Victor's trial

Print edition : June 29, 2007

Portrait of the last Mughal emperor.-

Excerpts from "The Trial of the Last Mughal Emperor (1858): Bahadur Shah Zafar", a chapter in A.G. Noorani's "Indian Political Trials 1775 - 1947".

IF the trial of Maharaja Nanda Kumar in 1775 was `the classic political trial' staged in order to evict a political enemy from the scene, the trial of the last Mughal Emperor of India, Abu Zafar Sirajuddin Muhammad Bahadur Shah, in 1858, was the classic `derivative political trial ... manipulated in an effort to bring disrepute upon a political foe.' In September 1857, on the collapse of the Mutiny in Delhi after five months, the King took shelter at his ancestor Emperor Humayun's tomb, rejecting advice to accompany rebel forces to Oudh in order to continue the war from there. But Mirza Ilahi Baksh, father-in-law of one of his sons, advised surrender. So did the King's physician, Hakim Ahsanullah Khan, who had little sympathy for the cause.

Major William Hodson negotiated the surrender through emissaries. The only condition which Bahadur Shah stipulated was that his life and the lives of the Queen, Zinat Mahal and their son, Jawan Bakht, be spared, and that the pledge should be made to him by Hodson himelf. The Major agreed.

With the King's surrender on 21 September 1857, the sole potential challenger to British rule was eliminated. The Peshwa, who could command the allegiance of the entire Maratha Empire, had been sent to a distant village in north India. The heirs of Tipu Sultan had been transferred from Vellore to Calcutta. Maharaja Ranjit Singh's son had settled down in Britain. The shadowy rule of the last Mughal Emperor from the palace in the Red Fort in Delhi was embarrassment enough. The Mutiny revealed its potentialities for revolt.

The next day, Hodson set out to Humayun's tomb to arrest the King's sons, Mirza Mughal and Mirza Khizr Sultan, and his grandson, Mirza Abu Bakr. He rejected their plea that their lives be spared as well. They surrendered. A mob followed the bullock cart which carried the princes. Once their followers were disarmed near the tomb, Hodson galloped and overtook the cart about a mile from Delhi Gate and shot the princes in cold blood. Hodson paid for the odium he had incurred. He was killed at Begum Kothi in Lucknow on 11 March 1858. A `memorial' to the crime he had committed still stands in India's capital. He killed the princes at Sher Shah Suri's outpost, the Kabuli Darwaza which was also called Lal Darwaza. It became known as the Khooni Darwaza. The stretch of Mathura Road was appropriately named Bahadur Shah Zafar Marg.

Zafar was the King's takhallus (pen-name) and he is remembered more for his poetry than for his role in the Mutiny. He was 82 and in poor health when, on 11 May 1857, the mutineers from Meerut stormed into the palace. The British knew that he was their prisoner rather than leader. They staged what was, probably, the first of the victor's trials in modern history. It was a solemn farce. The prosecutor said at the outset that the rules of evidence would not be followed; that documents would be tendered without direct proof of having come from those to whom they were attributed; but, they should not be rejected `merely because some unimportant formula cannot be complied with.' The King appointed Ghulam Abbas as his attorney. He was summoned as a prosecution witness the next day. The proceedings were conducted by military officers, who constituted neither a court martial nor a Commission of Inquiry but a `European Military Commission.' It delivered no reasoned judgment after the prosecutor ended a political harangue against Muslims and Hindus: The Commission gave a terse `finding' Bahadur Shah was guilty of `all and every part of the charges preferred against him.' It violated the very statute which established it and under which it professed to act. The death sentence was ruled out. Yet, no other sentence was pronounced, either. That lay in the sole discretion of the government.

... Bahadur Shah's trial began on 27 January 1858 and ended on 9 March 1858, while the Mutiny still raged fiercely in other parts of India. Lucknow fell to the British later in the month; Jhansi, in April; Bareilly, in May; and Gwalior, in June.

A fundamental flaw vitiated the entire proceedings and rendered the trial devoid of legitimacy. Bahadur Shah was himself a sovereign and not a British subject. He was not amenable to the fiat of a British Court. He had been short of power. His writ did not run beyond the precincts of the Red Fort. But he was not shorn of the legal title as a sovereign. The prosecutor himself referred to him as `the titular majesty of Delhi.' He called the Officiating Commissioner and Agent to the Lieutenant-Governor, C.B. Saunders, as witness to provide `any information as to the circumstances under which the Kings of Delhi became subjects and Petitioners of the British Government in India.'

Saunders traced British rule in Delhi to the defeat of Shah Alam in 1788 at the hands of the Marathas. `The Emperor, although vested with nominal authority over the city of Delhi was kept in confinement ... until the year 1803 when General Lake ... marched with the British troops against Delhi.' They entered the city on 14 September 1803, after Shah Alam sought British protection. `From that time the Kings of Delhi have become pensioned subjects of the British Government ... The Prisoner succeeded to the titular sovereignty of Delhi. He had no power beyond the precincts of his own Palace.'

Historically inaccurate, the legal argument was untenable. Kings in defeat always seek protection from other rulers. The victor or helper dictates terms. In this instance, however, the General left the King's legal sovereignty intact and was content to exercise actual power. This was not an issue to be resolved by oral evidence; by the ipse dixit of a relatively junior official. Documentary evidence in the form of official records was necessary, especially records which reflected the Mughal Kings' acquiescence in British claims. On this, there was no evidence. On the contrary, there was evidence of repeated protests by them as the British began chipping away at their rights, but without denying their legal sovereignty. A frontal attack on it was repeatedly discussed among the officials but was reserved for a finale. Before that could happen, the Mutiny broke out.

As we have noted earlier, after Shah Alam's defeat in the Battle of Buxar on 23 October 1764, the East India Company established a new order. The Emperor's Firman of 20 August 1765, however, preserved his rights as the imperial ruler in law. He would receive Rs 26 lakhs (2.6 million) annually from the Company which undertook to collect the revenues. A similar arrangement was made with him in 1803, albeit on worse terms.

The Company played `a double game.' It said one thing to London and its direct opposite to the king. In Buckler's [F.W. Buckler, Allen Scholar at Cambridge University. In 1992, he read a paper at the Royal Historical Society on "The Political Theory of the Indian Munity"] opinion, `the main cause (of the Mutiny) was the treatment of the Emperor. The fiction started by Wellesley was growing more evident to the East.' Co-ordination of disaffection is indispensable for an outbreak of any magnitude. `The only nucleus was the throne of the Mughul Emperor.' It was necessary, therefore, not only to remove him from the throne but also to discredit and humiliate him in the eyes of his people. As in 1775, the object of the trial was to intimidate the people into submission to British rule.

Buckler went on to argue that:

the movement making for unrest in India today have their roots in the sixteenth and seventeenth century. The false prominence given to the de facto aspect of Indian history from 1765-1857 has obscured those issues. How far the East India Company wittingly deceived the British public, and how far unwittingly, is a question I am not called upon to answer. That a false impression was conveyed is clear enough, and for the last half-century the British Empire has been reaping an increasing harvest of consequent trouble. The contribution I offer to the settlement of the trouble is a careful diagnosis of the history of the disease, and my critics have produced nothing to touch the validity of my contention that de jure the East India Company was the vassal of the Mughal Emperor down to 1858; that de facto they followed a course of independence which was treason to the Mughal Emperor; that down to 1843 they had disguised their treason, which became more and more unmistakable until it culminated in 1857 in the refusal to recognise his heir's right to succeed. Events appeared to favour the outbreak, Russian and Persian help was expected, but was not forthcoming, hence the collapse of the movement when British forces appeared to protect the Company's officials (For a fuller statement see The Cambridge History of British Foreign Policy. Vol. II, c. IX).

The Military Commission could hardly be expected to uphold arguments such as these. But it violated the very law which established it and prescribed its procedure. The State Offences Act (XI of 1857) was passed on 30 May 1857. It empowered Provinces "in a State of rebellion ... to issue a Commission for the trial of persons charged with `any crime against the State' or with murder, arson, etc. Its judgment was not subject to appeal. Europeans were exempt from the law.

A week later, Act XIV of 1857 was enacted to provide for the trial and punishment of persons who instigated `mutiny and sedition' among the Forces of the East India Company and also for trial of offences against the State. The Governor-General could empower officers in command to set up `General Courts Martial' to try offences punishable under both the Acts. Alternately, the Government could set up `a Commission' for the trial of persons charged under these Acts. The Commissioners could `hold a court' for trying the accused. Its orders were final. Europeans were exempted.

These laws envisaged either a Court Martial or a Commission to try cases. It did not authorise `a Military Commission' to conduct a fact-finding inquiry in the guise of a criminal trial. This is exactly what the `European Military Commission' did. It was set up by order of Major-General Penny on the orders of Sir John Lawrence, Chief Commissioner of the Punjab, and was clearly a Court Martial. It purported to function under Act XIV of 1857. The President was Lt Col. Dawes of the Horse of Artillery. The other four members were army officers of the rank of Major or Captain. The Deputy Judge-Advocate General who conducted the prosecution was Major F.J. Harriott. The trial began in the Diwan-e-Khas of the Red Fort on 27 January 1858 and lasted twenty-one days. Bahadur Shah tottered into the court, supported on one side by his only remaining son Jawan Bakht and on the other by one of his attendants. The old monarch was a pitiable sight. A place was assigned to him between the President and the Prosecutor and he seated himself there on the cushion placed for his accommodation, Jawan Bakht standing on his left.

There were four charges against the Emperor, to all of which he pleaded `not guilty'. The first was that he `being a pensioner of the British Government in India' encouraged Mohammad Bakht Khan, Subedar of the Regiment of Artillery, and other soldiers of the Company, to mutiny. The second charge was that he encouraged his son, Mirza Mughal, and others, to wage war against the State; the third was that he proclaimed himself `the reigning King and sovereign of India', and took `unlawful possession of the City of Delhi.' The last charge was that on 16 May, within the precincts of the Palace, he caused or abetted the murder of 49 persons, `chiefly women and children of European and mixed European descent,' and during the mutiny encouraged others to commit similar outrages.

After the accused's plea was recorded, the Judge-Advocate opened the case for the prosecution. In his opening words, he made plain his intention to let in all manner of evidence, regardless of whether it bore on the guilt of the Emperor or not:

Gentlemen - - Before proceeding further in this case, it may be necessary to mention that evidence will be submitted to you which may not bear strictly on the Charges that have just been perused. It is deemed that all the circumstances connected with the late Rebellion, even though not in direct relation to the indictment, may be here appropriately recorded; indeed upto a late date, it had been decided, that as the King's life had been guaranteed, this investigation should not be accompanied by Charges at all, or even assume the form of a trial, but should embrace all such matters as the discovered correspondence, and other reliable sources of information, might indicate.

I know not whether the Court would, under such circumstances, namely, the absence of specific accusation, have been called upon to record an opinion; but feeling that any investigation in reference to the Prisoner must be more satisfactory if he himself were a party to it, and had the opportunity of refuting by documentary or other testimony, such allegations as might appear to his detriment, I suggested that it would be better to have these in a specific and tangible shape, so that on such points guilt or innocence might be clearly established. This has been acceded to, and hence the Charges that I have just had the honour of perusing, but it must be clearly understood that the scope of the investigation is not in any way confined by the observance of technicalities, such as belong to a more formal and to a regular trial.

The royal prisoner was resigned to his fate and took little interest in the proceedings. Now and then, he would come to life and challenge some evidence or cross-examine a witness. The Prosecutor read before the Court a mass of documents designed to show that `following the mutiny the King had indeed begun to rule as Emperor.' The documents were of varied quality. They bore autographed orders and signatures of the King written in pencil at the top. Most of them were petitions addressed to Jahan-panah (protector of the world) and sought various favours or protection.

Harriott, the prosecutor, admitted that he would introduce `matter that might otherwise appear extraneous' and sought `to prepare the Court for the reception of it.' He read out extract from Saunders' letter to him which read: `I have at the same time to inform you that the life of the Ex-King having been guaranteed to him by Captain (sic.) Hodson, acting under instructions from Major-General Wilson, it will not be in the competency of the Military Commission to pass any sentence on him even should a conviction be the result of the enquiries.'

Harriott knew that he could not pin all the documents on the King. `Some, I fear, will have to be presented to you without direct proof of having come from those to whom they are attributed. In such cases the Court will bear in mind that a full investigation is the great desideratum, and that such cannot be perfected, if evidence, credible in itself, be rejected merely because some unimportant formula cannot be complied with.'

Indian witnesses were not to be trusted. `It must still be borne in mind, that almost every Native that I can possibly bring before this Court as an evidence, will have some interest in giving his narrative a colouring as favourable to himself and to the circumstances which he relates, as may be consistent with those broad and acknowledged facts, of the Mutiny and Rebellion, which are already known to us all.' Why, then, the inquiry?

Its object was revealed in a letter which Harriott wrote to Penny on 5 January 1858:

To render such investigation satisfactory, it is in my opinion necessary that it should assume the form of a direct trial, viz., that Charges should be framed, and the Ex-King be called upon to plead to them.

I do not perceive how, under other circumstances, any result can be arrived at as to the Ex-King's guilt or innocence, that will not be open to the objection of being one-sided and unjust... I beg then to suggest that this course be adopted, as the only means of coming to a conclusion satisfactory to the Court, the Prisoner, and the Public.

That was the reason why an inquisition was held in `the form of a direct trial ... with the forms usual in such cases.'

The first witness was Hakim Ahsanullah Khan, the King's former physician. He was asked to identify his patient's handwriting and seal which he did, mostly. Bahadur Shah comes out extremely well in the documents. They reveal his strong disapproval of recourse to violence and record his reprimands to mutineers who oppressed the people. As early as on 14 September 1857, he wrote to an official: `You are directed to make complete arrangements for the preservation of order throughout the limits of your jurisdiction. You will consider these orders imperative.' On 18 June, he wrote to Mirza Mughal, now Commander-in-Chief (C-in-C). `It is the business of the Army to protect and not to desolate and plunder.'

The well-known photograph of Bahadur Shah Zafar, taken just after the trial ended, before his departure to Rangoon.-

On the second day of the trial, the King asked that Ghulam Abbas be allowed to assist him as his attorney. On the next day, Ghulam Abbas was summoned as a prosecution witness. His evidence, which has stood the test of history, shows that news of the outbreak of the Mutiny at Meerut on 10 May took the King by surprise. Arrival of the troopers from the next day at 7 a.m. at his palace, shook him and he sent for Captain Douglas the Commandant of the palace guard, and ordered the palace gates to be shut against the intruders. His was a house divided. Begum Zinat Mahal, his confidantes the Hakim and the eunuch Mahboob Ali Khan had no sympathy for the rebels. The princes were all for them. Mirza Mughal became C-in-C; the others became colonels of regiments. Muhammad Bakht Khan became C-in-C in July 1857. Even as a fact-finding inquiry, the Commission acted dishonestly. It suppressed the facts which established Zafar's innocence. Most notably, a letter he despatched on 11 May, by camel express, to the Lieutenant-Governor of the Province at Agra, informing him of the situation. The letter was delivered but elicited no reply. The next day, the King relented and accepted leadership of the Mutiny. As Spear wrote `He had neither means of resistance nor possibility of escape. He had his own grievances and sense of injured dignity.'

Ghulam Abbas was asked to depose to the events that occurred `when the mutinous troops came from Meerut.' He narrated the events.

The King made desperate efforts to save Douglas's life and that of Fraser, the District Magistrate, but failed. Both were killed. By 10 a.m., Europeans were killed in large numbers; men, women and children.

Immediately after this, two Companies of Infantry which were on guard at the Palace Gates, followed by the Mutinous Cavalry that had come from Meerut, marched into the courtyard of the Hall of special Audience, and commenced firing their muskets, carbines and pistols in the air, at the same time making a great clamour. The King hearing the noise came out, and standing at the door of the Hall of Special Audience, told his immediate attendants to direct the troops to discontinue the noise they were making and to call the Native Officers forward, that they might explain the object of such proceedings. On this, the noise was quelled and the Officers of the Cavalry came forward mounted as they were and explained that they had been required to bite cartridges , the use of which deprive both Hindus and Mohamedans of their religion, as the cartridges were greased with beef and pork fat; that they accordingly, killed the Europeans at Meerut, and had come to claim his protection.

The King replied `I did not call for you, you have acted very wickedly.' On this, about one or two hundred of the mutinous Infantry, from Meerut having also arrived by this time, ascended the steps and came into the Hall, saying, `that unless you the King join us, we are all dead men, and we must in that case just do what we can for ourselves.' The King then seated himself in a chair, and the Soldiery, Officers and all, came forward one by one, bowed their heads before him, asking him to place his hand on them. The King did so, and each withdrew saying just what came into his mind.

On the sixth day of the trial the Hakim was recalled to establish authorship of yet more documents. Jat Mall, former news writer to the Lt-Governor, deposed to the King's assumption of `the reins of Government'. He was asked

Did the Prisoner give his consent to the murder of these Europeans? He replied: `On the first day of the soldiery making a request that the Europeans should be executed, the King refused his sanction; but it was said that on the day following, Basant Ali Khan, a personal attendant of the King and a man notorious for his savage disposition, went among the soldiers and instigated them to insist on the murder of the Europeans. They did so, and the King ordered the Europeans to be given up to them; at least this is what I subsequently heard at my own house. On the morning of the massacre, Basant Ali Khan is stated to have stood in the courtyard of the Hall of Special Audience and to have called out loudly, that the King had sanctioned the slaughter of the Europeans, and that the personal armed retainers of the Prisoner were directed to go and assist in carrying it into effect.

Question: In your opinion, could the King, had he been anxious to do so, have saved the Europeans, especially the women and children?

Answer: I heard in the city that the King did wish to save the Europeans, particularly the women and children, but that he was overruled by the violence of the soldiery, and had not the firmness to oppose them.

There was ample evidence of the notorious massacres of European women and children on 16 May over which Mirza Mughal presided. On this episode there were two pieces of evidence against the accused. His physician testified to a court diary `kept by the order of the King during the rebellion.' It was not written by him personally but was kept `according to custom.' An extract from the entry in the diary for 16 May read: `The King held his Court in the Hall of Special Audience. Forty-nine English were prisoners and the army demanded that they should be given over to them for slaughter. The King delivered them up, saying, "The army may do as they please," and the prisoners were consequently put to the sword.' It was written by `the man who kept the Court diary.' He was not produced as a witness. The diary was, in any case, no evidence against the King.

His former Secretary, Mukand Lal, gave evidence against him and made no effort to conceal his hostility. He was asked `By whose orders were the ladies and children that were prisoners in the Palace murdered?' He replied:

These people were being collected for three days: On the fourth day the infantry and cavalry soldiers, accompanied by Mirza Moghal, came to the entrance of the King's private apartments, and requested the King's permission to kill them. The King was at this time in his own apartments, Mirza Mughal and Basant Ali Khan went inside while the soldiery remained without; they returned in about 20 minutes, when Basant Ali Khan publicly and in a loud voice proclaimed that the King had given his permission for the slaughter of the prisoners, and that they could take them away; accordingly, the King's armed retainers, in whose custody the prisoners had been, took them from the place of confinement, and in conjunction with some of the mutinous soldiery, killed them.

Whether he testified under compulsion or voluntarily, his version was as implausible as it was a solitary one. He was prodded to paint the King in communal colours and readily obliged. Charles Ball described his conduct in The History of the Indian Mutiny (The London Printing and Publishing Company Limited, London, Vols. I and II, 1857. The History, though well documented is, as one might expect, partisan. The many steel engravings which illustrate it provide a feast to the eyes. It is a collector's prize. Vol. I p.175). Apparently, Mukand Lal's `insolent assurance' (sic.) drew from the prosecutors so sharp a rebuke that he needed `a slight interval ... to recover his equanimity.' He went on to depose `in very humble attitude and with clasped hands.' An order by the King to Mirza Mughal bitterly complained of the behaviour of his troops. `Even Genghis Khan and Nadir Shah, Kings execrated as tyrants, gave peace and protection to cities which surrendered without resistance.'

On 9 March, the twenty-first day of the trial, Bahadur Shah submitted a statement in his defence. He forcefully denied charges of complicity in the murders and pleaded his helplessness:

That Mirza Moghal and Mirza Khair Sultan may have given orders would not be strange for they had leagued with the revolted soldiery. After these occurrences, the rebellious troops brought Mirza Moghal, Mirza Khair Sultan, and Abulbakr, and said they wished to have them as their officers. In the first instance, I rejected their request; but when the soldiery persisted, and Mirza Moghal in anger went off to his mother's house, from dread of the soldiers. I kept quiet in the matter, and then by mutual consent on both sides, Mirza Moghal was appointed to be Commander-in-Chief of the army. As regards the orders under my seal, and under my signature, the real state of the case is, that from the day the soldiery came and killed the European Officers, and made me a prisoner, I remained in their power as such. All papers they thought fit, they caused to be prepared, and, bringing them to me, compelled me to affix my seal. Sometimes they brought the rough drafts of orders, and had fair copies of them made by my Secretary.

One fact stands out in the record. Repeated attempts were made to play on the communal divide. They failed (miserably), `The general feeling throughout the Army was the same; both among the Hindus and the Mahommedans', Jat Mall, a former news writer to the Lt. Governor, replied when asked whether the communities were divided.

Alexander Aldwell's widow, who was killed by the troops, refused to oblige the Court when asked `Had the Mussulmans and Hindus any quarrels or discussions among themselves on the score of religion when they were in Delhi together?' She answered: `I think when the troops first came, the Hindus made the King promise that there should be no oxen (sic.) killed in the city, and this promise was kept. I believed that not a single ox was killed in Delhi during the whole time of the rebellion. On the festival of the Bakr-Eed, when the Mahommedans usually slaughter an ox, a disturbance was expected; but the Mahommedans refrained from doing so on this occasion.'

The prosecutor, Harriott, made much of this fact in the very beginning of his address, which was a political tirade. He alluded to the causes of the Mutiny:

A revolt unparalleled in the annals of history, either for the savagery which has been its distinctive feature, or for the suddenness with which elements, hitherto deemed utterly discordant on the score of religion, have united themselves in a common crusade against a faith which, as regards the inhabitants of this country, whether Muhammadan or Hindu, was certainly a most unaggressive one. I fear, however, the subject is still but imperfectly elucidated; and I may perhaps be in error in attributing to a religious influence a movement which, after all, may prove to have been merely a political one a struggle of the natives for power and place, by the expulsion from the country of a people alien in religion, in blood, in colour, in habits, in feelings, and in everything.

Bahadur Shah was the one around whom both communities rallied as a symbol of revolt and unity. Insignificant and contemptible as to any outward show of power, it would appear that this possessor of mere nominal royalty has ever been looked upon by Muhammadan fanaticism as the head and culminating star of its faith. In him have still been centred the hopes and aspirations of millions. They have looked upto him as the source of honour, and, more than this, he has proved the rallying point not only to Muhammadans, but to thousands of others with whom it was supposed no bond of fanatical union could possibly be established.

Harriott accused the King of complicity in the murders and of participation in a conspiracy to revolt. He knew there was no credible evidence of either; still less on intrigue with Persia. `If I have not succeeded in tracing to the King himself, a fore-knowledge of the leading events that were to take place on Monday, the 11th of May, I trust it has been made obvious that the secret was in the possession of some influential inmates of the palace.' Towards the end, significantly, Harriott dwelt on the religious factor: `A candid undisguised endeavour to gain followers to Christ, has never, that I am aware of, been viewed with the slightest sign of disprobation by any portion of the natives, and were it more constantly before their eyes, who can doubt that it would remove this present dark and debasing error that Christianity is itself a caste.'

The Court did not pronounce judgment on his arguments; but gave a terse finding:

The Court, on the evidence before them, are of opinion that the Prisoner Muhammad Bahadur Shah, Ex-King of Delhi, is guilty of all and every charges preferred against him.

M. Dawes, LIEUT.-COL. President. Delhi: The 9th March 1858. F.J. Harriott, MAJOR, Deputy Judge Advocate-General. Approved and confirmed. N. Penny, MAJOR-GENERAL, Commanding Meerut Division. CAMP SAHRUN The 2nd April 1858.

The proceedings were forwarded to Sir John Lawrence, Chief Commissioner for the Punjab, who ... recommended transportation overseas of the ex-King. His wife Zinat Mahal and son Jiwan Bakht were to be given the option to accompany him or of being confined in Bengal, they chose to follow the Emperor. In October 1858, accompanied by Zinat Mahal and Jiwan Bakht, the King departed from Delhi for Calcutta, where they were placed on board a warship and taken to Rangoon. The King died in 1862 at the age of 87 and was buried in Rangoon.

The Mughal Empire ended; so did the East India Company's rule. The British Parliament enacted the Government of India Act, 1858 divesting it of the rights and powers in India and vesting them instead in the British Crown to be exercised in its name by the Government of India....

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