Residual doubt theory for capital punishment in India

This article is written by Ms Kishita Gupta from the Unitedworld School of Law, Karnavati University, Gandhinagar. This article discusses the residual doubt theory, which is used for capital punishment in India.


When choosing whether to pursue the death penalty, should prosecutors examine the strength of the case for guilt? Should jurors take this into account while considering whether or not to impose the sentence? When asked this question, most people would answer “of course” and wonder how the question was even posed. The ultimate miscarriage of justice is the execution of an innocent person. Although “beyond a reasonable doubt” is the standard for conviction, the truth is that evidence is a sliding scale with varying degrees of certainty.

Meaning and scope of the residual doubt theory

The term “residual doubt” refers to any remaining or lingering uncertainty a court has about the defendant’s guilt despite being convinced “beyond a reasonable doubt” and “absolute certainty” Residual doubt may be considered by the judge as a non-statutory mitigating factor in several states.

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William S. Geimer & Jonathan Amsterdam defines residual or lingering doubt as: 

  1. Actual, reasonable doubt about the guilt of any crime;
  2. Actual, reasonable doubt that defendant was guilty of a capital offence, as opposed to other offences;
  3. A small degree of doubt about (1) or (2), sufficient to cause the juror not to want to foreclose (by execution) the possibility that new evidence might appear in the future.

Origin of the theory

The theory of ‘residual doubt’ was first introduced into Indian criminal law in 2014, however, its origins may be traced back to the United States of America. “One of the most fearful aspects of the death penalty is its finality,” Justice Thurgood Marshall wrote in his dissent in 1984. He added, “the belief that such an ultimate and final penalty is inappropriate where there are doubts as to guilt, even if they do not rise to the level necessary for acquittal, is a feeling that stems from common sense and fundamental notions of justice.”

Despite being recognized as a mitigating element in capital punishment, ‘residual doubt,’ a principle born in the United States, has been mired in controversy over its constitutional validity and mandatory application at the time of sentencing in the case of Lockett v. Ohio (1973). The United States Supreme Court questioned the future relevance of residual doubt as a mitigating factor in the case of Franklin v. Lynaugh (1988). The issue in Franklin was whether a Texas sentencing jury’s examination of two “Special Issues” without taking into account the defendant’s explicitly requested instructions violated the defendant’s Eighth Amendment right to have mitigating evidence presented at capital sentencing. The jury was told to answer two “Special Issues” at the conclusion of the sentencing hearing: 

  1. Whether the murder was deliberate and with the reasonable expectation of death;
  2. Whether the murder was committed with the reasonable expectation of death.

The American Supreme Court ruled that ‘residual doubt’ was not a part of the American Constitution’s Eighth Amendment, and so did not justify a necessary jury instruction to consider it.

This observation of its mandatory applicability was further exemplified in Oregon vs. Guzek (2006), a case in which the Supreme Court of the United States of America was debating the admissibility of additional evidence at the sentencing stage. The Supreme Court defined “reasonable doubt” and “residual doubt” during sentencing in this decision, stating that sentencing is concerned with ‘how’ rather than ‘if’ a person committed a crime. The Supreme Court of the United States of America’s contrast between Eighth Amendment rights and ‘residual doubt’ has tipped the scales against the mandatory application of ‘residual doubt’ under American law.

Position of its application in India

‘Residual doubt’ has been accepted as a mitigating element in capital punishment in India. In Ashok Debbarma vs. the State of Tripura (2014), the Supreme Court stated that decision-mind makers could roam between ‘reasonable doubt’ and ‘perfect confidence,’ resulting in lingering doubt. The death sentence was commuted to life in prison with a minimum sentence of twenty years, citing that while the prosecution’s evidence proved guilt beyond a reasonable doubt, there was still doubt whether the offence was committed solely by the accused, especially given the prosecution’s claim that multiple offenders were involved.

Sudam Alias Rahul Kumar Kaniram Jadhav vs. the State of Maharashtra (2019), where the death sentence was remitted to life imprisonment based on the circumstantial character of the evidence, was the first use of the theory. In Ravishankar vs. State of Madhya Pradesh (2019), the Supreme Court upheld its decision in Ashok Debbarma vs. the State of Tripura, saying that “these ‘residual doubts,’ while not relevant for conviction, would tilt towards mitigating circumstances to be taken into account while considering whether the case falls under the ‘rarest of rare’ case category.”

The Supreme Court of India’s acknowledgement of ‘residual doubt’ shows the court’s determination to offer protections against lethal punishment. Despite the fact that it is impossible to formulate a clear policy for the imposition of death sentences, it has worked to establish safeguards to protect an individual’s constitutional rights in light of the inevitability of a death sentence.

Rarest of rare case test

Bachan Singh vs. the State of Punjab (1982), a landmark Supreme Court decision, heralded the beginning of constitutional restriction of the death penalty. The constitutional bench determined that Section 354(3) of the Code of Criminal Procedure 1973 respects due process “resistance to taking a life through the instrumentality of law is predicated on a genuine and lasting concern for the dignity of human life. This should only be done in the most extreme of circumstances when there is no other viable option.” As a result, the Court established the ‘rarest of rare’ doctrine, declaring that life imprisonment is the rule and death sentence is the exception.

The theory was later implemented in Macchi Singh vs. the State of Punjab (1983) and Sushil Murmu v. the State of Jharkhand (2003), which defined ‘rarest of rare’ to encompass considerations of whether the offence is uncommon enough to warrant life imprisonment and if there is no alternative despite giving mitigating elements considerable weight. The Supreme Court established a ‘hybrid special category’ (used in Swamy Shraddananda@Murali vs the State of Karnataka 2008) to handle the dilemma of a death sentence versus a comparatively modest sentence of fourteen to twenty years. This type of sentencing replaces the death penalty with the specific instruction that the convict not be released from prison for the rest of his or her life.

This type of sentencing replaces the death penalty with the specific instruction that the convict not be released from prison for the rest of his or her life. In Union of India v. Sriharan alias Murugan & Ors (1947), a constitution bench upheld this classification. In Shankar KisanRao Khade vs. the State of Maharashtra (2013), the Supreme Court mandated the use of the “crime test,” “criminal test,” and “Rarest of Rare test,” rather than the “balancing” test, in determining the proportionality of the penalty.

It was determined in Mohinder Singh v. the State of Punjab (1963) that life imprisonment is wholly worthless only where the sentencing goal of reformation is impossible. As a result, the Court will have to produce clear proof as to why the offender is unfit for any kind of reformatory or rehabilitation scheme in order to meet the second part of the “rarest of rare” theory. The Court, while applying “rarest of rare test” has also considered the past records of the accused and whether this not given a death penalty would create a menace to the society in the cases of Amit v. the State of Maharashtra (2003) and Surendra Pal Shivbalakpal v. the State of Gujarat (2003).

Residual doubt test

The ‘residual doubt’ test in India could be directly linked to the principles of evidence appreciation. The Supreme Court of India has established and affirmed that the quality of evidence is a crucial circumstance in sentence analysis. In Shatrughna Baban Meshram vs. the State of Maharashtra (2020), the Supreme Court emphasized that in circumstances of circumstantial evidence, a higher bar must be insisted upon for imposition of a death sentence, citing Kalu Khan vs. the State of Rajasthan (2017)

While differentiating the origin and application of the notion of ‘residual doubt’ in American jurisprudence from Indian jurisprudence, it defined the relevant question of whether the evidence on record is strong and persuasive enough to preclude the possibility of a sentence other than death. The Court has crystallized its approach of putting the quality of evidence to a higher bar for issuing a death sentence than passing a conviction by recognizing the principle of ‘residual doubt’ and explaining its applicability.

The case of Ravishankar vs. State of Madhya Pradesh 2019

While noting that the possibility of a death sentence cannot be fully ruled out in circumstances where conviction is based on circumstantial evidence, the Supreme Court in Ravishankar vs. State of Madhya Pradesh (2019) used the principle of ‘residual doubt’ to set a higher bar for death sentences. According to this theory, a higher level of proof than that used at the time of conviction is applied to determine if the criminal is deserving of the death penalty.

“This Court has increasingly become aware of ‘residual doubt’ in many recent cases, which effectively creates a higher standard of proof over and above the ‘reasonable doubt’ standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death,” it wrote.

The Court traced the evolution of the rarest of rare doctrine from the Supreme Court’s Constitution Bench decision in Bachan Singh v. the State of Punjab, (1980), through Machhi Singh and others v. the State of Punjab, (1983), and up until Swamy Shraddananda @ Murali Manohar Mishra v. the State of Karnataka, (2008), observing that, in accordance with Section 354(3) of the CrPC, the courts have gradually narrowed the conditions under which the death sentence may be imposed and increased the burden of proving extraordinary grounds before imposing the death penalty.

Finally, the court stated, “Because death is irreversible, the Court bears a larger burden of responsibility for a thorough examination of all evidence. Furthermore, the sentence imposed by death is qualitatively different from that imposed by incarceration, both for the individual and for the state. As a result, a similar distinction in the required standards of proof by noting ‘residual doubt’ in a sentence would not be unjustified”.

In Ravishankar vs. State of Madhya Pradesh (2019), the Supreme Court encapsulated the essence of ‘residual doubt’ in India, saying, “We are aware that using ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death penalty, with the benefit accruing to everyone, not just the innocent. Making a cost-benefit assessment between the expense to society of acquittal of one criminal person vs the loss of life of a believed innocent person is a mistake.”

A conviction may have ‘residual doubts’ even if it has been established ‘beyond a reasonable doubt’. As evidenced by precedents, it is critical to consider mitigating factors carefully and flexibly when imposing a death sentence, a group crime may not be attributed to one individual, a lack of medico-scientific evidence, a broken chain of circumstantial evidence, and discrepancies in important links may prove a crime ‘beyond reasonable doubt’ but still not warrant a death sentence.


In death punishment, residual doubt is not universally acknowledged as a mitigating circumstance. The Supreme Court has refused to consider lingering doubt as a constitutionally necessary mitigating element, leaving the decision to the states. Residual uncertainty is explicitly rejected as a mitigating factor in some states. In other states, judicial rejection to instruct on residual doubt reflects a reluctance to recognize residual doubt as a mitigating factor, even if the concept is not explicitly rejected. The fact that residual doubt does not meet the traditional definition of a mitigating factor appears to be the reason for this lack of acceptance.


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