A Probe that Defeats the Idea of Procedural Justice – [EDITORIAL]

by Anchal Batheja

In the backdrop of the Hathras horror, it can be said that The Police’s brutal probe added another layer of brutality to the whole incident. Starting off from the mid night cremation of the victim’s body, preventing the opposition leaders from meeting the victim’s family and imposing a lockdown in the whole region, the next in series of state facilitated atrocities comes the investigating agency’s interest in conducting a Narco and polygraph test on the victim’s family.

I argue that besides the fact that, these tests are illegal and unconstitutional, the reasons being cited by the Police to justify the carrying out of this illegal method of extracting confessions and evidence, are just a gamut of distorted facts and misapplied laws.

The Science Behind the Tests:

A Narco analysis is basically a test wherein the subject is administered a drug which deactivates the parts of the brain which are responsible for concealing information in one’s own interest. Under the affect of this drug, the subject is more likely to divulge information that they may not divulge while they are in their senses.

A polygraph test assesses the physiological changes in the subject like variation in pulse, blood pressure, electro conductivity of skin and brain activity. This is done to see whether they are speaking the truth or not. The science behind these tests is that speaking a lie causes physiological stress which can be captured by the lie detector machine.

The legality and constitutionality of such tests:

However, the Supreme Court while determining the constitutionality of such tests has held that these tests are in contravention of the right against self-incrimination. Unlike, DNA, finger prints and blood samples which are physical attributes of an individual and can be used to derive information about the offence committed and therefore, are constitutionally and legally permissible, Tests like the Narco analysis test and polygraph test  aim at accumulating such information from the subject  that is in their special knowledge. It is a well-recognised principle of law that when a person makes a confession, they should also have the animus confided that is the knowledge that they are making that confession. Moreover, section 164 of the Code of Criminal Procedure 1973 makes only one species of confessions admissible before the court of law and that is when it is duel recorded by a judicial magistrate. It has some parallels with Miranda warnings of USA, wherein the accused is informed that they are not bound to make the confession, that they have a right to stay silent, that they should make the confession out of willingness, that they ought not be afraid of any threat, promise inducement and once they make the confession, it can be used against them in the court of law, to draw an adverse inference against them. The scheme of this section is such that whenever a witness or accused gives any statement, there needs to be a necessary element of voluntariness. This voluntariness is absent in Narco analysis and Polygraph test.  Due to all these reasons, the SC opined in Selvi v. state of Karnataka that these tests were in violation of article 20 (3) and could only be conducted when the person concerned consented to undergo these tests. The court further held that even when these tests were conducted, only the mental facts that led to subsequent discovery within the meaning of section 27 of the Indian Evidence act 1872 could be introduced into evidence.

The court in Selvi, had forbidden these tests on both victims and accused and as per section 2 (WA) of the CRPC “victim” includes their guardian and legal heirs as well. Thus, the police’s insistence on conducting such tests is illegal and unconstitutional.

How the State Justifies the Illegal Probe?

The two reasons being cited for conducting narco analysis and polygraph tests on the victim’s family are I. the victim’s dying declarations were contradictory and II. The medical report confirms that there was no rape.

Concerning the Dying Declarations

It is submitted that the dying declarations were not contradictory and were rather logically consistent. The victim reported that she had been assaulted and strangulated on 14 September 2020, as soon as she was brought to the hospital. However, when she realised that the chances of survival were minimal, she decided to break her silence and report the rape on 22nd September 2020. Her dying declaration was recorded by the judicial magistrate in accordance with section 32 (1) of the Indian Evidence Act. There are justifiable reasons for this delay because reporting rape is difficult due to social stigma.

Even if this delay in reporting rape, is to be viewed with suspicion, the law on inconsistent and contradictory dying declarations is clear. As per the holding in Kushal Rao v. State of Bombay, the court should consider the background facts of all the dying declarations and accord greater evidentiary value to the dying declaration which can be corroborated by independent facts. In this case, the victim’s mother’s testimony and the injuries on her body can be used to check the veracity of the dying declarations the and the usage of narco analysis and polygraph test on the family of the deceased victim is unwarranted nevertheless.

Concerning Absence of Rape

The UP police relied on a forensic science laboratory (FSL) report to say that there was no rape. However, this report only confirmed the absence of sperms in the vaginal swab which does not tantamount to the absence of rape. This is because,Medically speaking, the ordinary life cycle of sperm is 3-4 days and if a test is conducted anytime after 72 hours of the incident, it cannot be said to be an accurate or conclusive proof of the existence or non-existence of the sperm. In fact, the test can be considered reliable within this 72 hours bracket only and only when the victim has not taken a bath or freshened herself up. In this case, there is evidence to suggest that the victim had changed her clothing before she was admitted to the hospital. Thus, the veracity of this FSL report should be viewed with great deal of suspicion.

In any case, as per the interpretation of section 375 of the Indian Penal Code 1860 by the Supreme Court in the case of Radhakrishna Nagesh v. Union of India AIR 2009 CRL 1707  complete penetration and ejaculation are not necessary ingredients to make out an offence of rape. The court ought to examine the prosecution evidence in its entirety and see its cumulative effect to conclude as to whether offence of rape could be made out or not.

Thus, it can be said that it was very premature on the part of the police to conclude that there was no rape when the veracity of the FSL report is doubt worthy and the legal definition of rape is broader than the police claim.

Concluding Remarks

 Unlike civil offences, crimes are considered to be a threat to the society, which is why the state is itself vested with the responsibility of prosecuting the accused. The whole jurisprudence and scholarly colloquium for accused rights is founded on this power balance between the victim and the accused wherein the former is backed by the humungous state machinery and the latter is just powerless before the state. but an equation where the state refuses to side with the victim and indulges in subtle enterprise of covering up for the accused, the victim stands doubly victimised, for the first time by the assailant and for the second time by the state. It is important to notice this shifting trend and trace the roots of this problem which most probably goes to the politicisation of police. It is only after the detection and conscious realisation of the existence of the problem that any rectification would happen.

Views are personal.

Image credits: The Indian Express


Anchal Batheja is currently pursuing law from National Law School of India University, Bangalore and is a Founding Editor at ELS Review.

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