Kashiben Chhaganbhai Koli vs State Of Gujarat

Kashiben Chhaganbhai Koli ...Appellant

Versus

State of Gujarat ...Respondent

JUDGMENT

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

2 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

3 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

4 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

6 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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