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Sexual offences against children are one of the most heinous crimes that can be committed. The raisons d’être of this aspect is that children are the most vulnerable to abuse. Sexual offences against children refer to any act of sexual activity involving a child or a minor. In India, sexual offenses against children are covered under the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as POCSO Act).
POCSO Act defines child as any person below the age of eighteen years.
Sexual offences committed against a child are of a grave nature and often call for the usage of complicated investigative techniques. These include scientific tests like Narco Analysis, Brain Mapping and Polygraph tests.
- Narco Ananlysis test: Narco analysis is a controversial investigative technique used in criminal investigations to extract information from a suspect’s subconscious mind through the use of drugs. The procedure involves injecting a subject with a sedative drug, such as sodium pentothal or amobarbital, to induce a state of hypnotic trance or a semi-conscious state. The subject is then asked a series of questions to elicit information that they may be concealing or have forgotten due to psychological trauma.
- Brain Mapping: Brain mappingis a technique used to visualize and study the structure and function of the brain. This method involves the use of various imaging technologies, such as magnetic resonance imaging (MRI), computed tomography (CT) scans, positron emission tomography (PET), and electroencephalography (EEG). The process of brain mapping involves creating detailed images of the brain’s anatomy and function to identify the areas of the brain responsible for specific functions, such as speech, memory, or movement.
- Polygraph test: Polygraph tests, also known as lie detector tests, are a type of diagnostic tool used to measure physiological responses in a person while they are being asked a series of questions. The test is based on the idea that when a person is lying, there are changes in their physiological responses, such as an increased heart rate, blood pressure, and respiration rate. During a polygraph test, the person being tested is typically connected to sensors that monitor these physiological responses. The examiner then asks a series of questions, both relevant and irrelevant, and analyses the person’s responses to determine if they are telling the truth. The results of the test are typically presented as a graph, with spikes indicating times when the person’s physiological responses were particularly high.
Some people argue that these scientific tests are a violation of a person’s rights and dignity, as they involve the use of drugs to coerce the subjects into revealing information. Others argue that they are a necessary tool for law enforcement to gather information that could help solve crimes. In either case, it is important to seek free consent of the subject before conducting any of such tests on them.
BACKGROUND AND BRIEF FACTS OF THE SESSIONS CASE NO. 160/2015
The accused was a neighbour of PW 4 (the victim). PW 4 is a four year old child who was friends with the grandson of the accused, Reyan. PW 4 used to visit the accused’s house frequently to play with Reyan and the same happened on the date of occurrence of the event. On that day between 10.30 AM to 12 Noon, when PW4 was at the house, the accused caught hold of her, removed her panties, insert his fingers into her vagina and went on to ascend on the body of PW 4. Thereafter, the accused started crying upon which, other family members of the accused residing in the house, arrived on the scene. Reshma, the mother of Reyan after witnessing the same ousted PW 4 from the house and banished her from ever coming back.
Throughout the day, PW 4 suffered acute pain in her urethra. The next day PW 4’s mother, took her to PW 2, Dr. Lakshmi who prompted PW 1 to report the matter to the police. Subsequently, the matter was informed to the Child Welfare Committee, First Information Report(hereinafter referred to as FIR) was lodged, statements of the witnesses were recorded and medical examination of the accused was conducted by the District Hospital.
The results of the medical examination corroborated the oral evidence given by the victim and other witnesses.
In contrast, the accused in his statement recorded under section 313 of The Code of Criminal Procedure (hereinafter referred to as CrPC) denied any and all allegations whatsoever.
The Special Judge, Thrissur held in favour of the victim and found the accused guilty under section 6 read with section 5 (m) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and Section 376 (2) (i) of the Indian Penal Code (hereinafter referred to as IPC).
BACKGROUND OF LOUIS V. STATE OF KERALA (2021)
Soon after the decision of the Special Judge in Sessions Case no. 160/2015, the accused/petitioner filed a Criminal Miscellaneous Petition before the Hon’ble High Court of Kerela, seeking the Hon’ble High Court’s permission tosubjecthimself to Narco Analysis test in order to substantiate his statement under section 313 of the CrPC.
LEGALITY OF NARCO ANALYSIS TEST
Time and again different courts have opined different stances on the permissibility of Narco Analysis during criminal investigations. The use of scientific methods like Narco Analysis, Brain Mapping and Polygraph testsas a tool for criminal investigation in India has been a topic of significant debate and controversy. There have been conflicting views on the subject. The judgement of Louis v. State of Kerala discusses these distinct views.
VIEWS IN FAVOUR OF PERMITTING NARCO ANALYSIS TEST
The counsel for the accused/petitioner argued that in cases akin to the present one, wherein the culpable mental state of the accused is presumed, the accused having a reverse burden of proof be allowed to subject himself to Narco Analysis test to rebut such statutory presumptions. In this regard the counsel for the accused/petitioner placed reliance on Selvi v. State of Karnataka and argued that in case the accused/petitioner is a hapless man coming before the court to seek permission to voluntarily undergo Narco Analysis test, then the same should be permitted to help him prove his innocence.
VIEWS AGAINST NARCO ANALYSIS TEST
There are several limitations of Narco Analysis test including but not limited to:
- No uniform criteria for evaluating efficacy: Narcoanalysis produces varying responses and there is no method of determining absolute truthfulness of the responses.
- Inconsequential or fanciful responses: Since the subjects are in a hypnotic state under the influence of drugs, they may fabricate bizarre stories or apprise futile incidents completely unrelated to the matter. This may either lead to wastage or time and resources or unjust incrimination of the subject.
- Obscurity with respect to the subject’s involvement in the case: Merely because a subject divulges information substantially accurate with the facts of the case, it cannot be said that they were directly involved in the crime. There is a possibility that the subject was only a bystander or a chance witness to the crime.
- Consent cannot be equated with voluntariness: Subsequent to the initial consent given by the subject, they are unable to repeatedly exercise their free choice of answering or remaining silent to any question due to the influence of drugs. The subject under Narco Analysis test is not in a consicious or aware state. Section 3 of the Indian Evidence Act defines Fact as a mental condition about which a person is conscious. The categorical mention of the word conscious substantiates the premise that mere consent does not show voluntariness especially in a hypnotic state of mind.
- Lack of credibility:There is a high chance that despite being under the influence of Narco Analysis test, the subject concocts exculpatory evidence. Since, there is no absolute success rate, the credibility of the responses given by the subject is dubious.
It cannot be said with absolute certainity that the results obtained through such methods are absolutely reliable. Therefore, standalone evidences obtained by such scientific tests should not be completely relied upon for proving the guilt or innocence of the accused. The Hon’ble High Court of Kerala held a similar view in the present case and dismissed the Criminal Miscellaneous Petition on the ground that it was devoid of merits because the accused/petitioner’s prayer seeking himself to be subjected to Narco Analysis test so as to provide a corroborative piece of evidence to his statement under section 313 of the CrPC is not sustainable under law.
ANALYSIS AND CONCLUSION
Sexual offences against children are a heinous crime and can have long-lasting and devastating effects on the child’s physical, emotional, and psychological well-being. Victims of sexual abuse often experience trauma, depression, anxiety, shame, and guilt despite no fault of their own. The culpable mental state of the accused, the appalling nature of such crimes and the complexities associated with the investigative process, in such circumstances, sometimes, render the usage of scientific methods like Narco Analysis, Brain Mapping and Polygraph Tests necessary.
The gravity of the offence and the unlawfulness of the investigative technique opted for gathering evidence are directly proportional to each other. As the crime becomes more heinous, the degree of crookedness of the investigative techniques increases in order to extract as much evidence as possible.It must be kept in mind that the usage of these scientific methods for extracting information should be with the free consent of the subject otherwise it can lead to the violation of basic human rights of the subject such as the right to privacy, the right against self-incrimination, and the right to a fair trial.Furthermore, it is pertinent to be acquainted with the fact that the use of these scientific techniques cannot be a substitute for a voluntary confession. This is because, the evidence gathered by way of these scientific techniques cannot be completely believed. There are certain grey-areas in such scientific methods and techniques because of which the evidence in isolation is not one hundred percent reliable, rather it should be utilized as a corroborative piece of evidence.
Author: Sonakshi Pandey, A Student at Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us via email to firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.