Memory card with visuals of Kerala actor's assault was illegally accessed thrice

The court said there were multiple occasions of illegally accessing the memory card, which contained visuals of the assault, and that it has failed to protect the victim's interest.
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The December 7 judgement of the Kerala High Court in connection with the actor assault case acknowledges the illegal access of the memory card, which contains visuals of the assault. On at least three occasions, the memory card, which was supposed to be in the safe custody of courts, was accessed by systems that could copy, transfer, or mutate the content, the court said in its judgment on Thursday. "The necessary conclusion would be that we failed to protect the victim's interest, which resulted in the violation of her fundamental constitutional right," said the court while ordering an investigation into the unauthorised access. 

The three instances of illegal access were identified as January 9, 2018, December 13, 2018, and July 19, 2021, from the State Forensic Science Laboratory reports. The first access was at 9:58:41 pm on January 9, 2018, during which two files were created, indicating that the device was connected to a computer with a Windows operating system. The second instance was at 10:58:17 pm on December 13, when the creation of three files indicated illegal access using an Android device. The final occurrence was between 12:19 and 12:54 pm on July 19, 2021, a day on which the trial court for the actor assault case had granted permission for the new counsel of the prime accused, Pulsar Suni, to inspect the video.

However, the counsel had submitted that the video was viewed inside the court hall at 3 pm and the memory card was not used for this. The court mentioned that it must have been done through one of the two pen drives to which the content was copied by the Forensic Lab). This meant that the memory card access between 12:19 and 12:54 pm was unauthorised and found to be done using a Vivo mobile phone with an Android system. The mobile phone also contained social media applications like WhatsApp, Instagram and Telegram, increasing the risk of the visuals being shared on these platforms.

"The alleged unauthorised access on July 19, 2021, has a very close nexus with the Court proceedings. I have no material to understand the procedure adopted by the Trial Court in permitting the counsel for accused No.1 to inspect the contents of the video. There are also no materials to conclude whether somebody authorised by the Court supervised the inspection of the video," the court said.

On the first two occasions – in January and December of 2018 – the access to the memory card had no connection with court proceedings. It is undoubtedly unauthorised, the court acknowledged. "I have gone through the proceedings of the Court below. No materials show that the Court concerned permitted anybody to take out the memory card from safe custody. It is presumed that the memory card remained in the safe custody of the Court on those days. Therefore, access to the memory card is undoubtedly unauthorised."

Ten days after the assault of the actor on February 17, 2017, the Forensic Laboratory examined the memory card captured from the prime accused and submitted a report. Two pen drives containing copies of the content of the memory card, including the visuals of the assault, were produced—one for the Angamaly Judicial First Class Magistrate Court and one for the investigating officer. The memory card was sealed and returned to the court for safe custody. Months later, the investigation into the actor assault case revealed the involvement of actor Dileep, and he was arrested as the eighth accused and alleged mastermind of the assault. Later, Dileep raised an objection that a copy of the memory card was not given to him. Though he was permitted to watch the video on December 15, 2017, in the presence of his counsel, he was denied a copy of the memory card.

Following directions of the Supreme Court, the visuals in the memory card were shown to the counsel for all the accused on the morning of December 19, 2019. Dileep, his counsel, the presiding officer and two experts from the forensic lab saw the visuals that day using the memory card attached to a laptop in the court. Dileep was also granted permission to send a cloned copy of the memory card to the Central Forensic Science Laboratory in Chandigarh. When this was done, the Joint Director of the State Forensic Science Laboratory informed the investigating officer on January 10, 2020, that the hash value of the memory card had changed, indicating that the device’s content may have been altered. The presiding officer was informed of the change in hash value, but it was not reported to the High Court. 

Read: Dileep case: Did memory card get swapped or copied, cyber security expert weighs in

In December 2021, a filmmaker called Balachandrakumar, who is close to Dileep, admitted that the visuals had reached Dileep through a "VIP" and he had witnessed the accused and others viewing it.

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