THE STATE OF HARYANAversusANAND KINDO & ANR. ETC.

                         [2022] 7 S.C.R. 337                               337


                    THE STATE OF HARYANA                                   A
                                   v.
                  ANAND KINDO & ANR. ETC.
              (Criminal Appeal Nos. 1797-1798 of 2010)
                       SEPTEMBER 08, 2022                                  B
       [SANJAY KISHAN KAUL, ABHAY S. OKA AND
                  VIKRAM NATH, JJ.]
       Sentence/Sentencing – Murder committed for greed of money
by trusted employees of an aged couple while they were sleeping –
                                                                           C
Trial Court awarded the death sentence u/s.302 IPC to accused
persons – High Court interfered with sentencing and imposed life
sentence – On appeal, Held: 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 paid appropriate emoluments –              D
Battering two sleeping people beyond recognition who imposed trust
in their employee certainly calls for something more than merely a
life sentence under s.302, IPC, even if death sentence is not to be
imposed – Subsequent conduct of the accused in the endeavour to
escape from the custody also put a question mark on their conduct
                                                                           E
– Imposing a fixed term sentence creates a possibility for the convict
to re-integrate into society after serving his/her sentence – It strikes
a balance between the victims’ plea for justice and rehabilitative
justice for convicts – Therefore, a fixed term sentence of 30 years
imposed.
                                                                           F
      Partly allowing the appeals, the Court
      HELD: 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 respondent-accused was mal-treated or ill-           G
treated by 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,             H
                                337
338            SUPREME COURT REPORTS                        [2022] 7 S.C.R.


A     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
B
      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
C     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. The
      subsequent conduct of the accused in the endeavour to escape
      also put a question mark on their conduct but for the fact that
      they were apprehended they would have escaped. A fixed term
D
      sentence of 30 years imposed. Even at that age, the convicts
      would be in their 50s and it is hoped and prayed that they would
      have learned their lesson and joined the society as responsible
      members at that stage. In appropriate cases such as the present
      case, imposing a fixed term sentence creates a possibility for the
E     convict to 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. [Paras 9, 10, 12, 13][341-
      E-H; 342-A-B, D, F]
            Union of India v. Sriharan (2016) 7 SCC 1 : [2015] 14
F           SCR 613; Shankar Kishanrao khade v. State of
            Mahrashtra (2013) 5 SCC 546 : [2013] 6 SCR 949 –
            relied on.
            Desraj v. State of Punjab (2007) 12 SCC 494 : [2007]
            9 SCR 774 – referred to.
G                            Case Law Reference
      [2015] 14 SCR 613               relied on               Para 3
      [2007] 9 SCR 774                referred to             Para 4
      [2013] 6 SCR 949                relied on               Para 13
H
  THE STATE OF HARYANA v. ANAND KINDO & ANR. ETC.                            339


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                       A
Nos. 1797-1798 of 2010.
      From the Judgment and Order dated 23.01.2009 of the High Court
of Punjab and Haryana at Chandigarh in Murder Reference No. 6 of
2008 and Criminal Appeal No.1237-SB of 2008 and Criminal Appeal
No. 413-DB of 2008.                                                          B

      With
      Criminal Appeal Nos.1781-1782 of 2010
     Anil Grover, Sr. AAG, Sudarshan Singh Rawat, Satish Kumar,
                                                                             C
Dr. Monika Gusain, Kamal Mohan Gupta, Rajsh Srivastava, Gaurav
Verma, Neeraj Datt Gaur, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      SANJAY KISHAN KAUL, J.
                                                                             D
       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
                                                                             E
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 aforesaid facts since   F
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.
                                                                             G
      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
                                                                             H
340            SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     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
B     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 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
C
      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
D     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
E
      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,
F     it 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
G     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
H     out of the prison by digging a tunnel on 18.10.2008 but were caught and
  THE STATE OF HARYANA v. ANAND KINDO & ANR. ETC.                              341
              [SANJAY KISHAN KAUL, J.]

on trial were convicted by order dated 18.12.2013 under provisions of          A
Sections 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          B
fixed term sentence before which the convicts are not liable to be
considered for grant of remission. 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            C
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         D
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            E
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 them
and was not looked after in the house. At an advanced stage in such            F
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        G
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         H
342              SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A     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.
B           10. The subsequent conduct of the accused in the endeavour to
      escape also put a question mark on 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
C     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
D     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
E     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
F     sentence creates a possibility for the convict to 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.
G
      Devika Gujral                                          Appeals partly allowed.
      (Assisted by : Shevali Monga, LCRA)




H