Residual Doubt Theory: An Encouraging Addition To Indian Capital Sentencing Jurisprudence

Residual doubt is a mitigating factor in cases of capital sentencing. It 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 reasonable doubt' and 'absolute certainty'.

Though a principle born in America, 'residual doubt', despite being recognised as a mitigating factor in capital sentencing, has been embroiled in uncertainty vis-à-vis its constitutional status and mandatory application at the time of sentencing. In Franklin vs. Lynaugh in 1988, the American Supreme Court held that 'residual doubt' was not a constituent of the Eighth Amendment to the American Constitution and thus did not warrant a mandatory instruction to the jury for consideration thereof. This dilution of its mandatory application was further iterated in Oregon vs. Guzek, wherein the Supreme Court of the United States of America was considering the permissibility of introducing additional evidence at the stage of sentencing. In this judgment, the Supreme Court delineated the application of 'reasonable doubt' and 'residual doubt' during sentencing and elucidated that sentencing is concerned with 'how' and not 'whether' a defendant committed a crime. This drawing of distinction between Eighth Amendment rights and 'residual doubt' by the Supreme Court of the United States of America has tilted the balance against mandatory application of 'residual doubt' under American Law.

In India, however, 'residual doubt' has been categorically recognised as a mitigating factor in capital sentencing. The theory was first adopted in Ashok Debbarma vs. State of Tripura, wherein the Supreme Court held that a decision-maker's mind may wander between 'reasonable doubt' and 'absolute certainty', creating a lingering doubt. The death sentence was commuted to life imprisonment with a minimum of twenty years, citing that while the prosecution's evidence proved guilt beyond reasonable doubt, but there remained uncertainty whether the offence was executed solely by the accused, especially in light of the prosecution's claim that there were multiple offenders. The theory was then applied in Sudam Alias Rahul Kumar Kaniram Jadhav vs. State of Maharashtra, wherein the death sentence was commuted to life imprisonment based on the circumstantial nature of the evidence. Most recently in 2019, in Ravishankar vs. State of Madhya Pradesh, the Supreme Court upheld its judgement in Ashok Debbarma vs. State of Tripura and stated that "These 'residual doubts' although not relevant for conviction, would tilt towards mitigating circumstance to be taken note of whilst considering whether the case falls under the 'rarest of rare' category."

The recognition of 'residual doubt' by the Supreme Court of India exemplifies its resolve to provide safeguards against capital sentencing. Despite acknowledging the impossibility of postulating a clear cut policy for awarding death sentences, it has endeavoured to continually lay down safeguards to protect an individual's constitutional rights in light of the irreversibility of a death sentence.

The Supreme Court, in its landmark ruling, Bachan Singh vs. State of Punjab, marked the beginning of constitutional regulation of death penalty. In establishing that Section 354(3) of the Code of Criminal Procedure 1973 follows due process, the constitutional bench held that "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." Thus, the court propounded the doctrine of 'rarest of rare', holding that that life imprisonment is the rule and death sentence an exception. The doctrine was later applied in Macchi Singh vs. State of Punjab which defined 'rarest of rare' to include considerations of whether the crime is uncommon enough to render a life imprisonment inadequate and whether there exists no alternative despite according maximum weightage to mitigating factors. To address the conundrum of death sentence versus a relatively short sentence of fourteen to twenty years, the Supreme Court stipulated a 'hybrid special category'. This category of sentence would mean that death sentence is substituted with an explicit direction that the convict not be released from prison for the rest of their life. This category was affirmed by a constitution bench in Union of India v. Sriharan alias Murugan & Ors. Further on, in Shankar Kisan Rao Khade vs. State of Maharashtra, the Supreme Court prescribed the application of 'crime test', criminal test' and 'Rarest of Rare test', and not the 'balancing' test while deciding the proportionality of the sentence. In another judgment, the Supreme Court reiterated that to award a death sentence, the 'Rarest of Rare test' should be fully satisfied along with the crime test without any mitigating circumstances in favor of the accused. In stating that the ultimate sentence and the quantum thereof rests on the facts and circumstances of each case, the requirement to follow the three tests, including the necessity to state 'special reasons' allay the fears of arbitrariness, discrimination and inconsistency to some extent.

In India, the 'residual doubt' test could be directly linked to the principles of appreciation of evidence. The Supreme Court of India has established and affirmed that the quality of evidence is a relevant circumstance in sentencing analysis. Most recently, in Shatrughna Baban Meshram vs. State of Maharashtra, while referring to Kalu Khan vs. State of Rajasthan the Supreme Court reiterated that in cases of circumstantial evidence, a higher standard must be insisted upon for imposition of a death sentence. While distinguishing between the origin and application of the theory of 'residual doubt' in the American jurisprudence from the Indian jurisprudence, it articulated the pertinent question, whether an evidence on record is strong and convincing enough that the option of a sentence lesser than a death penalty is foreclosed. By recognising the theory of 'residual doubt' and elucidating its application, the Court has crystallised its approach of holding the quality of evidence to a higher standard for passing a death sentence than that which governs conviction.

Furthermore, the Supreme Court in Ravishankar vs. State of Madhya Pradesh, while acknowledging that the possibility of a death sentence cannot be completely ruled out in cases where conviction is based on circumstantial evidence, provided for a higher threshold in awarding death sentence by employing the theory of 'residual doubt'. It opined, "This Court has increasingly become cognizant of 'residual doubt' in many recent cases which effectively create a higher standard of proof over and above reasonable doubt' standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death". Despite being proven 'beyond reasonable doubt', a conviction may suffer from 'residual doubts'. Evidenced by facts in the precedents, it is essential to look considerately and flexibly at mitigating factors while awarding death sentence— a group crime may not be ascribed to one individual, the lack of medico-scientific evidence, broken chain of circumstantial evidence, discrepancies in important links may prove a crime 'beyond reasonable doubt' but still not warrant a death sentence.

Judicial precedence in India exhibits a proclivity towards an expansive and inclusive interpretation of an individual's fundamental right to life and liberty. The recognition and application of 'residual doubt' as a safeguard is beholden to the principles emanating from Article 21 of the Indian Constitution. Moreover, the categorical recognition and uniform application distinguishes the Indian treatment of 'residual doubt' from the American jurisprudence. Unlike the United States of America where the theory has been subject to multiple interpretations with its authority shrouded in uncertainty, 'residual doubt' in India derives its authority from Article 141 of the Constitution of India as a binding precedent. In encapsulating the essence of 'residual doubt' in India, the Supreme Court in Ravishankar vs. State of Madhya Pradesh stated, "We are cognizant of the fact that use of such 'residual doubt' as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent."

Views are personal.

The Author is an Advocate practicing at the Supreme Court of India.

(The Author acknowledges the assistance rendered by his office Associates Mr. Abhishek Mishra & Ms. Kavya Jain, Advocates).