If a dying declaration is gospel, then the evidence of a person’s inner voice too should be officially accepted. A dying declaration is admitted as evidence on the grounds that a man will not meet his maker with a lie in his mouth — “nemomoriturus prae-sumitur mentire”. Section 32 of the Indian Evidence Act 1872 recognises such declarations as evidence against the accused in the specified circumstances.
In contrast, the Supreme Court of India in Smt Selvi & Ors Vs State of Karnataka, (2010) 7 SCC 263 was loth to give its unqualified thumbs up to declaration by the living under DDT (diversion detection tests) comprising narco test, polygraph test and brain mapping among others carried out on an accused or a witness on the grounds that:
1. They violate article 20(3) of the Constitution — no one shall be compelled to make self-incriminating statements;
2. They violate right to liberty enshrined in article 21 by adoption of intrusive techniques which in Courts opinion DDT kit is all about; and
3. They would be the quick-fixes adopted with alacrity by the police and investigative agencies to show speedy results.
The apex court turned down the argument that such tests were infinitely better than third-degree methods usually applied by the police in making an accused squeal and spill the beans. To paraphrase the court, if the argument were to be accepted it would amount to jumping from fire to frying pan. The court, however, almost post-haste, permitted the use of such techniques in criminal cases with prior consent of the person about to be subjected to such tests, and with some safeguards. This has provided the proverbial silver lining that has been latched onto by the police and investigators in India. In the USA, 23 states have given their okay with similar restraints.
The apex court, while pointing out that the Indian Evidence Act does not recognise the results of such tests as evidence, went on to say that the results however can be used in follow-up investigations. This is the second silver lining in what prima facie appears to be a jaw-dropping verdict. To wit, in the infamous Maharashtra stamp paper scam that rocked the nation in the last decade of the last century, the accused Abdul Karim Telgi named some prominent politicians in the course of the narcoanalysis test, that prompted the then BJP President Nitin Gadkari to ask CBI to follow up on the leads. It is another matter that no such follow-up investigations seem to have been done, resulting in Telgi taking the rap.
Thanks to the thaw provided by the SC, which didn’t pass a peremptory order against DDT but instead left the matter to the wisdom of the trial courts subject to restraints, we have been witness to DDT being adopted in investigations in several diabolic offences like the Nithari serial killings (2006), the Arushi-Hemraj twin murder (2008), Stamp Paper Scam (2003), and Vyapam scam (2015) as well as last year’s shocking Hathras gangrape cum murder case.
We need to clear the decks for fuller use of the DDT kit specially to crack white-collar crimes. Our investigative agencies have had a dismal record in cracking them, with the conviction rate under the Prevention of Money Laundering Act 2005 (PMLA) being abysmally low. None of the big fish like Vijay Mallya of Kingfisher bank loan default infamy or Nirav Modi of PNB fraud infamy have been nailed under the law which casts the onus on the accused to prove his innocence. If article 20(3) and article 21 as well as the Evidence Act need to be amended, let us do so on a war footing.
No accused with a guilty conscience is going to give his consent for DDT. So let us not be naive. Let the confession made by the accused be accorded the prima facie evidence status, and the revelations made by a witness under the DDT mechanism admissible but subject to further investigation, thus taking forward the establishment of the guilt of the accused by the prosecution. And the members of the medical team that conducts the polygraph or lie-detector test must be allowed to be cross-examined. Ultimately, the trial court has to take the call as to the reliability of the DDT results. But let not critics tilt at windmills.
We need to face the fact that our investigative agencies have proved to be out of their depth in cracking white-collar crimes, with the loot ultimately getting stashed in bank accounts where the writ of the Indian government doesn’t run. Furthermore, DDT may be intrusive with an element of coercion, but none of the methods causes any bodily harm. Nevertheless, the law can provide for prior medical board approval as a measure of abundant caution.
Allegations of phone banking that benefitted Mallya can be proved if the relevant politicians and bank officials are subpoenaed and made to undergo the appropriate DDT. Perhaps the UK government would then relent and extradite the fugitive instead of indulging him by entertaining his request for political asylum.
The law should be dynamic, and not caught in a time warp. Shibboleths must be shed and state-of-the-art means of evidence-gathering adopted. Otherwise, our conviction rate especially in white-collar crimes will remain pitifully low and crooks will continue to smirk.
Notes:
Narco-analysis is a controlled administration of intravenous hypnotic medications, popularly termed truth drugs, on a suspect to procure vital information.
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 by medical experts and psychologists. Indeed, a qualified medical team comprising anesthesiologist, psychiatrist, forensic physiologist, audio videographer, nursing staff alone can assess such body behavior and language. BTW, detractors aver that such hyper-arousal can be caused by anxiety, nervousness and fear, and may not emanate necessarily out of lying. Be that as it may.
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 recognises 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 sensors monitor electrical activity when the suspect is made to see images or hear sounds.
The author is a freelance columnist for various publications and writes on economics, business, legal, and taxation issues
