The Kerala High Court on Tuesday allowed a petition moved by the Crime Branch challenging the order of the Ernakulam Additional Special Sessions Court which rejected its petition to forward the memory card allegedly containing the visuals of the crime in the 2017 actor sexual assault case for forensic examination.
Justice Bechu Kurian Thomas accordingly set aside the trial court's order finding that the prosecution only wanted to ascertain certain details that it assumes to be of relevance in the investigation, and not initiate any action.
"If in case, during the trial, the Court is called upon to form an opinion on the electronic document, especially that relating to the change in hash value or the details of the memory card, the prosecution must be able to provide the requisite evidence. The opinion of the Examiner of the electronic record becomes a relevant fact under section 45A of the Indian Evidence Act 1872. If the Investigating Officer is not provided with an opportunity to produce before the Court such opinion, which may explain the change in the hash value or its impact, it can lead to a failure of justice. Therefore, declining to allow the request to forward the document for analysis is a manifest error and the same requires to be corrected."
However, it was clarified that the investigation should not go into a roving enquiry by pursuing matters:
"Notwithstanding the above, it needs to be observed that the investigation cannot be permitted to enter into a roving enquiry into matters which it has no authority to pursue. Access to a document after it was produced in Court cannot be a matter of investigation or relevant for investigation under any circumstances whatsoever, since only the Court can pursue that, in view of the bar in taking cognizance under section 195 of the Cr.P.C. As a means to ensure that the investigation is in consonance with the provisions of the Code, the Court can certainly sieve the requirement of analysis of the already marked document."
Therefore, the prosecution has been directed to forward the document to the State Forensic Science Laboratory within 2 days as mandated by law. The State Forensic Science Lab has been asked to analyse the document and submit a report to the Investigating Officer with the copy to the court in a sealed cover within 7 days.
The Court also ruled that the timeline specified by the court for the prosecution to wind up the probe should be adhered to, without causing any delay in the trial of the case. The matter has been thereby remitted back to the trial court
In 2017, a popular actress was abducted and raped in a moving vehicle pursuant to a conspiracy, allegedly schemed by Dileep. Being the 8th accused in the case, he is now undergoing trial before the CBI Special Judge.
The said memory card is a crucial piece of evidence in the ongoing trial in the 2017 case and has been marked as an exhibit before the trial court. It was initially forwarded to a forensic laboratory for examination. Later on, it was forwarded to another laboratory to make a cloned copy upon Dileep's request, as permitted by the Supreme Court.
However, during the examination of the memory card, the FSL experts noticed a change in the hash value of the card, which indicates unauthorised access. Though this change in the hash value was reported to the trial court on January 29, 2020, it was not disclosed to the prosecution till February 2022.
Immediately, upon coming to know about the change in the hash value, the prosecution requested another forensic examination of the card as part of further investigation in the case to avoid the likelihood of the accused taking undue advantage of the same. Nevertheless, the trial court dismissed this plea citing that the memory card was kept in the safe custody of the court since its production.
The prosecution argued that the court's refusal of another forensic examination is illegal and amounts to interference in the investigation which is in the sole realm of the investigating agency. It also pointed out that the reason cited by the trial court to refuse its request for forensic examination was unsustainable in law.
DGP TA Shaji appeared for the prosecution, Advocate T.B. Mini for the survivor and Senior Advocate B. Raman Pillai and Advocate Philip T Varghese appeared for Dileep in the matter.
The prosecution vehemently urged for the forensic examination arguing that it was inevitable to prevent the accused from taking undue advantage of the same. The DGP submitted that it was for the prosecution to make sure that their evidence is admissible in court and to make their case foolproof while adding that the accused cannot have a say in the same. It was also argued that the trial court's refusal of this forensic examination was illegal and amounts to interference in the investigation.
The counsels appearing for the accused objected to the forensic examination calling it an attempt by the prosecution to delay the trial further. It was also contended that forensic examination would only reveal if the card was accessed after a particular date, and will not disclose what exactly was done during such access. The accused also argued that the prosecution could not go on a roving investigation in the case. They also added that there is a cloned copy of the same memory card with a forensic science lab which can be used for comparison.
Case Title: State of Kerala v. XXX
Citation: 2022 LiveLaw (Ker) 322