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
(കയററിപറിà´Ÿà´±ിà´š്ചതതായറി എനനതാà´Ÿà´Ÿ് 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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