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Synopsis

The Supreme Court has said to prove the offence of harbouring an offender under Section 212 of the IPC, the accused must either be aware that the person they sheltered has committed a crime or possess sufficient knowledge of certain facts leading them to reasonably believe that the individual is an offender.

The bench comprising Justices Abhay S Oka and Ujjal Bhuyan emphasized that such knowledge is a crucial element in proving the offence under Section 212.

Court further pointed out the offence of harbouring an offender is made out when (a) an offence has been committed, (b) when the accused harbours or conceals a person whom he knows or has reason to believe to be the offender and (c) the harbouring or concealing must be with the intention of screening him from legal punishment.

The court was dealing with an appeal filed by Seetaben Laghdhirbhai, who was named as accused no. 3 in a case.

As per the prosecution case, on April 24, 2008, the accused no. 1 abducted the victim who was a minor studying in 8th standard from the lawful guardian of her mother. The allegation against accused no. 1 was that he committed offence of rape.

The allegation against the other accused was that they aided and abetted accused no. 1 in committing the offences punishable under Sections 363, 366 and 376 of the IPC.

Accused no. 4 was the husband of the appellant.

It was alleged the appellant and accused no. 4 accommodated accused no. 1 and the victim in the said house. The appellant secured a job for accused no. 1 and the victim. According to the victim, though she requested the appellant to permit her to leave the house she did not allow her to leave the house. Her version in the examination-in-chief was that she had informed the appellant that accused no 1 had lured her and brought her to her house.

The trial court convicted accused no. 1 for the offences punishable under Sections 363, 366 and 376 of the IPC. The appellant and her husband - accused no. 4 were convicted for the offence punishable under Section 212 read with Section 114 of the IPC. Both of them were also convicted for the offence punishable under Section 114 read with Section 376 of the IPC. The conviction of the appellant was confirmed by the high court in appeal.

Having carefully perused the evidence on record and in particular, the evidence of the victim of the offence, the court examined the first question whether the appellant abetted offence punishable under Section 376 of the IPC and whether she was the abettor under Section 108 of the IPC.

The court noted that allegation against the appellant was of abetment of commission of an offence punishable under Section 376 and not Sections 363 and 366 of the IPC.

"If we consider the evidence of the victim, we find that she has not even made any allegation which will cover any of the clauses firstly, secondly and thirdly in Section 107 as far as offence punishable under Section 376 is concerned. Therefore, the conviction of the appellant for the offence punishable under Section 114 read with Section 376 of the IPC cannot be sustained," the bench said.

Regarding the offence under Section 212 of the IPC, the bench stated that a careful perusal of the victim's examination-in-chief revealed that the only allegation against the appellant was: "I had talked to Sitaben to let me go home. However, Sitaben did not allow me to go anywhere outside the house. I had informed Sitaben that Sunil had lured and brought me."

"Even assuming that the appellant did not permit the victim to leave her house, no offence under Section 212 of the IPC is made out. There is only one sentence which attempts to impute the appellant with the knowledge of the offence committed by the person allegedly harboured by her. The sentence is that the victim had informed the appellant that accused no 1 had lured her and brought her to the house of the appellant," the court pointed out.

However, the court noted that during cross-examination, the victim admitted: "It is true that in my statement before the police, I did not mention informing Sitaben that Sunil had lured and brought me. It is not true that Sitaben prevented me from going out—this claim is false. It is also not true that I asked Sunil to speak to my parents but was prevented by him—this statement is also false."

Thus, the court said, the statement made by the victim in her examination-in-chief that she had informed the appellant about the illegal act of accused no. 1 was an omission.

"This is a significant and relevant omission in the context of allegation of commission of offence under Section 212 of the IPC. It amounts to contradiction which will be a major one. The statement made by the victim that she had informed the appellant that accused no 1 has lured her and brought her to the house of the appellant appears to be clearly an after thought. Therefore, even the offence punishable under Section 212 read with Section 114 of the IPC is not proved against the appellant," the court held.

The court thus set aside the conviction and acquitted the appellant.

The bench, however, clarified that it had made adjudication limited to the allegations made by the prosecution against the appellant.

"We have made no adjudication on the role attributed to the other co-accused who have been convicted by the courts," the bench said.

Case Title: Seetaben Laghdhirbhai Vs The State of Gujarat