The Kerala High Court on Tuesday directed the Ernakulam Additional Special Sessions Court trying the 2017 actor sexual assault case to forward in two days the memory card containing the video of the sexual assault on the actor to the State Forensic Science Laboratory (FSL), Thiruvananthapuram, for examination in view of a change in the hash value of the card.
Justice Bechu Kurian Thomas directed the laboratory to analyse the card and submit a report to the investigation officer with a copy to the sessions court in a sealed cover within seven days. Justice Thomas also set aside the order of the sessions court rejecting the plea of the Crime Branch seeking to forward the memory card to the laboratory.
Change in hash value
The judge observed that “the present requirement of the investigation is not for initiating any action, but only for ascertaining certain details,’ which it assumes to be of relevance in the investigation. 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. The impugned order is therefore liable to be set aside.”
The court pointed out that the hash value of an electronic document was 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 was of any relevance or not could not be decided or considered at this stage of the proceedings. However, the court could not foresee, whether or not the prosecution may be called upon to explain the reason for the change in the hash value.
The court added that after the investigation team became aware of the change in hash value of the document, the failure to identify the reason for the change could fall in the realm of a lacuna in the prosecution case, arising out of an incomplete investigation.
Prejudicing probe
“To deny the request of the investigation to forward the document for re-analysis can have the possibility of prejudicing the investigation and in turn the prosecution. Even if ultimately the analysis of the document is found to be superfluous or of no consequence, still, the said facet of investigation and of the prosecution cannot be prejudged. Therefore, the contention that the details sought are already available to the prosecution is of no avail,” the court added.
The Crime Branch in its petition contended that the refusal of its plea by the sessions court amounts to interference in the investigation. It pointed out that the FSL experts had noticed a change in the hash value, indicative of unauthorised access, during the examination of the memory card at FSL on January 10, 2020, for the purpose of creating a cloned copy. 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, 2022. However, immediately on getting to know the change in the hash value, the prosecution requested for forensic examination as part of the further investigation into the case. However, its request was refused by the sessions court.
