Allahabad High Court
Adesh Kumar vs State Of U.P. And Another on 17 November, 2020
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 93 Case :- APPLICATION U/S 482 No. - 16691 of 2020 Applicant :- Adesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
Heard Shri Rajesh Dwivedi, learned counsel for the applicant as well as learned Additional Government Advocate and perused the record.
This application u/s 482 Cr.P.C. has been preferred for quashing of the impugned order dated 15.10.2019 passed by the Special Judge (Protection of Children from Sexual Offences Act, 2012)/ VIII Additional District and Sessions Judge, Kanpur Dehat in application no.28 Kha under section 54 of Cr.P.C. filed by the applicant in Special Sessions Trial No.167 of 2017 ( State Vs. Adesh Kumar) and further prayed to direct the Court below to pass an appropriate order for DNA Test/ Narco Test as mentioned in the application No.28 Kha as well as other legal enquiry.
Learned counsel for the applicant submits that an F.I.R was lodged on 20.02.2017 which was registered as Case Crime No.28 of 2017, under Section 376, 506 I.P.C. and section 4 of Protection of Children from Sexual Offences Act, 2012 at Police Station Satti, District Kanpur Dehat against the applicant and his father by the first informant Sri Anand Kumar stating that on 09.02.2017 at 1.00 P.M. when the family members had gone for voting for general election, then the applicant aged about 18 years enticed her minor daughter and tried to outrage her modesty.
Learned counsel for the applicant further submits that the applicant has not committed any offence as alleged in the F.I.R and he has been falsely implicated in the present case. The real facts of this case are that some hot talk ensued between first informant and the mother of applicant on 18.02.2017 and the first informant has abused and assaulted with kicks and fists to the mother of the applicant. The applicant belongs to S.C./S.T caste and only due to fear and apprehension that the mother of the applicant might lodge the FIR under the SC/ST Act against him, he lodged the present F.I.R. against the applicant.
Learned counsel for the applicant further submits that the incident as alleged has taken place on 19.02.2017 at 13.00 hrs and the first information report was lodged on 20.02.2017 at 15.10 hrs. Thus the F.I.R. was highly delayed about 1 day but no proper explanation has been given by the first informant. The applicant is a good student and he has a bright future as is evident from his High School certificate. The applicant has been falsely implicated in the present case only with malafide intention and with the purpose for ruining his career. He further submits that several villagers have given their statements to the Investigating Officer with their signatures that the applicant is innocent. The applicant is below 18 years and has given an application before the Court of Juvenile Justice Board, Kanpur Dehat to declare him juvenile, which was rejected on 13.09.2017. The applicant has given an application bearing application No.28 Kha, u/s 54 of Cr.P.C. on 04.09.2019 before the Court of A.D.J. VIII/ POCSO Act Judge, Kanpur Dehat for D.N.A Examination/Narco Test to determine whether human bloods which was found on the body of the victim is of the accused or not and also to determine whether the spermatozoa found in the semen belongs to the accused. The said application submitted by the applicant was rejected by the Special Judge, POCSO Act/8th Additional Sessions Judge, Kanpur Dehat vide order dated 15.10.2019.
Learned counsel for the applicant further submits that the procedure as mentioned in the Cr.P.C is a balancing procedure for both sides i.e. prosecution side as well as defence side but in the present case, the opportunity of defence has been curtailed by the court below illegally and arbitrarily. There are much contradictions in the prosecution case from the beginning, hence it is clear that the prosecution is trying to implicate the applicant on the basis of false case. Therefore, in the present case, the DNA/ Norco Test is necessary to establish the case fairly. The Investigating Officer has not followed the procedure properly and he has falsely implicated the applicant on the basis of the statement of the first informant and his family members.
Learned Additional Government Advocate opposed the argument raised by learned counsel for the applicant and submitted that the court below has rightly passed the impugned order dated 15.10.2019 and further submits that in each and every case DNA/Narco Test cannot be directed to be done otherwise the entire system of the State machinery will collapse. It was further argued that this present application u/s 482 Cr.P.C. has been filed by the applicant only for delaying the trial. All the prosecution witnesses are examined and the case is at the final stage. Therefore, this application cannot be entertained at this stage.
Considering the arguments advanced by the learned counsel for the parties and after perusal of the record, the legal question involved in the present application filed under Section 482 CrPC relates to examine certain scientific techniques and principles for adjudication of the correctness of the allegations levelled against the applicant namely for D.N.A. (Deoxyribonucleic Acid), NARCO Analysis Test, etc. so that the Investigating Agencies may arrived at fair conclusion. To understand this aspect, it is necessary to examine the ratio of balance between efficient investigation and individual rights. Accordingly, Law, Science and Technology has a great relevance in our lives. Law and Science encounter each other in many ways. When technology intrudes in the ambit of legal rights it is checked by law, for example, cyber crimes, in the same manner to protect legal rights and strengthening the evidence with the help of science, cannot be denied.
At present days, when the legal system has so much advanced, criminals take care to erase all the evidences of their involvement, then in such case, scientific and highly sophisticated methods are required to trace the involvement of criminals. Narcoanalysis, Polygraphy and Brain Mapping tests collectively called deception detection tests (DDT) are new kinds of interrogation techniques including the DNA Test (Deoxyribonuclie Acid) which are simple and civilized way of conducting investigation. But, at the same time, one has to be conscious of its limitations also. It infringes fundamental rights under Article 20(3), and also right to privacy and right to health which are guaranteed under Article 21 of the Constitution of India.
In spite of the verily limitations, it affirms certain attributes also which includes: ''order of court', ''pre-consent of subject' ''non-manipulated statements by subject' and ''secure public interest' Thus, there is a tension between desirability of efficient investigation and preservation of individual rights.
Let us understand briefly the Concept Of Investigation-
In order to study about the scientific criminal investigation, we need to understand the term ''investigation', "Investigation means to examine, study, or inquire into systematically, search or examine into the particulars of; examine in detail, or, to search out and examine the particulars of in an attempt to learn the facts about something hidden, unique, or complex, especially in an attempt to find a motive, cause, it is about finding things."
According to the Code of the Criminal Procedure under section 2(h) of the Code," investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorized by a Magistrate in this behalf. Investigation, under the Code includes:-
1. Proceeding to the spot of crime.
2. Ascertaining the facts and circumstances of the case.
3. Discovery and arrest of the suspected offenders.
4. Collection of evidence, * examination of various persons including the accused and recording their statements in writing.
* Search of places or seizures of things which are considered necessary.
Criminal Investigation is an applied science that involves the study of facts, used to identify, locate and prove the guilt of a criminal. A complete criminal investigation can include searching, interviews, interrogations, evidence collection and preservation and various methods of investigation. Modern day criminal investigations commonly employ many modern scientific techniques known collectively as forensic science.
Application of science and technology in criminal investigation is also an important issue to be considered.
The search for effective aids to interrogation is probably as old as man's need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. The use of technology in the service of criminal investigations, and the application of scientific techniques to detect and evaluate criminal evidence has advanced the investigation process criminal justice system throughout the country. According to Cowan in his article "Decision Theory in Law, Science, and Technology", "the aim of science, traditionally put, is to search out the ways in which truth may become known. Law aims at the just resolution of human conflict. Truth and justice, we might venture to say, having different aims, use different methods to achieve them. Unfortunately, this convenient account of law and science is itself neither true nor just. For law must know what the truth is within the context of the legal situation: and science finds itself ever engaged in resolving the conflicting claims of theorists putting forward their own competing brands of truth."
This quote roughly means that the law needs to find the truth to resolve "human conflict" and one method of doing so is to use the field of science. Today's society has improved upon the methods of the past to bring about more precise and accurate techniques. Forensic Science has expanded to Trauma Inducing Drugs and Psychotropic Substances. The application of science to matters of law has made great strides in recent years. Development of new tools of investigation has led to the emergence of scientific tools of interrogation. Before analyzing these techniques it will be necessary and useful to frame and consider the question of law in this case.
Whether these scientific techniques infringes fundamental rights under Article 20(3) and also right to privacy and right to health which are guaranteed under Article 21 of the Constitution of India.
The following scientific techniques are important to be considered for the criminal justice system namely DNA profiling test/Narco analysis test in the present case. Before answering the above question, it is relevant to consider and examine the scientific and legal aspect of the above techniques along with other techniques and their use and application in the field of criminal justice, the following scientific techniques will be considered and discussed for adjudication of the case.
*Narco analysis Test *Brain Mapping Test/ Brain Electrical Oscillation Signature Profile (Beos) *Polygraphy Test *DNA profiling test * Fingerprinting Test Narco Analysis Test:
The term Narco-Analysis is derived from the Greek word narkç (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners. The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Following procedure has to be adopted while conducting narco test:-
#This test is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.
#Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory.
#The dose is dependent on the person's sex, age, health and physical condition.
#The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions.
#The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.
#Wrong dose can send the subject into coma or even result in death.
#The effect of the bio-molecules 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 agencies in the presence of the doctors.
#The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence.
A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's imagination is neutralised by making him semi-conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. The subject is not in a position to speak up on his own but can answer specific and simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Narcoanalysis is a tool which is now being, alarmingly, used by investigating agencies in criminal cases, as an interrogation technique. It was first used in 2002, in the Godhra carnage probe. During the Telgi scam, the use of narcoanalysis came under the scanner, and then it was used in the Arushi murder investigation. The scientific validity of the test has been questioned by medical professionals, and the legal validity has also been debated in several international and national cases.
Brain Mapping Test:
Brain-mapping is a comprehensive analysis of brainwave frequency bandwidths. In this test, forensic experts apply unique neuroscience techniques to find out if a suspect's brain recognizes things from a crime scene which an innocent person's brain will have no knowledge of.
In brain-mapping, sensors are attached to the suspect's head and he or she is made to sit in front of a computer screen. The suspect is then made to see images or hear sounds.
The sensors monitor electrical activity in the brain and register certain waves which are generated only if the suspect has any connection with the stimulus (image or sound).
This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist "Brain Wave Science", This method, called the "Brain-wave finger printing"; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject's head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the "target stimuli". In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect's brain would not have stored or recorded certain information, which an actual perpetrator's brain would have stored.
Lie Detecting Test:
A polygraph, popularly referred to as a lie detector, is an instrument that measures and records several physiological indices such as blood pressure, pulse, respiration and breathing rhythms and skin conductivity while a suspect is asked a series of questions.
Deceptive answers are said to produce physiological responses that can be differentiated from those associated with non-deceptive answers.
It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators.
What is DNA Here's a look at what DNA is made of, how it works, who discovered it and other interesting DNA facts. As per the writer Rachael Rettner, DNA stands for deoxyribonucleic acid, which is a molecule that contains the instructions an organism needs to develop, live and reproduce. These instructions are found inside every cell and are passed down from parents to their offspring.
DNA is made up of molecules called nucleotides. Each nucleotide contains a phosphate group, a sugar group and a nitrogen base. The four types of nitrogen bases are adenine (A), thymine (T), guanine (G) and cytosine (C).
Nucleotides are attached together to form two long strands that spiral to create a structure called a double helix. The double-helix structure as a ladder, the phosphate and sugar molecules would be the sides, while the base pairs would be the rungs. The bases on one strand pair with the bases on another strand: Adenine pairs with thymine (A-T), and guanine pairs with cytosine (G-C).
Human DNA is made up of around 3 billion base pairs, and more than 99% of those bases are the same in all people, according to the U.S. National Library of Medicine (NLM).
Similar to the way the order of letters in the alphabet can be used to form words, the order of nitrogen bases in a DNA sequence forms genes, which, in the language of the cell, cells tell how to make proteins. The shorthand for this process is that genes "encode" proteins. But DNA is not the direct template for protein production. To make a protein, the cell makes a copy of the gene, using not DNA but ribonucleic acid, or RNA. This RNA copy, called messenger RNA, tells the cell's protein-making machinery which amino acids to string together into a protein, according to "Biochemistry" (W. H. Freeman and Company, 2002).
DNA molecules are long -- so long, in fact, that they can't fit into cells without the right packaging. To fit inside cells, DNA is coiled tightly to form structures called chromosomes. Each chromosome contains a single DNA molecule. Humans have 23 pairs of chromosomes, which are found inside each cell's nucleus.
Rosalind Elsie Franklin (1920-1958) was a british chemist and crystallographer who is best known for her role in the discovery of the structure of DNA. DNA was first observed by Swiss biochemist Friedrich Miescher in 1869, according to a paper published in 2005 in the journal Developmental Biology. Miescher used biochemical methods to isolate DNA -- which he called nuclein -- from white blood cells and sperm, and determined that it was very different from protein. (The term "nucleic acid" derives from "nuclein.") But for many years, researchers did not realize the importance of this molecule.
How does DNA function?
Genes encode proteins that perform all sorts of functions for humans (and other living beings). The human gene HBA1, for example, contains instructions for building the protein alpha globin, which is a component of hemoglobin, the oxygen-carrying protein in red blood cells.
DNA sequencing involves technology that allows researchers to determine the order of bases in a DNA sequence. The technology can be used to determine the order of bases in genes, chromosomes or an entire genome.
Accordingly, what has been discussed above the three Tests namely Narco Analysis Test, Brain Mapping Test and Lie Detecting Test are called Deception Detecting Test which implies psychological evaluation of human brain. Deception, in another word means lying, it may lead to a serious aftermath in the enforcement of law and the proceedings in the courtroom, deception is defined as a deliberate attempt to mislead others. Hence, much effort is devoted by the forensic psychologists in developing different techniques and methods to detect lies. The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation.
The narcoanalysis is used as a tool of investigation, the procedure of narco analysis finds legal sanction under the newly amended Section 53 of the Criminal Procedure Code. In 2005, an Explanation clause was added to Section 53 of the Criminal Procedure Code, the relevant part of which reads as follows: (a) examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modem and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; The expression 'such other tests' signifies a provision for recognizing newly developed techniques in forensic science and permitting the same in investigative procedures.
The present criminal justice system is obsessed with individual liberty and freedom and in this context a safe passage forgone and criminals due to weakness in the criminal justice system leading to dilution of evidence. Since the validity of the test and admissibility of DDT upheld taking into consideration the circumstances under which it was obtained, there is a little possibility of miscarriage of justice when administered as per procedure prescribed and observing the due safety precautions, the apprehension on the part of counsels of accused and critics is unwarranted.
Deception detecting test comes under the general power of investigation (Sections 160-167,Cr.P.C.).But it must be realized that it is prerogative of the person to allow himself/herself to be put to the test or not and it should not be left to the discretion of police. Unless it is allowed by law and the accused himself, it must be seen as illegal and unconstitutional. But, if it is conducted with free consent' of the person it may be permitted. The person should be made well aware of the technicalities of the procedure, the effect of the narcotics under whose influence he shall be interrogated as well as the physical, psychological and legal ramifications of undergoing the procedure, this knowledge becoming the basis on-which he renders his voluntary consent.
''Free consent' means it is voluntary and is not given under coercive circumstances. For example, If a person says, "I wish to take a lie detectors test because I wish to clear my name". It shows his/her free consent but it is still to be shown that whether this voluntariness was under coercive circumstances or not. If a person is told by police "If you want to clear your name take a lie detector test" or" take a lie detector test and we will let you go" then it shows that police has linked up the freedom to go with the lie detector test and as such it cannot be held voluntary.
If an accused volunteers for a lie-detector test, then he should be given access to a lawyer and the physical, emotional and legal implications of such a test should be explained to him by both police and his lawyer. Moreover, the consent should be recorded before a judicial magistrate and during the hearing, the person who has agreed to the test should be duly represented by a lawyer. Among other things, NHRC guidelines say the actual recording of the lie- detector test should be done by an independent agency like a hospital and in the presence of a lawyer. Also, a full medical and factual narration of the manner of the information received must be put on record.
The use of Deception Detecting Tests has been questioned in courts. The main argument against it is the infringement of the fundamental right under Article 20(3)and under Article 21 of the Constitution, which provides for a privilege against self incrimination and right to health and privacy, respectively. The revelations made during the Narco analysis have been found to be of very useful in solving some sensational cases. Thus, it is right to say that DDT is proving to be a useful tool in the field of criminal investigation. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.
Accordingly, a person's DNA contains information about their heritage, and it can sometimes reveal whether they are at an elevated risk for certain diseases. DNA tests, or genetic tests, are used for a variety of reasons, including to diagnose genetic disorders, to determine whether a person is a carrier of a genetic mutation that they could pass on to their children and to examine whether a person is at risk for a genetic disease.
Genetic test results can have implications for a person's health, and the tests are often provided along with genetic counseling to help individuals understand the results and consequences.
People also use the results of genetic testing to find relatives and learn about their family trees.
Applicability of Section 27 in The Indian Evidence Act, 1872 in respect of above scientific techniques:- How much of information received from accused may be proved.- Provided 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 such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The right to remain silent is a legal right recognized, explicitly or by convention, in many of the world's legal systems. Universal Declaration of Human Rights, 1948 under Art. 11.1 declares, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Art. 14(3)(g) "Not to be compelled to testify against himself or to confess guilt". The European Convention for the Protection of Human Rights and Fundamental Freedoms states in Art. 6(1) that every person charged has a right to a ''fair' trial and Art. 6(2) thereof states:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." The right covers a number of issues centered around the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions.
The constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused.
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In, CrPC, the legislature has guarded a citizen's right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person "is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture".
The constitution of India guarantees every person right against self incrimination under Article 20(3) of the Indian Constitution "No person accused of any offense shall be compelled to be a witness against himself."
It is well established common law doctrine that every accused person is presumed innocent unless proved guilty and it is for the prosecution to prove the guilt and in the process the accused cannot be compelled to make a self incriminating statement.
The term ''self-incrimination' means the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L. Dani Hon'ble Supreme Court was pleased to hold that " no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. Moreover, under the influence of the drug, the accused has garbled speech and tends to talk about fantasies, and labours under delusions. For example, a person may talk about a crime s/he fantasized about committing, even if they actually have not done it. Their state resembles that of a person in delirium. So, it ultimately constitutes self incrimination of a person because it is difficult to distinguish reality from fantasy.
Self-Incrimination, Privilege Against the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination.
Self-Incrimination: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself.
Thus, Right to Privacy is implicit in the Right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution of India. None can publish anything covering the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If done so, it will be violating right to privacy of person concerned and would be liable in an action for damages.
Deception detection tests amounts to an invasion of privacy if it involves eliciting personal information from the accused known only to him. However, it must be noted that the test assumes the character of a restriction imposed by law on the said right.
It is further necessary to elaborate that the Society has the right to be protected against the criminal, and all of society's rights are manifestly superior to those of the criminal. There can be no gainsaying the fact that a suspect is either innocent or guilty, and no one knows the truth better than does the suspect himself. It, therefore, stands to reason, that where there is a safe and humane measure existing to evoke the truth from the consciousness of the suspect, that society is entitled to have the truth. If society has the right to take property, liberty, and life for its protection, then society has the right to make, by trained men, the use of truth serum legal. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. It was an instrument for the protection of the innocent and not intended for the acquittal of the guilty. If the right against self incrimination is upheld against the public interest and it would weaken the evidence and thereby denial of justice to the public. Murderers, money launderers, terrorist are allowed to walk away Scott free exploiting the loopholes in the legal system. Ironically in all these issues we apply criminal procedures only to protect the individual freedom of the accused while rights and lives of many people have been sacrificed.
The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation. The DDTs have been used widely by the investigating agencies. However, investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than ''third degree methods' used by some investigators. Here, the claim is that, by using these so called, "scientific procedures" in fact-finding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and the rate of acquittal of the innocent. Recently, these methods are being promoted as more accurate and best to none, without convincing evidence.
In this regard, the Hon'ble Supreme Court has taken similar view in Criminal Appeal No.1267 of 2004, Smt. Selvi and others vs. State of Karnataka (decided on 5th May, 2010) and was pleased to observe in paragraph nos. 217, 218, 219, 220, 221, 222 and 223 of the judgment as under:-
217. Even though the main task of constitutional adjudication is to safeguard the core organising principles of our polity, we must also highlight some practical concerns that strengthen the case against the involuntary administration of the tests in question. Firstly, the claim that the results obtained from these techniques will help in extraordinary situations is questionable. All of the tests in question are those which need to be patiently administered and the forensic psychologist or the examiner has to be very skilful and thorough while interpreting the results. In a narcoanalysis test the subject is likely to divulge a lot of irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the testimony of several other individuals or through the discovery of fresh materials. In a polygraph test, interpreting the results is a complex process that involves accounting for distortions such as `countermeasures' used by the subject and weather conditions among others. In a BEAP test, there is always the possibility of the subject having had prior exposure to the `probes' that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise.
218. Secondly, if we were to permit the forcible administration of these techniques, it could be the first step on a very slippery-slope as far as the standards of police behaviour are concerned. In some of the impugned judgments, it has been suggested that the promotion of these techniques could reduce the regrettably high incidence of `third degree methods' that are being used by policemen all over the country. This is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that investigators will increasingly seek reliance on the impugned techniques rather than engaging in a thorough investigation. The widespread use of `third-degree' interrogation methods so as to speak is a separate problem and needs to be tackled through long-term solutions such as more emphasis on the protection of human rights during police training, providing adequate resources for investigators and stronger accountability measures when such abuses do take place.
219. Thirdly, the claim that the use of these techniques will only be sought in cases involving heinous offences rings hollow since there will no principled basis for restricting their use once the investigators are given the discretion to do so. From the statistics presented before us as well as the charges filed against the parties in the impugned judgments, it is obvious that investigators have sought reliance on the impugned tests to expedite investigations, unmindful of the nature of offences involved. In this regard, we do not have the authority to permit the qualified use of these techniques by way of enumerating the offences which warrant their use. By itself, permitting such qualified use would amount to a law- making function which is clearly outside the judicial domain.
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, sleep-deprivation 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 pre-emptive 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 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 self- incrimination'. 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 non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A 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'.
223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. 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 voluntary administered test results 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 (Lie Detector Test) on an Accused' in 2000. 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.
Further, in the context of the present case, the Court is of the view that the DNA Test or Narcoanalysis Test, as prayed by the applicant, is of no relevance in the case of rape. The DNA Test can be said to be a conclusive evidence regarding rape, but the said DNA test will not conclude that the applicant had not committed rape on the victim, even the test come negative, it cannot be ruled out that the rape has not been committed, therefore there is no force in the argument of the learned counsel for the applicant and the prayer for conducting the DNA test and the Narcoanalysis test is refused.
In reference to the above findings, reliance is being placed on paragraph nos.6,7,8,9,10 and 11 of the judgment passed by Kerala High Court in Crl. Rev. Pet. No.2329 of 2012, Abdurahiman vs. State of Kerala (decided on 10th July, 2013), wherein the Court was pleased to observe as under:-
6. Learned Public Prosecutor contended that the question of paternity does not arise for consideration in an allegation of rape. It is not the paternity of the child that is in issue, but the question is whether the victim has been sexually assaulted. Even assuming that the DNA test goes against the victim, it does not mean that no sexual assault has been committed by the accused. Viewed from any angle, according to the learned Public Prosecutor, there is no scope for DNA test in a trial of a case of rape.
7. The learned Public Prosecutor relied on the decision reported in Babu v. State of Kerala [2013 (2) KHC 526] and pointed out that this Court has elaborately considered the necessity to conduct the DNA test in a case of rape and has come to the conclusion that even assuming that the DNA test is against the accused, that by itself is not a clinching evidence and that has no relevance in determining whether the act committed amounts to a rape or not. In the light of the principle laid down in the said decisions, according to the learned Public Prosecutor, claim made for DNA test has no basis.
8. True, normally, the court will not, as a matter of fact, shut out the evidence which enables the court to determine the truth. But to say that a DNA test is the necessity in a case of rape cannot be accepted. True, in the case on hand, from the deposition produced along with the petition of the defacto complainant, it is seen that she has a case of only a solitary instance of sexual intercourse with the accused as a result of which she claims to have been conceived. This aspect is highlighted by the learned counsel for the petitioner that the DNA test is the issue and that should have been allowed.
9. As already noticed, it is not the paternity that is in issue, but whether the act was committed by the accused, and if the act was committed by the accused, whether there was any consent on the part of the victim. Even assuming that the DNA test goes against the defacto complainant, that by itself may not be a ground to hold that the incident has not taken place as alleged by the victim. Sections 7 and 11 on which considerable reliance is placed by the learned counsel for the petitioner, have no application to the facts of the case. They deal with different circumstances and situations altogether. The learned counsel try to contend that the effect of sexual assault is impregnation and therefore, DNA test is relevant. It is not such an act which is contemplated by Sections 7 and 11 as could be clear from the illustrations provided by these Sections. The argument based on Sections 7 and 11 is misconceived.
10. True, in the decisions reported in State of Kerala v. Ayoob [2005 (2) KLT 441], the court has indicated the relevance of the DNA test. In the decision reported in Krishan Kumar Malik v. State of Haryana [2011 (7) SCC 130], in paragraph 45, it is held as follows:
"45. We have also gone through the orders of dismissal passed by this Court in Crl MP No. 9646 on 15.06.2009 as also of the review petition dated 5.11.2009 filed by Smt. Hardevi. Admittedly, the said orders passed in the SLP and the review petition by this Court did not assign any reasons for the dismissal, thus it would not be proper and safe for us to place reliance thereon."
11. Apart from the fact that in relation to the new provision of Section 53 (A) in Cr.P.C., that decision cannot be taken to lay down principle that in case of rape, DNA test is a must. This Court in the decision referred to by the learned Public Prosecutor has considered the issue elaborately and has held that it is not necessary to go for a DNA test nor can that the result of DNA test is conclusive either way. If that be so, there is no merit in the contention that if the DNA test goes in favour of the petitioner, he would be exonerated. As rightly pointed out by the learned Public Prosecutor, the issue is one whether the act is alleged to have been committed by the petitioner is with consent or not and not whether the child is that of the petitioner. Following the principles laid down in the decision rendered by the Division Bench of this Court referred to by the learned Public Prosecutor, it is held that the court below was justified in declining to grant relief to the petitioner for DNA test though for different reasons.
Further reliance has been placed on paragraph 3 and 5 of the judgment passed by Bombay High Court in Criminal Appeal No.111 of 2020, Dashrath s/o Hiraman Johare vs. State of Maharasthra (decided on 14th July, 2020) wherein the Court was pleased to observe as under:-
3. Per contra, learned APP vehemently submitted that, perusal of the judgment by the Trial Judge would make it clear that he has considered all the aspects involved. Taking into consideration the relationship, the appellant has not much disputed about the age of the victim girl. She is a `child', as contemplated under the POCSO Act. In her FIR; statement under Section 164 of Cr.P.C. and testimony before the Trial Court, she has clearly stated that, she was raped by the present applicant-appellant and thereafter she has become pregnant. The learned Trial Judge has rightly held that there may be a mistake in taking the sample and, therefore, the said DNA test will not conclude that the applicant had not committed rape on the victim. The purpose of DNA test is different and even if it has come in negative; yet it does not rule out that the appellant never committed forcible sexual intercourse on the victim. The present appellant has taken disadvantage of the physical situation of the victim as well as her mother. He deserves no sympathy at all for committing such heinous crime.
5. It appears that the appellant is heavily relying on the result of the DNA test. In fact, the accused had admitted that document and, therefore, it appears that the concerned authority, i.e. Chemical Analyzer, was not examined by the prosecution. The learned Trial Judge has taken pains to say as to whether the DNA test can be said to be a conclusive evidence regarding rape and whether it can be solely relied on by excluding the ocular evidence. This Court agrees to the observation made by the learned Trial Judge that the DNA report is a corroborative piece of evidence. Whether the ocular evidence is believable or not and whether it has shaken in cross, will have the effect on the ultimate analysis of the evidence. The general principle is that when there is variance between the ocular evidence and the medical evidence, then in catena of judgments, it has been held that ocular evidence will have to be given weightage as compared to the medical evidence.
Further reliance has been placed on the judgment passed by Kerala High Court in Crl. Rev. Pet. No.2280 of 2003, Anil Kumar vs. Ayyappan and another (decided on 5th April, 2013) and submitted that the Court was pleased to observe in paragraph no.15 of the judgment as under:-
15. Finally, it is pointed out by the learned counsel for the revision petitioner that, at the appellate stage a document was produced which would show that maintenance was claimed for the child. Whether such a petition was filed or not is not a matter in dispute. But, one fact is very clear that the order by which the maintenance petition was allowed to be withdrawn was passed subsequent to the judgment of the trial court in S.C.No.10/1996 whereby the petitioner stood convicted and sentenced to suffer a term of imprisonment already made mention of. It is clear that he could not have produced the said order at the time of trial. The significance of the order is that, it is seen that when the petitioner receives summons on the proceedings instituted by PW3 for maintenance of the child, he moved a petition for DNA test. When that petition was taken up for hearing, it is seen that the petitioner submitted that the petition for maintenance is not pressed and that may be dismissed. Normally, DNA test had of no relevance in a case of rape. But, here one has to remember that there is only a solitary incident of violation of the body of the victim and the victim has a definite case that because of the said act she conceived. There is no case for the victim or her father that any subsequent sexual assault had occurred. Under these circumstances, the DNA test assumes significance and importance. Whatever that be, these aspects have not been considered by the courts below. May be because it was not urged at the relevant time. However, it is felt that these matters have a substantial bearing on the issue.
Accordingly, in view of the discussion made above and in light of the judgments passed by the Apex Court referred above, this Court is of the view that the confessions made by a semi-conscious person is not admissible in court. Deception Detecting Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assess its admissibility. Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation.
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. Conducting of Narco Analysis Test and Brain Mapping Test on the accused is 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. 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. 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.
The criminal justice system should be based on just and equitable principles. In spite of the fact that Narco Analysis is "not so reliable" method, its significance and necessity in the present scenario cannot be in any way negated but yet it has its own controversies and concerns. With the growth and development of society the nature of the crime has been also changing and diversifying. The developments and advancements in science and technology should be utilized to the fullest for effective aids to interrogation and investigations in criminal justice system.
It could be understood that these pscho-medicl tests are violative in character but at the same time individual interest cant be placed above collective interest. Let us fulfill the dream of having crime free society and the maxim "Jura publica anteferendaprivatis juribus" should be followed meaning thereby "public rights are to be preferred to private rights whenever there being a dilemma between individual liberties and security of public interest. The Forensic science is defined as the application of science in answering questions that are of legal interest. More specifically, forensic scientists employ techniques and tools to interpret crime scene evidence, and use that information in investigations.
The DNA evidence, no doubt has the ability to increase the accuracy of verdicts in criminal trials. But this does not mean that we should be complacent about its use and presentation. DNA will create a comprehensive database eventually resulting in a human databank of DNA publicly accessible and tremendously utilized in criminal investigations.
Further, in the context of the present case, the Court is of the view that the DNA Test or Narcoanalysis Test, as prayed by the applicant, is of no relevance in the case of rape. The DNA Test can be said to be a conclusive evidence regarding rape, but the said DNA test will not conclude that the applicant had not committed rape on the victim, even the test come negative, it cannot be ruled out that the rape has not been committed, therefore there is no force in the argument of the applicant's counsel.
This Court cannot go into the disputed questions of fact once the prima facie offence is made out and in the present case, as per the allegation, prima facie offence is made out against the applicant. Therefore, no case is made out by the applicant for interference by this Court exercising power under Section 482 CrPC for the relief claimed and no such direction can be issued as prayed by the applicant.
In the result, the prayer for quashing of impugned order dated 15.10.2019 passed by Special Judge (Protection of Children from Sexual Offences Act, 2012)/VIII Additional District and Sessions Judge, Kanpur Dehat in Application No.28Kha, under Section 54 CrPC is refused. There is no merit in this application filed by the applicant under Section 482 Cr.P.C.
Accordingly, this application filed under Section 482 Cr.P.C. by the applicant is dismissed.
Order Date :- 17.11.2020 SFH/SP