Koli Vs. State of Gujarat  INSC 2089 (4 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1967 OF 2008
(Arising out of SLP (Crl.)) No. 1246 of 2008) Kashiben Chhaganbhai Koli
...Appellant Versus State of Gujarat ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Gujarat High
Court confirming the conviction of the appellant for offence punishable under
Section 427 of the Indian Penal Code, 1860 (in short the `IPC') and under
Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (in short the `Atrocities Act'). Learned Additional
Sessions Judge, Surat at Vyara in Special Case No.19 of 1995 found the accused
guilty of offences punishable under Section 427 IPC as well as Sections
3(1)(iv) and 3(1)(v) of the Atrocities Act and sentenced her to rigorous
imprisonment for one year and fine of Rs.500/- with default stipulation for the
offence relatable to Section 427 IPC and four years for the offence under the
Atrocities Act with fine of Rs.1,000/-. The two substantive sentences were not
made concurrent. It needs to be noted that the appellant was charged with having
committed offence under Sections 427 and 504 as well as Sections 3(i)(x) of the
Atrocities Act. The trial judge held that the charge under Section 3(i)(x) has
not been proved. But held that the appellant has committed offence punishable
under Section 427 IPC as well as under Section 3(i)(iv) and 3(i) (v) of the
facts in a nutshell are as follows:
accused was owner of one agricultural land bearing Survey No.128 of village
Paniyari, Taluka Vyara. She agreed to sell the land to the complainant for
Rs.1,45 000/-. Complainant initially paid a sum of Rs.40,000/- by cheque. He
thereafter paid another sum of Rs.60,000/-, entered into a writing for sale of
the land and the appellant agreed to hand over possession of the land in
question. As per the complainant, after paying further sum of Rs.60,000/- he
was given possession of the land in question by the appellant. The complainant
was cultivating the land and had planted sugarcane plantation therein. He had
already taken one crop of sugarcane and had left the field open awaiting for
re-growth of the sugarcane plants. On 24th January 1995, the appellant
illegally and forcibly entered the land in question, tilled the land with the
help of tractors and thereby committed substantial loss of crop to the
complainant. It is also the case of the complainant that the appellant used
derogatory words against him. It is not in dispute that the complainant belongs
to Scheduled Tribe.
Kanchhibhai (P.W.1) stated, inter alia, that the appellant had agreed to sell
Survey No. 128 of village Paniyari to him for a total sale price of Rs.
1,45,000/ - for which agreement to sell was also entered into. He initially,
paid a sum of Rs.40,000/- by cheque. Upon payment of Rs.60,000/- the appellant
had handed over possession of the land to him. He had taken water from the
Irrigation Department for which he produced proof on record. He had cultivated
sugarcane crop on the land and sold the sugarcane to Ukai Region Cooperative Sugar
Industry. He left the sugarcane plantation after harvesting for one more crop.
He stated that apprehending dispossession, he filed a Civil Suit seeking
injunction and the Court had granted ex-parte interim injunction. About 8 to 10
days after the court's injunction, the accused tilled the land. To resolve the
dispute, he approached the accused but she did not give any reply. He,
therefore, filed a case on 1st February, 1995. He stated that he is infirm and
when he had gone to meet the accused, she had used bad and insulting language.
With reference to the
evidence of the eye witnesses the trial court found the appellant guilty. In
appeal the High Court was of the view that the real question that needed to be
answered was whether appellant has committed offence punishable under Section
427 IPC and Sections 3(i)(iv) and 3(i)(v) of the Atrocities Act of which she
was held guilty. The High Court after analyzing the evidence held that the
ingredients of Section 3(i) (iv) of the Act was not established but as noted
above the conviction was to be made in terms of Section 427 IPC and Section
3(i)(v) of the Atrocities Act.
support of the appeal learned counsel for the appellant submitted that
ingredients of Section 427 have not been established. In any event Section
3(i)(v) has to be related with the community and strong reliance is placed on a
decision of this court in Masumsha Hasanasha Musalman v. State of Maharashtra
[2000(3) SCC 557] more particularly para 9 thereof.
counsel for the State on the other hand supported the impugned judgment.
3(i)(iv) and 3(i)(v) of the Atrocities Act read as follows:
for offences of atrocities - (1) Whoever, not being a member of Scheduled Caste
or a Scheduled Tribe, (iv) wrongfully occupies or cultivates any land owned by,
or allotted to or notified by any competent authority to be allotted to a
member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to
dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land
or premises or interferes with the enjoyment of his rights over any land,
premises or water."
427 IPC reads as follows:
mischief and thereby causes loss or damage to the amount of fifty rupees or
upwards shall be punished with imprisonment of either description for a term
which may extend to two years or with fine, or with both."
3(i)(v) of the Atrocities Act makes punishable any wrongful dispossession of
any members of Scheduled Castes or Scheduled Tribes from his land or premises
or interference with the enjoyment of his rights over his land, premises or
that view of the matter learned Additional Sessions Judge committed no error in
holding that the accused had committed offences punishable under Section
3(1)(v) of the Atrocities Act.
1, 2 & 3 have proved that the accused had not only interfered with the
possession and enjoyment of the claimant over the land, but also damaged the
the High Court was justified in holding the accused guilty of offence
punishable under Section 3(i)(v) of the Act. So far as Section 427 is
concerned, the expression "mischief" has been defined in Section 425
IPC to mean an act done with intent to cause or knowing that it is likely to
cause wrongful loss or damage to the public or to any person causes the
destruction of any property etc. In the instant case the evidence on record
clearly establishes that the sugarcane stems in the fields of the claimants
were totally destroyed by using a tractor. Therefore, Section 427 IPC is clearly
established. The sentence imposed suffers from no infirmity to warrant
it is submitted by learned counsel for the appellant that the appellant has
suffered from paralysis on the left side of her body since July 2004 and in
spite of treatment she is unable to walk.
counsel for the appellant submitted that an application for reduction of
sentence shall be made in terms of Article 161 of the Constitution of India,
1950 (in short the `Constitution') before the Governor of the State. We do not
express any opinion in that regard.
However, in view of
the statement made, we direct that for a period of three months the appellant
need not surrender.
appeal is dismissed subject to the aforesaid observation.
(Dr. ARIJIT PASAYAT)