THE STATE OF HARYANA versus ANAND KINDO & ANR. ETC. on 8 September 2022

1. The heinous and brutal crime was committed where the trustedemployees of an aged couple for the greed of money murdered them.The brutality is reflected by the fact that the couple was sleeping, therewas no occasion to resist any force and yet using hammer and Tava,their faces were so disfigured that they were almost unrecognized. Nodoubt, the circumstantial evidence gave rise to the conviction but if thecircumstantial evidence was of such a nature that it practically leavesno doubt, the natural consequence of conviction under Section 302, IPCmust follow.

2. It is not necessary for us to go beyond the aforesaid facts sincethe accused have not filed any appeal before us against the concurrentfindings of the trial Court and the High Court but the trial Court havingthought it fit to give death sentence, the High Court interfered with thataspect of the matter by imposing life sentence. The appeals are preferredby the State and by the complainant.

3. On the issue of sentence to be imposed, once the conviction isunder 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 thescenario does not impose the death sentence but gives conviction wherebythe accused has to serve at least for a fixed term. This fixed term A

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Aconviction can only be by the High Court or this Court and not by thetrial Court [Union of India vs. Sriharan, (2016) 7 SCC 1.]

4. We now turn to the reasons why the death sentence wasawarded by looking to the judgment of the trial Court dated 12.06.2008.The two accused who were convicted (the wife of one the accusedBcharged under Section 201, IPC, was convicted by the trial Court butthe High Court overturned the conviction and one other accused whoremained untraced) intentionally killed Major General Kailash ChandDhingra (K.C. Dhingra) and his wife Smt. Sangeeta Dhingra in agruesome and brutal manner. The victims never obstructed the robberybut were actually sleeping when they were battered. The accused wereCstated to have planned their action with precision and attacked the victimssimultaneously and the death was immediate as declared by the medicalofficers who conducted the autopsy. The order of sentence discusseselaborately the aspect of imposition of an appropriate punishment in themanner in which the Court’s response to the society’s cry for justiceDagainst the criminals and yet balances this aspect with any mitigatingcircumstance. The crime is understood in the context of not only theindividual victims but the society as a whole. In this behalf the Courtreferred 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 natureEof crime and magnitude of crime or even the personality of the victim.The crime having been committed without any provocation, with thesole greed for money and against two aged people, one of whom was adecorated Major General of the Army, it was opined that the deathsentence would be the appropriate sentence and on the gruesomeness,Fit was further opined that the faces were battered beyond recognition.

5. The High Court in its judgment on the aspect of sentence whilediscussing the confirmation of death sentence has referred to the variousjudicial pronouncements and the plea of the convicts that it was not ararest of the rare case. All that was opined is that it was not a fit caseGunder rarest of rare case in which the sentence should have been imposedon the convicts. Thus life sentence was granted under Section 302, IPC.

6. We may also note another aggravating circumstance pointedout by learned counsel for the complainant who had preferred an appeal.He submits that after the conviction, the convicts endeavoured to escapeHout 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 ofSections 224 and 120-B, IPC.

7. We must note the fair submission of the learned counsel for thecomplainant who really did not press for restoration of the death sentencebut submitted that the brutality of the crime and the aforesaid aggravatingcircumstances require this Court to exercise jurisdiction to impose afixed term sentence before which the convicts are not liable to beconsidered for grant of remission. His initial plea of course was that‘life’ should mean ‘life’ in this Case but as an alternative plea, it wassubmitted that there should be at least a fixed term sentence.

8. We have considered the rival submissions. Learned counselfor the accused who has been engaged by the Supreme Court Legalservices Committee seeks to strenuously contend that two accused wereaged 22 and 24 years at the time of commission of the crime and wereyoung people. They have already served fifteen years. They have achance to be rehabilitated in the society. This Court should not interferewith the aspect of sentence and the present crime should be treated asone which receives the normal life sentence under Section 302, IPC.

9. On hearing learned counsel for the parties, we are in agreementwith the submission of the learned counsel for the complainant as wellas the State on the aspect of the brutality of the crime. The aspectswhich weighed with us are that it was a pre-planned murder for gainand 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 tolook after them and were being paid appropriate emoluments. It isnobody’s case that Anand Kindo was mal-treated or ill-treated by themand was not looked after in the house. At an advanced stage in suchhealth respect, there is always an element of trust and faith in the personby a person who employs them as well as the family members. Worktakes other family members elsewhere and with the joint family systemhaving broken down, the role of such trusted help becomes even moresignificant. It is also the significance of the society where a wrong signalgoes if a trusted person breaches that trust to kill the person who hademployed them in such a gruesome manner. As stated by the trial Court,the society itself demands justice, apart from an utter element ondeterrence which is in any aspect of conviction. The approach cannotbe the vindictive but lack of appropriate sentence leaves the cry of justiceof the society un-addressed apart from the fact that other persons who AB

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Amay have the propensity to carry out the crime feel they will get awaywith the lighter sentence, in case they are caught. Battering two sleepingpeople beyond recognition who imposed trust in their employee certainlycalls 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 toescape also put a question mark on their conduct but for the fact thatthey were apprehended they would have escaped.

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11. If we turn to the redeeming factors, the only redeeming factorwhich we find is the age at which the accused committed the offenceCbut simultaneously to unleash such people back in the society has itsown ramifications.

12. On consideration of the matter, we consider appropriate toimpose a fixed term sentence of 30 years. Even at that age, the convictswould be in their 50s and we hope and pray that they would haveDlearned their lesson and joined the society as responsible members atthat stage.

13. In Shankar Kishanrao khade vs. State of Mahrashtra(2013) 5 SCC 546, it was held that if there is any circumstance favouringthe accused such as lack of intention to commit the crime, possibility ofEreformation, young age of the accused, accused not being a menance tothe society, no previous criminal record etc., the accused may avoidcapital punishment. The Court opined that the crime is important but sois the criminal and hence the Supreme Court in recent past has substituteddeath penalty with fixed term sentences exceeding 14 years. Inappropriate cases such as the present case, imposing a fixed termFsentence creates a possibility for the convict to re-integrate into societyafter serving his/her sentence. It strikes a delicate balance between thevictims’ plea for justice and rehabilitative justice for the convicts.

14. The appeals are allowed to the limited extent, leaving the partiesto bear their own costs.

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Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeals partly allowed.

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