Important Points
1. To attract the provisions of Section 212 IPC it is necessary to establish commission of an offence, harbouring or concealing the person known or believed to be the offender; and such concealment must be with the intention of screening him from legal punishment. All the ingredients are necessary to be proved.
2. In the absence of material to establish agreement between the accused merely because accused are related to each other conviction under Section 120B cannot be sustained since mere relationship between accused is not sufficient to establish that they entered into conspiracy.
3. Where accused gave new set of cloth to accused who caused death of victim, for being changed and blood stain cloth of murder accused was recovered from the accused in question, conviction under Section 201 was justified.

Headnote:(i) Indian Penal Code, 1860-Section 302-Murder-Conviction on basis of circumstantial evidence -Deceased and daughter of one of the accused ‘K’ developed intimacy -Several threat by accused in question, ‘S’ and K to deceased-On fateful day ‘S’ was seen in Company with deceased in his house-P.W. 34 saw S going in the house of deceased-P.W. 1 saw somebody coming out of deceased immediately after occurrence-P.W. 1 identified ‘S’ as the same person who was running from house of deceased-S went to P.W. 2’s house with blood stained cloth requested P.W. 2 get cloth for being changed from ‘K’-K brought cloth for ‘S’-Blood stained cloth recovered from house of ‘K’-Knife recovered at the instance of ‘S’-Medical evidence to the effect that the knife could be used for causing injury on deceased-Serologist report confirming human blood in cloth and knife-All circumstances undoubtedly lead to conclusion that accused alone caused murder-Conviction as upheld by High Court sustained. (Paras 3, 17 & 18)
       (ii) Indian Penal Code, 1860-Section 120B-Criminal conspiracy -Allegation that S and K conspired together and caused murder of deceased-S (principal accused) and K were relatives-Apart from this not even an iota of material to establish alleged agreement between S and K-Mere relationship between them not sufficient to establish conspiracy-Conviction of K and S under Section 302/120B cannot be sustained.
       Held : To establish a conspiracy between accused Sanjiv Kumar and accused Kamlesh, apart from the relationship, namely, Sanjiv was the nephew of Kamlesh the prosecution evidence is totally silent to establish a criminal conspiracy between them for committing the murder of deceased Rajesh. The offence under Section 120B is an agreement between the parties to do a particular act. There is not an iota of material to establish the alleged agreement between accused Sanjiv Kumar and accused Kamlesh. In the absence of such evidence the mere fact that Sanjiv Kumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy. Association of Sanjiv Kumar with Kamlesh being a relation is not enough to establish that both of them entered into a conspiracy to kill deceased Rajesh. In the aforesaid premises, the learned counsel appearing for the respondent State was right in his submission that the charge of conspiracy cannot be sustained. We accordingly, set aside the conviction of accused Sanjiv Kumar as well as of accused Kamlesh under Section 302/120B of Indian Penal Code. (Para 19)
       (iii) Indian Penal Code, 1860-Section 201-Causing disappearance of evidence of offence-Accused ‘K’ handed over a set of cloth for being changed to co-accused who caused death of victim-Blood stained cloth of co-accused recovered from K’s house -Conviction and sentence for 7 years R.I. - Conviction upheld-Sentence reduced to 4 years and 8 months which she had already undergone.
       Held : From the prosecution evidence it is established that when Sapna-P.W. 2 informed that Sanjiv Kumar is in her house with blood stained clothes Kamlesh was perturbed and by the time Chanchal and Sapna proceeded towards the house of Sapna they met Kamlesh on the way who was returning from the direction of the house of Sapna and requested Sapna to come back so that Kamlesh can give clothes for Sanjiv Kumar which he could change in the house of Sapna. It is also established that she handed over a set of clothes for Sanjiv Kumar which P.W. 2 Sapna carried. The further circumstance which is established from the prosecution evidence is that when the police with other witnesses knocked the door of Kamlesh who was found in a very perturbed condition and initially resisted the entry of police into her house even though the police said her house would be scarched. Ultimately the blood stained clothes of accused Sanjiv Kumar were recovered from the bath room of her house which had been soaked with water in a bath tub. These two circumstances fully establishes the charge under Section 201 IPC, so far as accused Kamlesh is concerned. In the aforesaid circumstances, we have no hesitation in affirming the conviction of accused Kamlesh under Section 201 IPC. But, so far as the sentence is concerned, she has already undergone imprisonment for about 4 years and 8 months, as stated to us in the course of hearing, by Shri Sharma, learned counsel appearing for accused Kamlesh, and we think that the justice will be fully met if her sentence is modified to the sentence already undergone. (Para 20)
       (iv) Indian Penal Code, 1860-Section 212-Harbouring or on concealing offender - Condition precedent to attract provisions-Allegation that accused took another accused, who caused death of victim, on his scooter and enabled him from evading arrest-No material to indicate that he knew about commission of offence when he took offender on his scooter-Conviction wholly unsustainable.
       Held : So far as accused Lekh Raj is concerned, we do not find an iota of material to indicate that he knew about the commission of offence by accused Sanjiv Kumar when he took him on his scooter and, therefore, the conviction of accused Lekh Raj of the offence under Section 212 IPC is wholly unsustainable in law. It may be stated that to attract the provisions of Section 212 IPC it is necessary to establish commission of an offence, harbouring or concealing the person known or believed to be the offender; and such concealment must be with the intention of screening him from legal punishment. The evidence adduced by the prosecution in this regard is wholly insufficient to establish either of the aforesaid ingredients, though all the ingredients are necessary to be proved. In this view of the matter the conviction of accused Lekh Raj for the offence under Section 212 is unsustainable and, we accordingly set aside the conviction and sentence and acquit him of the charge. (Para 21)

Judgment

Pattanaik, J.-These three appeals arise out of one Sessions Trial being Sessions Trial No. 9-B/7 of 1990 and were heard together and are being disposed of by this common judgment. Appellant Sanjiv Kumar stood charged under Sections 120B, 302 and 201 IPC. Appellant Kamlesh Tyagi stood charged under Sections 120B, 302 read with Section 120B and 201 IPC. Appellant Lekh Raj Gupta stood charged under Sections 120B, 302 read with Section 120B and 212 IPC. It was alleged that all three of them hatched a criminal conspiracy to kill the deceased Rajesh Sharma and in furtherance of the said conspiracy accused Sanjiv Kumar caused murder of the deceased whereafter accused Sanjiv and accused Kamlesh caused disappearance of the evidence of the offence. Accused Lekh Raj is alleged to have harboured accused Sanjiv Kumar knowing him to have committed the offence with the intention of saving him from legal punishment. The learned Sessions Judge on a thorough analysis of the evidence on record convicted accused Sanjiv Kumar under Section 120B, 302 IPC and 201 IPC. He was sentenced to undergo imprisonment for life for the conviction under the first two charges and 7 years’ R.I. for his conviction of the last charge. In addition, he was directed to pay a fine of Rs. 5,000/- for each of the offences with the further direction that the sentences would run concurrently. Accused Kamlesh Tyagi was also convicted under Section 120B, and Section 302 read with Section 120B IPC and was sentenced to undergo imprisonment for life for each of the offences and pay a fine of Rs. 5,000/- on each count. She was also further convicted under Section 201 and was sentenced to imprisonment for 7 years and to pay a fine of Rs. 5,000/-. Accused Lekh Raj was convicted only under Section 212 IPC and was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 5,000/-. Against their conviction the accused persons preferred two appeals-Criminal Appeal No. 121/93 and Criminal Appeal No. 125/93. The State also preferred two appeals against accused Sanjiv and accused Kamlesh and other against accused Lekh Raj for enhancement of sentence awarded by the learned Sessions Judge. These 4 appeals stood disposed of by the High Court by judgment dated 20th September, 1996, whereunder the conviction and sentence of accused Sanjiv Kumar under Sections 302/120B and 201 was affirmed. Similarly the conviction and sentence passed against accused Kamlesh Tyagi was also affirmed. But, so far as accused Lekh Raj is concerned, though his conviction under Section 212 IPC was upheld but the sentence was modified to the period already undergone. The appeals filed by the State for enhancement of sentence were also dismissed and hence the present appeals.

2. At the outset it may be stated that there is no eye witness to the commission of murder and case accordingly hinges upon the circumstantial evidence. The prosecution case in nutshell is accused Sanjiv Kumar is nephew of accused Kamlesh being her brother’s son. The father of the deceased was at relevant point of time posted as Additional District Attorney-cum-Public Prosecutor at Bilaspur. Accused Kamlesh had 4 daughters. The eldest daughter Chanchal, was a classmate of the deceased and the family of the accused and the family of the deceased were on visiting terms. Both the families were residing in the same colony in Bilaspur. Sometimes later the family of the deceased shifted themselves from agricultural colony to Dhora as P.W. 19 the father of the deceased got an official accommodation at Dhora. The further prosecution case is that deceased had developed some intimacy with Chanchal which was not approved of by the father of the deceased. P.W. 19 infact met Kamlesh on one occasion and requested her to refrain her daughter from meeting the deceased. But Kamlesh told P.W. 19 that he should restrain his son from meeting Chanchal. It was also alleged that several threats were given by Kamlesh and Sanjiv to the deceased. On th

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