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.
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