Gujarat High Court
Jaga Arjan Dangar vs State Of Gujarat on 9 August, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/6403/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6403 of 2018
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JAGA ARJAN DANGAR
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the PETITIONER(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR(2) with Ms.MAITHILI MEHTA,
APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/08/2018
ORAL ORDER
1. This matter is arising from the First Information Report being C.R.No.I 69 of 2017 registered with Dhrangdhra police station, District: Surendranagar and the facts leading to this application are capsulized hereinafter.
2. Petitioner herein has been chargesheeted in connection with the First Information Report lodged mentioned above on 09.07.2017 for an incident of alleged murder of Mr.Indrasinh Zala on 07.07.2017. It is the case of the petitioner that he has been falsely implicated in the Page 1 of 91 R/SCR.A/6403/2018 ORDER alleged offence of murder. He also had moved an application for regular bail before this Court prior to filing of the chargesheet. From the beginning, his consistent stand has been that he has been falsely implicated in the alleged commission of offence since he belongs to a particular community.
3. It is the case of the applicant that in the year 2012 Mr. Popatbhai Devabhai Bharwad was murdered and the deceased Mr. Indrasinh Zala was alleged to have committed the said act and he was also denied the regular bail by the competent Court. It is also his case that Mr. Zala, who was in judicial custody had used all possible tactics to influence witnesses, which includes luring of the petitioner, who did not accede to his wish and subsequently, the petitioner has been wrongly roped in the offence of his murder.
4. This petitioner also preferred Special Criminal Application No.7528 of 2017 seeking investigation by an independent agency as well as for collection of evidence of the material, Page 2 of 91 R/SCR.A/6403/2018 ORDER which would indicate his alibi. It is to be noted that the said Special Criminal Application has not been pressed and the same has been disposed of in the recent past. Thus, it has been an assertion on the part of the petitioner that on account of animosity prevalent by and between the parties particularly between Darbar and Bharwad communities, exaggerated versions of the incident have been put forth and the false implication also writs large on the face of record. It has also been his reiterative stand that the investigation is neither fair nor impartial. He has been falsely implicated and, therefore, request is made for and on behalf of the petitioner to allow the conducting of brain mapping, brain fingerprinting or lie detection/ polygraph test in connection with the incident of the First Information Report being C.R.No.I 69 of 2017 registered with Dhrangdhra police station, District: Surendranagar. It is further his request that let the investigating agency submit action taken report pursuant to the representation of the petitioner dated Page 3 of 91 R/SCR.A/6403/2018 ORDER 15.07.2018.
5. Heard the learned advocate Mr. Virat Popat for the petitioner. Learned Public Prosecutor Mr. Mitesh Amin with Ms. Maithili Mehta, learned Additional Public Prosecutor for the State and Mr. Pravin Gondaliya appearing for the original complainant are heard as well.
5.1. It is vehemently argued for and on behalf of the petitioner by learned advocate Mr. Popat that all the scientific tests, which have been designed to deliver the scientific results are essentially for aiding the investigating agency to reach to the truth of the matter. It is further urged that the applicant has no other way of proving their innocence, particularly, in a matter like the present one, where both the communities are at loggerheads and exaggerated versions to falsely implicate the individuals cannot be ruled out. It is also urged that the prosecuting agency also have been favouring the scientific tests and there are various decisions, which are supporting such pleas.
5.2. Learned advocate has also referred to various Page 4 of 91 R/SCR.A/6403/2018 ORDER decisions of this Court, whereby the Court has permitted the aid of advanced technology in a battle between crime and justice. It is further his say that the accuracy of the test also has been examined by various agencies and it is found to be 99% accurate, so far as Brain Fingerprinting and lie detection test are concerned, it is further his say that as part and parcel of impartial investigation, he be allowed to undergo the same at his own costs.
5.3. The following are the authorities which are relied upon for the said purpose:
a) Santokben Sharmanbhai Jadeja vs. State of Gujarat,2007(3) G.L.H.33.
b) State of Guajrat vs. Inayat Ismail Vohra and others decided by this Court in Special Criminal Application No.1805 of 2012 with Special Criminal Application 1291 of 2012.
c) Sunilkumar Virjibhai Damor vs. State of Gujarat decided by this Court in Criminal Miscellaneous Application No. 5391 of 2018.
6. This has been resisted for and on behalf of the Page 5 of 91 R/SCR.A/6403/2018 ORDER private complainant urging that the Test results of scientific tests even if once come after the applicant accused with his consent has undergone the same voluntarily, they would not be admissible as evidence as held in the case of Selvi and others vs. State of Karnataka, (2010) 7 SCC 263. It is further the say of learned advocate Mr. Gondaliya that even if the tests are directed to be administered only on the basis of the consent of the accused, and if the accused volunteers for such test, the law laid down in this regard cannot be disregarded and the accused would have no say at all in the ongoing investigation. Moreover, it is his submission that even if the test results favour the applicant accused, they cannot weigh higher when compared with the plethora of evidence, which the prosecution has adduced by way of final report under section 173(2) of the Code of Criminal Procedure. It is urged further that if in every matter, without allowing the chargesheet to be filed, or even where the final report in the form of chargesheet is filed, the Page 6 of 91 R/SCR.A/6403/2018 ORDER accused is permitted to undergo such tests, it will only create havoc and that would also derail the entire machinery.
7. Mr. Mitesh Amin, learned Public Prosecutor for the State has urged this Court that the chargesheet has been laid long back. The request made by the present petitioner is quite belated.
He has further contended that the applicant even if is wanted to give a go by to his right to be silent, then also, he will be governed by the settled position of law. He has urged that Selvi and others (supra) would govern the case, particularly, when the Apex Court has made applicable the right to privacy in its conclusion in Selvi and others (supra) and has held that these are the techniques, which violate right against selfincrimination. He however, fairly admitted that this is not a case where any individual is forcibly subjected to any scientific techniques, because the investigation is not only over, but because the State has on the contrary, resisted such a move till date not for any other reasons, but the Page 7 of 91 R/SCR.A/6403/2018 ORDER Investigating Officer has not found it necessary to so do it. He has urged that any information or material subsequently discovered with the help of voluntarily administered test result can, at best, be admitted in accordance with section 27 of the Indian Evidence Act.
8. Learned advocate Mr. Popat for the petitioner also has been heard in rejoinder.
9. Upon thus hearing learned advocates for the parties, this Court finds it appropriate to refer to the decision of the Apex Court in the case of Selvi and others (supra) where the Court has discussed each of these tests and its outcome scientifically and also concluded s to when they be not permitted unless voluntarily and further as to what be the legal effect of the result of voluntary test concluded at the instance of the accused. Worthwhile it would be to reproduce relevant paragraph as under: "21. The errors associated with polygraph tests are broadly grouped into two categories, i.e., `false positives' and `false negatives'. A `false positive' occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a `false negative' occurs when a set of deceptive responses is reported as truthful.
Page 8 of 91R/SCR.A/6403/2018 ORDER On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such `countermeasures' are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished.
22. Since polygraph tests have come to be widely relied upon for employee screening in the U.S.A., the U.S. Department of Energy had requested the National Research Council of the National Academies (NRC) to review their use for different purposes. The following conclusion was stated in its report, i.e. The Polygraph and LieDetection: Committee to Review the scientific evidence on the Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212213:
"Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously Page 9 of 91 R/SCR.A/6403/2018 ORDER controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved. Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing. Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner.
19 Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception. Future Potential: The inherent ambiguity of the physiological measures used in the polygraph suggests that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy."
23. A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key finding is reproduced below, [Cited from: A Review of the current scientific status and fields of application of polygraph deception detection Final Report (6 October, 2004) from The British Psychological Society (BPS) Working Party at p. 10]:
"A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only Page 10 of 91 R/SCR.A/6403/2018 ORDER arousal which is assumed to accompany telling a lie.
Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, ...) are built upon the premise that, while answering so called `relevant' questions, liars will be more aroused than while answering socalled `control' questions, due to a fear of detection (fear of getting caught lying). This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memory of his late wife might re awaken his strong feelings about her); and
(ii) when the innocent examinee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, ...) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt & Stahl, 2002)."
24. Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54 App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had Page 11 of 91 R/SCR.A/6403/2018 ORDER conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate Court identified the considerations that would govern the admissibility of expert testimony based on scientific insights. It was held, Id. at p. 47:
"... Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made."
25. The standard of `general acceptance in the particular field' governed the admissibility of scientific evidence for several decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed `Bendectin', a prescription drug. They had alleged that the ingestion of this drug by expecting mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The District Court had ruled in favour of the company by ruling that Page 12 of 91 R/SCR.A/6403/2018 ORDER their scientific evidence met the standard of `general acceptance in the particular field' whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme Court which vacated the appellate court's judgment and remanded the case back to the trial court. It was unanimously held that the `general acceptance' standard articulated in Frye (supra.) had since been displaced by the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
It was held that the trial court should have evaluated the scientific evidence as per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge's first step should be a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as:
whether the theory or technique in question can be and has been tested whether it has been subjected to peer review and publication I its known or potential error rate the existence and maintenance of standards controlling its operation whether it has attracted widespread acceptance within the scientific community.
27. It was further observed in Daubert case Page 13 of 91 R/SCR.A/6403/2018 ORDER that such an inquiry should be a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. It was reasoned that instead of the wholesale exclusion of scientific evidence on account of the high threshold of proving `general acceptance in the particular field', the same could be admitted and then challenged through conventional methods such as cross examination, presentation of contrary evidence and careful instructions to juries about the burden of proof. In this regard, the trial judge is expected to perform a `gatekeeping' role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect."
1.This Court in the case Santokben Sharmanbhai Jadeja(supra) upheld the order passed by the learned Magistrate and also upheld the order of the Revisional Court in relation to the narco analysis test and brain mapping test of the accused where the challenge on the part of the accused had failed. The Court upheld the legality of the order passed by the learned Magistrate. The matter here is having different set of factual matrix. The accused Santokben Jadeja had prayed for quashing of the order passed by the learned Magistrate, Junagadh granting narco analysis test and the brain mapping test, which was also upheld in the Criminal Revision Application. The Court had examined in detail the worth of these tests with scientific design. It is the method of carrying out the test and held thus:
2. Before considering and dealing with the submissions and contentions made on behalf of the rival parties, it is required to be considered that what are the Brain Mapping Test and Narco Analysis Test and the Page 14 of 91 R/SCR.A/6403/2018 ORDER safeguards taken during the aforesaid tests.
At the outset, it is to be noted that what are the aforesaid tests and what are the safeguards taken at the time of performing / conducting of the aforesaid tests are already considered by the Bombay High Court, Karnataka High Court and Andhra Pradesh High Court. The learned counsel appearing on behalf of the State and the learned Advocate General have also produced on record certain materials what are the aforesaid tests and which measures / safeguards are undertaken while conducting / performing the aforesaid tests and considering the above, it is found as under : NARCO ANALYSIS TEST : The Narco Analysis Test is conducted by administrating 3 gms of Sodium Pentathol or Sodium Amytal dissolved in 3000 ml of distrilled water depending upon the person's sex, age, health and physical condition and this mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. The rate of administration is controlled to drive the accused slowly into a hyponotic trance. The effect of the biomolecules on the bio activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the Investigating Agency in the presence of the doctors. The revelations made during this stage are recorded both in video cassettes. The report prepared by the experts is what is used in the process of collecting evidence. Under the influence of the drug the subject talks freely and is purportedly deprived of his selfcontrol and will power to manipulate his answers. The underlying theory is that a person is able to lie by using his imagination. In the Narco Analysis Test, the subject's imagination is neutralized and reasoning faculty affect by making him semi Page 15 of 91 R/SCR.A/6403/2018 ORDER conscious. The subject is not in a position to speak up on his own but can answer specific and simple questions. In this state it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. His answers are spontaneous as a semi conscious person is unable to manipulate his answer. Injected in continuous small dosages it has a hypnotizing effect on a person whop responds loquaciously when questioned. The ECG and blood pressure are monitored continuously throughout the testing procedure. The entire conduct of the procedure is video graphed. The questions are designed carefully and are repeatedly persistently in order to reduce the ambiguities during drug interrogation. After the Narco examination is over the suspect is made to relax for 2, 3 hours.
WHAT IS BRAIN MAPPING TEST : The Brain Mapping Test is also known as P300 test. In this test of Brain Mapping the suspect is first interviewed and interrogated to find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects. There are three types of words in the list used for Brain Mapping test, Part I consisted of neutral words, which have no direct relationship with the case. Part II consists of probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of events related to the case. Part III consists of target, which are not part of the first two parts. The words in this part are based on confidential findings which suspect does not know. The recording of this test is done by acquiring the response through 32 channel EEGERP Neuro Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The 32 channel electrodes are placed over the scalp directly. While conducting this test twice by presenting each word in three parts randomly.
Page 16 of 91R/SCR.A/6403/2018 ORDER The suspect is instructed to relax and listen to the words presented in the auditory mode. This test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collection of evidence. After the administration of the test, what comes out is that, the person undergoing the test has the knowledge of the crime about which he was questioned (brain mapping). In the said test there is no way to find out what the lie is or what is the information stored in the brain of the person concerned. It can be called the information received of taken out from the witness.
12. NEED FOR NARCO ANALYSIS TEST AND BRAIN MAPPING TEST AND THE ADVANTAGES OF THE AFORESAID TESTS: The field of criminology has expanded rapidly during the last few years and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. The Investigating Agency cannot be prevented to interrogate the case at the stage of investigation relating to crime in which he is shown as accused. If the aforesaid two tests are permitted, it would assist t he Investigating Agency in finding out the truth and find out the real culprit of the commission of an offence. When the Investigating Agency is absolutely in dark and after all efforts and exhausting all the alternatives still there is no further headway in the investigation, the aforesaid two tests would help the Investigating Agency to further Page 17 of 91 R/SCR.A/6403/2018 ORDER investigate the crime and during the course of the aforesaid two tests and/or after completion, the Investigating Agency may get some clue and may be able to further investigate the crime and reach to the real accused / culprit who has committed offence. Accusations are made against the Investigating Officer using third degree methods to extract information from the accused and therefore there is a need to have such scientific tests. The scientific tests like polygraph test; P 300 test are like taking MRI or CT Scan and when the accused are not coming forward with the truth, the scientific tests are resorted to by the Investigating Agency to find out the truth and to have a further clue in the matter to further investigate the crime. Such scientific tests are prayed only as a last resort after exploring all the alternatives and when the Investigating Agency is not in a position to reach the accused and find out the truth. If the nature of the offence alleged to have been committed by the accused coupled with the circumstances under which it is committed affords reasonable grounds for believing that an examination of the person will afford evidence as to the commission of the offence then such tests are necessary. It is a right of the Police Officer under the provisions of the Criminal Procedure Code to investigate the crime and collection of the evidence by the Police Officer is permissible under the law. Conducting of Narco Analysis Test and Brain Mapping Test on the accused are in process of collection of such evidence by the Investigating Agency. Section 161 of the Criminal Procedure Code enables the police to examine the accused also during the investigation. It is the duty of every person to furnish information regarding offence and it is the duty of every citizen / person to assist the State in detection of crime and bringing the criminals to justice. It is a statutory duty of every witness / person, who has knowledge of the commission of the crime to assist the State in giving evidence. The Page 18 of 91 R/SCR.A/6403/2018 ORDER investigation of the crime on the scientific line is to help the Investigating Agency so as to enable collection of evidence to prove the guilt or innocence of the person accused of committing crime as the modern community requires modern scientific methods of crime detection, lest the public go unprotected.
13. Now, considering above, what is required to be considered is whether conducting / preforming of the Narco Analysis Test and Brain Mapping Test upon the accused infringe the constitutional protection guaranteed under Articles 20(3) & 21 of the Constitution of India or may tantamount to testimonial compulsion and/or would amount to compulsive testimony.
14. Identical question came to be considered by the Division Bench of the Bombay High Court in case of Ramchandra Ram Reddy (supra) and after considering the entire scheme and provisions of Article 20(3) and Article 21 of the Constitution of India and the nature of the tests and the use of the said tests, the Division Bench of the Bombay High Court has held that so far as Brain Mapping Test P300 test is concerned, protection given by Article 20(3) cannot be made applicable as there will not a statement during such test and the same cannot said to be incriminatory in nature. So far as conducting / performing of the Narco Analysis Test is concerned, it is held by the Division Bench of the Bombay High Court in the said decision that the statement which is recorded during the course of the Narco Analysis Test unless it is shown to be incriminating the person making it, it does give rise to the protection under Article 20(3) of the Constitution of India and as and when the Investigating Agency uses such statement as evidence, the said contention is required to be considered. The relevant observations of the Division Bench in the said decision are as under : Para 20 : We have therefore no hesitation in Page 19 of 91 R/SCR.A/6403/2018 ORDER holding that Brain Mapping / P300 or Lie Detector / Polygraph tests can be administered to any accused or a witness. There is no statement coming out of the involuntary tests, and the conclusions which come out of such tests are not statements, the conclusions are not proved in any manner to be even likely to be incriminating to the maker of it, the expert can very well depose as an expert in relation to the tests in court that the Brain Mapping of the accused or the witness discloses existence of knowledge about a crime in the brain of those persons undergoing the tests. What that information is nobody is going to say or anybody can say and therefore there is no question that even the statement coming via expert is incriminatory. The protection given by Article 20(3) gives protection from compulsory testimony, it therefore cannot apply to these two tests. We therefore reject all the contentions in relation to these two tests.
Para 21 : That takes under section to the third test which is called as Narco Analysis (Truth Serum Test). We stated above that in this test the person to whom it is administered does make a statement as stated above. It undoubtedly is a statement. The question which falls for consideration therefore, is whether such statement can be forcibly taken from the accused by requiring him to undergo the Truth Serum Test against his will. It will be seen that such statement will attract the bar of Article 20(3) only if it is inculpating or incriminating the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. In our opinion therefore, there is no reason to prevent administration of this test also because there are enough protections available under the Indian Evidence Act, under Criminal Procedure Code and under the Constitution (Article 20(3), to prevent inclusion of any incriminating statement if one comes out after Page 20 of 91 R/SCR.A/6403/2018 ORDER administration of the test.
Para 22 : We have to look at this aspect of holding test in a vary broad prospective. The protection or the cover granted by the fundamental right appearing in Clause (3) of the Constitution is complete and invariable. The question is what is sought to be provided by guaranteeing such right and it is undisputed that what is sought to be protected is the protection of human rights and dignities. It is also to be considered in the light of other equally important provisions of the Constitution. Article 51(A) which has been added to the Constitution by subsequent amendment provides via clause (1) which says that it shall be the duty and the duty cannot be properly done by the State, if unnecessarily large protection is spelt out from other provisions like Article 2(3). Prevention of crime is a sole prrogative of the State and the punishment of the crime if proved is also the duty of the State. Feters on these duties can be put only in extreme cases where the protection of fundamental rights weigh more than the fundamental duty casts on the State. However we need not further dialate on this aspect for the reason that in our opinion administration of these tests against the will of the person to whom it is sought to be administered does not violate the guarantee of Article 20(3) as in the first two cases it is not a statement and that is not incriminatory in any manner. It is the last case where it is a statement and unless it is shown to be incriminating to a person making it, it does not give rise to the protection under Article 20(3). The petitions are premature in relation to the third test. In so far as the first two tests are concerned as aforesaid these tests do not violate any protection.
Para 23 : It will be seen that in our opinion the first two tests do not result in any incriminating material, they do not result Page 21 of 91 R/SCR.A/6403/2018 ORDER in any statement containing such material and, therefore, does not in any way violate Article 20(3). In so far as the third test is concerned enough protection exists, recourse to which can be taken if and when the investigating agency seeks to introduce such statement as evidence. We need not therefore consider the contention in relation to the time when the right or protection given by Article 20(3) starts. In our opinion, we also need not consider several judgments cited at the bar which relate to scope and extent of Article 20(3). The judgment in MANU/SC/0018/1954, Sharma's case the Supreme Court laid down what is the extent of guarantee under Article 20(3). It was then explained by 11 Judges Bench in Kathi Kalu's case what exactly is the protection. The law has been ultimately crystalised by the Supreme Court in the case of Nandini Satpathy. In all these cases, what came up for consideration, was obviously a statement made by the witness which obviously was incriminating and therefore the scope was accordingly considered by the Supreme Court of India. In the present case we have came to the conclusion that it is not a statement in relation to the first two tests and in relation to the third test it is a statement entry of which in evidence is adequately protected by various provisions of law and therefore we need not consider this and other cases stated at bar?
15. The aforesaid controversy is also considered by the Karnataka High Court in case of Smt. Selvi & Ors. (supra) and the Karnataka High Court has also considered the need for Brain Mapping Test and Narco Analysis Test and the Karnataka High Court has also considered the submissions made on behalf of the accused that to appear for undergoing Narco Analysis Test would violate his fundamental rights under Article 20(3) of the Constitution of India and would compel the accused to give evidence against himself, which is prohibited under Article 20(3) of the Constitution of India and after elaborately considering Page 22 of 91 R/SCR.A/6403/2018 ORDER various provisions of the Constitution of India as well as the Criminal Procedure Code and considering what are the aforesaid tests and what safeguards are taken, the Karnataka High Court has permitted to conduct / perform the Narco Analysis Test and Brain Mapping Test on the accused. The relevant observations of the Karnataka High Court in the said decision are as under : "It was vehemently argued for the accused that the learned Magistrate committed a serious and grave error in giving directions to the accused to appear for undergoing Narco analysis Test as the same violates their fundamental right guaranteed under Article 20(3) of the Constitution. According to him, the order containing the directions given is nothing but compelling the accused to give evidence against themselves, which is prohibited under said Article 20(3) of the Constitution.
Para : 7 : The term narcoanalysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries. The material (literature) produced shows that in the Narco analysis Test conducted under medical supervision, an accused will be injected with Sodium Pentathol or Sodium Amytal and thereafter the accused will be subjected to interrogation by the investigating agencies in the presence of expert doctors. But, this will be only after carrying out a detailed medical examination of the accused. If accused is found medically fit to undergo the procedure, then only it will be done, otherwise not. After finding an accused medically fit to undergo the test, the accused will be administered small doses of intravenous infusion of sodium pentathol.
Para : 8 : Sodium Pentathol is the most commonly used drug as an induction agent for general anesthesia routinely contemplated in Page 23 of 91 R/SCR.A/6403/2018 ORDER most of the surgeries and the psychiatrists routinely use sodium pentathol in the diagnosis of mental illness and/or to evaluate the psychological realities. Under the influence of the drug, the patient talks freely and is purportedly deprived of his selfcontrol and will power to manipulate his answers. This is because, few drugs are known to relax individual's defence so that unknowingly the person reveals the truth, which he has been trying to conceal.
Para : 9 : So, during the search for effective aids to interrogation, which is probably as old as man's need to obtain information from an uncooperative subject, more recently, police officials in some countries have turned to the assistance of such drugs in the interrogation of unco operative accused persons. The investigating agency uses such drug (of its choice) for getting information from persons/accused from their subconscious level at which it may be difficult for accused to lie. This is said to be due to lack of inhibition produced by the drug and the accused talks freely and respond truthfully to verbal questions. Thus, the use of such drug in police work/interrogation is similar to the accepted psychiatric practice of Narcoanalysis and the only difference in the two procedures is the difference in the objectives. But the question is, whether, as a scientific technique in investigations, Narco analysis Test on an accused could be permitted? In other words, the issue is, whether administration of drug to an accused against his consent or wishes during Narco analysis Test amounts to compulsion?
Para : 11 : It was vehemently argued for the accused that administering i.e., injecting the drug to accused without their consent or against their wishes amounts to "compulsion" attracting Article 20(3) as it causes injury, may be slight.
Page 24 of 91R/SCR.A/6403/2018 ORDER Para : 12 It is true that causing some pain by injecting drug may technically amount to hurt as defined under Section 319 of the Indian Penal Code. But such pain could be caused even when blood sample is drawn for the purpose of its test. So also, by the use of emetic when a culprit is suspected to have swallowed some stolen article. However, for such purposes, the law permits use of necessary force, as is clear from Section 53(1) of the Code of Criminal Procedure, which is as under:
"53. Examination of accused by medical practitioner at the request of police officer.(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a Police Officer not below the rank of sub inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose."
(emphasis supplied) Para : 13: It appears that under the old Code, there was no specific provision authorising the police officer under which an arrested person could be subjected to medical examination without his consent. Therefore with an intention to remove that lacuna this new provision was incorporated in the new Criminal Procedure Code, with the sole intention of facilitating effective investigation. Section 53 authorises investigating machinery to get an arrested person examined by a medical practitioner. Section 54 confers such a right upon the accused himself This examination is Page 25 of 91 R/SCR.A/6403/2018 ORDER contemplated under certain conditions. If the nature of the offence alleged to have been committed by the accused coupled with circumstances under which it is committed affords reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence, then it has been made lawful for the registered medical practitioner to act at the request of the Police Officer, not below the rank of subinspector and to carry out examination of the person arrested in order to ascertain the facts which may afford evidence and for that purpose to use such force as may be necessary. This examination has to be carried out by a registered medical practitioner or any person acting in good faith in his aid and under his direction. It cannot, therefore, be said that merely because some pain or discomfort is caused (in injecting the drug), such a procedure (test) should not be permitted.
Para : 15 : It is true in Narcoanalysis Test, nothing is extracted from the body of accused nor anything is compared nor tallied since what is obtained is statement or information given by the accused. Such statement made or information given by an accused will be either exculpatory or inculpatory and it is only inculpatory statement which is hit by Article 20(3) of the Constitution. Whether the accused make inculpatory or exculpatory statement will be known only after the test is conducted and not before that. So, it is premature to say the nature of statement or information, which the accused give under Narcoanalysis Test.
Para : 16 : Now reference can be had to Section 156(1) of the Code of Criminal Procedure. It says that any officerincharge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station Page 26 of 91 R/SCR.A/6403/2018 ORDER would have power to inquire into or try under the provisions of Chapter XIII. Admittedly, the offence punishable under Section 302 of the Indian Penal Code is a cognizable offence. So, said provision comes to the aid of investigating agency for investigation.
"Investigation" as defined in Section 2(h) of the Criminal Procedure Code includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. Thus, collection of evidence by Police Officer is permitted under law. Conducting Narcoanalysis Test on accused is in the process of collection of such evidence by the investigating agency.
Para : 18 : It is true that permission of Court or Magistrate is not necessary for investigation into a cognizable offence as is clear from Section 156(1) of the Criminal Procedure Code. For conducting Narcoanalysis Test, the investigating agency necessarily requires expert Doctors as without that, such test cannot be conducted. Ordinarily, experts or doctors want an order of the Court when they have to assist the investigating agency in the investigation. Section 53 of the Criminal Procedure Code only says that it shall be lawful for a registered medial practitioner to make examination of an accused when requested by Police Officer. That apart, the report on polygraphy test, advises to subject the accused to Narcoanalysis Test after obtaining permission from the Court. Under Section 156(3) of the Criminal Procedure Code, a Magistrate empowered under Section 190 of the Criminal Procedure Code may order for an investigation referred to in Section 156(1) of the Criminal Procedure Code. So and when the word investigation includes collection of evidence by the I.O., if an investigating agency had sought permission from the Court without referring provision, it cannot be termed as unwarranted or bad in law. So, I do Page 27 of 91 R/SCR.A/6403/2018 ORDER not find any force in the argument advanced for the accused.
Para : 19 : At this stage, reference can also be had to Section 161 of the Criminal Procedure Code, with specific reference to Section 27 of the Indian Evidence Act, 1872. In the case of Smt. Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978, a Bench of three Hon'ble Judges of the Supreme Court has held that Section 161 of the Criminal Procedure Code enables the police to examine an accused also during investigation. So, questioning accused during investigation is permissible subject to certain conditions made clear in the said judgment.
Para : 20 : It cannot be forgotten that Section 39 of the Criminal Procedure Code casts a duty upon every person to furnish information regarding offences. Criminal justice system cannot function without the cooperation of the people. Rather, it is the duty of every person to assist the State in the detection of the crime and bringing criminal to justice. Withholding such information cannot be traced to the right to privacy, which itself is not an absolute right. In this regard, reference can be had to a recent decision of the Supreme Court in the case of State v. Dharmapal, 2003 AIR SCW 1960 : AIR 2003 SC 3450 and observed by the Supreme Court in the case of State of Gujarat v. Anirudha Singh, MANU/SC/0749/1997, that it is the statutory duty of every witness, who has the knowledge of the commission of the crime, to assist the State in giving evidence.
Para : 23 : The right guaranteed under Article 20(3) of the Constitution is in the protection of human rights and dignities, which may need consideration in the light of other equally important provisions of the Constitution. It need not be said that prevention of crime and punishment for the crime are the duties of the State. Fetters on Page 28 of 91 R/SCR.A/6403/2018 ORDER these duties can be put only in extreme cases where the protection of fundamental rights weigh more than the fundamental duty casted on the State. Section 53 of the Criminal Procedure Code has been brought on statute book to have efficient and scientific investigation. It is intended to help the investigation of the crime on the scientific lines so as to enable collection of evidence to prove the guilt or innocence of the persons accused of committing the crime as the modern community requires modern scientific methods of crime detection, lest the public go unprotected. Further, in the process of obtaining information, i.e., collection of evidence during investigation, if any legal or fundamental right of the accused is infringed or violated, nothing prevents them from resorting to the safeguards provided to them under various laws. But that cannot be a ground to refuse to answer during investigation.
Para : 30 : It was also contended for the accused that the first accused is suffering from heart problem and as such, subjecting her to undergo Narcoanalysis Test will be detrimental to her health. It may be noted that the accused 1 had undergone Brain Mapping and Polygraphy Tests, admittedly. Further, as noted already, before subjecting an accused to Narcoanalysis Test, his/her medical fitness will be ascertained and thereafter only accused will be subjected to Narcoanalysis Test. Reference can also be had to the conclusion found in "A report on Narco analysis Test" submitted by the prosecution under the signature of the Director of Forensic Science Laboratories (Police Department), Madiwala, Bangalore, which is as under:
"It should be unambiguously mentioned at this stage that the dosage level required to take a person to the hypnotic stage is found to be 34 times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the Page 29 of 91 R/SCR.A/6403/2018 ORDER Narcosis/Narco analysis will not have any adverse effect on any system of the body."
So, the argument cannot be upheld though, of course, necessary careprecaution requires to be taken.
Para : 31 : It be gain said that test permitted by the impugned order assists the investigating agency in getting the truth and find out the real culprit for the commission of the murder of deceased Shivakumar and as such, it may even show innocence of accused. For the aforesaid reasons and discussion made, it is held at this stage that the impugned order does not violate the Article 20(3) of the Constitution.: In Dinesh Dalmia V/s. State reported in 2006 Cri.L.J. 2401, the Madras High Court in paras 14 and 17 observed as under : "Para 14 : Huge amount has allegedly been misappropriated by the accused and the investigating agency is completely in the dark as to the end use of such a huge amount siphoned off by the accused. The Investigating Officer did not use third decree methods to extract incriminating materials through the mouth of the accused. Only a scientific test on the accused is prayed for by the respondent complainant. That the accused will face health hazard and his physical frame will be endangered if he undergoes such scientific tests are totally without any scientific basis. As rightly pointed out by the learned counsel for the respondent, the scientific tests are are like taking MRI or CT Scan. The scientific value of such tests and the credibility thereof will have to be evaluated only during the course of trial. Unless such tests are conducted, the Investigating Agency may not be in a position to come out with clinching testimony as against the petitioner. Subjecting an accused to undergo such scientific tests will not amount to breaking his silence by force. He may be taken to the laboratory for such tests against his will, Page 30 of 91 R/SCR.A/6403/2018 ORDER but the revelation during such tests is quite voluntary. Therefore, such process does not amount to compelling a witness to give evidence as against him.
Para : 17 : As the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the Investigating Agency. Such a course does not amounts to testimonial compulsion. When there is a hue and cry from the public and the human rights activists that the investigating sleuths adopt third degree methods to extract information from the accuse, it is high time the investigating agency took recourse to scientific methods of investigation. The learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, has granted the relief as prayed for by the respondent herein to secure the ends of justice. Therefore, there is no warrant for upsetting the order passed by the Court below."
16. Now, in the backdrop of above, it is required to be considered by this Court whether performing / conducting of the Narco Analysis Test and/or Brain Mapping Test on the accused by itself would amount to violation of protection guaranteed under Article 20(3) of the Constitution of India. It is also required to be considered that at what stage the protection guaranteed under Article 20(3) of the Constitution of India is required to be considered. Article 20 of the Constitution of India reads as under : Article : 20 : Protection in respect of conviction for offences : i.No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ii.No person shall be prosecuted and punished Page 31 of 91 R/SCR.A/6403/2018 ORDER for the same offence more than once. iii.No person accused of any offence shall be compelled to be a witness against himself. Now, it is the contention on behalf of the petitioner accused that conducting / performing of the aforesaid two tests would be testimonial compulsion and these tests, if compelled would amount to compulsion to make a statement against himself / herself and therefore, hit by Article 20(3) of the Constitution of India. Now, what is the Narco Analysis Test. In the Narco Analysis Test, the subject's imagination is neutralized and reasoning faculty affect by making him semi conscious. The subject is not in a position to speak up on his own but can answer specific and simple questions. In this state it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. The said test is conducted by administrating 3 gms of Sodium Pentathol or Sodium Amytal dissolved in 3000 ml of distilled water and depending on the persons's sex, age, health and physical condition. This mixture is administered intravenously along with 10% of dextrose over a period of 3 hours with the help of an anaesthetist. The subject is then interrogated by the Investigating Agency in the presence of the doctors and as stated above, the revelations made during this stage are recorded in both in video cassettes and the report prepared by the experts is used in the process of collecting evidence and to find out the truth and to further investigate into the crime. It is the user of the statement recorded during the course of the aforesaid tests as evidence against the accused the question with regard to protection under Article 20(3) of the Constitution of India is required to be considered. As rightly observed by the Bombay High Court in case of Ramchandra Ram Reddy (supra) in order to invoke Article 20(3) of the Constitution of India, the following things must happen.
1.There should be formal accusation of
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commission of any offence.
2.The accused of such formal accusation should be compelled to make a statement.
3.The statement so compulsorily made or evoked or provoked is incriminating to the accused or maker thereof.
4.Result of such statement must be a testimony with these ingredients as even though Article 20(3) are established, the protection under testimonial compulsion will come into operation.
Thus, such statement recorded during the course of the Narco Analysis Test will attract bar of Article 20(3) only if it is inculpating or incriminating the person making it and the said protection / guarantee is required to be considered at the stage when the Investigating Agency seeks to introduce such statement as evidence. Therefore, at the stage of conducting / performing the Narco Analysis Test, the bar / protection guaranteed under Article 20(3) of the Constitution of India is not required to be considered and this is not the stage, at which, the protection guaranteed under Article 20(3) of the Constitution of India is required to be considered.
17. As stated above, when after exhausting all the possible alternatives to find out the truth and nab the criminal / accused and when it is found by the prosecuting agency that there is no further headway in the investigation and they are absolutely in dark, there is a necessity of such a test. On the basis of revelations and/or the statement recorded while conducting / performing the Narco Analysis Test, the prosecuting agency may have some clues which would further help and/or assist the Investigating Agency to further investigate the crime and at this stage, there will not be any bar of Article 20(3) of the Constitution of India and merely conducting / performing of a Narco Analysis Test on the accused, the protection guaranteed under Article 20(3) of the Constitution of India is not violated. As stated above, only Page 33 of 91 R/SCR.A/6403/2018 ORDER and only at the stage when the prosecuting agency is likely to use such statement as evidence and if it is inculpating and incriminating the person making it, it will attract the bar of Article 20(3). As rightly observed by the Bombay High Court in case of Ramchandra Ram Reddy (supra) whether the statement made during the course of the aforesaid test is inculpating or incriminating the person making it, can be ascertained only after the test is administered and not before. Thus, by conducting / performing the Narco Analysis Test itself would not tantamount to compulsive testimony or testimonial compulsion and the same would not amount to violation of Article 20(3) of the Constitution of India and if the statement recorded during the course of the aforesaid test is used against the accused, enough protection exists in the Criminal Procedure Code and / or Indian Evidence Act and recourse to which can be taken as and when the Investigating Agency seeks to produce such statement as evidence and merely on apprehension and/or presumption that the said statement could be used by the Investigating Agency against the person making it that by itself is no ground not to permit the Investigating Agency to conduct / perform the Narco Analysis Test upon the accused, more particularly, when the same is needed for the purpose of finding out the truth and to nab the criminal / accused who have committed offence and when the Investigating Agency is absolutely in dark. Under the circumstances, there is no substance in the contention / submission of the petitioner / accused that conducting / performing of the Narco Analysis Test by itself would be taking away the protection guaranteed under Article 20(3) of the Constitution of India.
18. So far as Brain Mapping Test is concerned, it is also known as P300 test. What is the Brain Mapping Test is already discussed hereinabove. What is received at the conclusion of such test is indication of the Page 34 of 91 R/SCR.A/6403/2018 ORDER fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. There no verbal response from the witness. There is no statement coming out of this voluntarily test and the consequences which come out of such test is not a statement and therefore, there would not be bar of Article 20(3) of the Constitution of India so far as Brain Mapping Test is concerned.
There is another reason also in favour of the prayer of the prosecuting agency for conducting / performing the aforesaid two tests. Under the provisions of the Criminal Procedure Code, the prosecuting agency is statutorily authorized to investigate the crime and to find out the truth and to reach to the accused persons who have committed serious offences, detail investigation is required. Investigating Officer is the master of the investigation and nobody can restrain and/or interfere with the investigation carried out by the Investigating Officer, not even the Magistrate till an appropriate report is submitted by the Investigating Officer as contemplated under the provisions of the Criminal Procedure Code. Thus, considering the various provisions under the Criminal Procedure Code right from sections 156 to 159 and other related provisions, collection of evidence by the police officer is permitted under the Law. Conducting the aforesaid tests on accused is to be considered as process of collection of such evidence by the Investigating Agency. The aforesaid two tests are scientific methods in furtherance of the investigation. The field of criminology has expended rapidly and new techniques and methods are used for committing the crimes and offences and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Thus, aforesaid tests for criminal interrogation is a valuable technique which would help the Investigating Agency to further investigate the crime when the Page 35 of 91 R/SCR.A/6403/2018 ORDER Investigating Agency finds itself clueless and there is no further headway in the investigation. The Investigating Agency cannot be prevented to interrogate the accused at the stage of investigation and restraining the Investigating Agency to further investigate the crime through the aforesaid two tests would tantamount to interfere with the right of the Investigating Agency to investigate the crime of which it is statutorily authorized."
10. On careful examination of some of the decisions of the Apex Court and particularly that of Selvi and others (supra) this Court considered similar such request and allowed the same in connection with C.R.No.I42 of 2015 registered with Dharangdhra police station. It was of the opinion that what use would be made of the evidence, which would be collected after once the petitioners are permitted to undergo the brain mapping test or any other such scientific test, would be a question, which would not beg attention at the stage of grant of such a request. What was important was whether the same could be permitted in wake of the statement given by some of the witnesses inculpating the petitioner. It would be worthwhile to reproduce those findings and observations made by this Page 36 of 91 R/SCR.A/6403/2018 ORDER Court in the case of Dhanabhai Bhagvanbhai Bharvad and others vs. State of Gujarat and others decided by this Court on 28.03.2016 in Special Criminal Application No.1390 of 2016 as under: "1. All the petitioners, who were suspects in an offence in connection with CR.No.I42 of 2015 registered with Thangadh police station, Surendranagar for the offences punishable under sections 302,307,148,149,504,506(2), 120B and 447 of the Indian Penal Code and sections 183 and 184 of the Gujarat Panchayats Act have approached this Court seeking following reliefs: "13. The petitioners, therefore, pray that this Hon'ble Court be pleased:
A) To allow the present petition; B) To issue appropriate writ, order or direction directing the concerned investigating agency herein to obtain necessary evidence with regard to plea of alibi raised by the present petitioner and further be pleased to direct that the petitioners shall be subjected to Lie Detection Test and/or any other test for the purpose of impartial and fair investigation; C) To issue appropriate writ, order or direction directing concerned authority to subject the petitioners to Lie Detection and/or other appropriate test in connection with the FIR being ICR No.42/2015 registered with Thangadh Police station, District:Surendranagar.
D) To direct the concerned investigating agency to collect relevant materials such mobile phone location etc. of the petitioners at the time of incident;
E) Pending admission, hearing and final disposal of this petition, to submit Report pursuant to the investigation carried out so far in connection with FIR being ICR Page 37 of 91 R/SCR.A/6403/2018 ORDER No.42/2015 registered with Thangadh police station, District:Surendranagar. F) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
2. Facts in capsulized form are as under for the purpose of determining this petition: 2.1 According to the petitioners, there are long standing dispute between two communities, namely Bharvad community and Koli community in Surendranagar district. They are at loggerheads and cases filed by persons from both the communities against each other are a matter of record. It is the case of the petitioners that the communities have made an attempt to falsely implicate certain known persons from each community as accused, though they have not participated in the offence and a few of the cases are reported in the form of summary by the investigating agency on the ground that the complaint was lodged out of vengeance. It is their case that in the present complaint being CR.No.I42 of 2015 registered with Thangadh police station, although the petitioners were not present, when the alleged incident took place, they have been wrongly named and attributed the role of causing the injuries to the deceased. According to the petitioners, this false involvement gave rise to their preferring Special Criminal Application No.6651 of 2015 before this Court, wherein it was prayed to carry out impartial and fair investigation. The Court, while disposing of the petition, had directed that representation of the petitioners be decided and appropriate action be taken by the District Superintendent of Police (DSP), Surendranagar on considering such representation.
2.2 Pursuant to the said order, statement of the witnesses also have been recorded, which are forming part of the chargesheet qua other accused. It is their case that they have not been present at the village, at the time when the incident took place. It is further their say that the mobile phone data of the Page 38 of 91 R/SCR.A/6403/2018 ORDER petitioners also had reflected that they were not in any manner present at the scene of offence. Despite that stand petitioner No.4 herein was arrested by the investigating officer. Request is made to carry out the Lie Detection Test. However, the same has not been done till date.
3. As far as petitioners No.1 and 5 are concerned, their presence is shown to have been at Morbi, 80 kms away from the place of the alleged incident. CCTV footage also have been supplied to the investigating agency of Chamunda Hotel which shows the presence of Petitioner No.5. CCTV footage of another shop, namely, Radhe Mobile Shop at Morbi shows the presence of petitioner No.1 and at 3:30 p.m. he was shown to be at Morbi in yet another CCTV footage. It is the say of the petitioners that some of the accused, who have been arrested have already been granted regular bail in separate proceedings.
4. The petitioners have urged that the findings of the investigation is to be fair and impartial and alibi of the present petitioners is genuine. The evidence collected by investigating agency about the alibi is voluminous. The request is made to allow the petitioners to undergo the Lie Detection Test and Brain Mapping test as the same are not conducted till date. Therefore, with a view to urge that the petitioners be allowed to undergo both the tests, this petition is preferred.
5. Learned advocate Mr.V.G.Popat for the petitioners has urged that inaction on the part of the investigating agency is contrary to the well laid down principles. The factum of rivalry between the two communities is a matter of record. The petitioners have been wrongly roped into the offence punishable under sections 302 of the Indian Penal Code. He has urged to regard the decision of this Court rendered in the case of Valiben.W/o Vitthalbhai Narsinhbhai and others vs. State of Gujarat and another reported in 2006 (2) GLH 354. He has also relied on various other Page 39 of 91 R/SCR.A/6403/2018 ORDER decisions to urge this Court to allow all the petitioners to undergo Lie Detection Test or any other scientific test considering the very object of this scientific test. He urges that ordinarily, the Court is not expected to enter into this arena. However, bearing in mind the long standing animosity between the communities of Bharwad and Koli, the Court needs to accept such request. He has sought to rely on the following authorities:
1. Smt.Salvi and others vs. State of Karnataka, AIR 2010 SC 1974.
2. State of Gujarat vs. Inayat Ismail Vohra and others decided by this Court in Special Criminal Application No.1805 of 2012 with Special Criminal Application No.1291 of 2012 on 14.10.2013.
3. Anilbhai Somabhai Macwan vs. State of Gujarat and others decided by this Court in Special Criminal Application No.3132 of 2014 on 9.10.2015.
6. Learned Additional Public Prosecutor Mr. J.K.Shah appearing for the State has urged that each petitioner has been named by more than one witnesses with serious lethal weapons and in wake of so much of oral evidence, to allow the petitioners to undergo Lie Detection Test or any other scientific test would amount to disbelieving the witnesses at pretrial stage, which is impermissible. He has also urged that the defence of the witnesses should not be taken into consideration at this stage and all the contentions will be available to the petitioners at an appropriate stage. They should not be in a hurry to put the cart before the horse. He has sought to rely upon the papers of investigation, wherein in statement of some of the witnesses, the names of the present petitioners appear.
7. On thus having considered the submissions of both the sides, firstly the law on the subject deserves consideration. Chapter 24 of the Code of Criminal Procedure contains general provisions as to inquiries and trials. Section 315 of the said chapter provides that Page 40 of 91 R/SCR.A/6403/2018 ORDER any person accused of offence before the criminal Court shall be a competent witness for the defence and he may also give evidence on oath in disproof of the charges made against him. It would be profitable to reproduce this provisions of section 315 of the Code of Criminal Procedure at this stage as under: "315.Accused person to be competent witness. (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. (2) Any person against whom proceeding are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry."
8. Article 20 of the Constitution of India for protection in respect of conviction provides that no person accused of an offence shall be compelled to be a witness against himself.
This protection is available to a person accused of an offence not merely with respect to the offence tried in the Court room in the course of the trial but even at the previous stage, if the accusation has been Page 41 of 91 R/SCR.A/6403/2018 ORDER made against him which in the normal course may result in his prosecution as provided by the Apex Court in the case of State of Bombay vs. Kathi Kalu Oghad reported in AIR 1961 SC 1808.
9. This immunity would commence from the moment the person is named in the FIR as provided in the decision rendered in the case of M.P. Sharma v. Satish Chandra reported in (1954) S.C.R. 1077, where the Supreme Court made a distinction between a person being compelled to do a volitional act and something being obtained from him without involving any volitional act on his part and held that the immunity offered by Article 20(3) is confined to the former case and and is not available in the latter. It was held that immunity is available to an accused person when a compulsory process or notice is issued, directing him, under pain of penalty, to produce a document, but not when a document is recovered from him by search and seizure by a police officer without involving any volitional act on the part of the accused from whose possession the document is recovered. All the statements made during the stage of investigation or out of court shall be excluded from the protection of Article 20(3), unless a complaint or FIR has already been made at the time when the statement is obtained from the person by compulsion.
10. In case of State of Bombay vs. Kathi Kalu Oghad (supra), the Apex Court narrowed down the preposition laid down in Sharma's case by laying that the protection does not extend to any kind of offence but only to self incriminating statement made by the accused including oral or written testimony relating to the charge brought against him.
11. This decision has been also referred to in the decision of Smt.Salvi and others vs. State of Karnataka (supra), where the Court has held that the protection against selfincrimination is a broad protection that extends to stage of investigation. While there is a requirement of formal accusation for a person to invoke Page 42 of 91 R/SCR.A/6403/2018 ORDER Article 20(3), it must be noted that the protection contemplated by section 161(2), Code of Criminal Procedure is wider. Section 161(2) read with 161(1) protects 'any person supposed to be acquainted with the facts and circumstances of the case' in the course of examination by the police. Therefore, the 'right against self incrimination, protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses, who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. The Court, after extensively discussing Article 20(3) of the Constitution of India the protection against self incrimination and compulsory exposure to narco analysis test, held that it violates Article 20(3) of the Constitution of India. The Court also held while discussing Sections 53 and 54 of the Code of Criminal Procedure that for protection given against selfincrimination, the results of brain finger printing test are testimonial compulsions and the bar of Article 20(3) would apply. Relevant paragraphs of the said judgments are reproduced as under: "Examining the 'compelling public interest'
215. The respondents have contended that even if the compulsory administration of the impugned techniques amounts to a seemingly disproportionate intrusion into personal liberty, their investigative use is justifiable since there is a compelling public interest in eliciting information that could help in preventing criminal activities in the future. Such utilitarian considerations hold some significance in light of the need to combat terrorist activities, insurgencies and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties. The textual basis for these restraints could be grounds such as preserving the 'sovereignty and integrity of India', 'the security of the state' and 'public order' Page 43 of 91 R/SCR.A/6403/2018 ORDER among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commission of offences. Reference was also made to the frequently discussed 'Ticking Bomb' scenario. This hypothetical situation examines the choices available to investigators when they have reason to believe that the person whom they are interrogating is aware of the location of a bomb. The dilemma is whether it is justifiable to use torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens. [The arguments for the use of 'truth serums' in such situations have been examined in the following articles: Jason R. Odeshoo, 'Truth or Dare: Terrorism and Truth Serum in the Post 9/11 World, 57 Stanford Law Review 209255 (October 2004); Kenneth Lasson, 'Torture, Truth Serum, and Ticking Bombs:
Toward a pragmatic perspective on coercive interrogation', 39 Loyola University Chicago Law Journal 329 360 (Winter 2008)] 216. While these arguments merit consideration, it must be noted that ordinarily it is the task of the legislature to arrive at a pragmatic balance between the often competing interests of 'personal liberty' and public safety. In our capacity as a constitutional court, we can only seek to preserve the balance between these competing interests as reflected in the text of the Constitution and its subsequent interpretation. There is absolutely no ambiguity on the status of principles such as the 'right against selfincrimination' and the various dimensions of 'personal liberty'. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights.Page 44 of 91
R/SCR.A/6403/2018 ORDER xxx xxx xxx xxx xxx xxx xxx xxx xxx 220. One of the main functions of constitutionally prescribed rights is to
safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the parties who will benefit from this decision are hardened criminals who have no regard for societal values. However, it must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as the future generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through broadly worded terms such as 'substantive due process', but in this case our inquiry has been based on a faithful understanding of principles entrenched in our Constitution. In this context it would be useful to refer to some observations made by the Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel, H.C. 5100 / 94 (1999), where it was held that the use of physical means (such as shaking the suspect, sleepdeprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among other questions raised in that case, it was also held that the 'necessity' defence could be used only as a post factum justification for past conduct and that it could not be the basis of a blanket preemptive permission for coercive interrogation practices in the future.
Ruling against such methods, Aharon Barak, J. held at p. 26:
"... This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open Page 45 of 91 R/SCR.A/6403/2018 ORDER before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the 'Rule of Law' and recognition of an individual's liberty constitutes an important component in its understanding of security."
CONCLUSION
221. In our considered opinion, the compulsory administration of the impugned techniques violates the 'right against selfincrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible 'conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a 'testimonial' character and they cannot be categorised as material evidence.
222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a nonpenal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during Page 46 of 91 R/SCR.A/6403/2018 ORDER investigation in criminal cases, i.e. the Explanation to Sections 53, 53A and 54 of the Code of Criminal Procedure,1973. Such an expansive interpretation is not feasible in light of the rule of 'ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to 'cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self incrimination'.
12. The Apex Court concluded the same as under
: The Apex Court while holding that no forceful use of the technology in question be permitted in context of investigation in criminal cases, holding the same to be unwarranted intrusion into personal liberty, it has left a room for voluntary decision of the use of the impugned techniques in the context of criminal justice, provided certain safeguards are in place. It further held that even when the subject has given consent to undergo any of these tests by themselves cannot be admitted as evidences because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntarily administrated test can be admitted in accordance with section 27 of the Evidence Act, 1872. The National Human Rights Commission had published 'Guidelines for the Administration of Polygraph Test (LieDetector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar Page 47 of 91 R/SCR.A/6403/2018 ORDER safeguards should be adopted for conducting the 'Narcoanalysis technique' and the 'Brain electrical Activation Profile' test. While so holding it directed thiswise: "(i) No LieDetector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the LieDetector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record."
13. This Court in Special Criminal Application No.1805 of 2012 with Special Criminal Application No.1291 of 2012 has considered the question whether the brain mapping/brain finger printing test of the accused can be carried out at the instance of such accused persons so as to produce the result of the same by way of an evidence in their defence.
14. This Court in the case of Dr.Purshottam Swaroopchand Soni vs. State of Gujarat reported in 2007(3) GLR 2088, was considering Page 48 of 91 R/SCR.A/6403/2018 ORDER the case of a petitioner who was an accused who requested for brain mapping test/brain finger printing test to prove his innocence. It was his case that he had been falsely involved in the matter to save a sitting minister and her relative. The Court held that the right of the accused to give evidence to prove his innocence not only flows from the principles of natural justice, which is now a part of Articles 14 and 21 of the Constitution of India, but also, is provided under section 315 of the Code of Criminal Procedure. Giving of evidence cannot be restricted only to giving of oral testimony in Court. When the accused stated that he was falsely involved, he should be permitted to give evidence whether it be in the form of oral deposition in the Court or in the form of scientific evidence in the nature like braining finger printing test. To deprive the accused of such a right would tantamount to violation of fundamental right.
15. In the case of State of Gujarat vs. Inayat Ismail Vohra and other (supra), this Court was considering the question as to whether brain mapping or brain finger printing test of the accused can be carried out at his instance so as to allow the test result to be produced by way of evidence. It was at the stage when the complainant was in the witness box and his evidence had not been concluded and the cross examination was being prolonged for more than a year. The Court relying on the decision of Dr.Purshottam Swaroopchand Soni vs. State of Gujarat (supra) permitted the petitioner to undergo brain mapping test as requested by him. The Court while so allowing has held thus: "14. In the opinion of this court, while it is true that the Supreme Court in the context of the matter before it has held that even when the subject has given consent to undergo any of the said tests, the test results by themselves would not be admissible as evidence because the subject does not exercise conscious control over the responses during Page 49 of 91 R/SCR.A/6403/2018 ORDER the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with section 27 of the Evidence Act, 1872. As noticed earlier, this is a converse case where the accused desire to undergo brainmapping/brainfingerprinting tests in support of their defence. As to what would be the evidentiary value of such test results cannot be gone into at this stage and the accused have a right to rely upon any available evidence to prove their innocence. Besides, if the respondentsaccused undergo such tests, no prejudice would be caused to the prosecution. In the opinion of this court, the binding decision of a coordinate bench of this court in the case of Dr. Purshottam Swaroopchand Soni v. State of Gujarat (supra) would be squarely applicable to the facts of the present case. Though the facts of the said case are slightly different from the facts of the present case, inasmuch as, the said case was based upon circumstantial evidence whereas the present case is one of direct evidence; in the said case, the accused right from the beginning had requested that he be subjected to narcoanalysis test whereas in the present case, such request has come at a much later stage on the ground that the accused seek to rely upon such evidence in their defence under section 315 of the Code. Nevertheless, the principles laid down in the said decision would be applicable to the facts of the present case, where the accused are alleging false implication and want to rely upon such test results in their defence. As to what would the evidentiary value of such test results, is for the trial court to consider at the time of trial, however, at this stage, in the light of the above decision of this court, the accused cannot be denied the right to undergo such tests.
15. While it is true that the learned Additional Sessions Judge in the impugned order has not given any reasons while allowing Page 50 of 91 R/SCR.A/6403/2018 ORDER the application made by the respondents accused, that by itself would not vitiate the impugned order when, this court, on merits, has found that there is no legal infirmity in the impugned order passed by the learned Additional Sessions Judge while permitting the respondents accused to undergo Brain Mapping/Brain Finger Printing tests as requested by them. "
16. This Court in yet another judgment passed in the case of Anilbhai Somabhai Macwan vs. State of Gujarat and others (supra) has held and observed that during the course of investigation, an application was preferred by the investigating officer before the Judicial Magistrate First Class, Nadiad to permit him to subject six persons named in the application to polygraph test or a lie detector test. In the application seeking necessary permission from the learned Magistrate, the officer concerned made himself very clear that he was not sure whether the case was one of homicidal death, accidental death or suicidal death. He requested in such circumstances to subject the person named therein to Lie Detection Test. In the matter before the Court, the persons named in the applications filed by the police officers were neither accused nor suspects. They were persons, who according to the petitioner, would throw some light on the death of the son of the petitioner, which was in mysterious circumstances.
17. As can be noticed in the last judgment, the status of the persons whose scientific tests were to be carried out lie detection test were neither accused nor suspects. In such circumstances, distinguishing their case from the case decided by the Apex Court in the case of Smt.Salvi and others vs. State of Karnataka (surpa) Court had permitted conducting of their examination by the investigating agency.
18. As could be seen in Dr.Purshottam Swaroopchand Soni vs. State of Gujarat (supra) so also in the case of State of Gujarat vs. Page 51 of 91 R/SCR.A/6403/2018 ORDER Inayat Ismail Vohra and other (supra), such request had come after the trial had already started.
19. The stage of section 315 of the Code of Criminal Procedure would come only after the trial is over. It is at that stage that the accused is required to adduce the evidence. He can be a competent witness himself and he has a right to be examined.
20. However, in the present case petitioners have been named by various witnesses as perpetrators of crime. Although no chargesheet so far has been laid against them, they have approached this Court to allow them to undergo Lie Detection Test and Brain Mapping Test.
21. What use can be made of the evidence which will be collected after once the petitioners are permitted to undergo the brain mapping test or the Lie Detection Test will be the question ,which does not beg attention at this stage. The vital aspect is whether the same could be permitted in wake of the statements given by some of the witnesses inculpating the present petitioners.
22. This Court cannot be oblivious that the object of scientific tests is not to provide for substantive scientific evidence against those who are guilty but also to elimiate the innocent.
23. In Salvi's case (supra), while holding that permitting forcefully any of the techniques upon an individual would be an unwarranted intrusion into his personal liberty, the Apex Court left a window open for voluntary administration of the said technique in the context of criminal justice, provided that certain safeguards are in place. As held therein, even with the consent of the person who undergoes such test, the test result by themselves would not be technically admitted in the evidence but there is a nothing to preclude the Court to permit such test at the request of the accused at his expenses.
24. The Court cannot disregard the reality existing in the field. It is a matter of record that both the communities of Bharvad Page 52 of 91 R/SCR.A/6403/2018 ORDER and Koli are at loggerheads. There are various prosecutions pending against the persons of each community launched and initiated by the persons of other community in cases of riots frenzy and involvement of large number of persons on each side.
25. It is always desirable to depend on the results of scientifically conducted tests, performed by the qualified experts as they are meant not only to substantiate involvement of persons who are allegedly involved in crime in question, but also, for eliminating innocent persons. At the stage of investigation reaching to the truth is since the sole objective, there is no ground when the request made by the petitioners be not allowed.
26. As can be noted from some of the judgments discussed hereinabove, its outcome is not, to govern this matter directly, for the test result not being admissible straightaway into the evidence, the same would surely beckon the path of the investigating agency. It would be for the trial Court to decide the admissibility and appreciability of such evidence at an appropriate stage.
27. Resultantly, the petition is allowed. Request of the petitioner to undergo Lie Detection Test and Brain Mapping Test, is permitted in connection with CR.No.I42 of 2015 registered with Thangadh police station, Surendranagar. The said test shall be undertaken on the investigating officer coordinating with FSL within a fortnight from the date of receipt of the copy of this order. This order, as indicated hereinabove, shall not come in the way of the State, if independently the material exists for it to proceed against the present petitioners. Expenses of both the tests shall be borne by the petitioners. Without being influenced by this order, the concerned investigating officer shall decide the course of action as provided under the law. Petition is disposed of accordingly.
Direct service is permitted."
Page 53 of 91 R/SCR.A/6403/2018 ORDER
10.1. Reference is also needed of the decision of
this Court (Coram: Harsha Devani, J.) in the
case of Inayat Ismail Vohra and other (supra), where both the applicants were directed against the order of learned Additional Sessions Judge, Vadodara, where the Sessions Court had allowed the Brain Mapping and the narco analysis test.
During the course of trial after five witnesses were examined when the complainant was in the witness box as the sixth witness, the Court considered the question as to whether tests of the Brain Mapping and Brain Fingerprinting can be carried out at the instance of the accused persons and replied as follows: "11. Before adverting to the merits of the case, it maybe germane to refer to the decision of this court in the case of Dr. Purshottam Swaroopchand Soni v. State of Gujarat (supra). In the facts of the said case, the petitioner was disputing the discovery panchnama made under section 27 of the Evidence Act. In the facts of the said case, the petitioner had made several applications for undergoing such tests even during the course of investigation; however, his request had not been acceded to. The court after hearing the learned advocates for the respective parties held thus:
"At this stage, it is required to be noted that in the present case, the petitioner is the accused. It is also important to note that Page 54 of 91 R/SCR.A/6403/2018 ORDER the accused is demanding Brain mapping test/Brain fingerprinting to prove his innocence. Brain fingerprinting is based on the principle that the brain is central to all human acts. In a criminal act, there may not be many physical evidences at the crime scene, but the brain is always there recording the sequences of the crime. The basic difference between a criminal and innocent person is that the criminal has the details of the crime stored in his brain, whereas the innocent does not. In Brain fingerprinting testing, the subject is made to sit in a quiet room with sensors on his headband that measure electrical brain responses. Three types of stimuli: targets, irrelevant, and probes, in the form of words, pictures, or sounds are presented for a fraction of a second each, under computer control. Incoming stimulus that is significant and noteworthy results in a specific, electrical brain response, known as P300, which is one aspect of a larger brain wave response known as M.E.R.M.E.R. (Memory and Encoding Related Multifaceted Electroencephalographic Response). However, determination of innocence or guilt is a legal entity rather than a scientific determination. The investigating agencies can take the results of Brain fingerprinting as an evidence along with all other available evidence to reach a verdict of guilty or not guilty. According to a study the accuracy rate of this test is 99.99 per cent and in U.S.A., the F.B.I. have been making use of this technique to convict criminals.
According to the petitioner he has been falsely involved in the case and he disputes recovery of weapon at his instance. It is also required to be noted that the petitioner is facing serious charge of offence of murder, which is punishable with capital punishment. The petitioneraccused himself volunteers for the Brain mapping test/Liedetector test. For a fair trial all possible evidence is required to be brought on record to decide whether the Page 55 of 91 R/SCR.A/6403/2018 ORDER accused is guilty or not. Denying any opportunity to bring on record certain evidence on the ground that the trial will be delayed would amount to denying substantial justice to an accused especially when he is facing a murder trial. On the contrary, if the Liedetector test/Brain mapping test is allowed, and if it is presumed that the said test is in his favour, that will not exonerate the petitioneraccused. The evidence is required to be considered in their totality. It cannot be said that merely on liedetector test/Brain mapping test the petitioneraccused will be acquitted even though other evidence against him are on record. Looking to the particular facts of the case, especially when the petitioner accused specifically pleaded for Brain mapping test, I am of the view that, such an opportunity cannot be denied on the ground that the trial will be delayed. It is also required to be noted that unless it is proved that the petitioneraccused is guilty, the presumption is always in his favour. Even if the Lie detector test/Brain mapping test is allowed, at the most, it may happen that the trial may be delayed by a few days. Moreover, if the test allowed, justice will be done to the petitioner and the prosecution can have no grievance about the test.
Under Art. 21 of the Constitution of India, it is the fundamental right conferred on every person, including an accused to have a fair and open trial. The scope of Art. 21 has received a liberal and expansive interpretation from time to time by the Apex Court and fair trial is the essence of the fundamental right conferred to every person under the Constitution. Under the right conferred by Art. 21 of the Constitution of India, if the liberty of a person is deprived otherwise according to the procedure established by law, then the Court can interfere in the matter.
On the facts of the case, it is the case of Page 56 of 91 R/SCR.A/6403/2018 ORDER the petitioneraccused that he has been falsely involved in the matter to save a sitting Minister/her relative. According to the petitioner a false case of discovery/recovery has been made out after a lapse of almost 10 days. Prima facie, it appears that the entire case is based on circumstantial evidence and there is no eye witness to the incident of murder. It is also true that there is no direct evidence against the accused involving him in the murder. The petitioner had earlier requested for Lle detection test at the stage of investigation, but the same was not carried out.
It is required to be noted that the right of the accused to give evidence to prove his innocence not only flows from the principles of natural justice, which is now held to be a part of Arts. 14 & 21 of the Constitution of India, but also under Sec. 315 of the Code of Criminal Procedure. Giving of evidence cannot be restricted only to giving of oral testimony in Court. In this century, electronic usage has been accepted in judicial dispensation. I am of the view that in a matter where it is the case of the accused that he is falsely involved, he should be permitted to give evidence in any form whether it be in the form of oral deposition before the Court or in the form of scientific nature like that of Brain mapping test. To deprive the accused of such a right would tantamount to violation of his fundamental rights.
The learned advocates for the petitioners have contended that there is a delay in filing the application seeking further investigation under section 173(8) of the Code. In this regard, it may be noted that the learned Additional Sessions Judge has not directed further investigation under section 173(8) of the Code. Under the circumstances, the said submission pales into insignificance. Insofar as the contention that the trial has not reached the stage of section 313 and 315 of Page 57 of 91 R/SCR.A/6403/2018 ORDER the Code and as such, the application is premature, it is apparent from the contents of the application made by the respondents "
accused that they had made such application while the prosecution witnesses were being examined with a view to ensure that when the stage of section 315 comes, the results of such tests are available. Besides, pending the present petitions, it appears that the prosecution evidence has already been closed and the stage of section 313 and 315 of the Code has already been reached. It appears that in those proceedings the accused have filed another application under section 313 and 315 of the Code for undergoing Brain Mapping/Brain Finger Printing and narcoanalysis tests. Thus, the contention that the application was made at a premature stage and ought not to have been allowed also no longer survives, inasmuch as, in view of the passage of time, the stage of section 313 and 315 of the Code has already reached. Insofar as the question of applicability of the principles of res judicata on the application made by the petitioners is concerned, it is an admitted position that on an earlier occasion, one of the accused persons had made an application seeking further investigation and narcoanalysis test of witnesses as well the accused for the purpose of bringing out the truth. The said application came to be partly allowed by the learned Judicial Magistrate by directing further investigation under section 173(8) of the Code; however, the request for narcoanalysis test of the witnesses came to be rejected. It has also been submitted that the said order has become final as the same has not been carried any further before the higher forum and hence, qua the respondent No.5 the application is barred by res judicata. In this regard, as noted hereinabove, the learned Judge has not directed further investigation under section 173(8) of the Code, but has directed the accused persons to undergo Brain Mapping/Brain Finger Printing tests for the purpose of using such evidence in their Page 58 of 91 R/SCR.A/6403/2018 ORDER defence. Thus, the earlier application filed by one of the accused who was pleading alibi and wanted to undergo narcoanalysis test and also wanted the witnesses to be subjected to such test for the purpose of proving his plea of alibi, whereas by the present application, all the accused seek to undergo brainmapping and brainfingerprinting tests for the purpose of using the results of such tests as evidence in their defence. Therefore, strictly speaking, the principles of res judicata will not be applicable to the application made by the respondentsaccused.
Coming to the main question involved in the present case, as noticed earlier, it is the case of the accused that they have been falsely implicated in the offence in question and that though the deceased had committed suicide, at the instigation of her husband, she had given a false declaration implicating the accused persons. It is in these circumstances that the accused want to undergo Brain Mapping/Brain Finger Printing tests and produce result thereof as evidence in their defence. True it is, that the Supreme Court in the case of Selvi and Others v. State of Karnataka (supra) has held that even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntarily administered test results, can be admitted in accordance with section 27 of the Evidence Act. At the outset it may be noted that the decision of the Supreme Court was rendered in the context of the facts of the said case, wherein the prosecution wanted to compel the accused to undergo such tests. Therefore, the legality of three scientific tests, namely, narcoanalysis, polygraph test (lie detector test) and Brain Electrical Activation Profile (BEAP) test, was Page 59 of 91 R/SCR.A/6403/2018 ORDER challenged inter alia on the ground that these tests violate the test subject's rights under Article 20(3) and 21 of the Constitution and section 161(2) of the Code. The court held that the person concerned has a right to remain silent on questions which may incriminate him. This protection is lost in case of narcoanalysis because the test subject under the influence of drug (sodium pentothal) injected into his body loses control over his verbal responses and therefore cannot decide consciously about the questions which he should not answer. Similar is the case with BEAP test wherein electrical waves emanating from test subject's brain are studied in response to probes. All these techniques involve testimonial compulsion. Thus, the test subject's right not to reveal any information which may incriminate him, is violated. This is a converse case, where the accused want to undergo such tests, whereas it is the prosecution that is resisting the same.
In the opinion of this court, while it is true that the Supreme Court in the context of the matter before it has held that even when the subject has given consent to undergo any of the said tests, the test results by themselves would not be admissible as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with section 27 of the Evidence Act, 1872. As noticed earlier, this is a converse case where the accused desire to undergo brainmapping/brainfingerprinting tests in support of their defence. As to what would be the evidentiary value of such test results cannot be gone into at this stage and the accused have a right to rely upon any available evidence to prove their innocence. Besides, if the respondentsaccused undergo such tests, no prejudice would be caused to Page 60 of 91 R/SCR.A/6403/2018 ORDER the prosecution. In the opinion of this court, the binding decision of a coordinate bench of this court in the case of Dr. Purshottam Swaroopchand Soni v. State of Gujarat (supra) would be squarely applicable to the facts of the present case. Though the facts of the said case are slightly different from the facts of the present case, inasmuch as, the said case was based upon circumstantial evidence whereas the present case is one of direct evidence; in the said case, the accused right from the beginning had requested that he be subjected to narcoanalysis test whereas in the present case, such request has come at a much later stage on the ground that the accused seek to rely upon such evidence in their defence under section 315 of the Code. Nevertheless, the principles laid down in the said decision would be applicable to the facts of the present case, where the accused are alleging false implication and want to rely upon such test results in their defence. As to what would the evidentiary value of such test results, is for the trial court to consider at the time of trial, however, at this stage, in the light of the above decision of this court, the accused cannot be denied the right to undergo such tests.
While it is true that the learned Additional Sessions Judge in the impugned order has not given any reasons while allowing the application made by the respondents accused, that by itself would not vitiate the impugned order when, this court, on merits, has found that there is no legal infirmity in the impugned order passed by the learned Additional Sessions Judge while permitting the respondents accused to undergo Brain Mapping/Brain Finger Printing tests as requested by them."
11. Yet another decision of this Court (Coram: J.B. Pardiwala, J.) in the case of Sunilkumar Page 61 of 91 R/SCR.A/6403/2018 ORDER Virajibhai Damor (supra) was delivered on 27.04.2018. Application under section 439 of the Code of Criminal Procedure was preferred in connection with the First Information Report registered with District: Ahmedabad for the offence punishable under sections 376(2)(f) and 376(2)(i) of the Indian Penal Code. The Court, after discussing at length the science and utility and objects of the lie detection test, Brain mapping test and narco analysis test, concluded that the Courts must protect the genuine victim and it is equally the duty of the Court to punish the accused only for the acts which he has actually committed.
12. Relevant findings and observations would be worthwhile to be reproduced hereunder: "11. Pursuant to the order passed by this Court referred to above, the applicant - accused was subjected to the following three tests at the Forensic Science Laboratory, Gandhinagar.:
(1) Lie Detector Test.
(2) P300 Test or Brain Mapping Test.
(3) Narco Analysis Test.
(1) Lie Detector Test:
The idea of using a polygraph for lie detection emerged at the end of the nineteenth century. Despite major Page 62 of 91 R/SCR.A/6403/2018 ORDER technological advances in the twentieth century, the polygraph has evolved little since its invention. The polygraph works under the assumption that lies can be detected by certain measurable physiological changes, a theory proposed more than 100 years ago. The three physiological vectors measured in the polygraphs in the 1920s (1) cardiovascular, (2) respiratory and (3) perspiratory activities are still measured by modern polygraphs. Although the polygraphs is still widely used, yet the critics question its accuracy because of the subjectivity involved in the test. The recent technological breakthroughs have created new machines for lie detection. However, since many of these new technologies still operate under questionable assumptions, they are still prone to error and misinterpretation. There are new technologies that can be used for lie detection. One is the facial thermal imaging, a technology that maps the facial blood flow. When a person lies, he or she often becomes anxious and excessive blood flows to the areas around the eyes. This blood flow can be detected by a thermal imaging screener. Lasers have been developed to detect muscular, circulatory, and other bodily changes assumed to be associated with the anxiety of lying. Some computer programs claim the ability to detect lies by analyzing the voice and tone of a speaker. According to their inventors, "when a person lies, an involuntary interference of the nerves causes the vocal cords to produce a distorted sound wave, namely a frequency level which is different from the one produced by the same person when telling the truth". One company has even developed a liedetecting keyboard, which is claimed to be able to detect the lies when a person types into a computer by analyzing typing patterns, sensing Page 63 of 91 R/SCR.A/6403/2018 ORDER moisture in fingertips, recording body heat, and monitoring how fast the fingers were moving when they hit the keyboard. Some of these methods may be more accurate than modern polygraphs due to the replacement of subjective judgment by an examiner with quantitative analysis by the computers. However, all of these techniques are still based on the assumption that lying is associated with certain physiological changes. These technologies were geared towards the identification of changes in the physiological conditions that might or might not be a direct result of lying.
Very recently, researchers have discovered that certain regions of the brain exhibit unique activity during lying. Interestingly, one of these regions, the anterior cingulate cortex, is a region that has been linked to conflict monitoring as well as attentions and response inhibition. This coincides with the idea that lying causes a conflict within the brain between the lie and the truth. The increased activity can be detected by functional magnetic resonance imaging (fMRI), which records brain activity by identifying changes in brain blood flow and metabolic rate[RS slotnick "Diogenesis New Lampo" American Scientist].
The Lie Detector test is an examination which is conducted by various probes attached to the body of the person who is interrogated by the Expert. The heart rate, the skin conductance is measured. The underlying theory of this test is that when people lie they also get measurably nervous about lying. The heart beat increases, blood pressure goes up, breathing rhythm change, perspiration increases, etc. A baseline for this physiological characteristic is established by asking the subject Page 64 of 91 R/SCR.A/6403/2018 ORDER questions whose answers the investigator knows. Deviation from the base line for truthfulness is taken as a sign of lie. Here, therefore there is no direct invasion of the body. In this test the polygraph is taken which gives this reaction and an expert would then explain these reactions in the court which would be his reading of the polygraph from which would flow his conclusion which are to be admitted or not admitted by a Judge on appreciation of the statement and the objections raised thereto. In this case the witness may answer or may not answer the questions. The response of his answers to the questions as recorded on the polygraph analysis of which is sought to be tendered as evidence if and when the occasion arises.
(2) Brain Mapping Or P300 Test:
In this test of Brain Mapping the suspect is first interviewed and interrogated to find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects. There are three types of words in the list used for Brain Mapping test, Part I consists of the neutral words, which have no direct relationship with the case. Part II consists of probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of the events related to the case. Then comes Part III which consists of target, which are not part of the first two parts. The words in this part are based on confidential findings which the suspect does not know. The recording of this test is done by acquiring the response through 32 channel EEGERP Neuro Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The 32 channel electrodes are placed according to the Page 65 of 91 R/SCR.A/6403/2018 ORDER internal system, and 32 discrete electrodes are placed over the scalp directly while conducting this test twice by presenting each word in three parts randomly. The suspect is instructed to relax and listen to the words presented in the auditory mode. This test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collection of evidence. In this case it is also not the direct violation of the body in ordinary sense of the word) is conducted. It will be seen that what is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. Here there is no verbal response from the witness. Except touching the physique of the person both these do not involve invasion of the body in the ordinary sense of the term.
(3) Narco Analysis Test:
It is conducted by injecting 3 grams of sodium pentathol dissolved in 3000 ml of distilled water and above solution is administered intravenously along with 10% of destrose over a period of three hours with the help of anesthetist. Obviously this test has some invasion on the body.
The rate of administration is so controlled to drive the suspect slowly into the state of hypnotic trace. The ECG and blood pressure are monitored continuously throughout the testing procedure. The revelations made during the hypnotic trance are recorded both in the video and audio cassettes. The entire conduct of the procedure is video graphed. The questions are designed carefully and are repeated Page 66 of 91 R/SCR.A/6403/2018 ORDER persistently in order to reduce the ambiguities during the drug interrogation. After the Narco examination is over the suspect is made to relax for 23 hours. The report prepared by the experts is useful in the process of collecting the evidence.
12. The Supreme Court in the case of Selvi and others Vs. State of Karnataka; 2010 (7) SCC 263 considered the legality of the three scientific tests viz.(i) Narco Analysis; (ii) Polygraph test (Lie Detector Test) and (iii) BEAP (Brain Electrical Activation Profile) Test. The legality of the three scientific tests were challenged interalia on the grounds that a direction to the accused to undergo those tests violate the rights guaranteed to the accused under Articles 20 and 21 of the Constitution of India and under Section 161 ( 2) of the Cr.P.C. It is undisputed that for conducting the Narcoanalysis test intravenous injection of Sodium Pentothal will be given to the subject of the test and due to which the subject of the test goes into hypnotic trance. In Polygraph test, some instruments like cardiographs, pneumographs, cardiocuffs, sensitive electrodes etc. would be attached to the subjects body before measuring the physiological responses. In BEAP test, electrical waves emitted from the subjects brain would be recorded by attaching electrodes to his scalp. Therefore, considering the nature of the three tests, the Supreme Court having considered very extensively the entire technical processes involved in the conduct of the said techniques/ tests and the legal position had held as follows:
The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000.Page 67 of 91
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These Guidelines should be strictly
adhered to and similar safeguards should be adopted for conducting the narcoanalysis technique and the Brain Electrical Activation Profile test. The text of these Guidelines has been reproduced below:(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a confessional statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual
narration of the manner of the
information received must be taken on record.
13. In the case at hand it is the accused, who on his own free will and volition agreed to subject himself to the three scientific tests referred to above, Page 68 of 91 R/SCR.A/6403/2018 ORDER as according to him, he is absolutely innocent and has been falsely involved in the alleged offence. The accused gave his consent for the purpose of subjecting him to the three tests so that he is able to primafacie establish that he is innocent and has not committed any offence of sexual assaults on a minor girl.
14. In the aforesaid context, Paragraph 121 of the Judgment in the case of Selvi (Supra) is relevant. Paragraph 121 is extracted hereunder:121.
The minority opinion also agreed with the majority's conclusion on this point since Das Gupta, J., held at p. 47:
"Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a `witness' during the investigation. Unless, however he is `compelled' to give the information he cannot be said to be `compelled' to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. ..."Page 69 of 91
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15. What is sought to be explained by the Supreme Court is that the results of the tests cannot be admitted as an evidence even though consented by the accused because no conscious control is being exercised by the subject during the course of the tests, but the Supreme Court left one option that if the subject consents for the tests, then any material or information discovered can be admitted under Section 27 of the Indian Evidence Act.
16. The results of the three tests are quite shocking. Mr. Rakesh Patel, the learned APP appearing for the State has placed on record the reports prepared by the Directorate, Forensic Science, Gandhinagar, as regards the three tests.
17. Report of the Lie Detector Test:When the parents of Mayuri approached the Principal Rekhaben on 16/09/2017, whether the Principal Rekhaben called Sunilbhai personally and reprimanded him in this regard. During that period, whether the parents of Mayuri came to make complaint of Sunilbhai or Meet? And whether it is necessary to investigate in detail in this regard? Whether the incident of Mayuri has been fabricated or concocted as Sunilbhai had discord with Rekhaben because Rekhaben joined the duty as a Principal in the Shahpur English Medium School or due to displeasure between Rekhaben and Sunilbhai? In addition to this, considering the papers of the entire case, it appears that the way Mayuri described the incident to the Councilor is suspicious. That is to say, if this kind of incident takes place with a minor, any child gets shocked due to his or her tender age or the child feels fear and hesitation while describing after remembering the said traumatizing situation, but in the case of Mayuri, it was not observed. Therefore, it is suggested to investigate as to whether Page 70 of 91 R/SCR.A/6403/2018 ORDER the incident had taken place with Mayuri in reality or not? and as to whether Mayuri has been tutored or not?
The Lie Detector Report is not very clear. In fact it appears from the contents of the report that the Expert has not be able to give any particular opinion. However, the suggestions referred to above are quite important.
18. Report of the Brain Mapping Test: In this report the following has been stated.
Preamble to Brain Electrical Oscillation Signature Profiling (BEOSP):
Direct participation in any activity involves percepto sensory motor volitional components of an individual resulting in the experience. Thus, it is deep seated and has specific source memory in terms of time and space of occurrence of the event. Certain EEG changes are found to be associated with the specific memory retrieving processes. It is found that when the brain of an individual who has participated directly in an event is stimulated by a part of information of that event in which he or she has taken part, the brain of the individual will respond differently from that of a person who has received the same information from secondary sources and has not directly participated in the event (non experiential). The change, in the electrical activation of the different parts of the brain in direct participation resulting in the experience of the event is unique and different. Based on principles of Neuroclinical psychology of Memory and retrieval, an effort is made to develop a technology to investigate the crime.
For the purposes of forensic investigation of the suspects, taking care of the constitutional provisions, an attempt is made to generate evidence from the perpetrator to connect the sequence Page 71 of 91 R/SCR.A/6403/2018 ORDER of events as they occurred in the crime by preserving his right to remain silent. Sequences of events as they have occurred are the base on which hypothesis is formed. Different scenarios are designed based on principles of encoding and retrieval of information. To test these hypotheses, event related items are used as probes designed in a consecutive and chronological manner to evoke the same psychological state as the perpetrator was in when the event occurred. Thus, each scenario will have different number of event related items. These scenarios are documented as audio probes or databank, which is presented to the suspect/subject through a computer, monitored audio system in the brain lab. The suspects in the brain lab with the electro cap on his head only listen these probes when presented. There is no response or answer expected from him. While suspect is listening to these event related scenarios, activation of different areas of the brain is recorded by an EEG ERP system. The recorded EEG is treated for artifacts and eye movement correction. The readymade software is used to derive epoch files for each probe separately. Software also generates readymade results based on statistical analysis. However as it is to be analyzed in the actual crime cases, epoch files are manually analyzed as activation present or absent in the different areas of the brain and is compared with the software results before conclusions are drawn.
Recording and Analysis:
The subject was made to seat in sound proof lab. 32 channels recording of the electrical activity of the brain was carried by placing 30 cephalic electrodes with reference electrodes in the ear lobes, and 2 channels for recording the eye movements. initially the baseline Page 72 of 91 R/SCR.A/6403/2018 ORDER recording was done with eyes closed and eyes opened. Then neutral probes were presented before presenting crime/event related probes in different scenarios to the subject and the EEG is acquired and analyzed .Electrical oscillations from the brain were picked up using electrodes placed at standard position such as FPl, FP2, AF3, AF4, F7, F3, F8, F4, FT7, FT8, F03, F04, T3, T4, C3, C4, TP7, CPS, TP8, 0P4, T5, T6, P3, P4, 01, 02, Fz,' Cz, and CPz. Electrical oscillations were acquired continuously with a band pass of 0.016100hz, without applying a notch filter. After continuous acquisition, epochs of 10,000 milliseconds were derived, time locked to each probe of which 3000 milliseconds were before presentation (pre stimulus) of the probe, followed by 7000 milliseconds from the start of the probe.
Analysis is carried out by the software program for left and right hemisphere electrodes separately and computed with different statistical analysis. After computing the baseline changes, further analysis is carried out across the mean baseline segments of activity and the result examined. After computing the baseline changes, further analysis is carried out across the mean baseline components and segments of activity incriminently over the next 7000 milliseconds. Only those changes, which are significance at 0.001 level of confidentiality (a change representing 2 standard deviation, change from the baseline mean) are considered as significant changes.
The changes in the power profile in each segment are classified into EK (Experiential knowledge, EM response, NE response, encoding present and primary processing present. All probes are processed, unless the subject has not attended to it, Changes in the different Page 73 of 91 R/SCR.A/6403/2018 ORDER frequency bands have different meaning in terms of cognitive processing. Software generates the result in the following category for the interpretation from the forensic angle.
1. Experiential Knowledge (EK): Activity related to remembrance of the experience triggered by the probe present. Presence of significant increase in activation level is the base.
2. Emotional Response (EM): Encoding present accompanied by overwhelming blanking of further processing. Probe has produced significant decrease (presence of high level of Desynchronization) in the activity of delta, theta, alpha, beta, gamma bands or no change in the activation level in the above bands, during and after probe presentation. The response is an indication of emotional stunning on hearing the probe.
3. Negative Response (NE): Probe has produced negative response equivalent N400. NE values are above 100 microvolts, it is treated as artifact.
4. Encoding (En): This is used when the probe has produced significant increase in activation in the delta, beta, gamma bands, but without increase in 0 2 Hz activity.
5. Primary Processing (PP): This is used when the probe has produced significant increase in activity only in the beta bands.
6. attention (In): Activity related to registration of the probe is not detected.
Conclusion:
On analyzing the B.E.O.S. of Sunilkumar Virjibhai Damor regarding committing sexual assault on Mayuri, the Sequential Experiential Knowledge is not found regarding the incident of sexual assault committed with Mayuri.
Sequential Experiential Knowledge of Page 74 of 91 R/SCR.A/6403/2018 ORDER Sunilkumar is found in "I am innocent in the rape case of Mayuri" and "I have been falsely implicated in the case of Mayuri." Therefore, Sunilkumar Virjibhai Damor is found to be innocent regarding the incident of Mayuri.
Opinion:Considering the case papers, discussion with the Investigating Officer, interview of Sunilkumar and his B.E.O.S. result, the statements of other victim girls are not corroborating or substantiating the allegation made by Mayuri that Sunilkumar had also misbehaved with other four girls. Considering the geographical condition of the room in which this incident occurred, it is found that it was possible to see the incident taking place inside the room from the windows of the room. Therefore, it is hardly possible that such kind of incident can take place in this room. It is found from the statements of other children that when the incident occurred, Mayuri was playing with them and this fact is coherent with the B.E.O.S. result of Sunilkumar.
19. Report of the Narco Analysis Test:Taking into consideration, aforesaid case papers, interrogation of Investigating Officer and the suspect and the results of narcotest, it is found that, (1) Looking to the geographical condition of the school room as shown by Mayuri, it appears that the glass of window of the room is found broken which opens up in the school lobby where the movement of student is found during recess time.
Under such geographical condition, the possibility of calling other girls into class room accompanying Mayuri, and committing the ill act appears the least. (2) Considering the statement of Mayuri, five girls were taken to Class V D (Gyanganga) during the recess on 15/09/2017 and boys were driven out of Page 75 of 91 R/SCR.A/6403/2018 ORDER the class. Psychologically, when child is driven out of the class, while keeping other girls in the class room, and room is locked up from inside, under such circumstances, out of curiosity, child would make an attempt to know as to what is happening in the class.
The clarification can be made in this regard if statements of the boys, who were driven out of the class room by Sunilkumar, are recorded.
(3) According to the statement of Mayuri, when five girls were taken to Gyanganga Class Room (5D), the hands of those five girls were tied from behind and handkerchiefs were tied on their mouths. Looking to the time of the incident (recess) and geographical condition of the class room, there is possibility of shouting by the children for the help at the time of this act against will. The fact creates doubt that Sunilkumar brought five handkerchiefs and five ropes for the five girls.
(4) During the recess time on 15/9/2017 and 16/9/2017, when the ill act was reported, Sunil Kumar was taking refreshments with other teachers during that period and he was talking with his wife on the phone. In this regard, further procedure be carried out after getting clarification on the basis of statement of other teachers and call details of Sunil Kumar.
(5) Supervisors Brahmabhatt, Pragnaben and Dilip Sahu are moving in the school during the school hours. Under such circumstances, whether these supervisors were directly or indirectly aware of this incident? The information should be obtained in this regard after making detailed inquiry of supervisors. Conclusion:During the Narco Analysis of Sunilkumar Virjibhai Damor in respect of the evil act committed with Mayuri, it was found that he has not committed the Page 76 of 91 R/SCR.A/6403/2018 ORDER evil act with Mayuri or any other girl of the school. If the child plays mischief, he used to beat lightly on the back of the child.
Further investigation be conducted after relating information received during Narco Analysis with other evidences/witnesses.
20. Thus, the reports of the three tests primafacie create a grave doubt as regards the involvement of the applicant
- accused in the alleged crime. In fact, the report of the Narco Analysis test as well as the report of the Brain Mapping test gives a cleanchit to the accused. The two reports state in clear terms that the accused is innocent.
21. The deception detection tests (DDT) such as polygraph, narcoanalysis and brainmapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to the crime. This information, which is known only to the self, is sometimes crucial for the criminal investigation. The DDTs have been used widely by the investigating agencies. However, the investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than the 'third degree methods' used by some investigators. Here, the claim is that, by using these so called, "scientific procedures" in factfinding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of conviction of the guilty and the rate of acquittal of the innocent. However, the Supreme Court in Selvi Case (supra) has held that an accused cannot be subjected to such tests without his consent.
22. It is only with the aid of the Page 77 of 91 R/SCR.A/6403/2018 ORDER results of the three scientific tests that I am in a position to reach to an appropriate conclusion whether I should exercise my discretion in favour of the applicant - accused or not. If I would have gone only by the say of the victim and her family members and rejected this bail application, then probably, I would have done injustice with the applicant. It is true that in a given case mere statement of the victim may be sufficient not only to decline bail but even to convict the accused for the offence of rape, but the case must be of a such type and the evidence also should be of that nature.
23. It is true that the courts as such have no role to play in the investigation. But, in appropriate cases, in the interest of justice, it is essential that the courts intervene and alert the investigating agency to collect the evidence before it is destroyed or delayed, to bring out the truth. A criminal court is the guardian of not only the victims alone. The courts in this country, even today work on the presumption that an accused is innocent until he is proved to be otherwise and insists for evidence. While the courts protect a genuine victim, it is equally the duty of the court to ensure that an accused is punished only for the act which he has actually committed.
24. Law is dynamic and not static and therefore, as society evolves, law has to keep in consonance with the changing social order. Law is the instrument of societal change and the judiciary has the responsibility of interpreting the law for the greater good. Therefore, it is clear that the judicial mind must stay in touch and keep in step with the advancement of humanity. To combat organised crime, its detection, investigation and prevention method have Page 78 of 91 R/SCR.A/6403/2018 ORDER to be employed synchronously. If the criminals use new technology in committing the crimes, the enforcement agencies need to use to the new techniques in solving such crimes. If the enforcement agencies do not use these new technologies for solving such complicated crimes, it would be very difficult to detect the perpetrators of such crimes. Therefore, in the context of the changing organised modern criminal who are taking shelters behind and making full use of the new sophisticated technologies. Krishna Iyyer J. Remarked, "the courts selfcriminate themselves if they keep the gates partly open for culprit to flee the justice under the guise of interpretative enlargement of golden rule of criminal jurisprudence".
25. With the rapid increase in the activities of the modern state, individualisation and changes in the socioeconomic and political scenario, more and more new crimes are coming up such as the custodial crimes, insurgency, terrorism, organised crimes, political crime and cyber crime etc. apart the enomorous increase in the traditional crimes like murder, rape, cheating, dacoity, domestic violence against women and children etc. The Criminal Justice System has failed to deliver proper justice to people at large. The different subsystem of Criminal Justice System has not been able to meet their goals and people have lost their faith in the existing Criminal Justice System.
26. Justice Gajendragadkar (As His Lordship then was) made the following observations in its 58th report of law commission of India which is quite noteworthy:
"We have sound judicial traditions; a coherent pattern developed for the organization of the judiciary; and a rational and systematic judicial process.Page 79 of 91
R/SCR.A/6403/2018 ORDER There is no doubt that these factors have conferred great advantages on the country. An independent and efficient judiciary, a unified judicial system and a modernized procedure - though legacies of the preindependence era - have been cherished by us. The judicial system has earned the respect of the people; and the respect so earned is well deserved".
27. Science and Technology are the modern-day engines of change and they continue to run relentlessly forward. The impact of change on all the areas of human life has been dramatic. Advancing technologies, along with the legislation designed to control it, will create crimes never before imagined. The future will see a race between technologically sophisticated offenders and the law enforcement authorities as to who can wield the most advanced skill on either side of the age old battle between the crime and justice.
28. Mr. Patel, the learned APP placed reliance on the observations of the Supreme Court in the case of State of Punjab Vs. Gurmit Singh & Ors.; 1996 (2) SCC 384. In this matter the Supreme Court allowed the State Appeal against acquittal and while convicting the accused under Section 376 of the IPC, observed thus:"
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's Page 80 of 91 R/SCR.A/6403/2018 ORDER privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
29. The Supreme Court also observed that the alarming frequency of crimes against women had led the Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters.
30. The observations in Gurmit Singh's Page 81 of 91 R/SCR.A/6403/2018 ORDER case were reiterated in Ranjit Hazarika vs. State of Assam (1998) 8 SCC 635 in the following terms:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon Page 82 of 91 R/SCR.A/6403/2018 ORDER corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
31. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness Page 83 of 91 R/SCR.A/6403/2018 ORDER and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, on account of some enmity or the other. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in Page 84 of 91 R/SCR.A/6403/2018 ORDER its applicability. This clearly shows that in so far as the allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. I believe that it is under these principles that the case at hand, need to be examined. [See: Rajoo & Ors. Vs. State of M.P.; 2009 (1) G.L.H. 600]."
1. The Court also had clarified that the report of the three tests would not by itself be contrary and it is open for the prosecution to lead appropriate evidence both oral as well as documentary for the purpose of establishing his case beyond reasonable doubt and it would be open for the defence to lead evidence in accordance with law. The report of Forensic Science Laboratory shall be considered by the trial Court along with other evidence that may be led in the course of trial in accordance with law.
2. A comprehensive tutorial review by Lawrence A. Farwell has also been pressed into service to point out that the report of brain Page 85 of 91 R/SCR.A/6403/2018 ORDER fingerprinting has virtually no error rate.
The error rate is 0% and 100% of determinations have been correct. Apt would be to refer the same as under: "Summary The role of brain fingerprinting in forensic science is to bring within the realm of scientific scrutiny the record of a crime, terrorist act, terrorist training, specific crime or terrorismrelated knowledge or expertise, or other relevant information stored in the brain of a suspect or other person of interest, and to develop reliable forensic science evidence based on the accurate detection of such information.
Brain fingerprinting is a scientific technique to detect concealed information stored in the brain by measuring eventrelated potential (ERP) brainwave responses. Brain fingerprinting laboratory and field tests at the CIA, the FBI, the US Navy, and elsewhere have detected the presence or absence of information regarding the following:
reallife events including felony crimes; real crimes with substantial consequences, including judicial outcomes such as the death penalty or life in prison;
concealed information in realworld cases where subjects were offered a $100,000 reward for beating the test;
knowledge unique to FBI agents; knowledge unique to explosives (EOD / IED) experts;
knowledge unique to US Navy medical military personnel;
pictorially represented knowledge; mock crimes and mock espionage scenarios; other laboratory tests and realworld applications.
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Brain fingerprinting computes a determination of "information present" (the subject possesses the specific information tested) or "information absent" (he does not) for each individual subject. The brain fingerprinting bootstrapping algorithm also computes a statistical confidence for each individual determination.
In data analysis, responses to probes are compared with two standards. Target stimuli provide a standard for the subject's brain response to known crimerelevant information, information which is provided to all subjects. Irrelevant stimuli provide a standard for the subject's response to irrelevant information consisting of plausible but incorrect features of the crime. Data analysis determines whether the response to the probes is more similar to the response to the targets or to the response to the irrelevants, and provides a statistical confidence for this determination. In our view, in order to be viable for field use, a technique must have less than 1% error rate overall, and less than 5% error rate in every individual study. Brain fingerprinting exceeds this standard. In over 200 cases including all field and laboratory research so far, brain fingerprinting has not produced a single error, neither a false negative nor a false positive. Error rate has been 0%. 100% of determinations have been correct. (Note, however, that this is simply a report of the actual data to date; no science can be generally characterized as "100% accurate" without qualification or reference to a specific data set.) In brain fingerprinting using the P300 MERMER, all tests have resulted in a definite determination with a high statistical confidence. There have been no indeterminates. In brain fingerprinting using the P300 alone, in less than 3% of cases, the data analysis algorithm has concluded that insufficient information is available to make a determination in either direction with a high statistical confidence, resulting in an indeterminate Page 87 of 91 R/SCR.A/6403/2018 ORDER outcome (not an error).
Brain fingerprinting specific issue tests detect information regarding a specific event at a particular time and place, such as a crime or terrorist act. Brain fingerprinting specific screening tests detect a specific type of knowledge or expertise, such as knowledge unique to FBI agents, bomb makers, or AlQaedatrained terrorists. Brain fingerprinting is not applicable for general screening, when the investigators have no idea what information is being sought.
Brain fingerprinting is highly resistant to countermeasures. Subjects have been taught the same countermeasures that have proven effective against other, nonbrain fingerprinting techniques. Countermeasures had no effect on brain fingerprinting, despite the $100,000 reward offered for beating the test with countermeasures and the motivation to beat the test inherent in realworld applications. All subjects, whether practicing countermeasures or not, have been correctly detected."
3. On this subject, yet another article, called "Braining Fingerprinting" a Critical Analysis by J. Peter Rosenfeld, a Ph.D. And Professor of Northwestern University is also brought on record.
4. Worthwhile would it be to refer to the insight of the author as an expert in the field: "One of the most serious potential problems with all deceptionrelated paradigms based on P300 as a recognition index is the potential vulnerability of these protocols to countermeasures (CMs). These are covert actions taken by subjects so as to prevent Page 88 of 91 R/SCR.A/6403/2018 ORDER detection by a GKT. (See Honts & Amato, 2002; Honts, Devitt, Winbush, & Kircher, 1996.) One might think that CM use would be detectable, and thus not so threatening to P300based deception detection. For example, if the subject simply failed to attend to the stimuli, then there would be no P300s to the targets, and that would indicate noncooperation."
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One may read the following claim on the BF Web site:
Farwell Brain Fingerprinting is a revolutionary new technology for solving crimes, with a record of 100% accuracy in research with US government agencies and other applications. The technology is proprietary and patented. Farwell Brain Fingerprinting has had extensive media coverage around the world. The technology fulfills an urgent need for governments, law enforcement agencies, corporations, and individuals in a trillion dollar worldwide market. The technology is fully developed and available for application in the field."
5. On the strength of these articles, which have been referred to hereinabove, it can be noticed that these tests essentially are designed, brain fingerprinting in particular, also responding to counter measures. The counter measures, in fact, as claimed by the experts have no effect on brainfingerprinting. Many rewards have been offered for beating the test with counter measures and they have not been successful in Page 89 of 91 R/SCR.A/6403/2018 ORDER beating.
6. Reverting to the factual matrix in the instant case, it can be noticed that the case is of murder of one Mr. Indrajith Zala, who was an undertrial prisoner and was out on temporary bail being an undertrial prisoner for the alleged murder of one Mr. Popatbhai Devabhai Bharwad belonging to Bharwad community and the present applicant belongs to Bharwad community.
Considering the fact that the applicant is, from the beginning, averring that his involvement has been with sheer vindictiveness and he be permitted to undergo scientific tests and as one of the objectives of these tests is to eliminate the innocent persons from the clutches of criminal justice machinery even if the results are not going to, in any manner, change the course of the trial, this Court is inclined to consider his request permitting him to undergo these tests at his own cost.
7. Let the Investigating agency schedule applicant's test in narco analysis, brain mapping and lie detection after scheduling with Page 90 of 91 R/SCR.A/6403/2018 ORDER the Forensic Science Laboratory as quickly as possible since the charges have not been framed so far. It is expected that within a period of four weeks, from the date of receipt of the copy of this order, the same shall be accomplished.
The outcome of which shall be governed by the law on the subject and would not automatically absolve the applicant. The petitioner to cooperate with the Investigating Officer.
Expenses shall be borne by the accused.
8. Petition stands allowed in above terms. Rule is made absolute accordingly.
(MS. SONIA GOKANI, J. ) SUDHIR Page 91 of 91