Delhi District Court
Shahid Khan vs The State on 9 October, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No. 57/2023
IN THE MATTER OF:
Shahid Khan
S/o F. R. Khan
R/o House No. 65/41,
Punjabi Bagh West
New Delhi-110023
................Appellant
Versus
The State (GNCT of Delhi)
................ Respondent
Instituted on :02.03.2023
Reserved on :12.09.2023
Pronounced on :09.10.2023
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 374 Cr.P.C preferred on behalf of appellant Shahid Khan against the impugned judgment dated 05.03.2022 and Order on Sentence dated 07.02.2023 passed by Ld. MM-06, South, Saket in case titled as State Vs. Shahid Khan pertaining to FIR No. 109/2017, PS Hauz Khas whereby the appellant herein was Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 1 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:55:50 +0530 convicted for the offence U/s 341/509 IPC and was sentenced accordingly.
2. Briefly stated the facts as per record are as under:-
An FIR no. 109/2017 was lodged at PS Hauz Khas on 29.03.2017 for the offences U/s 341/509 IPC on the basis of written complaint of Ms. 'S'. It was alleged in the FIR that on 29.03.2017 at around 10:30 AM, when the complainant was returning from the gym, appellant wrongly restrained her by parking his car in front of gate of car parking of her house. It was further alleged that when she asked him to remove his car, he started abusing her and raised his hand to hit her. When her father came to her rescue, he was also abused by the appellant. It was alleged that as per the property documents, only she was having parking space in the building and the appellant who was having his office in the basement thereof was not having any parking space. After registration of FIR and completion of investigation, charge-sheet was filed against the appellant for the offences U/s 341/509 IPC before Ld. Magistrate on 04.08.2017. Appellant herein was summoned as an accused for 07.10.2017. Charge for the offences U/s 341/509 IPC was framed against him on 22.09.2018 to which he pleaded not guilty and claimed trial. The appellant admitted the factum of registration of FIR U/s 294 Cr.P.C. vide his separate statement on 05.01.2019. The prosecution has examined following five witnesses in support of its case:-
2.1 PW-1 is Ms. 'S'. She is the complainant and victim of this case. She deposed in detail regarding the incident. She proved her statement dated 29.03.2017 given to police as Ex.PW1/A. She also proved the site plan as Ex. PW1/B and copy of statement U/s 164 Cr.P.C recorded by Ld. Magistrate as Ex.PW1/C. She also proved arrest memo of the appellant as Ex.PW1/D. Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 2 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:55:59 +0530 She was duly cross-examined by Ld. Defence Counsel.
2.2 PW-2 is Mr. Subhash Chand Rastogi. He was father of the complainant. He deposed about the incident as seen by him after coming to balcony on hearing loud noise. He was also duly cross-examined by Ld. Defence Counsel.
2.3 PW-3 is HC Jitender. He was with IO during investigation. He deposed about having gone to the spot alongwith IO on the fateful day, about preparation of site plan and registration of FIR. He also deposed about arrest of appellant on 05.04.2017. He was duly cross-examined by Ld. Defence Counsel.
2.4 PW-4 is SI Sachin Pilania. He was the IO of present case. He deposed about the steps taken by him during investigation. He proved the rukka as Ex.PW4/A. He was also duly cross-examined by Ld. Defence Counsel.
2.5 PW-5 is Mr. Naveen. He deposed that he was working as a Sweeper in Impasto Communication, South Extension, Part-II, New Delhi. He was an eye witness of the incident however, he did not support the case of prosecution. He was cross-examined by Ld. APP for State after permission of Ld. Magistrate wherein he denied the suggestions to the effect that the appellant abused the complainant and her father in filthy language on the fateful day or that he was deposing falsely being servant/sweeper of appellant. He was briefly cross-examined by Ld. Defence Counsel.Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 3 / 15
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:56:07 +0530
3. After the testimony of prosecution witnesses, statement of appellant Shahid Khan U/s 313/281 Cr.P.C. was recorded wherein he stated as under:-
"The complainant is very aggressive by nature. She is a habitual litigant and keep lodging complainant against other persons of the same area. She is very abusive and due to her aggressive nature I have stopped parking my vehicle outside B-30, South Extension, Part-II, New Delhi despite being owner of the basement of the said premises."
4. The appellant chose to lead defence evidence in his favour and following two witnesses were examined:-
4.1 DW-1 is Ms. Shivani. She deposed that she was working in Impasto as Marketing Manager at B-30, South Extension-II, New Delhi.
She further deposed that on the fateful day, appellant did not misbehave with the complainant nor called her a bitch nor raised his hand on her. She also stated that the complainant was a short tempered lady and used to misbehave with everyone stopping his vehicle even for a minute. She was cross-examined in detail by Ld. APP for State.
4.2 DW-2 is Mr. Suresh Chand. He deposed similar to the testimony of DW-1. He too was duly cross-examined by Ld. APP for State.
5. Thereafter, arguments were heard from both the sides by Ld. Magistrate and vide judgment dated 05.03.2022, appellant herein was convicted for the offences U/s 341/509 IPC. Vide order dated 07.02.2023, he was sentenced as under:-
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(i) For the offence U/s 341 IPC, he was sentenced to simple imprisonment for one year.
(ii) For the offence U/s 509 IPC, he was sentenced to simple imprisonment for 03 months.
6. He was also directed to pay fine of Rs. 3,000/- which was to be deposited in the Court and was to be released to the complainant after expiry of appeal period. He was also directed to pay compensation of Rs. 15,000/- to the complainant which was to be deposited with DLSA. Fine alongwith compensation amount has been so deposited and receipts thereof are on record.
7. Arguments heard.
8. It has been argued by Ld. Counsel for appellant that Ld. Trial court has wrongly convicted him as material on record was not properly appreciated. It was argued that the appellant did not utter any word as alleged against the complainant. It was further argued that the only independent witness Mr. Naveen has not supported the case of prosecution. Further, two defence witnesses were examined by appellant who stated that PW-1/complainant was a short tampered lady and misbehaved with every one, however their testimonies were discarded. It was argued that even if, it is presumed that the appellant has used the words as alleged by the complainant against her, still no offence u/s 509 IPC was made out as it was required to be proved that the words used were intended to insult her modesty. It was argued that the words allegedly used will not fulfill the requirement of Section 509 IPC. It was alleged that no offence u/s 341 IPC was made out as the complainant was not Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 5 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:56:28 +0530 stopped from proceeding in any particular direction and she could have entered the building from smaller gate. He has relied upon on following judgments:-
(i) State of Punjab Vs. Major Singh 1966 Supp SCR 286.
(ii) Basheer & Others Vs. State of Kerala Crl. M.C. 837/2010.
(iii) Varun Bhatia Vs. State And Another Crl. Rev. Petition no.
1032/2018 (Delhi High Court).
9. Ld. Addl. PP for State, on the other hand, has submitted that there is no illegality in the impugned order and that same has been passed after properly appreciating the material on record. It was argued that the words used by the appellant against the complainant were clearly intended to insult her modesty so he has been rightly convicted u/s 509 IPC. She has prayed for dismissal of appeal.
10. I have considered the submissions from both the sides alongwith record.
11. The genesis of dispute between the parties lies in a rather common problem being faced by every modern society i.e., lack of parking space. There are various cases in different Courts of Delhi and other major cities on this issue. Same is either the result of unplanned development of neighbourhoods without factoring in ground realities or the race amongst individuals to acquire more vehicles without considering the availability of parking space or both. Be that as it may, this is not the primary issue in the present appeal.
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Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.10.10
16:56:38
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12. As mentioned earlier, appellant herein has been convicted for the offences U/s 509/341 IPC primarily on the basis of statement of complainant/PW-1 Ms. 'S'. She stated before Ld. Trial Court that on the fateful day, when she returned from gym in her car, she saw that appellant had parked his car in front of entrance gate of her house. She informed him through security guard to remove his car and waited there for about 20 minutes in her car. The appellant came in an aggressive mood and on being requested to remove his car, he became angry and abused her saying "Kutiya kamini tujhe dekh lunga, tere baap ki road hai kya". He also stated that "I will park my vehicle here only, dekhta hu tu kya kar legee". He also assaulted her by raising his hand. She further stated that when her father came out at balcony and asked him as to why he was behaving like this, he told him that "budhe tere to mai haath per todh doonga". As the appellant did not remove his car, so she parked her car somewhere else and reached home. In her cross-examination by Ld. Defence Counsel, she stated that there were four floors in the building and different families were residing on each floor. She also stated that she was residing at ground floor i.e., the floor just above the parking space. On being asked, she also stated that there were two gates fixed in the building at ground floor for making entry therein. She stated that she was unable to say as to whether one gate was bigger and another was smaller. She also admitted that there was no partition in the parking area inside the building. Ld. Defence Counsel has argued before this Court that the conviction of appellant for the offence U/s 341 IPC was bad in law as admittedly, the complainant could have entered into building from the other smaller gate which was not obstructed in any manner. It has also been submitted that this fact in itself is sufficient to show that the case in hand has been falsely lodged at the instance of complainant as she was a quarrelsome Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 7 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:56:46 +0530 lady.
13. Record shows that that appellant has nowhere disputed the fact that on the fateful day, he has in fact parked his car outside the main gate of building in which the complainant was residing on the floor above the parking space and the basement thereof was occupied by him. Even in the petition of appeal filed on behalf of appellant, it has been mentioned in ground (e) that he had stopped his car in front of big gate just to get-down and there was no obstruction in front of the smaller gate which was used by the complainant. Now, it will be appropriate to examine ingredients of offence of "wrongful restraint" which has been defined U/s 339 IPC in following manner:-
"339. Wrongful restraint.- Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. "
14. So essential ingredients of offence as defined U/s 339 IPC are:-
(i) Voluntary obstruction of a person.
(ii) The obstruction must be such as to prevent that person from
proceedings in any direction which he has a right to proceed.
15. The term "voluntarily" has been defined U/s 39 IPC in following manner:-
"39. "Voluntarily".--A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
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Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.10.10
16:56:54
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Illustration.- A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily."
16. Considering the material on record, this Court is of the view that there is sufficient evidence to prove beyond reasonable doubt that the appellant has voluntarily obstructed the way of complainant to enter the building. Admittedly, the spot where appellant had parked his vehicle was not meant for parking of vehicles. It is also not in dispute that he was not having any parking space in his name in that building. In these circumstances, he should have parked his vehicle at an appropriate space after making sure that same is not obstructing the way of anyone else. The ground that she could have used smaller gate is of no help as there is no denial to the fact that she was having right to enter through the bigger gate also and that same was obstructed by him. Accordingly, Ld. Trial Court has rightly convicted him for the offence U/s 341 IPC.
17. As far as conviction of the appellant for offence U/s 509 IPC is concerned, it has been argued by Ld. Defence Counsel that he has not uttered any bad word against the complainant as alleged and that even if same is accepted as such, it will not amount to an offence U/s 509 IPC. Record shows that complainant has consistently stated about use of abusive language specially the word Kutiya by the appellant against her. This fact has been mentioned in her initial complaint given to police (Ex.PW1/A) on the basis of which FIR in question was registered. In her statement U/s164 Cr.P.C.
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SUNIL
SUNIL GUPTA
GUPTA Date:
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before Ld. Magistrate (Ex.PW1/C) also, she stated about use of that word alongwith another word kamini by the appellant against her. Similarly, in her testimony dated 17.11.2018 before Ld. Trial Court, she deposed about use of both the words by the appellant. To disprove the case of prosecution and to show that he did not utter abusive words as alleged by complainant, the appellant examined two witnesses in his defence. DW-1 Ms. Shivani and DW-2 Mr. Suresh Chand Arya were admittedly working in his firm at the time of alleged incident as well as at that time of recording of their testimonies before Ld. Trial Court in the year 2021. In her testimony, DW-1 stated that on 29.03.2017, when the appellant stopped his car in front of B- 30, South Extension-II, New Delhi, the complainant started shouting as to why he had stopped his car there and started misbehaving with him. She further stated that the appellant did not misbehave with her and that he did not use abusive words against her. From said testimony of DW-1, it appears that the incident happened while the appellant was still in his car. It was only in her cross-examination that she stated with more clarity that on hearing some noise on the fateful day, she alongwith her boss (i.e., the appellant) reached at ground floor from the basement. She also stated that when she reached there, she saw that one guard, other residents and staff members namely Suresh and Naveen were also present there. Said testimony is in contrast to testimony of DW-2 Suresh Chand Arya as per which, after hearing the noise, DW-1 alogwith appellant had gone to the ground floor and he had come there after few minutes. It is also to be noted here that PW-5 Mr. Naveen who was also working in the firm of appellant as Sweeper and maybe for that reason, did not support the case of prosecution before Ld. Trial Court, in his testimony has stated that he was sent by the complainant to call the appellant for removing his car whereupon he so went there and Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 10 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:57:09 +0530 came back with him. He has not stated anything qua the presence of DW-1 Ms. Shivani or DW-2 Mr. Suresh Chand Arya. In fact, before both these witnesses were actually examined by defence, there was not even a whisper about their presence at the spot during the alleged incident. These facts coupled with the fact that they were interested witnesses as appellant was their boss at the workplace, this Court is of the view that Ld. Trial Court has rightly not relied upon their testimonies while convicting the appellant. Section 134 Indian Evidence Act is material here, which provides as under:-
"134. Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact."
18. So, it is the quality of witnesses and not the quantity which is material for deciding any case. In these circumstances, this Court is of the view that the material on record is sufficient to prove that the appellant has in fact used the word kutiya against the complainant on the fateful day (this Court is not considering the effect of alleged use of word kamini by the appellant as same was not so mentioned by the complainant in her initial statement Ex.PW1/A and no explanation thereof has come on record).
19. Now, the question before this Court is as to whether the word kutiya used by the appellant against the complainant will amount to offence u/s 509 IPC or not. Section 509 IPC provides as under:-
"Section 509. Word, gesture or act intended to insult the modesty of a woman.
Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 11 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:57:20 +0530 gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine]."
20. So following are essential ingredients of Section 509 IPC:-
(i) Intention to insult the modesty of a woman;
(ii) The insult must be cause by:
a. uttering any words, or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or b. intruding upon the privacy of such a woman.
21. The case of appellant is that this word in no way insults the modesty of a woman whereas Ld. Addl. PP for State has submitted that same was sufficient to insult modesty of a woman. The word 'modesty' has not been defined in IPC. Hon'ble Apex Court in Ramkripal Vs. State of Madhya Pradesh, Crl. Appeal No. 370/2007 in the context of Section 354 IPC discussed the meaning of word 'modesty' in following manner:-
"What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 12 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:57:28 +0530 is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows: "Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously chast."
Modesty is defined as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions."
22. It is clear from record that the appellant used abusive language against the complainant as he was furious on being asked by her to remove his car which was admittedly parked in front of gate of the building leading to a parking space specially earmaked for the complainant where the appellant despite having the basement in his possession for commercial purpose was not having any parking spot. It is relevant to mention here that it is not uncommon in our society to use the word kutta against a male as a word of general abuse. It is ironical that despite dog being hailed as one of the most loyal animals and also best friend of human beings in the world, calling someone a kutta is considered as an abuse in our society without exception. The origin of usage of this word as an abuse is not clear however when seen in this context, the word kutiya being female version of the abusive word kutta was used against the complainant as she was a female. Although, there is no doubt that the appellant using abusive words against Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 13 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.10.10
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the complainant instead of removing his car when asked to do so by the complainant when he clearly was wrong in choosing to park the same at the entrance of building unmindful of the possibility of inconvenience to someone in entering or exiting from that gate, was not appropriate and that he should have chosen his words more carefully especially because same were being used against a lady still this Court is unable to see as to how the word used by the appellant against the complainant can be held as 'insulting' her modesty. It seems that said word was used as a word of general abuse against the complainant in the heat of moment and there was no intention of the appellant to insult the modesty of complainant. In this context, this Court is guided by judgment of Hon'ble Delhi High Court in Varun Bhatia Vs. State And Another, Crl. Revision Petition No. 1032/2018 wherein regarding intention as required for offence U/s 509 IPC, it was held as under:-
"40. Indeed, an essential aspect of outraging the modesty of a woman is the presence of indecent intention. In legal terms, it's not merely the act itself but the intent behind it that matters. To qualify as an outrage to modesty, the accused must have a deliberate and indecent intention in their actions or behaviour. This means that their conduct is not accidental or innocent but is driven by a specific purpose to offend or insult the modesty, dignity, or self-respect of a woman. The requirement of indecent intention serves as a crucial element in distinguishing between regular interactions and actions that constitute an offence against a woman's modesty, emphasizing the need to prove both the act and the intent in such cases."
23. In case, the abusive word in question is held as the one meant to 'insult' the modesty of complainant, then every abusive word used against a lady Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 14 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.10.10 16:57:46 +0530 may amount to offence u/s 509 IPC which does not seem to be intention of the legislature. Accordingly, this Court holds that the prosecution has failed to prove ingredients of offence U/s 509 IPC against the appellant and Ld. Trial Court committed an error in holding otherwise.
24. To sum up, appellant Shahid Khan is acquitted for the offence U/s 509 IPC however, his conviction for the offence U/s 341 IPC is upheld.
25. Order on Sentence shall be passed after considering the aspect of grant of cost of prosecution to State as per the judgment of Hon'ble Delhi High Court in Karan Vs. State NCT of Delhi Crl Appeal No. 352/2020.
Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
2023.10.10 16:57:54 +0530 Announced in the open (Sunil Gupta) Court on 9th October, 2023 Additional Sessions Judge-06 South, Saket Courts, New Delhi Crl Rev. No. 57/2023 Shahid Khan Vs. State Page 15 / 15