under the court of justice. In these cases, a restriction should be imposed on exercising the pardoning powers of the President.
  6. The death penalty must not be given in haste:
    Due care and due process of law and opportunity to the accused to be highly ensured to render justice as it is a capital punishment that can not be reversed by any means after executing it.

From the above research, it is concluded that the capital punishment will be provided only for the rarest of rare cases. The removal of the mandatory capital punishment for murders and allowing judicial prudence to commute it to life imprisonment in necessary cases is perhaps the most suitable approach to impose capital punishment. Because in current situation complete removal of capital punishment will give a dangerous effect on the crime rate and this has been experienced by many countries that have abolished capital punishment.

However, capital punishment is no doubt unconstitutional if imposed arbitrarily capriciously, unreasonably or wanted. But if it is viewed at a micro level it will enhance people's confidence in the criminal justice system.

  1. Bachan Singh v. the State of Punjab ,AIR 1980 SC 898
  2. Bharu Singh v. the State of Rajasthan, 1994 SCR(1)1994
  3. Amruta v. State of Maharashtraare, AIR 1983 SC 629
  4. Dhanajoy Chatterjee v. State of West Bengal, 1994 SCR(1) 37
  5. Kumudi Lai v. State of Uttar Pradesh, 1999 4 SCC 108
  6. State of Maharashtra v. Suresh, 1999 SCR 215
  7. Santosh Kumar Singh v Union Territory of Delhi, 2010 9 SCC 747
  8. Om Prakash v State of Haryana,1970 3 SCC 107
  9. Shiv Ram v State of Uttar Pradesh, 1975 AIR 175
  10. Deenadayal v Union of India and ors,1983 AIR 1155
  11. Furman v. Georgia,408 US 238 (1972)
  12. Gregg v. Georgia, 428 US 153 (1976)
  13. Makwanyane v Muhunu,1995 ZACC 3
  14. Triveniben v. State of Gujarat,1989 AIR 1335
  15. Jagmohan Singh v State of Uttar Pradesh, 1973 AIR 947
  16. Rajendra Prasad v. State Of UP, 1979 AIR 916
  17. Deena vs. Union of India, 1983 AIR 1155
  18. Sher Singh vs. the State of Punjab, 1983 AIR 465
  19. Machi Singh v. the State of Punjab,AIR 1983 SC 957
Written By:
  1. Pranav.R - 2nd year B.Com, LLB(Hons.), Sastra Deemed To Be University
    Email: [email protected]
  2. Aieshwaryaa.N - 2nd year B.B.A;LLB (Hons.), Sastra Deemed To Be University
    Email: [email protected]

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