KOCHI: The Kerala High Court on Tuesday directed the trial court to forward the memory card in which the rape of an actor in 2017 was recorded to the state forensic lab, Thiruvananthapuram for examination to ascertain if the card was accessed illegally.
The HC direction is a setback for actor Dileep who opposed forensic examination of the memory card.
The present requirement of the investigation is not for initiating any action, but only for ascertaining certain details. Hence, the order is liable to be set aside. The court directed the special court to forward the document as requested by the investigating agency. "I direct the additional sessions court Ernakulam to immediately at any rate not later than two days from the date of receipt of the copy of the judgment forward the document to FSL through the mode envisaged by law," held the court.
There will be a further direction to the FSL to analyse the document as requested in the forwarding note and submit a report to the investigating officer with the copy to the court in a sealed cover within seven days. The court reiterated that the timeline specified must be adhered to so that further investigation and trial of the case are not delayed.
Justice Bechu Kurian Thomas issued the order on the appeal filed by the state government challenging the order of the Additional Special Sessions Court, Ernakulam rejecting the plea of the crime branch seeking to forward the memory card in the 2017 actor abduction and sexual assault case for forensic examination.
The government had stated that the refusal amounts to interference in the investigation which is in the sole realm of the investigating agency. The reason stated to refuse the request of the investigating officer was unsustainable in law.
The crime branch stated that during the examination of the memory card in FSL, Thiruvananthapuram on January 10, 2020, for the purpose of creating a cloned copy, the FSL experts noticed a change in hash value (indicative of unauthorised access). Though the change in hash value was reported to the trial court on January 29, 2020, it was not disclosed to the prosecution till February.
"Immediately on coming to know about the change in hash value of the memory card which was supposed to be protected from any interference without there being judicial proceedings, the prosecution requested for forensic examination as part of further investigation in the case, which was absolutely necessary to avoid the likelihood of the accused taking undue advantage out of that," submitted the crime branch.
According to the crime branch, though the FSL report specifically shows that the memory card was illegally accessed on December 13, 2018, the trial court did not mention the date of last access in the proceedings and failed to take note of the relevancy of such illegal access. Instead, it was stated in the proceedings that the trial court kept the memory card from March 20, 2019, onwards which is obviously after December 13, 2018.
During the process of collection of evidence, the court has no power to consider the relevancy or otherwise of the proposed evidence or the necessity of such evidence to be let in the trial." if the illegal access to the memory card is not explained properly, there is every chance of the accused taking undue advantage out of that later may perhaps be fatal to the prosecution," informed the crime branch.
The court had declined the plea of the Crime Branch stating that the purpose of the plea seeking further report regarding the details of access to the document is quite unintelligible and it can be treated only as ill-conceived and ill-motivated to make a hue and cry with regard to the transparency of the court.