Shraddha Walkar murder case: Narco tests are important tools of investigation, say experts

Deception detection tests such as polygraph (in pic) help investigators uncover information about the crime. Representation pic

Deception detection tests such as polygraph, brain-mapping and narco analysis are fact finding tools of investigation though the same cannot be used as evidence, say legal and forensic experts. In cases like the Shraddha Walkar murder case where there is no direct evidence, these tools can be used to decode the facts and circumstances that led to the crime. The findings of such tests can then be used to gather scientific and direct evidence, thereby making a watertight case for the trial.

Right to silence not absolute

Advocate Shreeprasad Parab, a constitutional expert, said, "In India, the right to remain silent is a fundamental right guaranteed under Article 20 (3) of the Constitution, which states, ‘No person accused of any offence shall be compelled to be a witness against himself'. And Article 21 states that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law'."

"However, no fundamental right granted by our Constitution is absolute and is annexed with restrictions. The court verifies whether these restrictions are reasonable or not. Deception detection tests (DDT) are crucial for criminal investigation. The Supreme Court in Selvi vs State of Karnataka ruled that right to privacy granted under Article 21 is linked with Article 20 (3) with regards to mental privacy of the accused, therefore these tests can not be performed without valid consent of the accused," he added.

Also Read: Shraddha Walkar murder: Aftab sent to 5-day police custody, court permits his narco test

The advocate said, "Sections 25 and 26 of Indian Evidence Act states that confession made to a police officer or in police custody is not relevant. However, Section 27 states that if the police make any discovery in furtherance of any information received from the accused while in custody then that discovery is relevant."

Court permission

Advocate Majeed Memon, senior criminal advocate, said, "If the court believes that there is no way but to resort to narco analysis to ascertain the truth, the court may allow the investigating agency to resort to this method. In this case, the Saket court in Delhi has already permitted narco analysis of accused Aftab Poonawala. It appears that in this case, there appears to be no alternative method by which the investigation can make a headway towards the whole truth."

"The Shraddha murder case could be easily categorised as the rarest of rare case, and therefore the offender without hesitation would be liable to be awarded death punishment. The question is how quickly this death sentence is awarded, because the memories fade away and a long lapse will not result in the desired impact," said Memon.

Legal value of DDT tests

Advocate Dinesh Tiwari, who practises criminal law for over two decades, said, "DDT tests, even if conducted with the consent of the accused, may not have great legal value as there is no scientific evidence to indicate that the test would lead to the accused telling only the truth. But undoubtedly it is a great tool of investigation to get vital clues to take the probe in the right direction. These tests give certain insight into factual aspects of the crime from the perspective of the accused."

Advocate Rajeshwar Panchal, who practises in Bombay High Court, said, "These methods can be used to receive or elicit information from the accused which can be used to discover the evidence. In short, the result of such tests itself can't be proved as confession or admission of guilt, but it can be used to proceed the investigation to find evidence."

Truth vs fact

Advocate Rohini Salian, former Chief Public Prosecutor, said, "Narco analysis is done to extract ‘truth' from the accused. The test cannot be conducted without obtaining wilful consent of the accused. But, we must understand that ‘truth' is not defined in any procedural laws such as the Criminal Procedure Code or Indian Evidence Act or substantive laws like the India Penal Code. The police are expected to correlate all the information extracted from the accused during such procedures and then fix the dots with material evidence or ‘fact'. Then it is up to the discretion of the trial court to decide if the prosecution could prove or disprove the case based on facts, as laid down under Section 3 of the Indian Evidence Act." When asked her view on such fact-finding tools, Salian said, "I personally do not believe in narco test findings. It is not pure science as the result may not always be the same."

Limitations

Amol Deshmukh, faculty of forensics and scientific advisor to Maharashtra government, said, "Narco analysis involves intravenous administration of a drug, such as sodium pentothal, scopolamine and sodium amytal, that causes the subject to enter into various stages of anaesthesia. Narco analysis and other DDTs with time have become more accurate, but have certain limitations too. Over or under administration of drugs can mislead. Some subjects are also able to retain their ability to deceive even in the hypnotic state. The drugs do not guarantee that the subject will speak only the truth. As it is not a voluntary act and the subject is in an unclear state of mind, these tests can not be admitted as evidence in the court."

"Despite the limitations, it is a tool that increases the rate of prosecution of the guilty as well as acquittal of the innocent. The information gathered during such tests can help investigators decode the crime and reconstruct the same to gather evidence at a micro level. It is because of this that DDTs are important in terms of investigation of heinous crimes worldwide," Deshmukh said.

21
Article in the Constitution that guarantees right to privacy