[S. 376 IPC] Delhi High Court| Discharging an accused based on the outcome of the polygraph test at the stage of charge is erroneous

Delhi High Court: A revision petition was filed by the petitioner under Sections 397, 401 read with Section 482 of Criminal Procedure Code, 1973 (‘CrPC’) assailing the order on charge dated 15-02-2023 passed by Additional Sessions Judge and seeking framing of charges for offences punishable under Sections 376, 323, 354, 354-B, 506 and 34 of Penal Code, 1860 (‘IPC’) in case arising out of FIR No. 43/2019, registered at Police Station Paschim Vihar East, Delhi for offences punishable under Sections 323, 354, 354-B, 509, 506 and 34 of IPC. Swarana Kanta Sharma, J., sets aside the impugned order to the extent whereby respondent 2 was discharged under Section 376 of IPC and respondents 4 and 5 were discharged under Section 323 and 34 of IPC.

A PCR call was received regarding a quarrel between the prosecutrix and respondent 2 (accused). Thereafter, the prosecutrix and her sister-in-law were taken for medical examination and their MLCs were recorded giving an account of the incident. However, the matter was then compromised. Later, a complaint was filed by the prosecutrix against respondent 2 on charges of attempt to rape and threatened to kill along with other similar allegations. Thus, the FIR was filed. The statements were recorded, and a charge sheet was filed. The allegations against respondent 2 were under Sections 323, 354, 354-B, 376, 506, 509 and 34 of IPC, against respondent 3 were under Sections 323, 354, 354-B, 506, 509 and 34 of IPC, against respondents 4 and 5 were under Sections 323, 506 and 34 of IPC.

The issue under consideration is whether the result of a polygraph test can become ground of discharge of an accused at stage of charge and could the learned Judge while passing order on application for grant of anticipatory bail, pass an order suggesting to the IO to conduct polygraph test of accused and victim to ascertain the truth of the matter without there being a prayer by accused or prosecution.

The Court noted that the genesis of this case was that at the time of the 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 the case be made to undergo polygraph test with a view to testing genuineness, authenticity and truth of her statement in a case under Section 376 of IPC when the chargesheet was not even filed. The Judge who granted interim protection and thereafter anticipatory bail to the accused, was neither the Trial Court nor was appreciating evidence at the stage of the trial and supervising the investigation in any manner but was only holding a bail roster and was dealing with bail application, has on his own asked the police to conduct polygraph test, not only of the accused but also of the victim.

The Court further noted that every criminal trial is an effort to ensure finding the truth of the matter. Though it is important and crucial that our legal system take better advantage of rapid advances in scientific tools that work as judicial aids, the procedure adopted in the present case by the learned Judge who granted anticipatory bail and passed orders that the IO should get conducted polygraph tests of accused and prosecutrix as per law and later the Trial Court relying on the polygraph test and discharging the accused while making an observation that the victim was lying, whereas the accused was truthful, without even the trial commencing are examples of taking mechanical aid in a mechanical manner against the settled principles of criminal jurisprudence, thus making the very foundation of such orders erroneous and illegal.

The Court observed that discharging an accused primarily on the basis of the outcome of the polygraph test at the stage of charge was equally erroneous. The result of the polygraph test at best could have been considered as a part of the investigation and tested during trial on the touchstone of testimonies of the prosecutrix and other witnesses since the polygraph test result by itself is not a piece of independent evidence. The statement of the witnesses, the complainant, and the defence of the accused and their veracity has never been viewed as technical issues. Judicial determinations are made after appreciation of evidence before the Court, at the stage of charge by forming a prima facie view, and at the final stages of trial by determination as to whether or not the charge is proved beyond reasonable doubt.

The Court concluded that a probable truth or a probable lie, presented to the Court through a polygraph test report when neither any medical/expert witness nor the prosecutrix or other witnesses, or electronic evidence etc. had been brought on record by way of their examination, the MLCs and the statements of the prosecutrix and the witnesses under Section 161 CrPC and Section 164 CrPC were to be made basis of order on charge and a polygraph test report could not have substituted the said material on record.

Thus, the Court held that an offence under Section 376 of IPC is made out against the accused as there is enough material on record to proceed against the accused for the purpose of the trial. The Court also held that the charge for committing offence under Sections 323 and 34 of IPC was also made out against respondent 4 and 5.

[S. V State, 2023 SCC OnLine Del 6476, decided on 12-10-2023]

Advocates who appeared in this case :

Mr. Prateek Baghel and Mr. Deepak Arya, Advocates for petitioner

Mr. Naresh Kumar Chahar, APP for the State with SI Reena, P.S. Dwarka Sector 23 and SI Anil P.S. Paschim Vihar, Delhi.

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