KASHIBEN CHHAGANBHAI KOLIversusSTATE OF GUJARAT

                            [2008] 16 S.C.R. 1179


     >               KASHIBEN CHHAGANBHAI KOLi                         A
                                     v.
                           STATE OF GUJARAT
                    (Criminal Appeal No. 1967 of 2008)

                            DECEMBER 4, 2008
                                                                       B
             [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                            SHARMA, JJ.]

              Scheduled Castes and Scheduled Tribes (Prevention of
         Atrocities) Act, 1989 - s.3(1)(v) - Evidence established that c
         accused interfered with possession and enjoyment of rights
         of the complainant over land and also damaged sugarcane
         crops thereon by using a tractor - Complainant belonged to
         ST community - Held: Accused liable to be convicted ul
         s.3(1)(v) of the Atrocities Act as a/so u/s.427 /PC - Penal p
         Code, 1860 - s.427.
..
             Words and Phrases - Mischief - Meaning of - Penal
         Code, 1860 - s. 425.

              Criminal Law - Conviction under Atrocities Act and under E
         /PC - However, accused stated to be suffering from paralysis
         - Hence, direction issued that he need not surrender for 3
         months - Scheduled Castes and Scheduled Tribes
         (Prevention of Atrocities) Act. 1989- s.3(1)(v) - Penal Code,
         1860 - s.427.                                                 F

             The prosecution case was that appellant interfered
         with the possession and enjoyment of PW1 over the land
         in question and also damaged the sugarcane crops
         thereon by using a tractor. PW1 belonged to the G
         Scheduled Tribe Community .
.
             In appeal to this Court, the appellant challenged her
         conviction under s.427 IPC and s.3(1 )(v) of the Atrocities
                                    1179
                                                                       H
    1180        SUPREME COURT REPORTS             [2008] 16 S.C.R.


A   Act.

           Dismissing the appeal, the Court

       HELD: 1.1. s.3(1)(v) of the Scheduled Cast~s and
  Scheduled Tribes (Prevention of Atrocities) Act, 1989
8 makes punishable any wrongful dispossession of any
  member of Scheduled Caste or Scheduled Tribe from his k
  land or premises or interference with the enjoyment of
  his rights over his land, pr«;!mises or water. PWs 1, 2 & 3
  have proved that the accused had not only interfered
C with the possession and enjoyment of the claimant over
  the land, but also damaged the crops thereon. Therefore,
  the Higli Court was justified in holding the accused guilty
  of offence punishable under s.3(1 )(v) of the Atrocities Act.
  [Para 8, 10 and 11] [1184-B, C, D, E]
D
       1.2. So far as s.427 IPC is concerned, the exp,ressiqn
  "mischief' has been defined in s.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
E 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 claimant were
  totally destroyed by using a tractor. Therefore, s.427 IPC
  is clearly established. [Para 11] [1184-E-F]
F
       1.3. However, it was stated before this Court that
  appellant had suffered from paralysis on the left side of
  her body and inspite of treatment is unable to walk. In
  view of the statement made, it is directed that for a period
  of three months the appellant need not surrender. [Paras
G 12 and 13] [1184-G-H; 1185-A-B]

    ,      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1°967 of 2008.     ·
H          From the Judgment and Order dated 3.12.2007 of the High
              KASHIBEN CHHAGANBHAI KOU v. STATE OF GUJARAT 1181


          >   Court of Gujarat at Ahmedabad in Criminal Appeal No. 920 of          A
              1996.

                  Aniruddha P. ly1ayee, Sanjeev Kumar Choudhary, Rucha
              A. Mayee and Sanjay Visen for the Appellant.
                    Yashank Adhyaru, Hemantika Wahi, Pinky and Somnath             B
              for the Respondent.

                  The Judgment of the Court was delivered by

                  DR. ARIJIT PASAYAT, J. 1. Leave granted.                         c
                    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         D
              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            E
              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 concu~rent. It needs to be noted that       F
              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          G
I   ...
               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
                                                                                   H
    1182       SUPREME COURT REPORTS                  (2008] 16 S.C.R.


A    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
B   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 on~ crop.
c   of sugarcane and had left the field open awaiting for re,.grQwth
    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
o   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 Ng. 1~~ of village
E   Paniyari to him for a total sale price of Rs. 1 A5,000/ ~for whi~h
    agreement to sell was also entered into. He initially, paid a ~µm
    of Rs.40,000/- by cheque. Upon payment of Rs.60,00Q/,, the
    appellant had h,anded over possession of the land to him. He
    had tak~n water from the Irrigation Department for which he
    produced proof on record. He had cultivated sugarcane crop
F   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 1O
G   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.
H
-   J

         KASHIBEN CHHAGANBHAI KOLi v. STATE OF GUJARAT 1183
                     [DR. ARIJIT PASAYAT, J.]

    ,>         With reference to the evidence of the eye witnesses the         A
         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       B
         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.
                                                                               c.
              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 placed on a decision of
         this court in Masumsha Hasanasha Musa/man v. State of
                                                                               0
         Maharashtra [2000(3) SCC 557] more particularly para 9
         thereof.

             5. Learned counsel for the State on the other hand
         supported the impugned judgment.
                                                                               E
              6. Sections 3(i)(iv) and 3(i)(v) of the Atrocities Act read as
         follows:

                    "3. Punishments for offences of atrocities - (1)
              Whoev~r. not being a member of Scheduled Caste or a
                                                                               F    ,
              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;    G

                    (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."                                    H
                                                                                    ~

        1184      SUPREME COURT REPORTS                 [2008] 16 S.C.R.


    A        7. Section 427 IPC reads as follows:                             4.,



             "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
    B        which may extend to two years or with fine, or with both."

             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,
    c   premises or water.

           9. In that view of the matter learned Additional Sessions
      Ju.dge committed no error in holding that the accused had
      committed offences punishable under Section ·3(1)(v) of the
    D 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.
    E         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
    F 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
    G 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
    H   left side of her body since July 2004 and in spite of treatment
    KASHIBEN CHHAGANBHAI KOLi v. STATE OF GUJARAT 1185
                [DR ARIJIT PASAYAT, J.]

    she is unable to walk.                                                 A
         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, of India 1950 (in short
    the 'Constitution') before the Governor of the State. We do not
                                                                           6
    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.                                             C

    B.B.B.                                        Appeal dismissed.




I
~