Tuesday 14 September 2021

Whether residual doubt is a mitigating circumstance leading to reduction of sentence of accused?

 We are convinced that the crime alleged was committed

 but not with

the severity and frequency projected. This raises a 'residual

doubt' in our minds, which the Hon'ble Supreme Court has

found to be a state of mind existing somewhere between

'beyond reasonable doubt' and 'absolute certainty'. We

respectfully rely on Ashok Debbarma v. State of Tripura,

(2014) 4 SCC 747.

22.Ashok Debbarma (supra) was interalia considering

the death sentence awarded to the appellant and the concept

of 'residual doubt' was raised as a mitigating factor in the

consideration of whether the case was one of the rarest of

the rare kind. The concept originated in the United States

and the Court observed: “'Residual doubt' is a mitigating

circumstance, sometimes used and urged before the jury in the

United States and, generally, not found favour by the various

courts in the United States"(sic). This is for the reason

that having instructed the Jury to find the accused guilty

beyond reasonable doubt, there cannot be a further

instruction at the time of sentencing that the higher

standard of elimination of 'all doubts' should have been

employed [Franklin v. Lynaugh 487 US 164 (1988)]. Proof

beyond reasonable doubt was expressed in the following words

in Krishnan v. State, (2003) 7 SCC 56:

“[d]oubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot

afford any favourite other than truth. To constitute

reasonable doubt, it must be free from an

overemotional response. Doubts must be actual and

substantial doubts as to the guilt of the accused

persons arising from the evidence, or from the lack

of it, as opposed to mere vague apprehensions. A

reasonable doubt is not an imaginary, trivial or a

merely possible doubt, but a fair doubt based upon

reason and common sense. It must grow out of the

evidence in the case”. (SCC p. 63, para 23)

Ashok Debbarma spoke thus on these concepts : 'In our

criminal justice system, for recording guilt of the accused,

it is not necessary that the prosecution should prove the

case with absolute or mathematical certainty, but only beyond

reasonable doubt. Criminal courts, while examining whether

any doubt is beyond reasonable doubt, may carry in their

mind, some “residual doubt”, even though the courts are

convinced of the accused persons’ guilt beyond reasonable

doubt." (sic) The Court further elaborated on 'residual

doubt' as per the following extract:

"33. In California v. Brown, 93 L Ed 2d 934: 479 US

538 (1987) and other cases, the US courts took the

view, “residual doubt” is not a fact about the

defendant or the circumstances of the crime, but a

lingering uncertainty about facts, a state of mind

that exists somewhere between “beyond a reasonable

doubt” and “absolute certainty”. The petitioner’s

“residual doubt” claim is that the States must permit

capital sentencing bodies to demand proof of guilt to

“an absolute certainty” before imposing the death

sentence. Nothing in our cases mandates the

imposition of this heightened burden of proof at

capital sentencing.

34. We also, in this country, as already indicated,

expect the prosecution to prove its case beyond a

reasonable doubt, but not with "absolute certainty".

But, in between "reasonable doubt" and "absolute

certainty", a decision-maker's mind may wander,

possibly in a given case he may go for "absolute

certainty" so as to award death sentence, short of

that he may go for "beyond reasonable doubt". Suffice

it to say, so far as the present case is concerned,

we entertained a lingering doubt as to whether the

appellant alone could have executed the crime singlehandedly,

especially when the prosecution itself says

that it was the handiwork of a large group of people.

If that be so, in our view, the crime perpetrated by

a group of people in an extremely brutal, grotesque

and dastardly manner, could not have been thrown upon

the appellant alone without charge-sheeting other

groups of persons numbering around 35. All the

element test as well as the residual doubt test, in a

given case, may favour the accused, as a mitigating

factor."

23. We are quite conscious of the fact that the

concept of 'residual doubt' was reckoned by the Hon'ble Supreme

Court in the aforesaid decision as a mitigating factor to avoid

death sentence. We would respectfully adopt the said concept,

even in the present case of rape as a mitigating factor in

sentencing. As we observed, there is evidence of sexual

molestation; but not with the severity and frequency as spoken

of by the prosecutrix. The family also has a different version

and there is the compelling factor of the prosecutrix having

informed the family after the very first instance and the family

having shifted her residence. These aspects give rise to the

residual doubts as spoken of by the Hon'ble Supreme Court and

hence we are compelled to modify the sentence. We think that the

sentence can be modified to 10 years under Section 377 of the

I.P.C. while upholding the fine imposed by the trial court with

a default sentence as ordered in the impugned judgment. The

conviction and sentence under Section 376 of I.P.C. are

reversed. The Criminal Appeal stands partly allowed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A NO. 1208 OF 2016

NARAYANAN KUNJAPPAN Vs STATE OF KERALA


PRESENT

 MR.JUSTICE K.VINOD CHANDRAN

&

MR.JUSTICE ZIYAD RAHMAN A.A.

Dated, this the 8th September 2021

Author: Vinod Chandran, J.

'Gamekeeper turns poacher' is how the Hon'ble Supreme

Court described instances of rape on children by their own

guardians (State of Himachal Pradesh v. Asha Ram, (2005) 13

SCC 766). In the instant case, the victim is a young girl and

the accused is her father, a clear case of 'Protector turning

predator' as submitted by the learned Prosecutor.

2. The trial court convicted the accused based on

the evidence led before it by way of fifteen exhibits and

eleven witnesses. The defence marked one exhibit as a

contradiction from the statement of PW4. Separate sentences

for imprisonment for life under Sections 376 and 377 IPC and

a fine amount of Rs.25,000/- each, with default sentence was

imposed on the accused. The sentence was also ordered to be

run concurrently. We heard the learned Counsel Lavaraj M.G.

for the appellant and Smt. Ambika Devi, Special Government

Pleader (Atrocities against women and children) appearing for

the State.

3. The learned Counsel for the appellant submits

that the victim does not have a consistent case and this

reveals the falsity of the allegations. It is pointed out

that the mother and brother of the victim turned hostile.

There is gross delay in the registration of the crime. The

child had an affair with another person, which was objected

to by the father and the complaint raised was a mere

backlash. Without admitting the allegations or accepting the

evidence let in, the learned Counsel would also pray for

indulgence insofar as the sentences, especially since the

allegation of rape is an embellishment in the evidence before

court. The appellant relied on Santosh Prasad @ Santosh Kumar

v. State of Bihar, (2020) 3 SCC 443 to argue that when there

are material contradictions in the evidence led by the

prosecution and there is a delay in lodging an FIR, a

conviction cannot be sustained. Bhudeb Uchai v. State of

Tripura, 2020 KHC 4378 of the Tripura High Court, State of

Uttarakhand v. Subash, 2019 KHC 5450 and Indra Mani Thapliyal

v. State of Uttarakhand, 2013 KHC 3138; both Division Bench

decisions of the Uttarakhand High Court, were relied on to

set aside the conviction and alternatively to argue for

mitigation insofar as the sentence is concerned.


4. The learned Special Government Pleader on the

other hand, would caution us, relying on Asha Ram, from

showing any indulgence to such depraved people, who turn

their lascivious eye on their children, that too of tender

age. It is also pointed out that the legislature keeping in

mind the increase of such crimes of depravity, brought in

comprehensive amendments bringing various sexual acts under

the definition of rape and substantially enhancing the

punishment, to even death in cases of abject depravity;

interalia of minor children being subjected to rape by their

guardians. Ravi v. State of Maharashtra, (2019) 9 SCC 622

declared that a purposive interpretation of the penal

provisions has to be made, especially keeping in mind the

subsequent amendments brought in by the legislature, even if

such offences are committed before such amendments. It is

pointed out that the mother was only shielding the father

especially since she had signed on the FIS given by the

daughter. Though in the FIS only digital penetration was

alleged by the victim; before the Doctor, she alleged penile

penetration also. There is no delay in making the complaint

since the child had put forth the threat of suicide levelled

by her father, as having dissuaded her from disclosure. She

also spoke of the crime to her family and there is no

challenge to the explanation, in the cross-examination. The

explanation proffered, if not challenged, there can be no

ground raised on that aspect as has been held in State of

U.P. v. Nahar Singh, (1998) 3 SCC 561. Yanab Sheikh v. State

of W.B., (2013) 6 SCC 428 is also relied on.

5. Ext.P4 is the FIS given by PW4 on 12.02.2013.

PW4's family moved into the present accommodation a month

back, and before that, they were at a different rental

accommodation, where they lived for about six months. She is

one among the six siblings and her elder sister was married

off; the remaining are two elder brothers and two younger

sisters. Her eldest brother is employed and the other brother

is also a school going child. The allegation was that one day

when she was sleeping alone in the kitchen her father came to

her, drunk. He caught hold of her, touched her all over,

especially on the breasts. Her clothes were removed and he

pressed on various parts of her body. He also touched her

vagina and inserted his finger many times into the vagina.

She protested and threatened that she would disclose it to

her mother, and at this point, her father threatened to

commit suicide if she does so. She alleged that the

molestation was repeated by her father many times even when

her mother was present in the house. She also spoke of a time

when her mother and brother were away concerning a

bereavement. She was alone in the house with her younger

sisters and father for three days when molestation of like

nature was repeated. When her elder sister came home, she

divulged her travails to her. The sister then took PW4 to her

marital house and then PW4 returned after three months just

before the examinations. She resumed school and on the first

day, due to her long absence, she had to meet the Headmaster.

When the Headmaster enquired about her absence, she told him

of what transpired. She admitted that she was not molested in

the present residence. She spoke about the molestation to her

brother, PW7, who informed the same to the mother and elder

sister. She lamented that every day her father comes home

drunk and she did not divulge her travails only because of

the threat levelled by her father. She claimed that the

harassment commenced and continued when the family was

staying at Veettoor; before they moved to the present

residence. She also claimed that she had spoken to her mother

about the molestation, which was not taken seriously.

6. PW4 in her evidence spoke in tandem with the FIS

but made some embellishments. She deposed that she was

molested between May and September of 2012 and then the three

days when her mother was away to call on a bereaved family.

She also said that she was so harassed till 2013, which was

later corrected as in 2012. While in the FIS, she said she

was with her sister for three months, before court she said

she was away only for two weeks. She also claimed that when

she was at her sister's house, her parents had shifted their

residence to Mazhuvanoor, where she had made a statement to

the police. While describing the molestation, in addition to

digital penetration she alleged penile penetration too. She

categorically stated that after the very first incident, she

had informed the same to her brother, ie. the one named

Mithun, PW7, who informed the fact to their mother. After

she divulged the reason for her absence to the Headmaster,

personnel from the Child-line had interacted with her. Later,

the police came home to record her statement. She also

asserted that she gave a statement before the Magistrate, but

none was produced. She claimed that both her sisters were now

staying at Sevika Samajam. In cross-examination, she said

that she was harassed by her father in 2012 and not up to

2013. She claimed that she was taken to her sister's marital

home after the last incident. However, she does not remember

the day on which she was taken to her sister's home or the

day she resumed school. She denied having stated to the

police that she was with her sister for three months (marked


as Ext.D1) and claimed that she only told the police of

staying at her sister's home for two weeks. She alleged that

she had disclosed the penile penetration to the police. In

cross-examination, she claimed that she was with her family

for two months before she went to her sister's place and

during those two months, she had not attended school. She

denied any relationship with one Biju; to a suggestion made

by the defence.

7. The complaint arose when the victim first

disclosed the incident to the Headmaster of the school, who

was examined as PW3. PW3 identified the accused standing in

the dock, who was the father of a student of his school. He

attested the date of birth of the student to be 28.01.2000 as

per the register maintained at the school, an extract of

which was produced as Ext.P3. He stated that from November

2012 the student was continuously absent from class and hence

her name was removed from the rolls. Later, in February 2013

the student came back to the school and was readmitted. When

she was asked the reason for her continued long absence, it

was informed to him that she was subjected to harassment by

her father and hence was shifted from her parental residence

to her sister's marital home. The HM immediately informed the

Child-line, from where the personnel came to the school and

talked to the student. PW3 affirmed that one Shiny from

Child-line visited the school. Then, a CI and two policemen

came to the school and enquired with the student, ie: the

victim. In cross-examination, he clarified that the Childline

officials talked to the victim on the first day when she

resumed studies. On the next day, the student was allowed to

attend the classes as directed by the Child-line official and

it was on that day the policemen questioned her. He asserted

that the victim had spoken of the harassment directly to him.

The absence of the student commenced from 27.11.2012,

according to the HM. A contradiction was marked insofar as

the HM having told the police that when enquiries were made,

the class teacher and other teachers informed him about the

sexual harassment. He clarified that when the student came to

the school after a long absence, the class teacher brought

her to him and the student spoke of the sexual harassment

directly to him.

8. The FIS was on 12.02.2013 at 5.30 PM, presumably

on the date on which the victim returned to school after a

long absence. She was examined by PW1 doctor on 15.02.2013

when she was accompanied by a Woman CPO and the mother, the

latter of whom had given consent. The history given by the

child was stated to be 'father having sexually harassed her


on every day in the months of November-December 2012'(sic).

The harassment was also stated to be 'vaginal digital

exploration and penile penetration'(sic). The examination

findings were that there was no general or genital injury but

the hymen showed an old tear and the vagina admitted two

fingers. On the strength of the findings on examination, the

doctor opined that there was no evidence of recent sexual

harassment, but indications are of penetration. The

certificate was marked as Ext.P1. PW2 is the doctor who

examined the accused and certified his potency. PW5 is the

owner of the residential building at Veettoor where the

alleged incidents occurred; which house was rented out by the

family of the victim.

9. PW6 is the mother of the victim and the wife of

the accused, who turned hostile. She refused to toe the line

of the prosecution, despite having accepted that she signed

on the FIS after her daughter. The mother said that her

eldest daughter had told her about the accused having said

something to the victim, and when she enquired with her

husband, he denied any harassment of their daughter. She

denied the statements put to her from the Section 161

statement, which were marked as Exts.P6 and P6(a). The

contradictions indicated that she was aware of the father

having approached their daughter at night, in the kitchen to

sexually harass her. In cross-examination, PW6 stated that

PW4 had never spoken of the incident to her. But she added

that her son and daughter had spoken to her about the

incident. She asserted that the victim had a relationship

with one Biju, who was the door checker of a bus and her

husband was enraged about the same. PW7 was the minor son of

PW6, who also turned hostile before court. He stated that his

sister had informed him that their father caught hold of her

and he had spoken of the same to his mother and eldest

sister. However, he said that there was no sexual harassment

spoken of by his sister. The contradictions were marked as

Ext.P7 series from the Section 161 Statement. In crossexamination,

PW7 stated that before his sister was taken to

Kottarakkara, there was no quarrel between his father and the

sister. He said that the victim went to their elder sister's

house in October and returned in February. PW7, who was

studying with the victim in the same school, did not affirm

the relationship between the door checker and his sister and

merely said that he has seen her talking to the said person.

10. PW8 is the WCPO, who recorded the FIS (Ext.P4).

She specifically stated in cross-examination that there was

no penile penetration spoken of by the victim while giving

the FIS. In re-examination, PW8 states that on 15.02.2013

penile penetration was spoken of by the victim. The victim

also told PW8 that earlier she purposefully hid the said fact

because her father had threatened to commit suicide. PW9 is

the SI of Police, who deputed PW8 to take the FIS of the

victim on a report dated 12.02.2013 received from the

Juvenile Police Unit. He registered Ext.P9 FIR, based on

Ext.P4 FIS. He commenced investigation on the very next day

and arrested the accused, the memo of which was marked as

Ext.P10 and the inspection memo as Ext.P11. After producing

the accused before court as per Ext.P13 remand report, he

transmitted the files to the CI of Police Kunnathunad. In

cross-examination, he admitted that in the initial report

there was no allegation of 'sexual relationship' (presumably

intercourse) and hence the child was not sent for medical

examination. The said initial report of the District Juvenile

Unit of the Police is not produced before Court. PW10 is the

investigating officer (I.O), who carried out the

investigation and filed the final report.

11. The evidence led on certain aspects can be said

to be inconsistent. Considering the nature of the allegations

and the relationship between the parties, this Court has to

carefully scrutinize the evidence to find whether the

inconsistencies are gross enough to doubt the credibility of

the prosecutrix and disbelieve her on the specific allegation

of sexual molestation. PW4 did not speak of a penile

penetration at the first instance when FIS was recorded and

the only allegation was of digital penetration. The learned

Prosecutor has emphasized the medical report, which was three

days later, on 15.02.2013 (Ext.P1). Before Court also PW4

deposed about a penile penetration. The history recorded by

PW1, deposed verbatim by the doctor, includes penile

penetration. PW8, the WCPO who recorded the FIS,

categorically stated in the cross-examination that the victim

did not speak of a penile penetration on the first day when

the FIS was recorded. In re-examination, she said that on

15.02.2013, ie: the date on which the victim was taken for

medical examination; she informed the WCPO that on the first

day the accused had carried out penile penetration. But on

the day of recording FIS, she did not disclose it, for the

reason of the threat of suicide levelled by her father. This

is a threat spoken of by the victim, also as an explanation

for the delay in registration of the FIR. But we see that

there is inconsistency insofar as the disclosure was made to

her family.


12. PW4, in the FIS alleged that her father

threatened her with suicide if she disclosed the molestation.

But in the FIS itself, she also said that she had spoken of

the same to her brother, PW7, who had communicated it to the

mother, PW6 and her eldest sister. She repeated the same

before the court. The evidence of PW6, though declared

hostile, as is trite, need not be eschewed in its entirety.

Though she refused to toe the prosecution line, in crossexamination

for the accused, she speaks of having been

informed of the 'incident' by her son and daughter. The

mother does not clarify what the 'incident' was and it can be

safely inferred that there was an incident as spoken of by

the victim. PW7, the brother also speaks of the victim having

told him about the incident, which was conveyed to PW6, the

mother. We do not find any credence insofar as the threat

said to have been levelled by the father to ensure the

silence of the daughter. PW4, the victim, definitely informed

her family immediately after the incident.

13. At the first instance, the prosecutrix had no

case of penile penetration. When an allegation of sexual

molestation is made against the father, that too, of

penetration with fingers, we fail to see why the penile

penetration aspect should alone be hidden for fear of the

perpetrator committing suicide. That allegation was made for

the first time on 15.02.2013, when she was examined by the

doctor, PW1. This was after two days of reporting of the

offence and PW9 explains that in the initial report by the

District Juvenile Unit of the Police, there was no allegation

of sexual intercourse. Considering all these circumstances

and the failure to produce the initial report of the Juvenile

Unit, we are compelled to find the allegation of penile

penetration to be an embellishment, which cannot be reckoned

as against the accused and he cannot be charged for the

offence of rape under section 376 IPC, as it stood at the

time of commission of offence.

14. On the question of sexual molestation

specifically of digital penetration, we have the evidence of

the prosecutrix. The appellant however would emphasize the

evidence of the mother and the brother, PW6 and PW7. As we

noticed, both of them turned hostile, but that does not

result in the rejection of the entire evidence of the said

witnesses. It is trite that the principle of 'Falsus in Uno

Falsus in Omnibus' has no application to this land and the

evidence of hostile witnesses need not be totally eschewed.

We rely on the decision of the Division Bench in Muhammed

Faisal T.P @ Faisal v. Inspector of Police, 2021 (4) KHC 13

(DB). PW6, the mother though denied the entire allegation of

molestation, in cross-examination, stated that both her son

and daughter informed her about the 'incident'. Hence it

cannot be said that the mother was unaware of the 'incident';

which can be reasonably inferred to be that alleged by the

victim. PW7, the brother of the victim, again speaks of his

sister having complained of their father having caught her

(കയററിപറിടറിച്ചതതായറി എനനതാടട് പറഞ); which again is a clear innuendo of a

sexual advance as understood in the vernacular. He also

informed the same to his mother and eldest sister. PW7 denied

an allegation of sexual harassment having been informed to

him but the innuendo of what was complained of, as spoken of

by himself, puts his denial in peril. PW7 also denied any

quarrel with the father and also refused to toe the defence

version of the victim having a clandestine relationship with

the checker of the bus. Quite in contradistinction, PW6 spoke

of her daughter's relationship and the infuriated father

having broken a mobile through which the victim maintained

contact with Biju.

15. Despite our finding that penile penetration is an

after-thought and embellishment, concerning digital

penetration, the evidence of the prosecutrix is very clear.

The hostile witnesses are close relatives of the accused and

the victim, all of the same family being parents and

children. The mother and brother of the victim obviously

wanted to save the father from punishment. The reaction of

the mother at the first instance was not favourable to the

victim; the daughter who was subjected to molestation by her

own father. The family first moved the victim from their

residence and discontinued school; which also could be for

the reason of the clandestine affair suggested by the victim.

But the defence did not get any support from PW7, the brother

of the victim, who otherwise supported the accused, his

father. More pertinently, the defence did not think it fit to

lead evidence to establish the case set up by putting the

eldest brother and sister in the box, one of whom was married

off and the other employed as an Accountant. The incident

spoken of by the mother, PW6 and the allegation of the victim

against their father as spoken of by the brother, PW7,

corroborates the victim's version of molestation having

occurred but not to the extent of rape as defined under

section 375 IPC,

16. There is an inconsistency concerning the time

the victim spent in her elder sister's house, which we find

to be not very significant insofar as the findings on the

actual offence is concerned. The HM had spoken of the child


having not come to school from 27.11.2012 onward. The

evidence of PW4 regarding the sexual molestation and the

communication of the same to her family members would have

caused some instability in the family. This would have also

caused the family members of the victim to keep her away from

school and then shift her residence temporarily. It is only

natural that when such an incident is reported within the

family, there is an attempt to sweep the entire matter under

the carpet to avoid humiliation, ostracization and the

resultant ignominy. Obviously, truth came out of the inner

folds of the family, only when the child resumed studies and

blurted out her explanation for the continued absence, which

absence was long enough to result in her expulsion.

17. As was found a decade and a half back in Asha

Ra m (supra), it is very unlikely for a woman to make a false

allegation of rape, especially against her father. Even now

we find the societal norms to be identical and no girl would,

by making such false allegations expose the entire family to

shame and invite condemnation and ostracization of the

society. There, the allegation was that the estranged mother

had instigated the daughter, which was found to be a mere

story set up, but not established. Here the mother and

brother turned hostile; but portions of their evidence

offered corroboration to the evidence of the victim. We find

the evidence of the victim concerning sexual molestation to

be credible and convincing; short of penile penetration. We

do not find any delay in lodging the FIR and the sequence of

events as detailed by us provides a more than satisfactory

and compelling explanation for the delay in registration of

the FIR. The delay if at all, occurred at the hands of the

family, which is only natural and the crime came out when the

victim spoke to an outsider, the HM of her school, at the

first instance when she resumed studies after a long absence

of about three months. Santosh Prasad @ Santosh Kumar

(supra) has no application. Bhudeb Uchai and Subhash (both

supra) were cases in which the evidence of the victim was

found to be inconsistent and uninspiring.

18. We would now consider the argument raised by the

State based on Ravi (supra). Even though the offence here was

committed before the amendments brought to the Protection of

Children from Sexual Offences Act, 2012 and also the IPC; in

considering the sentencing of the accused, this court has to

keep in mind the latest legislative policy providing for

harsher punishments in cases of such depravity, where

'protectors turn predators', is the forceful argument. By an

amendment in 2019, the sentence for 'aggravated sexual

assault', under the POCSO Act has been increased from ten to

twenty years and imprisonment for life is expressly stated to

be imprisonment for the remainder of the life of a person.

Significant emphasis was made in the said decision, to the

'death sentence', which was also introduced, for an offence

of aggravated penetrative sexual assault interalia on a child

below 12 years.

19. Ravi (supra) was a case in which a toddler of

two years was kidnapped and sexually assaulted for over 4 to

5 hours till she breathed her last. The Hon'ble Supreme Court

was considering an appeal from a death sentence awarded by

the trial court and confirmed by the High Court. In

confirming such a death sentence, the court noticed the

amendments brought in by reason only of multiplying incidents

of child sexual abuse, indicating a prevalence of the inhuman

mindset and barbaric approach to young victims. The judicial

precedents rendered before the recent amendment ought to be

viewed with a purposive approach so that the legislative

policy and the judicial approach, are well harmonized was the

dictum. The learned Judges noticed Bachan Singh v. State of

Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab,

(1983) 3 SCC 470, which laid down guidelines in imposing

death sentence. Death sentence is permissible for the offence

under Section 302 on which also the accused therein was

charged under. Only since the deceased victim was a toddler

of two years who was also sexually assaulted; the Hon'ble

Supreme Court referred to the subsequent amendments to find

the offence of murder, in that case, to be the rarest of

rare, warranting death penalty. If the murder was after the

amendment, the age of the victim would have required

consideration of the death penalty and even before the

amendment section 302 provided for the death penalty but only

in the rarest of rare cases. The earlier decisions in Bachan

Singh and Machhi Singh (both supra) according to the learned

judges 'serve as the foundation stone of contemporary

sentencing jurisprudence'(sic) which had to be harmonized

with the legislative policy emanating from the amendments

providing more stringent and rigorous punishments; even of

death.

20. The said principle has no application here since

in the cited decision death sentence was a punishment under

Section 302 and for finding it to be the rarest of the rare;

the multiplying instances of sexual assault against minor

children was noticed; on account of which the legislature too

had enhanced the punishment for such offences. What the

Prosecutor would have us do, in this case, where the

conviction is under Section 377 IPC, is to impose the maximum

punishment of life considering the amendments made to the

POCSO Act, enhancing the punishment to 20 years or life and

even death in cases where the child is below 12 years of age.

The reasoning seems to be that, an identical offence

committed after the amendment, by a father on his daughter, a

minor child, could be imposed with a death sentence under the

POCSO Act. Foremost, here though the child is stated to be

minor, there is no evidence, legally acceptable, as to the

age of the victim. The accused was acquitted of the charge

under the provisions of the un-amended POCSO Act, for the

reason of no credible evidence being available as to the

exact date of commission and definitely nothing to prove such

commission after the date on which that Act came into force.

The charge that remains against the accused is only of

Section 377 IPC. The punishment provided in the IPC, is of

imprisonment extending to ten years or life imprisonment. If

we were to award life, then of course there is no quarrel for

the Prosecutor. If we were to avoid life, then there could be

nothing more than 10 years. But if we take into account the

enhanced punishment of 20 years, then we have no option but

to award life; despite wiser counsel against that. Then we

would be legislating and rendering otiose, the sentencing

policy as reflected in the penalty provided for that offence.

We do not find any such proposition, as argued by the

Prosecutor, emanating from the decision relied on. We also do

not find any application of the dictum of the said decision

in the facts of this case regarding the sentence permissible

on that count.

21. On the findings above regarding the evidence, we

find that the accused can be convicted only under Section 377

IPC, which we do, affirming the conviction on that count

entered by the trial Court. We set aside the conviction under

Section 376 IPC. Now we come to the aspect of sentencing. We

are conscious of the fact that this is a case of the father

having molested his daughter. The learned Counsel for the

appellant pleads for leniency in the sentence and points out

his advancing age; nearing his sixty's. The accused and PW6

have six children. The allegation was of repeated

molestation, at the earlier rented residence where they had

stayed for six months. On 12.02.2013 when the FIS was

recorded, it was also stated that the family had shifted

residence just a month back. Hence the offence would have

been committed between June and December of 2012. Before

Court, PW4 said the period was between May and September of

2012; a slight diversion. But in chief examination itself,

PW4 said that on the morning after the first day she was

molested, she informed the fact to her brother PW7, who spoke

of it to their mother, PW6. She stopped going to school by

the end of November 2012; ie: from 27.11.2012 as deposed by

the HM. There is an inconsistency concerning the period she

spent at the marital home of her sister, away from her

family. She says it was only two weeks before Court, while in

the FIS she says she was with her elder sister for three

months. PW7 says that the victim went to the sister's house

in October and came back in February. When the family was

informed at the very first instance, the shifting of

residence would have been by way of a safeguard. We are

convinced that the crime alleged was committed but not with

the severity and frequency projected. This raises a 'residual

doubt' in our minds, which the Hon'ble Supreme Court has

found to be a state of mind existing somewhere between

'beyond reasonable doubt' and 'absolute certainty'. We

respectfully rely on Ashok Debbarma v. State of Tripura,

(2014) 4 SCC 747.

22.Ashok Debbarma (supra) was interalia considering

the death sentence awarded to the appellant and the concept

of 'residual doubt' was raised as a mitigating factor in the

consideration of whether the case was one of the rarest of


the rare kind. The concept originated in the United States

and the Court observed: “'Residual doubt' is a mitigating

circumstance, sometimes used and urged before the jury in the

United States and, generally, not found favour by the various

courts in the United States"(sic). This is for the reason

that having instructed the Jury to find the accused guilty

beyond reasonable doubt, there cannot be a further

instruction at the time of sentencing that the higher

standard of elimination of 'all doubts' should have been

employed [Franklin v. Lynaugh 487 US 164 (1988)]. Proof

beyond reasonable doubt was expressed in the following words

in Krishnan v. State, (2003) 7 SCC 56:

“[d]oubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot

afford any favourite other than truth. To constitute

reasonable doubt, it must be free from an

overemotional response. Doubts must be actual and

substantial doubts as to the guilt of the accused

persons arising from the evidence, or from the lack

of it, as opposed to mere vague apprehensions. A

reasonable doubt is not an imaginary, trivial or a

merely possible doubt, but a fair doubt based upon

reason and common sense. It must grow out of the

evidence in the case”. (SCC p. 63, para 23)

Ashok Debbarma spoke thus on these concepts : 'In our

criminal justice system, for recording guilt of the accused,

it is not necessary that the prosecution should prove the

case with absolute or mathematical certainty, but only beyond

reasonable doubt. Criminal courts, while examining whether

any doubt is beyond reasonable doubt, may carry in their

mind, some “residual doubt”, even though the courts are

convinced of the accused persons’ guilt beyond reasonable

doubt." (sic) The Court further elaborated on 'residual

doubt' as per the following extract:

"33. In California v. Brown, 93 L Ed 2d 934: 479 US

538 (1987) and other cases, the US courts took the

view, “residual doubt” is not a fact about the

defendant or the circumstances of the crime, but a

lingering uncertainty about facts, a state of mind

that exists somewhere between “beyond a reasonable

doubt” and “absolute certainty”. The petitioner’s

“residual doubt” claim is that the States must permit

capital sentencing bodies to demand proof of guilt to

“an absolute certainty” before imposing the death

sentence. Nothing in our cases mandates the

imposition of this heightened burden of proof at

capital sentencing.

34. We also, in this country, as already indicated,

expect the prosecution to prove its case beyond a

reasonable doubt, but not with "absolute certainty".

But, in between "reasonable doubt" and "absolute

certainty", a decision-maker's mind may wander,

possibly in a given case he may go for "absolute

certainty" so as to award death sentence, short of

that he may go for "beyond reasonable doubt". Suffice

it to say, so far as the present case is concerned,

we entertained a lingering doubt as to whether the

appellant alone could have executed the crime singlehandedly,

especially when the prosecution itself says

that it was the handiwork of a large group of people.

If that be so, in our view, the crime perpetrated by

a group of people in an extremely brutal, grotesque

and dastardly manner, could not have been thrown upon

the appellant alone without charge-sheeting other

groups of persons numbering around 35. All the

element test as well as the residual doubt test, in a

given case, may favour the accused, as a mitigating

factor."

23. We are quite conscious of the fact that the

concept of 'residual doubt' was reckoned by the Hon'ble Supreme

Court in the aforesaid decision as a mitigating factor to avoid

death sentence. We would respectfully adopt the said concept,

even in the present case of rape as a mitigating factor in

sentencing. As we observed, there is evidence of sexual

molestation; but not with the severity and frequency as spoken

of by the prosecutrix. The family also has a different version

and there is the compelling factor of the prosecutrix having

informed the family after the very first instance and the family

having shifted her residence. These aspects give rise to the

residual doubts as spoken of by the Hon'ble Supreme Court and

hence we are compelled to modify the sentence. We think that the

sentence can be modified to 10 years under Section 377 of the

I.P.C. while upholding the fine imposed by the trial court with

a default sentence as ordered in the impugned judgment. The

conviction and sentence under Section 376 of I.P.C. are

reversed. The Criminal Appeal stands partly allowed.


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