Full Judgment
A. Pasayat, J.
1. This appeal is off-shoot of an incident which has resulted in the death of a teen-aged girl. The appeal by accused Ashok Kumar Barik, the alleged assailant questioning the conviction and sentence awarded by the learned Second Additional Sessions Judge, Cuttack and the appeal filed by the State characterising conviction and sentence to be inadequate, are the subject-matter of consideration in Criminal Appeal No 232 of 1990 and Government Apoeal No, 54 of 1990. which have been disposed of separately. The appellant was tried and convicted Under Section 212 of the Indian Penal Code, 1860 (in short 1PC).
2. The facts as alleged by the prosecution stated in brief, are that one Ashok Kumar Barik brutally assaulted Nirupama Sahu by a Bhufaii, causing large number of injuries on her body including some vita! parts which subsequently resulted in her death. The role ascribed to the appellant is that he carried away accused Ashok, after he had committed the macabre act, in his cycle. Complicity of the appellant has been brought on record by evidence of PW 6 Surendra Kumar Mohanty and PW 7 Rabindranath Sahu. It is significant to mention here that even though it was stated that PW 6 had accompanied the informant Amarenda Kumar Sahu (PW 1), when the FIR was lodged, the name of the appellant was not indicated and it was stated that an unknown person provided transport to the accused Ashok in his cycle, The appellant faced trial for having committed an offence covered Under Section 212, IPC. The learned trial judge held that evidence of PWs 6 and 7 was sufficient to prove guilt of the appellant He found the appellant guilty of the offence of harbouring accused Ashok, and convicted him to custodial sentence already undergone, and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month.
3. The learned counsel for the appellant has strenuously urged that there no material to convict the appellant, since the essential ingredients of Section 212, IPC were a squarely absent. The learned counsel for the State supports the order of the learned trial Judge.
4. In order to fasten culpability Under Section 212, IPC, the following essential ingredients must be established :
(i) the offence must have been committed, i.e., completed, and there must be an ''offender';
(ii) there must be harbouring, or concealment of the person known, or reasonably believed to be the offender; and
(iii) there must be intention on the part of the accused, to screen the offender from legal punishment.
Sec, 212, IPC is attracted only when it is established that the person had harboured or concealed a person, whom he knew or reasonably believed to be an offender. 'Harbour' means to shelter, afford lodging or protection to, to give refuge to. !t also includes to conceal, Harbour and conceal involve an element of secrecy.
5. In the instant case, there is no material whatsoever to show that the appellant had the knowledge or that he reasonably believed that he was harbouring or concealing a person who is an offender. The essen- tial feature secrecy is totally absent. No explanation regarding omission of appellant's name in the information before police is forthcoming. We are of the view that the prosecution has failed to prove that the appellant was guilty of the offence as alleged. Consequentially, we have no hesitation in setting aside the conviction add sentence and acquitting the appellant.
The appeal is allowed.
S.C. Mohapatra, J.
6. I agree.