Delhi District Court
State vs Shiv Prasad Verma on 18 October, 2023
FIR No. 169/2004
State v. Shiv Prasad Verma
PS Sarita Vihar
IN THE COURT OF METROPOLITAN MAGISTRATE-0 5,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
DLSE020000412005
Cr. Case No. -: 86613/2016
FIR No. -: 169/2004
Police Station -: Sarita Vihar
Section(s) -: 288/304A IPC
In the matter of -
STATE
VS.
SHIV PRASAD VERMA
...Accused
1. Name of Complainant :- SI Hari Prakash
2. Name of Accused Person :- Shiv Prasad Verma
3. Offence complained of or :- 288/304A IPC
proved
4. Plea of Accused Person :- NOT GUILTY
5. Date of Commission of :- 21.03.2004
offence
6. Date of Filing of case :- 07.12.2005
7. Date of Pronouncement :- 18.10.2023
8. Final Order :- CONVICTED u/s 304A IPC
ACQUITTED u/s 288 IPC
BRIEF REASONS FOR DECISION
1. The case of the prosecution in brief is that on 21.03.2004, the victim, namely
Daya Ram, who was working under the Accused Shiv Prasad Verma, in the
project of construction of front showroom on property bearing A-13, Mohan
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State v. Shiv Prasad Verma
PS Sarita Vihar
Co-operative Estate, Mathura Road (hereinafter referred to as "site"), within
jurisdiction of PS Sarita Vihar, died when the lanter (lintel) fell upon him due
to the shuttering giving way on account of being weak and withdrawal of
support. Hence, the case of the prosecution is that the Accused being the
contractor/in-charge of the said site omitted to take such order with the said
building as was sufficient to guard against probable danger to human life
from the fall of the building or any part thereof, and as a result the lanter
(lintel) collapsed and he caused the death of Daya Ram, not amounting to
culpable homicide. Hence, the present FIR was lodged against the Accused
for the offences under Section 288/304A Indian Penal Code ("IPC").
2. After the investigation, the charge-sheet was filed in the Court on 07.12.2005
against the Accused for the offences under Section 288/304A IPC. Notice
under Section 251 Code of Criminal Procedure ("CrPC") for these offences
was served upon him vide order dated 21.01.2008 by the Ld. Predecessor
Court, to which the Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case prosecution has examined eight witnesses in all; and led the
following oral and documentary evidence:
ORAL EVIDENCE
PW1 :- Sh. Jagbir Singh (photographer)
PW2 :- Jhamman Lal (eye-witness/worker on
site)
PW3 :- Gyan Chand (eye-witness/worker on
site)
PW4 :- Raju (eye-witness/worker on site)
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State v. Shiv Prasad Verma
PS Sarita Vihar
PW5 :- Hari Prasad (eye-witness/worker on
site)
PW6 :- Insp. Hari Prasad (IO)
PW7 :- ASI Ram Singh (Duty Officer)
PW8 :- Jaswant Singh Bhasin (owner of site)
DOCUMENTARY EVIDENCE
Ex. P-1 to :- Photographs of the site taken by PW-1.
P-14
Ex. PW6/A :- Rukka
Ex. PW6/B :- Site Plan
Ex. PW6/C :- Form relating to Section 174 CrPC
Ex. PW6/D :- Arrest memo and personal search
and Ex. memo of the Accused
PW6/E
Mark X :- Statement of witnesses under Section
161 CrPC
Ex. PW6/F :- Consent form for post-mortem of the
deceased
Ex. :- Dead body handover memo
PW6/G
Ex. P1 :- Agreement executed between the
owner and the Accused for
construction of the site dated
21.02.2004
Ex. PW7/A :- Copy of FIR and endorsement on
and Ex. rukka
7/B
Ex. PW8/A :- Hindi translated agreement dt.
21.02.2004.
DOCUMENTS ADMITTED BY THE ACCUSED
PURSUANT TO SECTION 294 CRPC
Ex. C1/Ex. :- Post mortem report No. 299/04
N
Ex. M :- Agreement dated 21.02.2004.
4. Accordingly, Dr. Kailash Chand was dropped from the list of witnesses,
pursuant to the statement of the Accused recorded under Section 294 CrPC.
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State v. Shiv Prasad Verma
PS Sarita Vihar
5. PW-1/Sh. Jagbir Singh, the photographer, proved the photographs of the
site on the date of incident, Ex. P-1 to Ex. P-14. He was not cross-examined
despite opportunity by the Accused.
6. PW-2/Jhamman Lal, has deposed that in 2004, he, Kamal, Gyan, Suraj
Mistry, Virender Mistry, Om Prakash Munshi, Raju Beldar, Ram Prasad
Beldar and Daya Ram (deceased) were working as labourers/masons at
construction sites. On 21.03.2004, the said persons were doing construction
work at the site, under the contractorship of the Accused, who was also their
thekedar and was supervising their work. He has further deposed that on the
said date, shuttering work was going on with the help of wooden planks and
when he alongwith the other labourers/masons complained regarding poor
quality of the wooden planks, Accused did not pay heed and said 'issi se
kaam chalao'. The work of lanter (lintel)/casting of roof was being done in
the intervening night of 20.03.2004 to 21.03.2004. At about 07.30 AM on
21.03.2004 while the roof was being casted, the wooden planks/shuttering
gave way and it came down. At the same time, the deceased who was
standing under the lanter (lintel) to oversee leakage of any concrete or
mixture, received injuries as the shuttering fell on him and he died at the
spot. Thereafter, police came at the spot and deceased was taken to the
hospital. He has further stated that the death of the deceased took place due
to negligent conduct of the Accused as he did not provide proper wooden
planks for shuttering and hence when the concrete/mixture/lanter (lintel)
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State v. Shiv Prasad Verma
PS Sarita Vihar
which was being casted, the shuttering gave way. He correctly identified the
Accused as well as photographs of the spot of occurrence, Ex. P-1 to Ex. P-
13, in Court on the said date.
In his cross examination, he stated that he was working under the
Accused for the first time, and that they have been working at the site for one
month prior to incident. He has also stated that they have been regularly
complaining about poor quality of wooden planks to the Accused. He has also
stated that half of the shuttering gave way/fell down and added that in fact the
support to shuttering was forcefully got removed by the Accused. The owner
was not present at the time of the incident. He denied the suggestion that he
was deposing falsely.
7. PW-3/Gyan Chand, has already deposed on the same lines as PW-2 and
supported the case of the prosecution. He has further stated that on
21.03.2004, he was working as a labourer for shuttering work alongwith PW-
1, Dayaram, Raju and Hari. They were involved in putting the lanter (lintel)
at the site. The lanter (lintel) fell due to lack of support of shuttering, due to
which Dayaram who was standing under the raw lanter (lintel) and
supervising the support, came under the rubble (debris) and died on the spot.
The Accused, who was sitting on the roof had instructed to withdraw some
support of the lanter (lintel) to make way, due to which the lanter (lintel) fell
down and the deceased came under the rubble (debris). The police arrived
and rubble (debris) was removed with the help of machine and the body of
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State v. Shiv Prasad Verma
PS Sarita Vihar
deceased was recovered after two hours. The accident took place due to the
negligence of Accused Shiv Prasad as he got support of the lanter (lintel)
withdrawn.
In his cross examination, he stated that he was brought on the said
site by Accused 10/12 days prior to the incident. The Accused was sitting on a
roof parallel to the lanter (lintel). Their working hours were from 09.00 AM to
07.00 PM usually, and no card or register was maintained for attendance. PW-1
and deceased were masons, looking after the shuttering. He stated that he did
not know that who got the support removed from the shuttering, but
volunteered to state that it was the duty of the Accused. He further stated that
he was awake the entire night as the work of casting of lanter (lintel) started in
the evening and was carried out throughout the night. He denied the suggestion
that the incident did not take place due to fault of the Accused.
8. PW-4/Raju, turned hostile and only stated that he used to work as a helper in
shuttering and he did not remember the exact date or month of the incident,
as it took place 10 years before the date on which his testimony was being
recorded. He said that they were working under the contractorship of one
Madan lal, but the construction site was under the contract/supervision of the
Accused who was present in court. He stated that he was informed that a part
of the lanter (lintel) fell down and the deceased had died under the rubble
(debris). Since PW-4 was not revealing the full facts, he was cross examined
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State v. Shiv Prasad Verma
PS Sarita Vihar
by Ld. APP for the state, with permission. Despite opportunity, he was not
cross examined by the Accused.
9. PW-5/Hari Prasad turned hostile and only stated that Accused Shiv Prasad
was getting the work of construction on the site and that at about 07.00 AM
on the date of incident, he got to know that the lanter (lintel) had collapsed
and dead body of deceased was found in the debris. He was cross examined
by Ld. APP for the state with permission, in which he accepted the contention
that the shuttering was weak having been made of wood. In his cross
examination by Ld. Counsel for the Accused, he stated that he was not the
employee of the Accused at the time of the incident and that since he was not
working at shuttering site as a shuttering labour, he could not say whether the
shuttering was weak or not. He also admitted that the body of the deceased
was not recovered from the debris in his presence.
10.PW-6/Insp. Hari Prasad deposed that on 21.03.2004, on receipt of DD No.
5A, he went to the site, where he found a collapsed under construction work,
PCR van and fire brigade. The deceased was rescued and taken to AIIMS,
Trauma Centre, where he was declared brought dead. He prepared rukka, Ex.
PW6/A and sent the same through Ct. Kailash for registration of FIR. He
prepared site plan Ex. PW6/B and recorded statement of witnesses Gyan
Chand, Hari Parasad, Raju and Jamman, which are Mark X (Colly). Inquest
form, Ex. PW6/C was prepared. Accused was arrested and personally
searched vide Ex. PW6/D and Ex. PW6/E. Identification memo of dead
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State v. Shiv Prasad Verma
PS Sarita Vihar
body, consent form for post mortem were also prepared. After post mortem,
dead body was handed over to the relatives of the deceased. The
photographer was called who clicked photographs of the spot on 21.03.2004.
He also collected copy of agreement for construction of the site, which is Ex.
P-1. He recorded statement of witnesses and filed the chargesheet in court.
In his cross examination, he stated that he reached the spot at 10.50
AM, where 30-40 persons were present. He also admitted that he did not get
the spot examined by any expert/engineer. He denied the suggestion that the
incident did not take place due to the fault/negligence of the Accused.
11.PW-7/ASI Ram Singh proved the registration of FIR, Ex. PW7/A and
endorsement on rukka Ex. PW7/B. He was not cross examined by the
Accused despite opportunity.
12.PW-8/Jaswant Singh Bhasin deposed that he was the director of
Continental Auto Services and that on 20.02.2004, Ex. P-1 was executed with
the Accused for construction of work at the site. He proved the agreement
Ex. P-1 and Ex. PW8/A.
In his cross examination, he submitted that the agreement was not
executed in his presence and that Shiv Prasad had worked with them on a
previous occasion as well. He denied the suggestion that the agreement was
false and that he was deposing falsely.
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State v. Shiv Prasad Verma
PS Sarita Vihar
STATEMENT OF ACCUSED U/S 313 CRPC
13.Thereafter, Prosecution Evidence was closed. After conclusion of prosecution
evidence, statement of Accused was recorded u/s 313 CrPC on 02.11.2016
and on 27.11.2017, wherein he pleaded his innocence and stated that he is
innocent and has been falsely implicated in the present case. He stated that
the lanter (lintel) fell due to the negligence of Madan Lal and not due to his
own negligence and that PW-1 and PW-2 were labourers of Madan Lal and
hence deposed falsely. He has also stated that the wooden planks were
provided by the owner of the building. Accused refused to lead defence
evidence and final arguments were heard in the matter.
FINAL ARGUMENTS AND ANALYSIS
14.I have heard the arguments of Ld. APP for State and Ld. Defence Counsel. I
have also perused the case file carefully.
15.At the stage of final arguments, the Ld. Predecessor of this Court had vide
order dated 22.02.2018 summoned M/s Continental Auto Service, Bansidhar
Ganga Prasad Pvt. Ltd., and the concerned Architect in exercise of power u/s
319 CrPC. However, vide order dated 24.05.2023, the Ld. ASJ-07/SED set
aside the said order of summoning the aforesaid persons/entities; and as a
result the said persons stood discharged. Accordingly, final arguments were
re-heard by the undersigned for the allegations against Accused Shiv Prasad
alone.
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State v. Shiv Prasad Verma
PS Sarita Vihar
16.It is to be seen that Accused Shiv Prasad has been charged with for the
offences u/s 288/304A IPC.
17.Section 288 IPC reads as: "Whoever, in pulling down or repairing any
building, knowingly or negligently omits to take such order with that
building as is sufficient to guard against any probable danger to human
life from the fall of that building, or of any part thereof, shall be punished
with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with
both."
18.Section 304A IPC provides "Whoever causes the death of any person by
doing any rash or negligent act not amounting to culpable homicide, shall
be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both."
19.For offence under section 288 IPC, the prosecution has to prove beyond
reasonable doubt, the following mandatory ingredients, viz.,
(i) The Accused was pulling down or repairing the building;
(ii) The Accused omitted to take such order with that building as was
sufficient to guard against probable danger to human life from the
fall of the building or any part thereof; and
(iii) The omission complained of was due to negligence or with the
knowledge of such probable danger.
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State v. Shiv Prasad Verma
PS Sarita Vihar
20.In the present case, the first essential ingredient, which is that the Accused
was pulling down or repairing the building is not fulfilled in the present case
as while the Accused was granted the contract for both demolition and
construction of the site in question, the present incident has taken place while
the front showroom was being constructed on the site, after the demolition
was already over. In these circumstances, it cannot be said that the negligent
act of the Accused, if any falls within purview of section 288 IPC, as it does
not pertain to pulling down or repairing any building1.
21.However, it is to be now considered whether the act/omission of the Accused
falls within the ambit of section 304A IPC. The following ingredients are
required in case of the offence u/s 304A IPC:
(i) A person does an act2 which is rash or negligent; and
(ii) As a result of such act, he causes the death of any person not
amounting to culpable homicide.
22.In present case, the fact that the Accused was the contractor of the site where
the victim died is proved from the testimony of PW-8 and the agreement Ex.
P1, and Ex. PW8/A. Further, the fact that the victim was working with the
Accused as a mason/labourer at the site is proved from the testimony of PW-
2 and PW-3. A perusal of Ex. P1 shows that the work of construction of front
1
Reliance is placed on judgment of Hon'ble High Court of Delhi in Brij Kishore Srivastava v. State of NCT of
Delhi, Crl. Rev. Petition 51/2015 (decided on 29.11.2017).
2
It is trite law that by virtue of Section 32 IPC, words which refer to acts done extend also to illegal omissions.
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State v. Shiv Prasad Verma
PS Sarita Vihar
showroom on material basis at A-13, Mohan Cooperative Estate, Mathura
Road was handed over to the Accused, i.e., Shiv Prasad by M/s Continental
Auto Services, being the owner of the site. The scope of work of the said
contract was that the Accused was to demolish the existing showroom and
remove all the material and thereafter construct the complete ground floor
and first floor, within a period of 35 days from the day of dismantling. As per
the agreement Ex. P1, steel shuttering was to be used at the site. The fact that
the victim died as a result of collapse of the shuttering and lanter (lintel) is
proved from the post-mortem report Ex. C-1, as well as from the testimony
of the witnesses, i.e., PW-2, PW-3, PW-4 and PW-5. The fact that the lanter
(lintel) had fallen down and the deceased came under the rubble (debris) of
the lanter (lintel) is also an undisputed fact. The only question which now
arises for consideration is whether the act of the contractor i.e., the Accused
was rash and negligent, which thereafter caused the death of the victim in
question.
23.The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR
2007 SC 1064 while dealing with rashness/culpable negligence has observed:
"7. ...Culpable negligence lies in the failure to exercise reasonable and
proper care and the extent of its reasonableness will always depend upon the
circumstances of each case. Rashness means doing an act with the
consciousness of a risk that evil consequences will follow but with the hope
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State v. Shiv Prasad Verma
PS Sarita Vihar
that it will not. Negligence is a breach of duty imposed by law. In criminal
cases, the amount and degree of negligence are determining factors."
24.From a perusal of the testimony of PW-2 and PW-3, it appears that poor
quality wood had been used in the shuttering and despite complaint having
been made by the workers to the Accused on several ocassions, he had forced
them to work with the said planks and said "issi se kaam chalao". PW-2 and
PW-3 have also stated that the support to the shuttering was forcefully got
removed by the contractor/Accused, as a result of which the shuttering fell
down and the lanter (lintel) also fell down. In the present case, it appears that
the Accused asked the labourers to remove support of the shuttering, which
was further supporting the lanter (lintel), which was still raw (having being
casted only one night before the incident), without assessing the strength of
the shuttering and the lanter (lintel). Further, the shuttering in itself was
prepared with poor quality wood (as per testimony of PW-2, PW-3 and PW-
5), even though as per the agreement Ex. P1, steel shuttering was to be used.
In these circumstances and due to the negligent act of the Accused, when the
victim Dayaram went to check leakage under the lanter (lintel), due to usage
of poor quality of wooden planks in the shuttering and premature withdrawal
of support of the shuttering (without the Accused first checking the fitness
and strength of the same), the lanter (lintel) which had been recently casted,
alongwith the shuttering fell down on the victim Dayaram, causing his death.
From a perusal of testimony of PW-3, it has also come on record that the
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State v. Shiv Prasad Verma
PS Sarita Vihar
Accused was sitting on the roof and he instructed the labourers to withdraw
the support of the shuttering (which was anyway made of poor-quality
wood). This means that without actually checking the situation and while
sitting afar at the roof, the Accused/contractor, who was supposed to
supervise the construction of the site ordered the withdrawal of the support of
the shuttering which in itself was supporting the newly cast and raw lanter
(lintel). The fact that the wooden planks used in the shuttering were anyways
weak, had been informed to the contractor/Accused by the workers, as has
come in the testimony of PW-2. Further, the fact that wooden planks would
have been unfit for the construction, is also visible from the agreement, Ex.
P1, in which it was stated that steel shuttering would be used during the
construction. However, despite complaints, the Accused forced the labourers
to continue to work with poor quality wooden planks, which displays his
utter disregard towards taking reasonable care and caution. From the perusal
of testimony of PW-2, it has also come on record that the work of lanter
(lintel) or casting of the roof was actually being undertaken on the
intervening night of 20.03.2004 to 21.03.2004 and on the very next day that
is 21.03.2004 at 07:30 AM, the contractor i.e. the Accused also without
checking the strength of the lanter (lintel) asked the staff to withdraw the
support, which was anyway of wooden planks, which was also complained to
be of poor quality, to him previously, due to which the lanter (lintel) and the
shuttering gave way. In this factual matrix, the rashness and negligence of the
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State v. Shiv Prasad Verma
PS Sarita Vihar
Accused is clearly made out. In a similar factual matrix, the Hon'ble High
Court of Delhi in Ram Karan v. State (Delhi Administration), Crl. Rev.
Petition 496/2001 (decided on 04.12.2009) had observed that:
"It was under his supervision that this work of the demolition of the house of
PW-6 was being carried out. Inspite of repeated warnings and caution notes
having been given by PW-6 and PW-9, the petitioner did not pay any heed
and continued the work without care and the caution which ought to have
been exercised by a reasonable and a prudent person. This is especially so
keeping in view the fact that the incident had occurred in the morning hours
i.e. at 9.00AM in a busy area; the demolition involved the breaking of the
house structure which included concrete malba and iron girders falling
down; in these circumstances the possibility that any person could have
been struck or hit pursuant thereto could not have been excluded. The rash
and negligent act of the petitioner appears to be writ large."
25.In the present case, when the Accused/contractor was using poor quality
wooden planks as support for the shuttering and the lanter (lintel) was still
raw, the fact that he ordered withdrawal of support, despite receiving
repeated complaints of poor quality of the wooden planks, it can be said that
his action was without care and the caution which ought to have been
exercised by a reasonable and a prudent person. This Court is cognisant of
the fact that the prosecution has not brought on record the name of the
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PS Sarita Vihar
specific labourer who had removed the support on the orders of the Accused,
however, the same is not fatal to the case of the prosecution as the negligence
and rashness lies in the omission of the Accused to check the strength of the
shuttering and the lanter (lintel) prior to ordering withdrawal of support and
in his act of utterly disregarding the complaints of the labourers as to the poor
quality of the wooden planks used in the shuttering, without considering the
consequences of the same.
26.This Court is also cognizant of the fact that PW-4 has not supported the case
of the prosecution and has turned hostile and that PW-5 has also not fully
deposed the complete facts and has been cross examined by Ld. APP for the
state with permission. However, it is seen that Section 134 of the Indian
Evidence Act, 1872, provides that no particular number of witnesses shall in
any case be required for the proof of fact. Once the evidence of a truthful
public witness is available on record, there is no requirement of other
witnesses to prove such facts. For appreciating the evidence of a witness, the
Court has to see that the presence of such witness at the time and place of the
occurrence cannot be doubted. While appreciating such evidence, the Court
must not attach undue importance to minor discrepancies, if any. The
testimony of PW-2 and PW-3 is cogent and convincing. I do not find any
contradiction in the testimony of PW-2 and PW-3 and other material on
record. In the present case, in the cross examination conducted by the
Accused, the Accused has not led any evidence to show that the lanter (lintel)
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PS Sarita Vihar
or the shuttering had fallen down for any reason other than premature
withdrawal of support/usage of poor-quality wooden planks. He has not led
any Defence Evidence. In fact, he has in his statement under section 313
CrPC admitted that the wooden planks were used and they had also broken,
but he only stated that they were given by the owner of the building. He has
also stated that while there was negligence, the same was on account of one
Madan Lal and not himself. However, while the prosecution has proved that
it was Accused Shiv Prasad who was in-charge of the construction by way of
testimony of PW-8 and Ex. P1, the Accused has not been able to bring on
record any contradiction in this respect and has also not brought any evidence
to prove the role of Madan Lal. It is also to be seen that as per Ex. P1, which
is the agreement, it was clearly stated that any mishappening to any
employee deployed by the contractor during the tenure of this contract and all
damage to any property of the company would be borne by the contractor.
27.To recapitulate the above discussion, to bring home the guilt of Accused
person, the prosecution was required to prove the offence under section
288/304A IPC beyond reasonable doubt. While the ingredients of Section
288 IPC are not made out in the present case, all the ingredients of Section
304A IPC are fulfilled from the material on record.
28.Resultantly, the Accused person namely, SHIV PRASAD is hereby found
not guilty of the offence under Section 288 IPC; but he is found guilty for the
offence under 304A IPC. He is hereby ACQUITTED of the offence under
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State v. Shiv Prasad Verma
PS Sarita Vihar
Section 288 IPC and is hereby CONVICTED of the offence under Section
304A IPC.
ORDER:CONVICTION u/s 304A IPC ACQUITTAL u/s 288 IPC Announced in open court on 18.10.2023 in the presence of the Accused. The judgment contains 18 pages and each page has been signed by the undersigned.
(Twinkle Chawla) MM-05, South East District, Saket Courts, Delhi, 18.10.2023 Page 18 of 18