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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 1797-1798/2010

THE STATE OF HARYANA .. APPELLANT(S)

VERSUS

ANAND KINDO & ANR. ETC. ..RESPONDENT(S)

WITH

CRIMINAL APPEAL Nos. 1781-1782/2010

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The heinous and brutal crime was

committed where the trusted employees of an aged

couple for the greed of money murdered them. The

brutality is reflected by the fact that the couple

was sleeping, there was no occasion to resist any

force and yet using hammer and Tava, their faces

were so disfigured that they were almost

unrecognized. No doubt, the circumstantial

evidence gave rise to the conviction but if the

circumstantial evidence was of such a nature that

it practically leaves no doubt, the natural

consequence of conviction under Section 302, IPC

must follow.

2.It is not necessary for us to go beyond the

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aforesaid facts since the accused have not filed

any appeal before us against the concurrent

findings of the trial Court and the High Court but

the trial Court having thought it fit to give

death sentence, the High Court interfered with that

aspect of the matter by imposing life sentence.

The appeals are preferred by the State and by the

complainant.

3.On the issue of sentence to be imposed, once

the conviction is under Section 302, IPC, the

option is limited. It has to be death or life. The

third option is also available where at times the

court looking to the scenario does not impose the

death sentence but gives conviction whereby the

accused has to serve at least for a fixed term.

This fixed term conviction can only be by the High

Court or this Court and not by the trial Court

[Union of India vs. Sriharan, (2016) 7 SCC 1.]

4.We now turn to the reasons why the death

sentence was awarded by looking to the judgment of

the trial Court dated 12.06.2008. The two accused

who were convicted (the wife of one the accused

charged under Section 201, IPC, was convicted by

the trial Court but the High Court overturned the

conviction and one other accused who remained

untraced) intentionally killed Major General

Kailash Chand Dhingra (K.C. Dhingra) and his wife

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Smt. Sangeeta Dhingra in a gruesome and brutal

manner. The victims never obstructed the robbery

but were actually sleeping when they were battered.

The accused were stated to have planned their

action with precision and attacked the victims

simultaneously and the death was immediate as

declared by the medical officers who conducted the

autopsy. The order of sentence discusses

elaborately the aspect of imposition of an

appropriate punishment in the manner in which the

Court’s response to the society’s cry for justice

against the criminals and yet balances this aspect

with any mitigating circumstance. The crime is

understood in the context of not only the

individual victims but the society as a whole.

In this behalf the Court referred to the judgment

in the case of Desraj vs. State of Punjab, (2007)

12 SCC 494 specifying special reasons for

attracting death penalty as: manner of commission

of murder, motive of murder, the abhorrent nature

of crime and magnitude of crime or even the

personality of the victim. The crime having been

committed without any provocation, with the sole

greed for money and against two aged people, one of

whom was a decorated Major General of the Army, it

was opined that the death sentence would be the

appropriate sentence and on the gruesomeness, it

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was further opined that the faces were battered

beyond recognition.

5.The High Court in its judgment on the aspect

of sentence while discussing the confirmation of

death sentence has referred to the various judicial

pronouncements and the plea of the convicts that

it was not a rarest of the rare case. All that was

opined is that it was not a fit case under rarest

of rare case in which the sentence should have

been imposed on the convicts. Thus life sentence

was granted under Section 302, IPC.

6.We may also note another aggravating

circumstance pointed out by learned counsel for the

complainant who had preferred an appeal. He

submits that after the conviction, the convicts

endeavoured to escape out of the prison by digging

a tunnel on 18.10.2008 but were caught and on trial

were convicted by order dated 18.12.2013 under

provisions of Section s 224 and 120-B,IPC.

7.We must note the fair submission of the

learned counsel for the complainant who really did

not press for restoration of the death sentence but

submitted that the brutality of the crime and the

aforesaid aggravating circumstances require this

Court to exercise jurisdiction to impose a fixed

term sentence before which the convicts are not

liable to be considered for grant of remission.

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His initial plea of course was that ‘life’ should

mean ‘life’ in this Case but as an alternative

plea, it was submitted that there should be at

least a fixed term sentence.

8.We have considered the rival submissions.

Learned counsel for the accused who has been

engaged by the Supreme Court Legal services

Committee seeks to strenuously contend that two

accused were aged 22 and 24 years at the time of

commission of the crime and were young people. They

have already served fifteen years. They have a

chance to be rehabilitated in the society. This

Court should not interfere with the aspect of

sentence and the present crime should be treated as

one which receives the normal life sentence under

Section 302, IPC.

9.On hearing learned counsel for the parties, we

are in agreement with the submission of the learned

counsel for the complainant as well as the State on

the aspect of the brutality of the crime. The

aspects which weighed with us are that it was a

pre-planned murder for gain and greed by somebody

who was in a position of trust with the family.

The two victims were aged people who engaged one

of the convicts to look after them and were being

paid appropriate emoluments. It is nobody’s case

that Anand Kindo was mal-treated or ill-treated by

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them and was not looked after in the house. At an

advanced stage in such health respect, there is

always an element of trust and faith in the person

by a person who employs them as well as the family

members. Work takes other family members elsewhere

and with the joint family system having broken

down, the role of such trusted help becomes even

more significant. It is also the significance of

the society where a wrong signal goes if a trusted

person breaches that trust to kill the person who

had employed them in such a gruesome manner. As

stated by the trial Court, the society itself

demands justice, apart from an utter element on

deterrence which is in any aspect of conviction.

The approach cannot be the vindictive but lack of

appropriate sentence leaves the cry of justice of

the society un-addressed apart from the fact that

other persons who may have the propensity to carry

out the crime feel they will get away with the

lighter sentence, in case they are caught.

Battering two sleeping people beyond recognition

who imposed trust in their employee certainly calls

for something more than merely a life sentence

under Section 302, IPC, even if death sentence is

not to be imposed.

10.The subsequent conduct of the accused in the

endeavour to escape also put a question mark on

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their conduct but for the fact that they were

apprehended they would have escaped.

11.If we turn to the redeeming factors, the only

redeeming factor which we find is the age at which

the accused committed the offence but

simultaneously to unleash such people back in the

society has its own ramifications.

12.On consideration of the matter, we consider

appropriate to impose a fixed term sentence of 30

years. Even at that age, the convicts would be in

their 50s and we hope and pray that they would have

learned their lesson and joined the society as

responsible members at that stage.

13.In Shankar Kishanrao khade vs. State of

Mahrashtra (2013) 5 SCC 546, it was held that if

there is any circumstance favouring the accused

such as lack of intention to commit the crime,

possibility of reformation, young age of the

accused, accused not being a menance to the

society, no previous criminal record etc., the

accused may avoid capital punishment. The Court

opined that the crime is important but so is the

criminal and hence the Supreme Court in recent past

has substituted death penalty with fixed term

sentences exceeding 14 years. In appropriate cases

such as the present case, imposing a fixed term

sentence creates a possibility for the convict to

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re-integrate into society after serving his/her

sentence. It strikes a delicate balance between

the victims’ plea for justice and rehabilitative

justice for the convicts.

14.The appeals are allowed to the limited extent,

leaving the parties to bear their own costs.

....................J.

[SANJAY KISHAN KAUL]

....................J.

[ ABHAY S. OKA]

....................J.

[VIKRAM NATH ]

NEW DELHI,

SEPTEMBER 08, 2022.