Supreme Court's 'residual doubt' theory for death penalty

Weighing the pros and cons of death penalty, the Supreme Court in two recent decisions introduced a "residual doubt" theory which said that even after a case is proved to be "beyond reasonable doubt" to be settled, there exists a lingering doubt in the judge's mind over the offender's guilt, this should serve as a criterion to alter death sentence.

However, the court categorically said that the absence of eyewitness account or direct evidence to link the convict to a crime cannot be the criterion to deny death penalty as doing so would be detrimental to society, particularly in the case of child victims, who can hardly put up resistance and alert people of the crime.

Applying this principle this week, the apex court sentenced a middle-aged person found guilty of raping and killing a two-year-old in Maharashtra to death and commuted the death sentence to life term for a 40-year-old man convicted of raping a 13-year old in Madhya Pradesh.

Both cases were supported by circumstantial evidence as there were no eyewitnesses and the victims were minors. In both incidents, they were raped, throttled and left to die. In the case from Madhya Pradesh, the court had residual doubts as several links were missing in the investigation and statement of witnesses, which the court said was not sufficient to earn an acquittal, but would influence the sentencing.

The bench of Justices RF Nariman, R Subhash Reddy and Surya Kant were faced with the question whether or not to award death penalty in the above two situations. "Many proponents of abolishment of death penalty," the bench said.

"Have been passionately urging this court to not award death in cases of circumstantial proof claiming an inherent weakness in cases without ocular (eyewitness) evidence."

They fear that an innocent could be sent to the gallows for lack of concrete proof.

Simultaneously, the court noted a parallel line of thought in favour of death term, from those who claim that sentencing should be society-centric instead of judge-centric. For them, once a case is proved "beyond reasonable doubt", the convict must suffer death in a heinous offence.

The bench felt it totally "imprudent" to lay down an absolute principle that no death sentence can be awarded in a case where the conviction is based on circumstantial evidence. "Such a standard would be ripe for abuse by seasoned criminals who always ensure that direct evidence is destroyed," it said. Further, it is seen that in cases of rape and murder of children, the victims cannot put up resistance due to their tender age and direct evidence is highly unlikely.

The court evolved the theory of residual doubt to overcome this situation. "This effectively creates a higher standard of proof over and above the 'beyond reasonable doubt' standard as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death," the bench laid down.

At the same time, the court realized that Parliament, in its wisdom has prescribed death penalty for crimes against children. Judges said this was based on the concept that a "civic society has a fundamental and human right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects courts to apply the doctrine of proportionality and impose suitable and deterrent punishment that is commensurate with the gravity of the offence."

The Court applied this reasoning in the case from Maharashtra as the convict betrayed trust and social values by his act of unnatural sex with a toddler, exhibiting a "dirty and perverted mind".