Calcutta, Jan. 12: A vital piece of evidence in the Park Street rape case cannot be found, probably because initial police complacency and a mix-up of identities led to delay in preserving original footage.
The central forensic science laboratory at Park Circus, which was entrusted with retrieving the relevant CCTV footage in which the suspects and the victim were reportedly last seen together, could not find it in the four hard discs taken by the police.
Only one disc was relevant because it covered the parking lot of the star hotel on Park Street that they left around 2.40am on February 6, 2012. But the disc apparently had no video evidence of what happened there until 6am.
"CCTV cameras near the hotel's parking lot had captured the victim and the accused around the time they left the premises. Four CCTVs (of the hotel) were taken and sent to the forensic lab for examination. But the forensic report says the relevant part was not there. Despite using a special software, the forensic experts could not retrieve it," said a detective department officer.
It was assumed till now that the police had video evidence of the suspects leaving the hotel with the victim in their car in which the alleged gang rape took place. In a case ' such as this one ' where there is no witness or a conclusive medical report to prove sexual assault, proof of being "last seen together" just before the crime could have been "clinching evidence when placed along with the victim's testimony", a police source said.
An officer who probed the case insisted that the absence of footage was not a body blow. The victim's statement and the identification of the suspects by her are far more important, he added to reinforce his assertion that the police still have a strong case.
But officers not connected with the case said that such confidence could not be an excuse for losing real-time footage.
Police sources are now saying that the relevant portion probably got "overwritten" (taped over on a subsequent day). The purported sequence of events (see chart) suggests that the police had a chance to take the disc three days from the incident but did so only after nine days.
An officer initially copied the footage on a pen drive ' which is still intact but doubts have been raised if the secondary recording will hold up before legal scrutiny. The seizure list presented by the police in court does not mention the pen-drive footage. It refers to the hard discs.
The investigation had initially appeared to be flagging for two reasons. One, the suspects identified by the victim had watertight alibis. Two, told of the initial confusion but before investigations were complete, the chief minister described it as a sajano ghatana (fabricated case).
Sections of the police appeared to suggest that the mistaken identification had led to the loss of valuable time and, as a consequence, the footage.
But others familiar with rape investigations have said trauma often confuses victims and a clear picture emerges only through sensitive and patient questioning. In the immediate aftermath of a complaint, the onus lies on the investigators to gather as much material evidence as early as possible and ensure that the proof is left untouched.
The police had a chance to take possession of the original disc a day after the victim filed the complaint. An officer had asked the hotel to show the CCTV footage from the night of February 5 and copied it on a pen drive.
"The CCTVs installed in that hotel are programmed to store footage for up to four days. Recording of the fifth day will overwrite the footage of the first day," another officer said.
For some reason, the police did not take the disc immediately but apparently asked the hotel to stop recording further so that the old recordings were not lost. The Telegraph was unable to corroborate the version with the hotel because of the late hour at which the information from multiple sources was gathered.
According to the police, recording was resumed on February 14 after two youths were picked up and the victim "identified" them. If what the police are saying is true, the recording was resumed on the probable assumption that the case had been cracked.
But why footage that can be evidence was not kept in police custody and why it was eventually taped over ' if at all such "overwriting" took place ' are not clear.
The next day, the police realised their mistake but even then the disc was not taken.
"A day later, after it emerged that one of the men the lady was referring to had been living in Canada for several months, the police realised that it was a case of mistaken identity and the real culprits were still at large. The police asked the hotel to again stop recording on February 15. But by then, the recording had been on for a few hours," said an officer.
The hard disc was taken only on the evening of February 15.
Asked why the hard discs were not seized the day the footage was copied on the pen drive, an officer attached with the probe replied with a question: "How could we seize something before being confirmed that it might hold evidence?"
The police claimed that initially when the victim was shown the footage from the pen drive, she had not been able to identify herself. The hard disc was seized on the evening of February 15, only after she identified herself from a jacket.
According to forensic experts, the "relevant data" had either been overwritten or has "got scattered" ' a technical term that means a particular portion of the video has not been stored where it should have been ' in the hard disc and could not be retrieved.
The forensic report was submitted several months after the police submitted the chargesheet. As the evidence from the hard discs was not ready when the chargesheet was submitted in May, 2012, the police submitted six still photographs derived from the pen-drive images showing the victim and the accused.
However, with the lab reporting loss of original hard disc footage, the question is if a court will accept the pen drive as corroborative evidence.
Legal experts said since the inception of the Information Technology Act in 2000, several amendments have been made in the Indian Evidence Act and the Criminal Procedure Code. "Unlike earlier, when courts did not take cognisance of electronic evidence like CCTV footage and mobile clippings, the scenario has changed after the inception of the IT Act. Courts do consider electronic evidence as secondary evidence now," said a senior Calcutta High Court lawyer.
A victim's version, medical reports and eyewitness accounts are considered primary evidence.
The lawyer expressed doubts whether the pen drive would be acceptable as evidence before the court as it was "not formally seized" by the police.
A section of the police said the primary evidence was strong enough.
"In this case, the victim's statement and the test identification parade are most important. The statement of the hotel staff and the bouncers who saw her leave with the accused will also count," said an officer of the women's grievance cell that investigated the case.
The victim's medical reports are said to have suggested only "physical assault" and indicated nothing definite about a sexual attack. The police also have with them a ticket of NRS Hospital's outpatient department where she had gone for medical examination.
"Though the NRS report doesn't claim that the woman was sexually assaulted, the outpatient department ticket says she was there to get treated for a sexual assault. It could always have been a lapse on the part of the doctor concerned that he forgot or dropped the part that indicated sexual assault," said a police officer.
The police have also submitted to court an earring ' one from a pair ' that was found from the Honda City in which the woman was allegedly raped.
A chemical report obtained from the state forensic laboratory has not been of much help to the police.