KOCHI: Kerala High Court, on Thursday, directed the district and sessions judge of Ernakulam to conduct a fact-finding inquiry into the allegations of unauthorised access to the memory card containing visuals of the actor assault and rape in 2017. This includes copying and transmitting its content.
The district and sessions judge have the liberty to seek assistance from any agency, including the police, for conducting the inquiry.
The survivor is also at liberty to present written submissions before the District and Sessions judge. If the inquiry reveals the commission of any offence, the district and sessions judge shall proceed under the Code of Criminal Procedure 1973. The court instructed the District and Sessions Judge to complete the inquiry within one month.
Justice K Babu issued the order on the petition filed by the survivor seeking a court-monitored investigation into the incident and stringent action against those involved.
The court also issued guidelines to trial courts regarding the preservation of digital evidence presented before the court. The court appreciated the Director General of Prosecution T A Shaji and Gaurav Agarwal, counsel for the survivor, for their assistance in formulating the guidelines.
The survivor's counsel pointed out that the Forensic Science Lab found that "the memory card is used in a Vivo-made mobile phone having an Android operating system and a Jio network application. In this device, Telegram, WhatsApp, and Instagram apps were installed."
The memory was accessed on the night of January 9, 2018, and December 13, 2018, at 9.58 pm and 10.58 pm, respectively. The third access was done on July 19, 2021, from 12.19 pm to 12.54 pm. The FSL report revealed that the memory card was analyzed using forensic write blockers. "The examination found that on January 9, 2018, the memory was connected to a computer having a Windows operating system. Similarly, it was used in a mobile device having an Android operating system on December 13, 2018," said the report.
The survivor's counsel argued that this aspect is a very serious offense as it amounts to interference with the administration of justice. It also amounts to tampering with evidence, requiring an independent and scientific investigation by a competent officer under the supervision of the High Court. The counsel raised concerns about the potential dissemination of the video on social media if not handled properly.
The counsel further pointed out that during the examination of the memory card in FSL, Thiruvananthapuram, on January 10, 2020, to create a cloned copy, the FSL experts noticed a change in the 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 or the victim until February. The investigating agency came to know about the change during further investigation based on the revelations of director Balachandra Kumar. The survivor's counsel emphasized that the trial court should have initiated suo motu action in this regard, but it was not done.