Holding

Sanjiv Kumar is convicted of murder under Section 302 IPC; the conspiracy convictions under Section 120B are set aside; Kamlesh's conviction under Section 201 IPC is upheld with sentence reduced to time served; Lekh Raj is acquitted of the charge under Section 212 IPC.

Summary

The Supreme Court examined a murder case where Sanjiv Kumar was seen entering and exiting the victim's house with a knife, was found with blood‑stained clothes, and a knife bearing human blood was recovered from his residence. The prosecution relied on circumstantial evidence, including the recovery of blood‑stained clothes from the co‑accused Kamlesh's house and the accused's failure to explain under Section 313 CrPC. The Court held that the chain of circumstances proved Sanjiv Kumar's guilt beyond reasonable doubt for murder under Section 302 IPC, but found no material to establish a conspiracy under Section 120B between Sanjiv and Kamlesh. Kamlesh's conviction under Section 201 IPC for tampering with evidence was upheld, though her sentence was reduced to time already served. The conviction of Lekh Raj under Section 212 IPC for harbouring the offender was unsustainable and he was acquitted. Accordingly, the murder conviction was affirmed, the conspiracy convictions were set aside, Kamlesh's conviction was confirmed with reduced sentence, and Lekh Raj was acquitted.

Issues considered

Whether the circumstantial evidence established the guilt of Sanjiv Kumar for murder under Section 302 IPC beyond reasonable doubt.
Whether a conspiracy under Section 120B IPC existed between Sanjiv Kumar and Kamlesh.
Whether Kamlesh's conviction under Section 201 IPC for tampering with evidence is sustainable and the appropriate sentence.
Whether Lekh Raj's conviction under Section 212 IPC for harbouring the offender is sustainable.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 120, s. 120.5, s. 201, s. 212, s. 302

Subjects

murdercircumstantial evidenceconspiracySection 120BSection 302Section 201Section 212acquittalsentence reductionIndian Penal Codecriminal law

Judgment

SANJEEV KUMAR A
v.
STATE OF HIMACHAL PRADESH

JANUARY 22, 1999

[G.B. PATTANAIK AND M.B. SHAH, JJ.] B
)._

Criminal Law :

Criminal Tlial :

Circumstantial evidence-Murder-Accused seen going to the house of
c
deceased and was seen coming out of the house after the occu"ence with
knife in his hand-Accused with bloodstained clothes on his person went to
the house of witness and requested her to bring a set of clothes from the house
of co-accused for the purpose of changing-Bloodstained clothes recovered
from the house of co-accused-Reports of Chemical Examiner and Serologist D
confinned presence of human blood 011 these clothes for which accused did
not offer any expla11ation-Knife stained with human blood was recovered
from the house of accused following his disclosure statement-Held : Under
these circumstances, the chain of circumstances is complete and the charge
of murder against accused is proved beyond reasonable doubt-Evide11ce Act, E
1872, S.27-Crimi11al Procedure Code, 1973, S.313.

Pe11al Code, 1860: Sections 120-B, 302/120-B and 201.

· Murder-Commission of-By accused-Accused is the 11ephew of co-
accused--No evidence tb establish conspiracy between accused and co- ac- F
cused to commit murde,......ffowever, co-accused handed over a set of clothes
to the witness for accused which he could cha11ge-1he bloodstained clothes
of accused were subsequently recovered from the house of co-accused-Held
: 11te mere fact that accused is the nephew of co-accused not sufficient to
lead 011 inference of conspiracy-However, the two circumstances fully estab- G
lish the charge against the co-accused-Hence, conviction of co-accused
upheld but the sentence reduced to the period already undergone.

Section 212--0ffence-lngredients of-No evidence about knowledge of
commission of offence and intention of screening· the offender from legal
punishment-Held : Under these circumstances, accused acquitted. H
217
218 SUPREME COURT REPORTS [1999) 1 S.C.R.
A The appellants-accused Nos. 1 and 2 were convicted under Section
302 read with Sections 120-8 and 201 of the Penal Code, 1860 and sen-
tenced to undergo imprisonment for life. The appellant-accused No. 3 was
convicted under Section 212 IPC and sentenced to undergo imprisonment
for 5 years. The High Court upheld the convictions. Hence this appeal.

B According to the prosecution accused No. 1 was the nephew of
accused No. 2. On the day of occurrence accused No. 1 was seen going to
the house of the deceased and was seen coming out of the house of the
deceased immediately after the occurrence with a knife in his hand. Shortly
after the occurrence accused No. 1 went to the house of the witness with
C bloodstained clothes on his person and requested her to bring a set of
clothes for his change from the house of accused No. 2. The bloodstained
clothes were subsequently recovered from the house of accused No. 2. The
reports of the Chemical Examiner and Serologist indicated presence of
human blood on these clothes for which accused No. 1 had not offered any
explanation under Section 313 of the Criminal Procedure Code, 1973. The
D knife stained with human blood was recovered from the residence of
accused No. 1 pursuant to his disclosure statement.
..
Disposing of the appeal, this Court

E HELD : 1. In the circumstances of the case, the conclusion is
irresistible that the chain of circumstances is complete and the charge of
. murder against accused No.1 is proved beyond reasonable doubt. [227-F]

2. There is not an iota of material to establish the alleged agreement
between accused No.1 and accused No.2 to commit the murder of the
F deceased. The mere fact that accused No. 1 is the nephew of accused No.
2 cannot be held to be sufficient to lead an inference of conspiracy.
However, it is established that accused No. 2 handed over a set of clothes
to the witness for accused No. 1 which he could change and that the
bloodstained clothes were subsequently recovered from the house of ac-
G cosed No. 2. These two circumstances fully establish the charge under
Section 201 of the Penal Code, 1860 against accused No. 2. However, the
sentence in respect of accused No. 2 is reduced to the period already
undergone. [228-A]

3. To attract the provisions of Section 212 IPC it is necessary to
H establish commission of an offence, harbouring or concealing the person
/
S. KUMAR v. STATE(PATTANAIK, J.) 219
•:nown or believed to be the offender and such concealment must be with A
-+
the intention of screening him from legal punishment. The evidence ad-
duced by the prosecution in this regard is wholly insufficient to establi'h
either of the aforesaid ingredients, though all the ingredients are necessary
to be proved. (229-A-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal l'iq. B
,_·,,
1059 of 1997 Etc.

From the Judgment and Order dated 20.9.96 of the Himachal
Pradesh High Court in Cr!. A. No. 121 of 1993.

Jitendra Sharma, U.R. Lalit, Ms. Jasmine Ahmed, Ms. Minakshi Vij,
c
Prem Malhotra for the Appellants.

N.C. Kochar, Ms. Meenakshi Arora and P. Jawhar for the Respon-
dent.
D
The Judgment of the Court was delivered by

PAITANAIK, J. These three appeals arise out of one Sessions Trial
being Sessions Trial No. 9-8/7 of 1990 and were heard together and are
being disposed of by this common judgment. Appellant Sanjiv Kumar stood
charged under Sections 1208, 302 and 201 IPC. Appellant Kamlesh Tyagi E
stood charged under Sections 1208, 302 read with Section 1208 and 201
IPC. Appellant Lekh Raj Gupta stood charged under Section 1208, 302
read with Section 1208 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 F
of the deceased whereafter accused Sanjiv and accused Kaiiilesh 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 1208, 302 IPC and 201 IPC. G
He was sentenced to undergo imprisonment for life for the conviction
' ll:" 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 con-
currently. Accused Kamlesh Tyagi was also convicted under Section 1208, H
220 SUPREME COURT REPORTS [1999) 1 S.C.R.

A 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.
B 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
c 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 conc~rned, though his conviction under Section 212 IPC was upheld but
the sentence was modified to the period already undergone. The appeals
D filed by the State for enhancement of sentence were also dismissed and
hence the present appeals.
';i

.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
E 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
F and the family of the accused and the family of the deceased were on
visiting terms. Both the families 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 PW19 the father of the deceased got an official accommoda-
tion at Dhora. The further prosecution case is that deceased had developed
G some intimacy with Chanchal which was not approved of by the father of
the deceased. PW19 in fact met Kamlesh on one occasion and requested
. )I
her to refrain her daughter from meeting the deceased. But Kamlesh told
PW19 that he should restrain his son from meeting Chanchal. It was also
alleged that several threats were given by Kamlesh and Sanjiv to the
H deceased. On the fateful day on 25.5.90 a telephonic message was received
S. KUMAR v. STATE [PATTANAIK, J.) 221

:.-om PWl that the son of the Additional District Attorney has been A
murdered by somebody with knife which information was entered in Daily
Diary Report in the Police Station Sadar Bilaspur. The District Inspector
of Police PW36 transmitted the message on telephone to the Incharge City
Police which was received by PW35 ,who was directed to proceed to the
spot. Said PW35 then immediately p;oceeded and at the place of occur-
rence recorded the statement of Rajeev-PWl which was treated as an FIR.
B
The police then started investigation and after completion of investigation
filed the chargesheet as already stated. The accused persons on being
committed stood their trial and were ultimately convicted by the learned
Sessions Judge, as already indicated. In the absence of any direct evidence
relating to the murder of the deceased the learned Sessions Judge as well c
as the High Court based their conviction on the circumstantial evidence.

Learned Sessions Judge relied upon the following circumstances to
bring home the charge against accused Sanjiv Kumar.

(i) Sanjiv was seen going in the house of the deceased at about D
10.15 a.m. by PW 34 and he was seen coming out of the house
of the deceased immediately after the occurrence by PWl.

(ii) Shortly after the occurrence Sanjiv Kumar went to the house
of PW 2 Sapna when his clothes were blood-stained and he
requested Sapna to get clothes for being changed from the E
house of the second accused Kamlesh.

(iii) Conduct of accused Sanjiv Kumar in leaving the place and
roaming under suspicious circumstances and on being en-
quired by PW 22 giving a false explanation.
F
'!I< (iv) Recovery of knife Exhibit P 4 at. his residence while Ill
custody.

(v) Recovery of clothes of the accused Sanjiv Kumar which he
was wearing at the time of occurrence from the house of
G
Karnlesh which on· chemical examination were found to be
)\,. stained with human blood.

(vi) The medical evidence corroborating that the knife could be
used for causing the injury on the deceased and the identifica-
tion of Sanjiv Kumar by the prosecution witness. H
222 SUPREME COURT REPORTS [1999) 1 S.C.R.

A On these circumstances the Sessions Judge came to hold that the ... \

prosecution case as against accused Sanjiv Kumar has been proved beyond
reasonable doubt.

So far as accused Kamlesh is concerned, the learned Sessions Judge
relied upon the following circumstances for establishing the charges :-
B
(i) Hurling of threats by her against deceased; ...
(ii) She came to the house of PW2 Sapna and then sent clothes
of accused no. 1 for changing his blood stained clothes;
c (iii) her subsequent act and conduct when prosecution witnesses
reached her residence;

(iv) her going to the shop of PW12 and making enquiries about
whereabouts of Sanjiv Kumar and giving false explanation that
D accused no. 1 had been given beating by some boys and was
not traceable.

So far as accused Lekh Raj is concerned, the learned Sessions Judge
came to the positive conclusion that he was not involved in the criminal
conspiracy alleged to have been made by accused no. 1 and 2 and, there-
E fore, the charges against him under Sections 120B and 302/120B must fail.

But so far as charge under Section 212 IPC is concerned, namely,
harbouring accused no.1 after commission of the crime the learned Ses-
sions Judge relied upon the fact that Lekh Raj took Sanjiv on his scooter
F and thereby permitted accused no. 1 Sanjiv Kumar from evading arrest
which is sufficient to establish the charge under Section 212 and accord-
ingly convicted him of the same offence.

On appeal the High Court re-appreciated the materials on record
and being of the opinion that the circumstances found to have been
G established by the Sessions Judge complete the entire chain for proving the
charge against Sanjiv Kumar and Kamlesh upheld the conviction and -~
~

sentence passed by the learned Sessions Judge. And so far as Lekh Raj is
concerned, while the High Court upheld the conviction but modified the
sentence to the period already undergone. The High Court in the im-
H .
pugned judgment came to hold :
S.KUMARv. STATE(PATIANAIK, J.] 223

"Therefore, from the chain of circumstances proved on record A
the only hypothesis which we can think of is that it was accused
Sanjiv Kumar who had killed Rajesh, as such, he is guilty of offence
under Section 302, but in view of the other circumstances proved
on record, if was done by him as a result of conspiracy hatched
between ·him and accused Kamlesh Tyagi."
B
Mr. Lalit, learned senior counsel appearing for accused Sanjiv
Kumar contended in this Court that in a case of circumstantial evidence
each incriminating circumstance must be proved beyond reasonable doubt
and all such circumstances taken together must complete the chain leaving
no missing link from which it can be conclusively said that it is the accused C
who is the perpetrator of the crime and nobody else, and applying this
principle to the circumstances sought to be established by prosecution it
cannot be held that the prosecution case as against accused Sanjiv Kumar
has been proved beyond reasonable doubt. According to the learned
counsel unless and until various links in the chain of evidence led by the D
prosecution have been proved which would unhesitatingly point to the guilt
,( of the accused the prosecution case cannot be held to have been estab·
lished. It is the further submission of Mr. Lalit learned senior counsel that
all the links in the chain must be conclusively established by cogent and
unimpeachable evidence. The learned counsel submitted that the cir-
cumstantial evidence must be of a conclusive nature and the circumstances E
must not be capable of duality of explanation. In elaborating this submis·
sion Mr. Lalit, learned counsel placed before us the evidence of PW 34
and PWl both of whom proved the two most vital pieces of evidence and
pointed out several infirmities and contended that if the evidence of these
two witnesses are unreliable and cannot be taken into account then p
whatever may be the residue of the evidence the prosecution case cannot
be said to have been established beyond reasonable doubt as against
accused Sanjiv Kumar. On the question of charge under Section 120B of
the Indian Penal Code Mr. Lalit, learned senior counsel submitted with
force that there is hardly any material on record to establish the aforesaid G
charge and both the learned Sessions Judge as well as the High Court
committed serious error in recording a finding that the charge under
Section 120B has also been established beyond reasonable doubt. The
learned counsel submitted with force that the necessary ingredients for the
offence under Section 120B being a party to a criminal conspiracy and in
the absence of an iota of material in support of the same the conviction H
224 SUPREME COURT REPORTS [1999] 1 S.C.R.

A under Section 120B or Section 302 read with 120 B cannot be upheld.
+ "'
According to Mr. Lalit the only circumstance for establishing the charge
under Section 201 IPC so far as accused Sanjiv Kumar is concerned, is
changing of clothes and handing over the same to PW2 for being handed
over to accused Kamlesh and on this circumstance even if it is held to have
been established the offence cannot be said to have been proved beyond
B reasonable doubt. _..
Mr. Jitender Sharma, learned senior counsel appearing for accused [
Kamlesh r~iterated the submissions made by Mr. Lalit, so far as the charges
under Section 302 read with Section 120B Indian Penal Code is concerned.
c According to the learned counsel neither the materials on record estab-
lished any prior meeting of mind between Kamlesh and Sanjiv Kumar nor
any of the circumstance established in the case would fasten the liability of
the offence of murder on accused Kamlesh and, therefore, the conviction
of Kamlesh by taking recourse to Section 120 B is wholly unsustainable in
law.
D
•'
So far as her conviction under Section 201 is concerned, Mr. Sharma ~
contends that the only piece of evidence relied upon by the prosecution in
this regard is when the prosecution witness reached her house she
protested and wanted whether any search warrant is there and thereafter
from her bathroom blood stained clothes of the accused were recovered
E
which at ,,that point of time were being washed and on that circumstance
alone the conviction of Kamlesh under Section 201 Indian Penal Code
cannot oe upheld. Lastly Mr. Sharma urged that even if her conviction is
upheld she has already undergone imprisonment for more than 4 years and
8 months' and the sentence should be reduced to the period undergone.
F
Mi. Prem Malhotra, learned counsel appearing for accused Lekh Raj
submitted that the prosecution has not led any evidence to come to the
conclusion that Lekh Raj knew about the commission of offence of Sanjiv
Kumar when he took him on scooter and that being so, his conviction under
Sectiori 211 Indian Penal Code is wholly unsustainable.
G
Mr. Kochher, learned senior counsel appearing for the respondents
very fairly stated that on the circumstances established by the prosecution
. "'
it would be difficult to sustain the conviction under Section 120B IPC as
there has been no material to prove the alleged conspiracy between Sanjiv
H Kumar and Kamlesh. The learned senior counsel also fairly stated that the
S. KUMAR v. STATE [PATTANAIK, J.] 225
... -.... conviction of Lekh Raj under Section 212 IPC may not be sustainable since
the materials on record do not justify a finding that Lekh Raj knew about
A

the commission of .offence by Sanjiv Kumar when he took him on the
scooter and the only item of evidence is that shortly after the occurrence
he gave lift to Sanjiv Kumar on his scooter whereafter Sarijiv Kumar
remained absconding for some period. But he argued with force that the
circumstances established in the case unequivocally proved the. charge
B
under Section 302 IPC so far as Sanjiv Kumar is concerned, and Section
201 IPC so far Kamlesh is concerned, and on the materials on record it
must be held that these charges have been proved beyond reasonable
doubt.
(
c
To appreciate the correctness of the rival submissions it would be
necessary for us to first enumerate the circumstances which can be said to
have been established by the prosecution and then examine whether the
different ingredients of different offence charged can be said to have been
duly established or not?
_. D
.. ;i
It is apparent from the evidence of PW 34 that on 25.5.1990 at 10.15
a.m. when he had been to the house of deceased Rajesh while Rajesh was
alone accused Sanjiv Kumar reached the place and introduced himself as
Sanjiv Kumar resident of Ohora and even the deceased also told him the
identity of accused Sanjiv Kumar. He also categorically stated that Sanjiv E
was wearing yellow T-shirt and blue jeans and sports shoes. According to
his evidence Rajeev Rawat PWl came to his house and told him that
Rajesh has been killed by somebody and further he has seen the boy
coming out of the house of Rajesh and running who had knife in his hand.
' He also stated that Rajeev told him that the boy was wearing yellow T-shirt F
.... and blue jeans and he replied Rajeev that he also saw a boy in the house
of Rajesh and thereafter when they went to the house of the deceased
Rajesh they found blood on the floor and Rajesh was lying on the dining
chair. Mr. Lalit pointed out to us several omissions from his earlier
statement to the police in as much as he had not stated to the poJtce that
in his presence Rajiv told the police that he is the same boy who was seen G
.... by him running from the house of Rajesh after committing murder. He had
also not stated to the police that Rajeev told him about seeing a boy going
out of the house wearing yellow T-shirt and blue jeans and those omissions
were also duly confronted to him. The question, however, remains as to
whether such omissions can be said to be material omissions tantamounting H
226 SUPREME COURT REPORTS [1999) 1 S.C.R.

A to contradiction and whether on such material omission the evidence of -+- '
PW 34 should be discarded from the purview of consideration? But having
scrutinised the evidence of PW 34 in detail we find it difficult to discard
the same from the consideration totally, and in our view, the so called
omissions in his earlier statement to police cannot be held to be material
·ones totally impeaching his evidence. There has been no omission or
B contradiction relating to the fact that while he was in the house of Rajesh,
Sanjiv came there and introduceJ himself as Sanjiv and even the deceased
also introduced Sanjiv Kumar to him. From his evidence it can be safely
concluded that Sanjiv was seen in the company of the deceased Rajesh in
his house while Rajesh was alone at 10.15 a.rn. on the date of occurrence
c on 25.5.1990

The next circumstance which has been relied upon by the prosecu-
tion is the fact that PWl saw somebody leaving the place of occurrence
with knife in his hand wearing yellow T-shirt and blue jeans and said PWl
identified accused Sanjiv Kumar to be the said person in T.I. parade. It is
D not the ptosecution case that PW 1 knew Sanjiv Kumar, and therefore,
unless the identify of Sanjiv Kumar is established to be the person who was
seen by PWl to have left the place of occurrence with a yellow T shirt and
blue jeans and knife in his hand the said circumstance cannot be of any
use. The High Court in the impugned judgment while discussing the
E identification of Sanjiv Kumar by PW 1 in the T.I. Parade held on 13.7.1990
came to the conclusion that the said T.I. Parade loses its importance and
the possibility of his seeing Sanjiv Kumar or his photograph is not ruled
out as he was brought to the house of Rajesh on the very next day and used
to be taken to the Courts and was also paraded in the bazar of Bilaspur
alongwith accused Kamlesh. If the identification of accused Sanjiv Kumar
F
by PW 1 in T.I. Parade held on 13.7.1990 is held to be invalid as has been
held by the High Court then the second circumstance to the effect that
PWl saw Sanjiv Kumar leaving the scene of occurrence with knife in his
hand cannot be said to have been established.

G The next circumstance which can be said to have been established
beyond reasonable doubt through the evidence of PW2 is that on the date ';;4 1
of occurrence accused Sanjiv Kumar with blood stained clothes on his
person reached the house of PW2 and requested her to go to the house of
accused Kamlesh and bring a set of clothes for his change and in fact said
H PW 2 went to the house of Kamlesh and informed her as desired by Sanjiv
S. KUMAR v. STATE [PATTANAIK, J.] 227

-.+
Kumar. This is a rather clinching circumstance against accused Sanjiv A
Kumar who was seen by PW2 with blood stained clothes on his person
<!;'',
immediately after the occurrence and nothing has been pointed out to us
by Mr. Lalit, learned counsel to discard this piece of evidence.

The next circumstance which can be said to have been established
by the prosecution is the alleged search of the house of accused Kamlesh B
,I. and recovery of blood stained clothes of the accused Sanjiv Kumar from
the bathroom which were being washed. This circumstance is established
from the evidence of Sapna-PW2, R.L. Chauhan - PW? and Vipan Sharma
- PW 11. The relevant seizure list is Exhibit PG. The report of the Chemical
Examiner and that of the Serologist is Exhibit PX/2. PWl, PW34, and PW c
2 categorically deposed that these were clothes which had been used by
accused Sanjiv Kumar on the relevant date at the relevant point of time.
The report of Chemical Examiner and report of the Serologist indicate the
presence of human blood on the wearing apparels of Sanjiv Kumar which
were seized from the house of accused Kamlesh and the accused has not
offered any explanation for the same in his examination under Section 313
D
~
Cr.P.C. From the evidence of PWs 16 and 17 it has been established that
accused Sanjiv Kumar while in custody, made a statement in relation to the
weapon of offence Exhibit P-4 and pursuant to such statement the knife
was recovered under Exhibit PV. The said knife also on chemical examina-
tion and serologically tested was found to be stained with human blood. E
The two Courts of fact have believed the evidence of PWs 15 and 17 and
nothing has been pointed out as to why the said evidence should not be
relied upon. The aforesaid circumstance also is another clinching piece of
~
evidence as against accused Sanjiv Kumar. On the aforesaid circumstances,
being established by the prosecution the conclusion is irresistible that the
F
chain of circumstances so proved is complete and the charge of murder
against accused Sanjiv Kumar is proved beyond reasonable doubt. Said
"' accused Sanjiv Kumar, therefore, has to be convicted under Section 302
IPC and for said conviction he is sentenced to imprisonment for life. ·

Coming to the question of charge under Section 120B IPC to estab- G
lish a conspiracy between accused Sanjiv Kumar and accused Kamlcsh,
~. )'.
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 H
228 .··· SUPREME COURT REPORTS (1999) 1 S.C.R.
A act. There is not an iota of material to establish the alleged agreement
between acc~sed 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 ittfer.:nce of conspiracy;
Association of Sarijiv Kumar with Kamlesh being a relation is not enough
to establish that both of them entered into a conspiracy to kill deceased
B Rajesh. In the atotesaid premises, the learned counsel appearing for the
. . respondent State was right in his subniission thatthe charge of conspiracy
canriot be sustained. We accordingly, set aside the convidion of accused
Sanjiv Kuµiar as well as of accused Kamlesh under Section 302/120B of
India Penal Code.

.So far as the convictio~ of ~ccused Kamlesh under Section 201 IPC
is concerned, from the .prosecution evidence it is established that .when
Sapna-PW2 informed that Sanjiv Kumar is in. her house with blood stained
clothes Kamlesh was perttirbed and by the time Chanchal and Sapna
D . proceeded towards the hquse 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 PW2 Sapna carried.
The · further .circumstance which is established from the prosecution
E 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 searched ultimately the blood stained clothes of accused Sanjiv
Kumar were recovered from the bath room of her house which had been
F soaked with water in a bath tub. These two circumstances fully establish
the charge under Section 201 IPC, so far as accused Kamlesh is concerned.
In the aforesaid circumstances, we have no hesitation in affirining 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
G Sharma, learned counsel appearing for accused Kamlesh, and we think that
the )ustice will be fully met if her sentence· is modified to the sentence
already undergone.

So far as accused Lekh Raj is concerned, we do not find an iota of
H .material to .indicate that he knew about the cominission of offence by
S.KUMARv. STATE(PATIANAIK, J.] 229

accused Sanjiv Kumar when he took him on his scooter and, therefore, the A
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 COil1mission 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
B
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. C

In the net result, therefore, the conviction of accused Sanjiv Kumar
and accused Kamlesh under Section 302/120B IPC and the sentence passed
thereunder is set aside. Accused Sanjiv Kumar, however, is convicted under
Section 302 IPC and sentenced to imprisonment for life. The conviction of
accused Kamlesh under Section. 201 IPC is upheld; but the sentence is D
modified to the period already undergone. She may be released forthwith
unless required in any· other case. The conviction and sentence of accused
Lekh Raj under Section 212 IPC is set aside and is acquitted of the charge
levelled against him.

All the appeals are disposed of accordingly.
E

v.s.s. Appeals disposed of.