REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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 Atrocities Act.

3. Background facts in a nutshell are as follows:

Appellant-original  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

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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.

The  complainant,  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

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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.

4. In 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

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placed on a decision of this  court in  Masumsha Hasanasha Musalman v.

State of Maharashtra [2000(3) SCC 557] more particularly para 9 thereof.

5. Learned  counsel  for  the  State  on  the  other  hand  supported  the

impugned judgment.

6. Sections 3(i)(iv) and 3(i)(v) of the Atrocities Act read as follows:

“3. Punishments 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 him transferred;

(v)  wrongfully  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.”

7. Section 427 IPC reads as follows:

“Whoever commits 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.”

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8. Section 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 water.

9. In  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.

10. PWs. 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 crops thereon.   

11. Therefore, 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

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clearly  established.   The  sentence  imposed  suffers  from no  infirmity  to

warrant interference.   

12. However, 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.

13. Learned 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.  

14. The appeal is dismissed subject to the aforesaid observation.

…………..……………………….J. (Dr. ARIJIT PASAYAT)

……………………..…………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 4, 2008

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