IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.771 OF 2016 SEETABEN LAGHDHIRBHAI APPELLANT(S)

VERSUS THE STATE OF GUJARAT RESPONDENT(S)

O R D E R

1. Heard learned counsel appearing for the appellant and learned counsel appearing for the State.

2. The present appeal is by accused No.3. The case of the prosecution is that on 24^th April, 2008, the accused no.1 abducted PW8 (victim) who was a minor studying in 8^th standard from the lawful guardian of her mother. The allegation against accused no.1 is that he committed offence of rape. The allegation against the other accused is that they aided and abetted accused no.1 in committing the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for short, ‘the IPC’).

2. Accused no.4 is the husband of the appellant. According to the version of PW8 (the victim of the Signature Not Verified Digitally signed by KAVITA PAHUJoA ffence), she was abducted by accused no.1 on 22^nd April, Date: 2025.01.24 Reason:

2008. The prosecution’s case is that the appellant and her husband (accused no.4) are staying in a house owned by accused no.4 with three children. The appellant and accused no.4 accommodated accused no.1 and the victim in the said house. The appellant secured a job to accused no.1 and PW8. According to PW8, 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 is 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.

With the assistance of the learned counsel appearing for the appellant and learned counsel appearing for the State, we have carefully perused the evidence on record and in particular, the evidence of the victim of the offence. The first question is whether the appellant abetted offence punishable under Section 376 of the IPC and whether she is the abettor under Section 108 of the IPC. Section 107 which defines abetment reads thus:…

107. Abetment of a thing.—A person abets the doing of a thing, who—

First.—Instigates any person to do that thing;

or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”

It is pertinent to note that allegation against the appellant is 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 PW8 (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.

Now we may come to the offence alleged under section

212 of the IPC. Section 212 of the IPC reads thus:

“212. Harbouring offender.— Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from leg