July 5, 2022 6:43:04 pm
Kerala High Court on Tuesday ordered that the memory card containing visuals related to the 2017 sexual assault of a Malayalam woman actor be sent for forensic examination. Popular actor Dileep is an accused in the case.
The bench of Justice Bechu Kurian Thomas was acting upon a petition moved by the crime branch police, challenging an order of the trial court which had declined the investigating agency’s demand to re-examine the storage device.
The high court said the trial court should forward the memory card to the State Forensic Science Laboratory to analyse the device as requested by the prosecution and the lab should submit a report to the investigating officer with a copy to the court in a sealed cover within seven days from the date of receipt of the document.
The trial court had on May 9 observed that the details sought by the police with regard to the visuals in the memory card are already available with the investigating officer in the deposition of the witness concerned, an expert examiner. It was thus concluded that the purpose for seeking the details of access to the electronic document again, is unintelligible, ill-conceived and ill-motivated. Hence, the trial court declined to allow the request.
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However, the high court said courts must bear in mind that in criminal jurisprudence, the burden is upon the prosecution to prove its case. The investigation must therefore possess materials to bring home the truth of the “fact in issue”.
The memory card is in the custody of the trial court and was already subjected to analysis. The police had requested to forward the electronic document for further examination after the court had permitted it to conduct further investigation into the alleged crime in the wake of the allegation that Dileep had watched the visuals of the assault.
The forensic laboratory had, last year, reported to the court indicating a change in the hash value of the electronic record. In April this year, the police requested the special court to forward the electronic document once again to the forensic lab for further examination for two purposes; whether any folder or files in the memory card were accessed after February 18, 2017, a day after the actor was abducted and assaulted; and furnish a copy of the file properties of all files and folders.
The high court observed, “The hash value of an electronic document is claimed to be like a fingerprint, ensuring the authenticity of a document. The change in hash value could be due to different reasons. Whether the change in hash value is of any relevance or not cannot be decided or considered at this stage of the proceedings. However, the court cannot foresee whether or not the prosecution may be called upon to explain the reason for the change in the hash value.”
“After the investigation becomes aware of the change in hash value of the document, failure to identify the reason for the change in hash value can, though not necessarily, fall in the realm of a lacuna in the prosecution case, arising out of an incomplete investigation. To deny the request of the investigation to forward the document for re-analysis can have the possibility of prejudicing the investigation,” said the judge.
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