Accused Cannot Unilaterally Ask Victim Or Witnesses To Undergo Narco Analysis/ Lie Detection Test To Prove Defence Case: Kerala High Court

The petitioner, who is the first accused in a sexual assault case has approached the High Court for conducting lie detection test on the minor victim and her parents to prove his defense.

Justice A. Badharudeen dismissed his petition and held thus:

“It is true that, conduct of Narco Analysis test or Polygraph test is a device during investigation, but the said procedure can be adopted only when the person, who will be subjected to such test is willing to do the same. But, an accused, who is defending a case cannot unilaterally ask the witnesses or victims to subject themselves for Narco Analysis Test or Polygraphic Test to prove his defense case.”

In this case, the Special Judge for trial of offences under the POCSO Act dismissed the application filed by the 1^st accused under Section 45 (expert opinion) of the Evidence Act to subject the minor victim and her parents to lie detection test to adduce defense evidence.

The specific allegation was that the petitioner who sells fish on his motorcycle sexually assaulted a 10-year-old girl by giving her fish to feed her pet cats. It is alleged that the accused touched her private parts and made her hold his penis on various occasions in a secluded place near her house. It is also alleged that the accused committed sexual act knowing that the victim belongs to the Scheduled Caste or Scheduled Tribes community. The prosecution thus alleges commission of offences punishable under sections 354, 354A(1)(i) and (ii) of IPC, POCSO Act and Section of 3 SC/ST (POA) Act.

The petitioner claimed that the minor girl's family fabricated the case to evade repaying money they had borrowed from him. He also alleged that the Special Judge dismissed his application without even attempting to ascertain if the victim and her parents were willing to undergo Narco Analysis Test or Polygraph Test.

Referring to Selvi & Ors. v. State of Karnataka (2010), the Court noted that mandating lie detection test on accused would amount to self-incrimination and contrary to due process of law. It noted that compulsory lie detection test like Narco Analysis Test or Polygraph Test was violative of Article 20 (3) and would amount to testimonial compulsion that has no evidentiary value. In that case, the Court observed that no individual should be compelled to undergo lie detection test.

Accordingly, the Court held that the order of the Special Court warrants no interference and dismissed the petition.

Counsel for Petitioner: Advocates Bonny Benny, Sanil Jose, Amaljith, Manas P Hameed

Counsel for Respondents: Public Prosecutor M P Prasanth

Citation: 2024 LiveLaw (Ker) 461

Case Title: Aboobakkar @ Abu v State of Kerala

Case Number: CRL.MC NO. 5865 OF 2024

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