Read Time: 08 minutes

Synopsis

While observing that discharging an accused primarily on the basis of the outcome of the polygraph test of the victim at the ‘stage of charge’ is "erroneous", the Delhi High Court recently pulled up the trial court for discharging men accused of sexually assaulting a woman.

The court was hearing a plea plea filed by a woman challenging the trial court order. The trial court had discharged one of the accused of the offence of rape and two others accused of the offences of voluntarily causing hurt and common intention.

The bench of Justice Swarana Kanta Sharma noted with dismay that at the time of grant of anticipatory bail to the accused, a suggestion was made in the order to the IO by the Additional Sessions Judge that the prosecutrix, in this case, be made to undergo polygraph test with a view to test genuineness, authenticity and truth of her statement in a case under Section 376 of IPC, when the “chargesheet was not even filed”.

“The observations of the learned Judge in the order dated 06.03.2019, at the stage of grant of anticipatory bail to the accused, were unwarranted and against the law laid down by the Hon’ble Apex Court regarding issuance of directions by a Court for conducting polygraph test at the stage of hearing of bail applications”, Justice Sharma observed.

Justice Sharma noted that it is a settled law that as a general rule, investigation is the prerogative of the Investigating Agency and the courts usually do not interfere in the process of investigation and do not direct as to what should be investigated and how.

“This Court sets aside the order of the learned Trial Court to the extent whereby respondent no. 2 was discharged under Section 376 of IPC and respondent no. 4 and 5 were discharged under Section 323/34 of IPC. Thus, the impugned order is modified only to this extent”, the court said on examining the trial court order.

On the consideration of polygraph test at the stage of framing of charge, the court said that the Apex Court has since long held that the credibility of the witness testimony has to be determined beyond a reasonable doubt in a criminal case at the relevant stage of trial i.e. after testimony is recorded and is tested on the touchstone of the cross-examination.

“In the absence of the ‘lie detector tests’ and advancements of technology in this regard, from time immemorial, it has been the judge who was the lie detector”, it said.

The court noted, that in the present case, the comments of the trial court that the prosecutrix had given deceptive answers were not only unfair to the prosecutrix but also not desirable in a criminal trial when the trial was yet to commence.

“The admissibility of the evidence, truthfulness of the statement of the victim or even admissibility of the polygraph test and its extent, could not have been gone into at the stage of framing of charge by the learned Trial Court as settled by way of judicial precedents. The learned Trial Court was not authorized or competent to conduct a mini-trial at the stage of framing of charge”, it said.

The judge opined that in case, the courts starts relying in a "routine manner" on polygraph tests, considering them as admissible and reliable at the stage of framing of charge itself, against the victim, then the criminal courts will be failing in their duty in following the laid down principles of criminal trial, its stages and what is to be considered and weighed at what stage.

“In case the criminal courts will start discharging accused on the basis of a polygraph test at the stage of charge itself, a criminal trial - instead of testing the veracity of the statement of the victim or prosecution proving its case beyond reasonable doubt - will wriggle down to appreciation of a polygraph test and not the test of the material collected by the prosecution and the statements and testimonies of the victim”, the court said.

 Case Title: S v. The State and Ors.