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2015 DIGILAW 1310 (GUJ)

Kanjibhai Bhopabhai v. State of Gujarat

2015-12-22

RAJESH H.SHUKLA

body2015
JUDGMENT : Rajesh H. Shukla, J. 1. The present appeal is directed against the judgment and order rendered in Sessions Case No. 76 of 2006 (old Sessions Case No. 222/2003) by the Addl. Sessions Judge, 3rd Fast Track Court, Anand, recording conviction of the appellants-accused for offence under sec. 307, 323 r/w sec. 114 of Indian Penal Code and imposing sentence as stated in detail in the impugned judgment and order. 2. The facts of the case, briefly summarized, are as follows: "2.1 As it transpires from the material and evidence on record, on 5.10.2002 at about 7 p.m. a luxury bus of Lucky Travels was stopped by the complainant on the ground that the driver of the bus had borrowed Rs. 2,000/-. However, the accused persons, as stated in detail in the complaint, came on motorcycles and after verbal altercation culminated into the incident of assault with lathis fitted with rings used normally by the Bharwad community, for which an FIR being C.R. No. I-104/2002 came to be registered with Tarapur Police Station. 2.2 After the investigation was over, the charge-sheet was filed and as the offence was triable by the Court of Sessions, the case was committed to the Court of Sessions. The learned Addl. Sessions Judge framed the charge for the offences as stated above and proceeded with the trial. 2.3 In order to bring home the charges levelled against the accused, the prosecution examined the witnesses including the complainant victim and the doctors and also produced documentary evidence and medical evidence which shall be referred to in the judgment hereinafter. 2.4 After recording of the evidence of the prosecution witnesses was over, the learned Addl. Sessions Judge recorded Further Statement of the accused persons under sec. 313 of the CrPC. 2.5 After hearing the learned APP as well as the learned advocate for the defence, the learned Addl. Sessions Judge recorded the conviction of the appellant accused and sentenced him as stated in detail in the impugned judgment and order. 2.6 It is this judgment and order which has been assailed in the present appeal by the appellants on the grounds stated in the memo of appeal, inter alia, that the court below has committed an error in appreciating the material and evidence and has failed to consider the vital aspect of injuries and that it was not pre-meditated." 3. 2.6 It is this judgment and order which has been assailed in the present appeal by the appellants on the grounds stated in the memo of appeal, inter alia, that the court below has committed an error in appreciating the material and evidence and has failed to consider the vital aspect of injuries and that it was not pre-meditated." 3. Heard learned advocate Shri BT Rao for the appellants-accused and learned APP Shri HL Jani for the respondent-State. 4. Learned advocate Shri Rao referred to the testimony of the complainant, PW-1, at exh. 16 and his complaint at exh. 17. He also referred to the testimony of PW-2, exh. 20, and testimony of PW-3, exh. 23 and also the testimony of PW-4 and PW-5 at exhs. 24 & 25 respectively. He pointedly referred to the testimony of Shyamlal, driver of the luxury bus, PW-15 at exh. 50, who has turned hostile. Learned advocate Shri Rao referring to the testimonies of these witnesses submitted that there are discrepancies. He submitted that PW-3 who is also injured has stated that he as well as PW-1 Bharatbhai were taken to the government hospital for treatment and the complaint was given thereafter. He further stated that he has not gone to the police station. He has also stated that the doctor has not asked about the names of the assailants. Learned advocate Shri Rao submitted and he has also stated that he had not stated about the names of the assailants accused. Similarly, he referred to the testimony of PW-1 Bharatbhai at exh. 16 and submitted that though he is said to have stated about the assault by the accused persons, in the cross-examination he has stated and admitted that the doctor had not asked as to who had caused the injury or assaulted him. Further, he is said to have stated to the doctor that in the quarrel he has received the injury but the names were not given. Further, he has stated that he was conscious and thereafter he had gone to the police station for lodging the complaint. He has further admitted about the genesis of the offence about the competition and rivalry of the hotel business for the purpose of luxury buses making halts at the respective hotels. 5. Further, he has stated that he was conscious and thereafter he had gone to the police station for lodging the complaint. He has further admitted about the genesis of the offence about the competition and rivalry of the hotel business for the purpose of luxury buses making halts at the respective hotels. 5. Learned advocate Shri Rao, therefore, tried to submit that the incident had occurred all of a sudden and the injuries which have been caused could not be said to be serious injuries for which conviction could be recorded. He referred to the medical evidence in the form of testimony of the Dr. Samir Patel, PW-8 at exh. 32 and the certificate at exh. 34. He also referred to the impugned judgment and submitted that the points for determination are not clear. He pointedly referred to the involvement of the accused persons and submitted that as discussed in the judgment in para 25, as there was darkness and the injured complainant was unconscious, he could not have identified or could not have known who had assaulted and the court below has proceeded on the assumption. He also referred to the other observations in the judgment to support his contention on the aspect of both identification of the accused and the discrepancies with regard to the manner in which the incident has occurred. 6. Learned advocate Shri Rao further emphasised that assuming that the incident has occurred and the presence of the accused is established, the injuries do not justify conviction for offence under sec. 307 as it was an assault with lathis. Learned advocate Shri Rao again referred to the testimony of the witnesses. He pointedly emphasised the testimony of PW-1 complainant and other witnesses and submitted that if it was a ringed lathi it would have a cut wound and the medical evidence does not suggest any such injury and therefore there is improvisation in the testimony of a few witnesses on this aspect. Learned advocate Shri Rao therefore pointedly referred to the medical evidence and submitted that if the injury to the complainant and other victims is considered, it does not justify conviction for offence under sec. 307IPC. He submitted that the normal conduct has to be seen and the complainant having not given the names of the accused persons initially, the chances of false implication or over implication may be considered. 7. 307IPC. He submitted that the normal conduct has to be seen and the complainant having not given the names of the accused persons initially, the chances of false implication or over implication may be considered. 7. In support of his submissions, learned advocate Shri Rao has referred to and relied upon the judgments of the Hon'ble Apex Court reported in (2012) 10 SCC 303 in the case of Gian Singh v. State of Punjab and anr., (2008) 15 SCC 667 in the case of Ishwar Singh v. State of Madhya Pradesh, and 2009(2) GLH 56 in the case of Manoj and anr. v. State of Madhya Pradesh. Learned advocate Shri Rao submitted that in any case a settlement has been arrived at between both the sides for which affidavits are placed on record suggesting a lenient view in the matter and he has stated that the injured victims Govindbhai as well as Kanjibhai have filed affidavits stating that settlement has been arrived at and therefore the conviction may be set aside. Learned advocate Shri Rao also submitted that even while maintaining the conviction, the order of sentence may be modified to the extent of sentence undergone in the facts and circumstances. 8. Learned APP Shri Jani referred to the background of facts that the incident occurred out of some business rivalry for stoppage of the luxury bus at the respective hotels. He submitted that the testimony of PW-1, exh. 16, and the testimony of PW-2 who is an injured victim and other evidences is required to be considered. Learned APP Shri Jani submitted that though it is suggested that there is discrepancy with regard to the manner or the lathi or weapon, it is evident that all the accused persons had assaulted causing injuries not only to the complainant but the other two persons and it was with ringed lathis on the vital part of the body which could cause even death. He therefore submitted that the submission that the conviction could not have been recorded under sec. 307 is misconceived. For that purpose, he also referred to the discussion on this aspect in the impugned judgment and submitted that it is evident that indiscriminate blows were given and merely because the victims may have survived would not reduce the gravity of the charge or offence. 9. 307 is misconceived. For that purpose, he also referred to the discussion on this aspect in the impugned judgment and submitted that it is evident that indiscriminate blows were given and merely because the victims may have survived would not reduce the gravity of the charge or offence. 9. Learned APP Shri Jani also referred to the testimony of the driver of the luxury bus, PW-15 at exh. 50. He submitted that though it is sought to be projected or said that he was cleaning and therefore he could not have seen what is transpiring at the rear portion and he has been declared hostile and therefore the evidence is not believable requires a closer scrutiny. Learned APP Shri Jani submitted that even though he has been declared hostile, the presence of the accused is confirmed and the assault or the incident is also confirmed though he may not have seen every detail of the incident initially when he was on the front side of the vehicle. However, that does not mean that the entire evidence has to be discarded. He submitted that his evidence would be corroborating the testimony of the complainant, PW-1 at exh. 16 and other two victims who have narrated about the manner of the incident, that the accused persons have assaulted with indiscriminate blows with the ringed lathis. He submitted that it is required to be mentioned that they had come prepared with the lathis and the background or the foundation of the incident is the quarrel over the business of stopping of vehicles at the respective hotels. 10. Therefore, it cannot be said that there was nothing in the minds and some quarrel or altercation erupted on the spur of the moment. He emphasised that in fact they had come to restrain the complainant from disturbing their business with a threat resulting into verbal altercation and thereafter the incident of assault. Therefore, it would be both intention and also the knowledge. Learned APP Shri Jani submitted that intention or knowledge has to be gathered and apart from anything the conviction recorded is for offence under sec. 307 considering the assault made with ringed lathis on the vital part of the body with indiscriminate blows. He therefore submitted that it cannot be said that the conviction for the offence under sec. 307 was not justified and it could have been only under sec. 307 considering the assault made with ringed lathis on the vital part of the body with indiscriminate blows. He therefore submitted that it cannot be said that the conviction for the offence under sec. 307 was not justified and it could have been only under sec. 323 of IPC. 11. Further, learned APP Shri Jani has also submitted that the submission that the medical evidence has not corroborated the injuries is also misconceived. In fact, the testimony of Dr. Harani, PW-7 at exh. 29, has confirmed that he has given the certificate, exh. 30. The testimony of Dr. Samir Patel, PW-8 at exh. 32 also corroborates this evidence that the injured victims were threatened. Further, PW-8 in his testimony at exh. 32 has clearly stated that the injury was serious as it was on the head which is a vital part of the body. He has also referred to the discussion on this aspect in the judgment, para 32, and it was submitted that the injury is fully corroborated by the medical evidence and therefore any such submissions are misconceived. 12. Learned APP Shri Jani submitted that though it has been stated that compromise/settlement has been arrived at for which affidavits are produced, he submitted that such affidavits also require a closer scrutiny as in the affidavit stating about compromise nowhere it is stated that the offence is not committed and it would suggest that the offence and the incident has taken place. He has further submitted that the injured victims have not placed anything on record but it is stated on affidavit by the appellants-accused. He further emphasised that the affidavits are typed in 2009 and affirmed in 2015 which is also raising doubts about the genuineness and PW-3, Ghanshyambhai, who is also an injured victim, has not filed any affidavit. Learned advocate Shri Jani submitted that considering the background of facts and the observations made by the Hon'ble Apex Court in judicial pronouncements, an offence under sec. 307 is an offence against the society and there should not be any lenient view. 13. Learned APP Shri Jani has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2014) 10 SCC 285 in the case of State of Madhya Pradesh v. Deepak and ors. and submitted that as observed in this judgment, it does not permit a lenient view. 13. Learned APP Shri Jani has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2014) 10 SCC 285 in the case of State of Madhya Pradesh v. Deepak and ors. and submitted that as observed in this judgment, it does not permit a lenient view. He submitted that as it has been observed, it depends upon the facts of the case where the discretion is reserved and left to the court in a given case. He submitted that the facts of the case do not justify taking any such lenient view. He also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Gian Singh v. State of Punjab and anr., (2012) 10 SCC 303 . He, therefore, submitted that the present appeal may not be entertained and deserves to be dismissed. 14. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration and whether the impugned judgment and order calls for any interference. 15. As discussed hereinabove, both the sides have referred to the material and evidence at length with reference to the testimonies of the witnesses and other evidence with regard to the injuries and the medical evidence. It is not in dispute that the basis for the incident has its origin in the rivalry qua hotel business and halt of luxury buses at the respective hotels. Even when the incident occurred the accused persons are said to have come when the complainant victim and others had stopped a particular luxury bus for which a grievance was made by the accused persons who came there on motorcycles armed with lathis and after a verbal altercation it resulted in the incident of assault. It is also not in dispute that the incident has taken place, the presence of the accused persons with weapon like lathis or ringed lathis are established by the injured victims who are the witnesses and also the driver of the luxury bus, PW-15 at exh. 50. It is required to be stated that this witness, though has been declared hostile, he has testified about the incident and the presence of the accused persons where he has stated that he knows the accused persons, they are in the hotel business and with the name of the hotel he has confirmed. 50. It is required to be stated that this witness, though has been declared hostile, he has testified about the incident and the presence of the accused persons where he has stated that he knows the accused persons, they are in the hotel business and with the name of the hotel he has confirmed. This witness has stated that when the quarrel started he has not seen the assault on victims as they had run away. The fact remains that the incident has taken place. Therefore, the injured victims in their respective testimonies have also stated about the assault with lathis or ringed lathis and how indiscriminate blows were given. 16. It is well settled that the testimony of the injured eye witness who is the victim cannot be brushed aside as he is the person who has suffered and he could easily identify or tell about the person who has assaulted him and also the weapon with which he has been assaulted. This injured eye witness has stated about the manner of the incident, the assault with the weapon like lathis or ringed lathis on the head and these injuries have been corroborated by the medical evidence. The injured witnesses have not inflicted such injuries on themselves and therefore when presence of the accused persons armed with lathis and also the altercation is established, the injury to the injured victims with such lathis cannot be doubted when the injured victims have testified about the assault with such lathis. This has been further corroborated by the medical evidence confirming about the injury and the weapon which could cause such injury. 17. A close look at the testimony of the doctors, PW-7 at exh. 29 and PW-8 at exh. 32 and the medical certificate, exh. 34, clearly establish and corroborate the version of the injured victims. Therefore, the submission made by learned advocate Shri Rao with regard to false implication or emphasis on the testimony of PW-15 driver of the bus that he has been declared hostile and therefore there could be false implication as he has not seen the incident is misconceived. Another facet of the submission that even if the presence of the accused persons and the incident is accepted, the conviction for the offence under sec. 307 is not justified and it could have been for an offence under sec. 323 is also misconceived. 18. Another facet of the submission that even if the presence of the accused persons and the incident is accepted, the conviction for the offence under sec. 307 is not justified and it could have been for an offence under sec. 323 is also misconceived. 18. In view of the discussion made hereinabove which state about the manner of the incident, the presence of the accused, the assault with the weapon as stated by the injured victims and corroborated by the medical evidence would hardly leave any scope for any such doubt sought to be raised. The submission made by learned advocate Shri Rao that conviction could not have been made for offence under sec. 307 is therefore too difficult to digest. It is required to be mentioned that mere raising the contention without any further corroboration or genuine dispute with regard to either the presence or the evidence as regards the injury it cannot be believed or accepted at the face value. 19. Another facet of the submissions which have been emphasised referring to the settlement that the parties have arrived at settlement or compromise for which affidavits have been placed on record and therefore the conviction may be set aside or even while maintaining conviction the sentence may be modified to the extent it has been undergone requires a closer scrutiny. 20. In fact, the judicial pronouncements have time and again deprecated such approach clearly observing that the offence under sec. 307 is a crime against the society. There are series of judgments where the courts have, while either permitting the compounding of offence or even if the offence is not compoundable accepting the compromise or settlement, clearly made the distinction with regard to the nature of offence which are individual or affecting the individual only and other set of offences or crime which have a bearing on the society or social norms, law and order the offence under sec. 307 is recorded and therefore the legislature in its wisdom has not made such offence as compoundable offence after proper deliberation and having regard to the impact on the society, law and order and other larger issues. 21. One more aspect which has been emphasised requires consideration is about modification of sentence. 307 is recorded and therefore the legislature in its wisdom has not made such offence as compoundable offence after proper deliberation and having regard to the impact on the society, law and order and other larger issues. 21. One more aspect which has been emphasised requires consideration is about modification of sentence. Though the request is made for modification of sentence, the courts are required to consider while imposing punishment certain aspects and the doctrine of proportionality in the sentence. The doctrine of proportionality has been reiterated in judgments of the Hon'ble Apex Court. It has been observed in the judgment reported in Siriya alias Shri Lal v. State of M.P., reported in AIR 2008 SC 2314 , "Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." 22. Moreover, the basic issues with regard to punishment have to be considered and there cannot be any format for the punishment and the courts have been left with the discretion depending upon relevant guiding factors like gravity of the offence as well as the legislature providing for certain minimum punishment in certain type of offences where the legislature has been consciously providing with the words "not less than", meaning thereby, the minimum sentence has to be inflicted. This has a reference to the different theories which have been advocated like the deterrent theory, retributive theory, preventive and reformative theories. 23. This has a reference to the different theories which have been advocated like the deterrent theory, retributive theory, preventive and reformative theories. 23. It is required to be mentioned that as Sir John Salmond has stated, "The ends of criminal justice are four in number, and in respect to the purposes served by them punishment can be divided as (1) deterrent, (2) retributive, (3) preventive, and (4) reformative." There have been different theories which have been advocated for all the aforesaid theories of punishment. Sometimes punishment is considered as necessary for prevention and is necessary to be inflicted for deterrent effect. 24. On the other hand, J.M. Finnis argues in favour of "retributism by mentioning it as a balance of fairness in the distribution of advantages and disadvantages by restraining his will." It is believed that "judicial punishment can never be used merely as a means to promote some other good for the criminal himself or the civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to purposes of someone else......... He must first of all be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or his fellow citizens." However, Sir Walter Moberly states that the punishment is deemed to give the men their dues. It has been advocated that therefore it is an end in itself. 25. Thus, there are theories of punishment reflecting the policies regarding punishment as stated above. Again, it has been considered that it is not necessarily a legal punishment and the justification for legal punishment has been given a greater consideration or justification for the protection of the civil society or maintenance of law and order. It is rather a mode of social protection. It is in this background the deterrent or preventive theories of punishment have been advocated and accepted. It is in this background and considering the doctrine of proportionality evolved by judicial pronouncements it has to be considered in order to balance the right of the accused and the right of the victim or the society in general. 26. It is in this background, the submissions made by learned advocate Shri Rao for alteration for conviction for offence under sec. 26. It is in this background, the submissions made by learned advocate Shri Rao for alteration for conviction for offence under sec. 323 instead of for offence under sec. 307 cannot be accepted. 27. It is in this background and also the observations made by the Hon'ble Apex Court in its judgment in the case of State of Madhya Pradesh v. Deepak and ors. [ (2014) 10 SCC 285 ] are required to be considered where it has expressed a word of caution against taking a lenient view. It has observed quoting from the judgment in the case of State of Rajasthan v. Shambu Kewat [ (2014) 4 SCC 149 ], "We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, is because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant just to protect the individual but the society as a whole. The High Court was not right in thinking that it was only an injury to the person and since the accused persons (sic victims) had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is, safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by anyone and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful coexistence and welfare of the society at large." Again, it has been emphasised, "We would like to mention at this stage that in some cases offences under Section 307 Indian Penal Code are allowed to be compounded, whereas in some other cases it is held to be contrary. This dichotomy was taken note of by referring to those judgments, in the case of Narinder Singh & Ors. v. State of Punjab & Anr., (2014) 6 SCC 466 , and by reconciling those judgments, situations and circumstances were discerned where compounding is to be allowed or refused. To put it simply, it was pointed out as to under what circumstances the Courts had quashed the proceedings acting upon the settlement arrived at between the parties on the one hand and what were the reasons which had persuaded the Court not to exercise such a discretion. After thorough and detailed discussion on various facets and after revisiting the entire law on the subject, following principles have culled out in the said decision." 28. The same principles which have been referred to in the aforesaid Narinder Singh's case have been also quoted in this judgment which has been specifically observed in para 11 in this judgment, "Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." 29. The Hon'ble Apex Court in a judgment in the case of Narinder Singh and ors. v. State of Punjab and anr., reported in (2014) 6 SCC 466 , has made the observations, "Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under section 307, IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision making which requires 'certainty' too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. Hence, it is appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. It is clarified that though there would be a general discussion in this behalf as well, the matter is examined in the context of offences under Section 307 IPC." Thus, it has a reference to the timing of the settlement which would also play a crucial role as observed in this judgment. It is observed, "On that basis, if it is found that there is a strong possibility of proving the charge under Section 307Indian Penal Code, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 Indian Penal Code were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties." Again, these observations and discussion have been made referring to the exercise of power under sec. 482 and therefore the reference is made to the time of the settlement which could play a crucial role. 30. Therefore, the impugned judgment and order does not call for any interference. The conviction recorded for the offence under sec. 307 r/w sec. 482 and therefore the reference is made to the time of the settlement which could play a crucial role. 30. Therefore, the impugned judgment and order does not call for any interference. The conviction recorded for the offence under sec. 307 r/w sec. 114 of IPC deserves to be confirmed. However, in view of the settlement between the parties and the submissions made regarding modification of the sentence, while maintaining the conviction, interest of justice would be served if the sentence is reduced and modified to rigorous imprisonment for 3 years instead of 4 years. 31. Therefore, the appeal stands allowed partly only to the aforesaid extent of modification of sentence while maintaining conviction for the offence under sec. 307 of IPC as recorded in detail in the impugned judgment and order. FURTHER ORDER After the judgment was pronounced, learned advocate Shri Rao has requested for time to surrender up to 10 weeks. However, time to surrender is granted up to 31.1.2016.