J.B. Pardiwala, J.:— This is an application under Section-439 of the Code of Criminal Procedure, 1973, at the instance of an accused seeking regular bail in connection with the F.I.R. being I-C.R. No. 113 of 2017 registered with the Shahpur Police Station, District-Ahmedabad, for the offence punishable Sections-376(2)(f) and 376(2)(i) of the Indian Penal Code and also, for the offence under Sections-4, 5(c)(f)(m), 6, 8, 9(c)(f)(m) and 10 of the Protection 2of Children from Sexual Offences Act [herein after referred to as the “POCSO” Act].

2. The First Information Report dated 16/09/2017 came to the lodged by one Sangitaben Shaileshbhai Dataniya. The first informant is the grandmother of the victim. The F.I.R. is extracted hereunder:—

My name is Sangita W/O Shaileshbhai Babulal Dataniya, Aged: 45, Occupation: House wife, residing at: House No. 4/E/1497, Mastarni Chawli, Opp. Shahpur Civic Centre, Shankarbhuvan, Shahpur, Ahmedabad. Mobile No. -9824434041.

Upon being personally present, I hereby state the facts of my complaint that, I am residing with my family at the above mentioned address. I perform household work. My husband is serving as a cable operator technician in the G.T.P.L. I have three sons. The eldest son is Pratik aged: 28 years who got married with Jaiminiben in 2008. He has a girl child named Mayuri aged: 7 years, 8-months and two younger sons Devang, aged: 5 and Yuvraj, aged: 4. He is living with us in our house. My second son is Kartik, aged: 25 years who is married and the youngest son is Jignesh, aged: 24 who is also married. Mayuri, aged: 07 years and 8 months, the daughter of my eldest son Pratik, is studying in 3rd standard in the Municipal Corporation English School situated in front of Shahpur Darwaja. Her school time is from 07:30 a.m. to 12:30 p.m.

On 15/09/2017, Mother Jaiminiben went to drop Mayuri-aged: 07 years and 8 moths who is daughter of my elder son Pratik in Municipal Corporation School of Civic Centre situated near Darwaja. Her mother picked her up from the school and came at home at about 12:30 hours in the noon. As she had only one school uniform, we used to wash her uniform everyday and used the same on the next day. Generally, her mother washes her uniform after she comes from school, but as there was a stain on the front portion of the uniform, she did not wash it yesterday. Her mother did not inform this to anybody. Today on 16/09/2017 at about 07:30 a.m., my son's wife Jaimini dressed Mayuri with the school uniform and went to drop her at the school. As it was Saturday, Mayuris mother brought her from the school at about 11:30 hours. When she came home from the school, white stains were found on the external portion of the shorts of the uniform. Since last few days, Mayuri appeared to be scared and she was not going out to play therefore I and her mother Jaimini tactfully inquired with her. Upon that, she told us that, “a teacher named Sunil Sir used to take me to the upper floor of the school and he closed the door from inside and pulled my pony tail and threatened me. He used to get my pantie removed and inserted his finger in my vagina. He opened the zip of his pant and took out his penis. After making me to lie down, he used to mount upon me”. Mayuri narrated such facts therefore we suspected and took Mayuri to our family doctor Nitinbhai Pathak whose clinic is situated in front of Modhvadni Pol. As we informed him about the above incident, he advised us to make complaint in Police Station. Therefore, I, my husband, my son Pratik, his wife Jaiminiben and Mayuri together have come to make the complaint. As the wife of my son Jaiminiben has given consent, I produce the stained pantie of the school uniform worn by Mayuri at the time of incident. It is my complaint to initiate lawful inquiry against the above mentioned teacher Sunilbhai Damor. My witnesses are the persons mentioned in the complaint and the persons who will be revealed during the investigation.

My above complaint is true and correct as dictated by me. I have received the copy of my complaint.

S/d (Sangitaben)

Before me

(H.B. Vaghela)

Police Inspector

Shahpur Police Station,

Ahmedabad City.

3. Thus, it appears on plain reading of the F.I.R. referred to above that the applicant-accused is serving as a Head Teacher in a Municipal School situated at Shahpur Darwaja, Ahmedabad. The allegations against the applicant are that of sexual assault on the grand-daughter of the first informant viz. Mayuri Pratikbhai Dataniya i.e. the victim aged 07 years and 08 months. The victim is studying in the Municipal School referred to above, in which, the applicant-accused is the Head Teacher.

4. It appears that in the course of the investigation, the Investigating Officer recorded the statement of the victim in a question-answer form and also, recorded the statements of the classmates of the victim in a question-answer form. Various other statements were recorded including the statements of the parents of the victim. At the end of the investigation, the Police filed chargesheet for the offences enumerated above.

5. Mr. Popat, the learned counsel appearing for the applicant vehemently submitted that the allegations levelled against the applicant are palpably false. It is submitted that on account of a dispute with regard to the leaving certificate and the admission of the victim in the school, the grandmother and the parents of the victim with a view to seek revenge falsely framed the applicant - accused. Mr. Popat would submit that what has been alleged by the victim is not supported by the statements of her other classmates.

6. Mr. Popat vehemently submitted that it is apparent from the answers given by the victim to the questions put by the Investigating Officer that she was fully tutored and prepared by her family members. Mr. Popat invited my attention to one statement of a Woman Constable viz. Shardaben Raghubhai, Buckle No. 1646. This statement has been relied upon by Mr. Popat to substantiate his allegations that the grandmother had tutored the victim and the victim gave answers to the questions put by the Police Officer upon the hints and pinches given by the grandmother. The statement of Shardaben Raghubhai is extracted hereunder:—

I, Shardaben Raghubhai, unarmed Woman Lok Rakshak, Buckle No. 1646, Service-Shahpur Police Station, Ahmedabad City. On being asked in person, state that in connection with the offence registered with the Shahpur Police Station under Sections-376, 376(B)(F) of the IPC and Sections-4, 5(C), M, 6, 8, 9(F) and 10 of the POCSO Act vide C.R. No. I-113/2017, I was deputed to keep a watch over the victim Mayuri, daughter of Pratikbhai Dutt, Age 7 years 8 months, residing at House No. 4/E/1497, Master Ni Chawl, Opp. Shahpur Civic Centre, Shankar Bhuvan, Shahpur Ahmedabad City from 20:00 hours to 24:00 hours on the night of 16/9/2017. I took the victim Mayuri for medical examination in a Government vehicle with a Yadi and the grandparents and parents of the said girl and one another woman had accompanied us. I do not know their names. The case was registered in the Trauma Centre and the CMO recorded the statement of the said girl. At that time, I and her grandmother alone had gone inside and she was made to sit in the lap of her grandmother. Thereafter, the doctor took the victim to a separate room for conducting tests of her private parts. I, her grandmother and one nurse were present there and as the said girl started shouting, the tests were not performed and she was sent to Room No. 40 and the main doctor was called after making a phone call to him. At that time, we all were sitting in the lobby and the girl had been sleeping in the lap of her mother. Thereafter, a lady doctor (gynec specialist) came and the girl was taken to ward No. B/3 and she was admitted there. She was taken to a room, where the said girl, her grandmother, one doctor and one nurse were there and tests of the private parts of the girl were performed. Thereafter, they gave us a bed in General Ward B/3 and her parents remained present there and her grandparents left the place. Thereafter, we went with the doctor to the CMO in the Trauma Centre, where the doctor handed over the samples collected by her. Thereafter, we went to Room No. 40 and made a signature and came back to B/3. During that time, once again as a phone call from the CMO was received, I went there and I was given a sealed pouch of the samples collected and I came back to the ward and remained present there. At about 8:00 hours in the morning on 17/9/2017, reliever Savitaben came and relieved me and I produced the sealed pouch at the Police Station, which was seized by you as per the details of Panchnama. On 17/9/2017, my duty was from 14:00 hours to 20:00 hours. During that time, the parents of the said girl were present with her and on that day, at about 17:30 hours, her grandparents had come and her grandfather had left. Till 20:00 hours at night, her parents and her grandmother were present. As at 20:00 hours, my duty was over, my reliever Savitaben came and relieved me.

Thereafter, on 18/9/2017, my duty was from 8:00 hours in the morning till 14:00 hours. During this time, the doctor who had performed the tests of the said girl had come and she called the girl for recording the statement. The doctor recorded the statement after inquiring the girl about the incident. At that time, her grandmother was sitting next to the girl and her grandmother was making sign regarding tying a handkerchief on the face and she was also showing the girl by making signs of pinching. Later on, after some time, another lady doctor came. She made the girl to sit on her lap and inquired with her. Thereafter, we all went to the bed. Thereafter, as the tests of the girl were to be performed for the second time, we went to the Special Ward A/4. At that time, her grandmother and her parents came with us. At that place, they took the girl alone for doing the tests. Thereafter, my reliever Savitaben came there and relieved me. Thereafter, on the same day, I went to the Civil Hospital at 20:00 hrs in the night. After making phone call to the doctor to get shifted to other general ward, the girl was shifted to the general ward B/3. After passage of some time, the doctor came there and stated that you have to stay in the special ward. But, her grand mother and parents refused to stay there. Hence, the doctor called me and stated that after administering the medicine to this girl, she has to stay only in the special ward for an hour. Therefore, if she stays in general ward and something happens to her, you will be responsible for it. Thereafter, the doctor and I informed the P.I. in this regard. He also told me to follow the instruction of the doctor. Hence, a male constable was demanded by the father of the girl and asked to send one constable. Despite that, the girl and her grand mother refused to follow the doctor's instruction. Hence, I asked them to give in written if they wanted to stay in general ward. As a result of that, her father took her to the special ward though her mother and grand mother were refusing to get shifted. There, she was laid down on a bed which was alloted to her. Her grand mother was sleeping out side and her mother and I were present there. Thereafter, on 19/09/2017, at 08:00 O'clock in the morning, I was relived by the reliever Savitaben.

Thereafter, at 14:00 O'clock, I went to the place where reliever Savitaben took her for skin test and there, I relieved Savitaben. At that time, she was accompanied by grand mother and mother of the girl. From there, we were sent to the plastic surgery department by the doctor. There, the doctor wrote down in case papers of treatment and then, we returned to the ward No. B/3.

On being discharged from the hospital in the evening by the doctor, the victim-girl, her grand mother and aunt went in a private vehicle to Municipal Gujarati School, No. 5-6, Shahpur. There, W.P.S.I. S.D. Maheta, Pujaben - Councilor, District Child Protection Unit, Kailashben - Prominent Women Citizen, Videographer, two pancha and your good-self were present. Thereafter, the girl was interrogated by W.P.S.I. S.D. Maheta and Pujaben - Councilor, District Child Protection Unit and then, her statement was recorded through videograhy. The panchnama of scene of offence was also drawn and its videograhpy was done. Meanwhile, Sangitaben - the grand mother of the victim arrived there and started speaking loudly and as a result of that, Victim's mother also started speaking loudly and the victim-girl started crying. Therefore, as the parents of said victim girl were present there, they were given safe custody of the victim-girl Mayuri.

Hence, aforesaid facts as dictated by me are true and correct.

Before me,

(Sd/-) (Illegible)

Police Inspector,

Shahpur Police Station,

Ahmedabad City.

7. In such circumstances referred to above, Mr. Popat, the learned counsel appearing for the applicant submitted that discretion may be exercised in favour of the applicant and the applicant may be released on regular bail.

8. On the other-hand, this application has been vehemently opposed by Mr. Rakesh Patel, the learned APP appearing for the respondent-State. The learned Additional Public Prosecutor submitted that there is more than a prima-facie case against the applicant - accused. It is submitted that the statements of the victim and her family members do disclose more than a prima-facie case against the applicant. It is submitted that there is no good reason to doubt the veracity or disbelieve the victim at this stage. The learned APP would submit that the offence is very serious and having regard to the same, discretion should not be exercised in favour of the applicant-accused. Mr. Rakesh Patel, the learned APP submitted that there being no merit in this application, the same be rejected.

9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the applicant - accused should be released on bail pending the trial.

10. If I accept the allegations as they are, then prima-facie, it could definitely be said that the applicant - accused is involved in the offence. Having regard to the nature of the allegations and the serious doubt created in my mind, more particularly, after going through the statements of the parents and classmates of the victim, I thought fit to look into the matter closely although the prayer is for bail. Howsoever serious the offence may be still, the Court owes a duty to see whether the prosecution is genuine or not. In such circumstances referred to above, I thought fit to pass the following order, dated 23/03/2018.

1. This is an application for bail in connection with the First Information Report being I-C.R. No. 113 of 2017 registered with the Shahpur Police Station, District: Ahmedabad, for the offence punishable under Sections 376(2)(f) and 376 (2)(i) of the IPC. The FIR has also been registered for the offence under Sections 4, 5(c)(f)(m), 6, 8, 9(c)(f)(m) and 10 of the POCSO Act.

2. The applicant accused before me is a Teacher. The victim is a seven years old girl studying in the school in which the applicant is a Teacher. The investigation is over. Charge-sheet has been filed.

3. The matter has been heard today for sometime. Having regard to the peculiar facts and circumstances of the case, I have suggested to the Investigating Officer, who is present in the Court today, to subject the applicant accused to few scientific tests, like lie detection, brain mapping, Narco Analysis etc.

4. Mr. Popat, the learned counsel appearing for the applicant submitted that his client has agreed to give his consent for undergoing such scientific tests.

5. The Investigating Officer is directed to take steps in this regard at the earliest and see to it that the appropriate reports of the tests are obtained from the Forensic Science Laboratory within a period of 15 days from the date of the tests.

6. Having regard to the fact that this is a bail application and chargesheet has also been filed, the State Forensic Science Laboratory is directed to give top priority to this particular matter and see to it that the reports are made ready within two weeks.

7. Post this matter on 10.04.2018 on top of the board. On that day, the Investigating Officer shall remain present with the reports of the Forensic Science Laboratory. Let needful be done in accordance with law at the earliest.

8. A copy of this order be provided to Mr. Rakesh Patel, the learned APP for its onward communication. Mr. Popat, the learned counsel clarified that he is being instructed by the father-in-law of the applicant. The father-in-law had a talk with the applicant and the applicant has give his consent for undergoing the scientific tests.

Direct service is permitted.

11. Pursuant to the order passed by this Court referred to above, the applicant - accused was subjected to the following three tests at the Forensic Science Laboratory, Gandhinagar.:—

(1) Lie Detector Test.

(2) P-300 Test or Brain Mapping Test.

(3) Narco Analysis Test.

(1) Lie Detector Test:- The idea of using a polygraph for lie detection emerged at the end of the nineteenth century. Despite major technological advances in the twentieth century, the polygraph has evolved little since its invention. The polygraph works under the assumption that lies can be detected by certain measurable physiological changes, a theory proposed more than 100 years ago. The three physiological vectors measured in the polygraphs in the 1920s (1) cardiovascular, (2) respiratory and (3) perspiratory activities are still measured by modern polygraphs. Although the polygraphs is still widely used, yet the critics question its accuracy because of the subjectivity involved in the test. The recent technological breakthroughs have created new machines for lie detection. However, since many of these new technologies still operate under questionable assumptions, they are still prone to error and misinterpretation.

12. There are new technologies that can be used for lie detection. One is the facial thermal imaging, a technology that maps the facial blood flow. When a person lies, he or she often becomes anxious and excessive blood flows to the areas around the eyes. This blood flow can be detected by a thermal imaging screener. Lasers have been developed to detect muscular, circulatory, and other bodily changes assumed to be associated with the anxiety of lying. Some computer programs claim the ability to detect lies by analyzing the voice and tone of a speaker. According to their inventors, “when a person lies, an involuntary interference of the nerves causes the vocal cords to produce a distorted sound wave, namely a frequency level which is different from the one produced by the same person when telling the truth”. One company has even developed a lie-detecting keyboard, which is claimed to be able to detect the lies when a person types into a computer by analyzing typing patterns, sensing moisture in fingertips, recording body heat, and monitoring how fast the fingers were moving when they hit the keyboard.

13. Some of these methods may be more accurate than modern polygraphs due to the replacement of subjective judgment by an examiner with quantitative analysis by the computers. However, all of these techniques are still based on the assumption that lying is associated with certain physiological changes. These technologies were geared towards the identification of changes in the physiological conditions that might or might not be a direct result of lying.

14. Very recently, researchers have discovered that certain regions of the brain exhibit unique activity during lying. Interestingly, one of these regions, the anterior cingulate cortex, is a region that has been linked to conflict monitoring as well as attentions and response inhibition. This coincides with the idea that lying causes a conflict within the brain between the lie and the truth. The increased activity can be detected by functional magnetic resonance imaging (FMRI), which records brain activity by identifying changes in brain blood flow and metabolic rate [RS slotnick “Diogenesis New Lampo” American Scientist].

15. The Lie Detector test is an examination which is conducted by various probes attached to the body of the person who is interrogated by the Expert. The heart rate, the skin conductance is measured. The underlying theory of this test is that when people lie they also get measurably nervous about lying. The heart beat increases, blood pressure goes up, breathing rhythm change, perspiration increases, etc. A baseline for this physiological characteristic is established by asking the subject questions whose answers the investigator knows. Deviation from the base line for truthfulness is taken as a sign of lie. Here, therefore there is no direct invasion of the body. In this test the polygraph is taken which gives this reaction and an expert would then explain these reactions in the court which would be his reading of the polygraph from which would flow his conclusion which are to be admitted or not admitted by a Judge on appreciation of the statement and the objections raised thereto. In this case the witness may answer or may not answer the questions. The response of his answers to the questions as recorded on the polygraph analysis of which is sought to be tendered as evidence if and when the occasion arises.

(2) Brain Mapping Or P-300 Test:- In this test of Brain Mapping the suspect is first interviewed and interrogated to find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects. There are three types of words in the list used for Brain Mapping test, Part I consists of the neutral words, which have no direct relationship with the case. Part II consists of probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of the events related to the case. Then comes Part III which consists of target, which are not part of the first two parts. The words in this part are based on confidential findings which the suspect does not know. The recording of this test is done by acquiring the response through 32 channel EEG-ERP Neuro Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The 32 channel electrodes are placed according to the internal system, and 32 discrete electrodes are placed over the scalp directly while conducting this test twice by presenting each word in three parts randomly. The suspect is instructed to relax and listen to the words presented in the auditory mode. This test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collection of evidence. In this case it is also not the direct violation of the body in ordinary sense of the word) is conducted. It will be seen that what is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. Here there is no verbal response from the witness. Except touching the physique of the person both these do not involve invasion of the body in the ordinary sense of the term.

(3) Narco Analysis Test:- It is conducted by injecting 3 grams of sodium pentathol dissolved in 3000 ml of distilled water and above solution is administered intravenously along with 10% of destrose over a period of three hours with the help of anesthetist. Obviously this test has some invasion on the body. The rate of administration is so controlled to drive the suspect slowly into the state of hypnotic trace. The ECG and blood pressure are monitored continuously throughout the testing procedure. The revelations made during the hypnotic trance are recorded both in the video and audio cassettes. The entire conduct of the procedure is video graphed. The questions are designed carefully and are repeated persistently in order to reduce the ambiguities during the drug interrogation. After the Narco examination is over the suspect is made to relax for 2-3 hours. The report prepared by the experts is useful in the process of collecting the evidence.

16. The Supreme Court in the case of Selvi v. State of Karnataka; 2010 (7) SCC 263 considered the legality of the three scientific tests viz.(i) Narco Analysis; (ii) Polygraph test (Lie Detector Test) and (iii) BEAP (Brain Electrical Activation Profile) Test. The legality of the three scientific tests were challenged interalia on the grounds that a direction to the accused to undergo those tests violate the rights guaranteed to the accused under Articles 20 and 21 of the Constitution of India and under Section-161(2) of the Cr.P.C. It is undisputed that for conducting the Narcoanalysis test intravenous injection of Sodium Pentothal will be given to the subject of the test and due to which the subject of the test goes into hypnotic trance. In Polygraph test, some instruments like cardiographs, pneumographs, cardio-cuffs, sensitive electrodes etc. would be attached to the subjects body before measuring the physiological responses. In BEAP test, electrical waves emitted from the subjects brain would be recorded by attaching electrodes to his scalp. Therefore, considering the nature of the three tests, the Supreme Court having considered very extensively the entire technical processes involved in the conduct of the said techniques/tests and the legal position had held as follows:—

The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the narcoanalysis technique and the Brain Electrical Activation Profile test. The text of these Guidelines has been reproduced below:—

(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a confessional statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be taken on record.

17. In the case at hand it is the accused, who on his own free will and volition agreed to subject himself to the three scientific tests referred to above, as according to him, he is absolutely innocent and has been falsely involved in the alleged offence. The accused gave his consent for the purpose of subjecting him to the three tests so that he is able to prima-facie establish that he is innocent and has not committed any offence of sexual assaults on a minor girl.

18. In the aforesaid context, Paragraph-121 of the Judgment in the case of Selvi (Supra) is relevant. Paragraph-121 is extracted hereunder:—

121. The minority opinion also agreed with the majority's conclusion on this point since Das Gupta, J., held at p. 47:

“Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a ‘witness’ during the investigation. Unless, however he is ‘compelled’ to give the information he cannot be said to be ‘compelled’ to be a witness; and so Article 20(3) is not infringed.

Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27 There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. …”

19. What is sought to be explained by the Supreme Court is that the results of the tests cannot be admitted as an evidence even though consented by the accused because no conscious control is being exercised by the subject during the course of the tests, but the Supreme Court left one option that if the subject consents for the tests, then any material or information discovered can be admitted under Section-27 of the Indian Evidence Act.

20. The results of the three tests are quite shocking. Mr. Rakesh Patel, the learned APP appearing for the State has placed on record the reports prepared by the Directorate, Forensic Science, Gandhinagar, as regards the three tests.

21. Report of the Lie Detector Test:—

When the parents of Mayuri approached the Principal Rekhaben on 16/09/2017, whether the Principal Rekhaben called Sunilbhai personally and reprimanded him in this regard? During that period, whether the parents of Mayuri came to make complaint of Sunilbhai or Meet? and whether it is necessary to investigate in detail in this regard? Whether the incident of Mayuri has been fabricated or concocted as Sunilbhai had discord with Rekhaben because Rekhaben joined the duty as a Principal in the Shahpur English Medium School or due to displeasure between Rekhaben and Sunilbhai?

In addition to this, considering the papers of the entire case, it appears that the way Mayuri described the incident to the Councilor is suspicious. That is to say, if this kind of incident takes place with a minor, any child gets shocked due to his or her tender age or the child feels fear and hesitation while describing after remembering the said traumatizing situation, but in the case of Mayuri, it was not observed. Therefore, it is suggested to investigate as to whether the incident had taken place with Mayuri in reality or not? and as to whether Mayuri has been tutored or not?

22. The Lie Detector Report is not very clear. In fact it appears from the contents of the report that the Expert has not be able to give any particular opinion. However, the suggestions referred to above are quite important.

23. Report of the Brain Mapping Test:- In this report the following has been stated.

Preamble to Brain Electrical Oscillation Signature Profiling

Direct participation in any activity involves percepto sensory motor volitional components of an individual resulting in the experience. Thus, it is deep seated and has specific source memory in terms of time and space of occurrence of the event. Certain EEG changes are found to be associated with the specific memory retrieving processes. It is found that when the brain of an individual who has participated directly in an event is stimulated by a part of information of that event in which he or she has taken part, the brain of the individual will respond differently from that of a person who has received the same information from secondary sources and has not directly participated in the event (non experiential). The change, in the electrical activation of the different parts of the brain in direct participation resulting in the experience of the event is unique and different. Based on principles of Neuro-clinical psychology of Memory and retrieval, an effort is made to develop a technology to investigate the crime.

For the purposes of forensic investigation of the suspects, taking care of the constitutional provisions, an attempt is made to generate evidence from the perpetrator to connect the sequence of events as they occurred in the crime by preserving his right to remain silent.

Sequences of events as they have occurred are the base on which hypothesis is formed. Different scenarios are designed based on principles of encoding and retrieval of information. To test these hypotheses, event related items are used as probes designed in a consecutive and chronological manner to evoke the same psychological state as the perpetrator was in when the event occurred. Thus, each scenario will have different number of event related items. These scenarios are documented as audio probes or databank, which is presented to the suspect/subject through a computer, monitored audio system in the brain lab. The suspects in the brain lab with the electro cap on his head only listen these probes when presented. There is no response or answer expected from him. While suspect is listening to these event related scenarios, activation of different areas of the brain is recorded by an EEG - ERP system. The recorded EEG is treated for artifacts and eye movement correction. The ready-made software is used to derive epoch files for each probe separately. Software also generates ready made results based on statistical analysis. However as it is to be analyzed in the actual crime cases, epoch files are manually analyzed as activation present or absent in the different areas of the brain and is compared with the software results before conclusions are drawn.

Recording and Analysis:

The subject was made to seat in sound proof lab. 32 channels recording of the electrical activity of the brain was carried by placing 30 cephalic electrodes with reference electrodes in the ear lobes, and 2 channels for recording the eye movements. initially the baseline recording was done with eyes closed and eyes opened. Then neutral probes were presented before presenting crime/event related probes in different scenarios to the subject and the EEG is acquired and analyzed. Electrical oscillations from the brain were picked up using electrodes placed at standard position such as FPl, FP2, AF3, AF4, F7, F3, F8, F4, FT7, FT8, F03, F04, T3, T4, C3, C4, TP7, CPS, TP8, 0P4, T5, T6, P3, P4, 01, 02, Fz, Cz, and CPz. Electrical oscillations were acquired continuously with a band pass of 0.016-100hz, without applying a notch filter. After continuous acquisition, epochs of 10,000 milliseconds were derived, time locked to each probe of which 3000 milliseconds were before presentation (pre stimulus) of the probe, followed by 7000 milliseconds from the start of the probe.

Analysis is carried out by the software program for left and right hemisphere electrodes separately and computed with different statistical analysis. After computing the baseline changes, further analysis is carried out across the mean baseline segments of activity and the result examined. After computing the baseline changes, further analysis is carried out across the mean baseline components and segments of activity incriminently over the next 7000 milliseconds. Only those changes, which are significance at 0.001 level of confidentiality (a change representing 2 standard deviation, change from the baseline mean) are considered as significant changes.

The changes in the power profile in each segment are classified into EK (Experiential knowledge, EM response, NE response, encoding present and primary processing present. All probes are processed, unless the subject has not attended to it, Changes in the different frequency bands have different meaning in terms of cognitive processing. Software generates the result in the following category for the interpretation from the forensic angle.

1. Experiential Knowledge (EK): Activity related to remembrance of the experience triggered by the probe present. Presence of significant increase in activation level is the base.

2. Emotional Response (EM): Encoding present accompanied by overwhelming blanking of further processing. Probe has produced significant decrease (presence of high level of Desynchronization) in the activity of delta, theta, alpha, beta, gamma bands or no change in the activation level in the above bands, during and after probe presentation. The response is an indication of emotional stunning on hearing the probe.

3. Negative Response (NE): Probe has produced negative response equivalent N400. NE values are above 100 microvolts, it is treated as artifact.

4. Encoding (En): This is used when the probe has produced significant increase in activation in the delta, beta, gamma bands, but without increase in 0 2 Hz activity.

5. Primary Processing (PP): This is used when the probe has produced significant increase in activity only in the beta bands.

6. lnattention (In): Activity related to registration of the probe is not detected.

Conclusion:—

On analyzing the B.E.O.S. of Sunilkumar Virjibhai Damor regarding committing sexual assault on Mayuri, the Sequential Experiential Knowledge is not found regarding the incident of sexual assault committed with Mayuri.

Sequential Experiential Knowledge of Sunilkumar is found in “I am innocent in the rape case of Mayuri” and “I have been falsely implicated in the case of Mayuri” Therefore, Sunilkumar Virjibhai Damor is found to be innocent regarding the incident of Mayuri.

Opinion:—

Considering the case papers, discussion with the Investigating Officer, interview of Sunilkumar and his B.E.O.S. result, the statements of other victim girls are not corroborating or substantiating the allegation made by Mayuri that Sunilkumar had also misbehaved with other four girls.

Considering the geographical condition of the room in which this incident occurred, it is found that it was possible to see the incident taking place inside the room from the windows of the room. Therefore, it is hardly possible that such kind of incident can take place in this room. It is found from the statements of other children that when the incident occurred, Mayuri was playing with them and this fact is coherent with the B.E.O.S. result of Sunilkumar.

24. Report of the Narco Analysis Test:—

Taking into consideration, aforesaid case papers, interrogation of Investigating Officer and the suspect and the results of narco-test, it is found that,

(1) Looking to the geographical condition of the school room as shown by Mayuri, it appears that the glass of window of the room is found broken which opens up in the school lobby where the movement of student is found during recess time. Under such geographical condition, the possibility of calling other girls into class room accompanying Mayuri, and committing the ill act appears the least.

(2) Considering the statement of Mayuri, five girls were taken to Class V D (Gyanganga) during the recess on 15/09/2017 and boys were driven out of the class. Psychologically, when child is driven out of the class, while keeping other girls in the class room, and room is locked up from inside, under such circumstances, out of curiosity, child would make an attempt to know as to what is happening in the class. The clarification can be made in this regard if statements of the boys, who were driven out of the class room by Sunilkumar, are recorded.

(3) According to the statement of Mayuri, when five girls were taken to Gyanganga Class Room (5-D), the hands of those five girls were tied from behind and handkerchiefs were tied on their mouths. Looking to the time of the incident (recess) and geographical condition of the class room, there is possibility of shouting by the children for the help at the time of this act against will. The fact creates doubt that Sunilkumar brought five handkerchiefs and five ropes for the five girls.

(4) During the recess time on 15/9/2017 and 16/9/2017, when the ill act was reported, Sunil Kumar was taking refreshments with other teachers during that period and he was talking with his wife on the phone. In this regard, further procedure be carried out after getting clarification on the basis of statement of other teachers and call details of Sunil Kumar.

(5) Supervisors Brahmabhatt, Pragnaben and Dilip Sahu are moving in the school during the school hours. Under such circumstances, whether these supervisors were directly or indirectly aware of this incident? The information should be obtained in this regard after making detailed inquiry of supervisors.

Conclusion:—

During the Narco Analysis of Sunilkumar Virjibhai Damor in respect of the evil act committed with Mayuri, it was found that he has not committed the evil act with Mayuri or any other girl of the school If the child plays mischief, he used to beat lightly on the back of the child.

Further investigation be conducted after relating information received during Narco Analysis with other evidences/witnesses.

25. Thus, the reports of the three tests prima-facie create a grave doubt as regards the involvement of the applicant - accused in the alleged crime. In fact, the report of the Narco Analysis test as well as the report of the Brain Mapping test gives a clean-chit to the accused. The two reports state in clear terms that the accused is innocent.

26. The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications. The DDTs are useful to know the concealed information related to the crime. This information, which is known only to the self, is sometimes crucial for the criminal investigation. The DDTs have been used widely by the investigating agencies. However, the investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than the ‘third degree methods’ used by some investigators. Here, the claim is that, by using these so called, “scientific procedures” in fact-finding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of conviction of the guilty and the rate of acquittal of the innocent. However, the Supreme Court in Selvi Case (supra) has held that an accused cannot be subjected to such tests without his consent.

27. It is only with the aid of the results of the three scientific tests that I am in a position to reach to an appropriate conclusion whether I should exercise my discretion in favour of the applicant - accused or not. If I would have gone only by the say of the victim and her family members and rejected this bail application, then probably, I would have done injustice with the applicant. It is true that in a given case mere statement of the victim may be sufficient not only to decline bail but even to convict the accused for the offence of rape, but the case must be of a such type and the evidence also should be of that nature.

28. It is true that the courts as such have no role to play in the investigation. But, in appropriate cases, in the interest of justice, it is essential that the courts intervene and alert the investigating agency to collect the evidence before it is destroyed or delayed, to bring out the truth. A criminal court is the guardian of not only the victims alone. The courts in this country, even today work on the presumption that an accused is innocent until he is proved to be otherwise and insists for evidence. While the courts protect a genuine victim, it is equally the duty of the court to ensure that an accused is punished only for the act which he has actually committed.

29. Law is dynamic and not static and therefore, as society evolves, law has to keep in consonance with the changing social order. Law is the instrument of societal change and the judiciary has the responsibility of interpreting the law for the greater good. Therefore, it is clear that the judicial mind must stay in touch and keep in step with the advancement of humanity. To combat organised crime, its detection, investigation and prevention method have to be employed synchronously. If the criminals use new technology in committing the crimes, the enforcement agencies need to use to the new techniques in solving such crimes. If the enforcement agencies do not use these new technologies for solving such complicated crimes, it would be very difficult to detect the perpetrators of such crimes. Therefore, in the context of the changing organised modern criminal who are taking shelters behind and making full use of the new sophisticated technologies. Krishna Iyyer J. Remarked, “the courts self-criminate them selves if they keep the gates partly open for culprit to flee the justice under the guise of interpretative enlargement of golden rule of criminal jurisprudence”.

30. With the rapid increase in the activities of the modern state, individualisation and changes in the socio-economic and political scenario, more and more new crimes are coming up such as the custodial crimes, insurgency, terrorism, organised crimes, political crime and cyber crime etc. apart the enomorous increase in the traditional crimes like murder, rape, cheating, dacoity, domestic violence against women and children etc. The Criminal Justice System has failed to deliver proper justice to people at large. The different sub-system of Criminal Justice System has not been able to meet their goals and people have lost their faith in the existing Criminal Justice System.

31. Justice Gajendragadkar (As His Lordship then was) made the following observations in its 58 report of law commission of India which is quite noteworthy:

“We have sound judicial traditions; a coherent pattern developed for the organization of the judiciary; and a rational and systematic judicial process. There is no doubt that these factors have conferred great advantages on the country. An independent and efficient judiciary, a unified judicial system and a modernized procedure - though legacies of the pre-independence era - have been cherished by us. The judicial system has earned the respect of the people; and the respect so earned is well deserved”.

32. Science and Technology are the modern-day engines of change and they continue to run relentlessly forward. The impact of change on all the areas of human life has been dramatic. Advancing technologies, along with the legislation designed to control it, will create crimes never before imagined. The future will see a race between technologically sophisticated offenders and the law enforcement authorities as to who can wield the most advanced skill on either side of the age-old battle between the crime and justice.

33. Mr. Patel, the learned APP placed reliance on the observations of the Supreme Court in the case of State of Punjab v. Gurmit Singh; 1996 (2) SCC 384. In this matter the Supreme Court allowed the State Appeal against acquittal and while convicting the accused under Section-376 of the IPC, observed thus:—

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

34. The Supreme Court also observed that the alarming frequency of crimes against women had led the Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters.

35. The observations in Gurmit Singh's case were reiterated in Ranjit Hazarika v. State Of Assam, (1998) 8 SCC 635 in the following terms:

“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

36. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, on account of some enmity or the other. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as the allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. I believe that it is under these principles that the case at hand, need to be examined. [See: Rajoo v. State of M.P.; 2009 (1) G.L.H. 600].

37. In the case at hand, the version of the victim is that on the previous day of the incident, the accused had played the same mischief in the classroom with the other girls also. However, this part of the allegations is not substantiated by the statements of the other girls. The girls, who are classmates of the victim denied anything untoward occurring with them. Even if the statements of the parents of the victim are read into closely, it creates a grave doubt as regards the complicity of the accused. The statement of the lady police constable viz. Shardaben Raghubhai referred to above would indicate that all-throughout the recording of the statement of the victim by the Investigating Officer, the grandmother of the victim kept on giving hints and at times was found pinching the victim on her hand. I find substance in the submission of Mr. Popat, that out of vengeance towards the applicant on account of the dispute regarding the leaving certificate and admission of the victim in the school the grandmother and the parents of the victim went to this extent. I feel very sad and extremely sorry for the seven year old girl who seems to have been unnecessarily harassed. The serelogical report, the FSL reports and the medical certificate also indicates nothing.

38. Having studied and gone through the contents of the reports threadbare, I am of the view that the first informant, her son and the mother of the victim, they all should be subjected to the three tests viz. Lie Detector; Narco Analysis and Brain Mapping. Subjecting these three witnesses to the three scientific tests will make the picture more clear. For this, the Investigating Officer may do it as a part of the further investigation by informing the trial Court in this regard. If any of the three offer any resistance in this regard then the same by itself will be an indication of their guilty conscience. To level false allegations of sexual assault against any person is something very serious. Ultimately, if such allegations are found to be false, then there is no way, in which, the person against whom such false allegations are levelled can be compensated. In any society, once such allegations are levelled, the entire image of that person as well as the family members of that person would get tarnished. People would start hating them. For no fault on the part of the other family members, they would have to pay a very heavy price. Keeping this in mind, I have suggested to subject the grandmother, her son and her daughter-in-law to the tee tests.

39. Let me clarify and it goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of the final opinion in the main matter.

40. Let me make myself very clear that the reports of the three tests by itself does not put an end to the trial. It will be open for the prosecution to lead appropriate evidence both, oral as well as documentary for the purpose of establishing its case beyond the reasonable doubt. At the same time, it shall be open for the defence also to lead appropriate evidence in accordance with law. The reports of the Forensic Science Laboratory shall be considered by the trial Court in accordance with law alongwith the other evidence that may be led in the course of the trial.

41. In the result, this application is allowed. The applicant is ordered to be released on regular bail in connection with I-C.R. No. 113 of 2017 registered with the Shahpur Police Station, District-Ahmedabad, on executing a personal bond of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions tha he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English Calendar Month between 11:00 a.m. and 2:00 p.m. for six months only;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

42. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

43. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

44. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.

45. Before parting with this judgment, I direct the Investigating Officer concerned to study all the three reports of the scientific tests thoroughly and carry out further investigation in that direction.

46. Rule is made absolute to the aforesaid extent. Direct service is permitted.