Shivarekha Pande vs Emperor

Dhavle, J.—This rule must be made absolute. The petitioner has been convicted under S. 212, I. P. C. and sentenced to six months'' rigorous imprisonment and a fine of Rs. 25, with two months'' further imprisonment in default. The Sessions Judge on appeal has upheld the conviction and sentence. The charge against the petitioner was that he had harbored or concealed three named Domes, knowing or having reason to believe at the time that they had committed a dacoity and offences under S. 22, Criminal Tribes Act. That the three Domes were found concealing themselves in the dalan of the petitioner and were arrested by the chaukidar and other villagers is established by the evidence beyond doubt. A subsequent search of the Dalian led to the discovery of a bhala, pharsa, katta and two electric torches. The petitioner is said to have been asked by the villagers how the Domes came to be there, and the prosecution witnesses say that he gave no answer. The defence was that it was the petitioner himself that had arrested the three Domes; but the lower Courts refused to believe this in view of the improbability of the petitioner single-handed effecting the arrest of three armed Domes. It was also in evidence that a dacoity bad been committed in the neighbourhood, and that in connexion with this dacoity not only were processes under Ss. 87 and 88, Criminal P. C. taken out and served against the three Domes, but proclamations by beat of drum were made to the effect that Domes having committed dacoity and other crimes in Baniapur and other cases of burglary had absconded and that the parson who would arrest them would get a reward.

This we have from the Sub-Inspector himself, P. W. 5. It does not, however, appear that the proclamations either named these particular Domes as the offenders or specified the particular dacoity of which evidence has been given in the case as the dacoity of which they were suspected. The learned Sessions Judge thought that the requirement of S. 212 consisting in the words "a person whom he knows or has reason to believe to be the offender" was satisfied by the evidence of the defence witnesses that the accused himself had told them that the Domes in question were thieves, and the unrequited evidence of the Sub-Inspector, the chaukidar and other witnesses that the Domes" were absconding offenders, and that this fact had been proclaimed by beat of drum. The learned Sessions Judge also observed that there could be no question of the accused having put up these Domes "in a bona fide manner, that is not knowing who they were or for any honest purpose." It seems to me that this is clearly insufficient to fulfil the requirement indicated. The Government Pleader who has assisted me by carefully looking into the record is unable to refer to anything in the record showing that it was these particular Domes that were mentioned in the proclamation, or that apart from the proclamation, the petitioner had any reason to believe these particular persons to have been concerned in the particular dacoity. Suspicion would be aroused by seeing armed Domes so as to lead to their arrest; but this is not enough for the section to apply.

As regards the offences under S. 22, Criminal Tribes Act, the position is much the same, for, I have not been referred to anything in the record to show that the petitioner knew these three particular Domes to be members of a Criminal Tribe liable to be dealt with under the section in question. The mere silence of the petitioner when he was asked by the villagers how the three Domes came to be in his dalan or the falsehood of his story that it was he himself that had arrested the Domes, is insufficient to warrant his conviction on the footing that he had concealed persons whom he knew or had reason to believe to be "the offenders" in relation to the particular dacoity in question. The conviction and sentence passed upon the petitioner must therefore be set aside.