Saturday, 30 November 2019

Precaution to be taken by investigating officer for preserving electronic evidence in mobile phone

 In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. None of these procedures were adopted by the investigating officer. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 7022 of 2018

Decided On: 02.11.2018

 Vijesh  Vs. The State of Kerala and Ors.

Hon'ble Judges/Coram:
Raja Vijayaraghavan V., J.




1. This application is filed under Section 439 of the Cr.P.C.

2. The applicant herein is the accused in Crime No. 320 of 2018 registered at the Nattukal Police Station under Sections 376, 376(2), 376(n) and 354(c) of the IPC and Section 67A of the Information Technology Act, 2000.

3. The de facto complainant is a married woman and the mother of three grownup boys. The applicant and the de facto complainant owe allegiance to the same political party and they became acquainted. They used to contact over phone as well. In the month of March 2017, the applicant herein is alleged to have gone to her residential home, while she was alone, and subjected her to sexual intercourse. He is alleged to have recorded the entire sexual act on his phone. Later, she was forced to succumb to his carnal desires on two occasions by threatening her that the videos in his possession would be made public. She finally conjured up the strength and refused to accede to his demands. Aggrieved by the above, the applicant is alleged to have forwarded the explicit videos and photographs to the mobile phone of the son of the de facto complainant. These are the allegations based on which the subject crime has been registered.

4. The learned counsel appearing for the applicant submitted that there is no truth in the allegations levelled against him. It is urged that the allegation that the applicant had raped the de facto complainant and at the same time took photographs and videos of the sexual act is incongruous. According to the learned counsel, the above fact would show that the relationship between the parties were consensual and when the husband of the de facto complainant became aware of the same, the de facto complainant decided to victimize the applicant by levelling false accusations. He also denied the prosecution allegation that the applicant herein had forwarded the videos and photographs to the Whatsapp account of the son of the de facto complainant. This allegation is falsified by the prosecution records, argues the learned counsel.

5. The learned Public Prosecutor has fervently opposed the prayer. It is submitted that the act committed by the applicant borders on extreme depravity. After raping a lady, pictures and videos were forwarded to her own son. The boy, who is aged 16 years, was traumatised by the acts of the applicant, is the submission. It is further submitted that the allegation that the videos and photos did not reach the recipient is incorrect. According to the learned Public Prosecutor, the investigating officer had taken screenshots of certain pictures and the same was transferred to a compact disc. The phone was then handed over back to the son of the de facto complainant as it was required for his everyday use.

6. Having considered the submissions advanced and after going through the case diary, I find that two serious allegations are levelled against the applicant. He is alleged to have raped the de facto complainant and in the course of the same took more than 50 explicit photographs and 3 videos. When their relationship became strained, the applicant herein is alleged to have forwarded the videos to the mobile phone of the son of the victim.

7. Having gone through the case diary, I have no doubt in my mind that the manner in which the investigating officer has handled the mobile phone of the son of the de facto complainant which was a valuable piece of evidence has to be deprecated in the strongest possible terms. All that he had done was to transfer the data to a compact disc after taking a screenshot of some of the pictures. He has not even retrieved the videos which were allegedly recorded by the applicant and which were forwarded to the recipient. The investigating officer ought to have borne in mind that it was essential to display objectivity in a court of law when the case ultimately comes up for trial. The investigating officer was bound to demonstrate as to how the evidence was retrieved showing each process through which he had accomplished the said objective. In the case of digital evidence stored in a computer, mobile phone, USB drive or digital camera, he should have ensured that there is a clear link between the hardware and the digital evidence copied from that hardware. He should have maintained a record to show the chain of custody which would address issues such as the person who collected the evidence, the nature and mode as to how the evidence was collected, the name of the person who took possession of the evidence, the manner in which the evidence was stored, the protection offered to the evidence whilst in storage and the names of persons who removed the evidence from storage including the reasons.

8. There is no reason why the investigating officer had failed to seize the mobile phone of the son of the victim which was the most important piece of evidence in the instant case. The hardware itself ought to have been seized and the same should have been sent to a digital evidence specialist to retrieve the data in a scientific manner. Only then, the range of digital evidence that need to be obtained including audit trials, data logs, biometric data, the metadata from applications, the file system, intrusion detection reports and the content of data bases and files could be properly retrieved. Given the nature of evidence to be copied, maintaining the evidential continuity and integrity of the evidence that is copied is of paramount importance. Such evidence will be subjected to cross examination in relation to its integrity. In other words, the process of copying and handling such evidence should be carried out to the highest possible standards.

9. In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. None of these procedures were adopted by the investigating officer. It is high-time for the State Police to bring out a good practise guide for digital evidence, if they intend to tackle cyber crime head on. The cyber criminals are way ahead of the law enforcement officers and urgent measures are to be taken to train officers to successfully prosecute the offenders. Flaws committed by the officers, such as in the instant case, may prove fatal to the prosecution. Officers, who are engaged in investigation of cyber crimes, are required to be trained in best practices to tackle the criminal misuse of current and emerging technologies.

10. Back to the case on hand, it appears that the investigation has progressed to the final stages. I do not think that further detention in custody of the applicant is required for the purpose of investigation. He can now be released on bail on conditions. Before parting, it is made clear that expression of any opinion shall not be treated as an expression on merits of the case.

11. In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs. 50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:

1). The applicant shall appear before the Investigating Officer on every Mondays and Saturdays between 9 a.m. and 11 a.m., for a period of 3 months from today or till the final report is filed, whichever is earlier.

2). He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. He shall not contact the victim or her family members.

3). He shall not commit any offence while on bail.

4). He shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.

A copy of this order shall be forwarded to the State Police Chief who shall take necessary follow up.


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