Sister Abaya Case: The murky narco-CDs

ABAYA CASE: CBI Investigation and Narco-CDs
P. Chandra Sekharan
It is a shame that Sister Abaya’s death under suspicious circumstances could not be solved even after 18 years. Where has absconded the skill of Indian Police investigators?Whither goes forensic science?
The Indian police have been violating norms during the last four or five years by permitting the TV Channels to air videotapes and CDs containing statements made by the accused persons under narco-analysis. This is a way of masking the inefficiency of the police and asserting that if the courts fail to accept their statements as evidence, the judiciary is responsible for not providing justice. The Bangalore FSL director my young friend Dr B.M.Mohan and his assistant director S. Malini along with their Delhi patron saint Dr. M.S. Rao, DFS, MHA are the trio who are responsible for production of ‘narco CDs’ and supplying them to TV Channels and exploiting the torture inflicted on the testees.
Due credit must be given to Drs Mohan and Malini for introducing their innovative idea of producing narco CDs. Only when their toying with narco CDs was brought to light by Karnataka Police, Rao came to their rescue by releasing a laboratory manual for narcoanalysis authorising recording of the procedure even though the Bangalore Duo had already examined hundreds of cases and produced CDs.
The fact remains, production of CDs containing recording of statements made by narco-testees was not in practice when tests were in vogue during yester years or conducted clandestinely in later years after the test was abandoned. The findings of the (Narcoanalyst hitherto only psychiatrists) were issued in the form of written reports and not CDs. Narcoanalysis is an invasive medical procedure. Neither a psychologist (like Dr. Malini) nor a Chemist (like Dr Mohan) can conduct narcoanalysis. Nor these people can enter an operation theatre simply because they wear masks and aprons and command an anaesthetist to administer a narcotic drug to a person who is not a patient.
The psychologists all over the world confine to their practice of ‘psychological profiling’ and ‘polygraph test’ and when they come to a conclusion, should explain the purpose for which such a conclusion can be made and should mention the margin of error etc. The psychologist should write down a caveat (a warning or cautionary statement) as every psychologist is mandatorily required to do in Western countries. I have read Malini’s reports and she seldom adopts such a procedure while I understand Dr Vaya of Ahmedabad FSL does.
Even according to Rao’s narco manual, recording of the proceedings narcoanalysis is not mandatory. Nevertheless these narco CDs displayed day in and day out in TV channels like horror movies have brought tremendous impact on public domain and made indelible impression in the minds of media, Police, and to some extent, of judiciary as well.
No wonder the Kerala Courts are then so obsessed with Narcoanalysis test in Abaya Case especially when all the other reliable evidences were found distorted and the Kerala police closed the case as suicide. They also hurriedly destroyed all evidences that proved otherwise. It was then CBI took over the investigation. Even the CBI made a mess.
The Chief Judicial Magistrate (CJM) while directing the CBI in his order dated 20 March 1997 to re-investigate the case, asserted its belief that the case could have easily been established had there been an honest and proper investigation.
The CBI, instead of conducting proper investigation adopting sustained interrogation techniques, simply took shelter under the dubious narcoanalysis test marketed from Bangalore which resulted in dragging the case from bad to worse.
The CBI, on receipt the narco-CD in Abaya Case, found it to be a manipulated one. Justice V. Ramkumar who also saw the CD, raised doubts about the narco-analysis and told the open court that the official who had conducted the test was not familiar with the Malayalam language. The CBI informed the judge that the properties of three files in the CD showed they were created or last modified on October 22 at 0935 hrs, October 17 at 0728 hrs and October 23 at 0631 hrs. The CBI Counsel further submitted this showed a manipulation was done on the personal computer of Dr Malini and the files of 254 MB, 239 MB and 100 MB adding to 593 MB, are all written in the CD.
Learning about the accusation, Mohan made a resourceful trip to Ernakulam and turned the tables against the CBI. He told the court that his lab has sent three CDs and not one CD. Justice V. Ramkumar, seeking clarifications from FSL, asked the director to send the CDs, (obviously another set of three) directly to the Court and not through the CBI. Mohan informed Justice Ramkumar that earlier only three separate compact discs (CDs) were handed over to CBI.
The actual situation could only be that a sealed cover, containing the covering letter, report from Malini and the CD or CDs, was handed over to CBI Inspector Lal Mohan Choudhary. The CDs issued from the lab should carry the signature and stamp of the authorised lab official as protocol warrants. Moreover CDs emanate from the lab are ‘read only’ CDR discs and there is absolutely no chance of editing files in the CD at the receiving end. {I think Justice Hema who had later seen the CD has understood this point}.
Justice Ramkumar sought further explanations from CBI. The DSP R.K. Agarwal from CBI appeared before Justice Ramkumar and deposed that CBI had received only one compact disc from the laboratory. He produced as proof a copy of the covering letter received from the laboratory along with the CD. The covering letter mentioned only about ‘CD’ without using the plural form. CBI Counsel M V S Namboodiri also demanded an investigation into the role of Assistant Director of FSL, Dr S Malini, in the incident. The CBI filed a written submission maintaining their stand that they had received only one CD from FSL against the lab's claim that it had sent three CDs to CBI.
The CBI asserted that the CD, as received, was produced before the court and the covering letter of Dr Malini revealed the fact there was only one CD. The court obtained a further report from Malini, wherein she said it was inadvertently mentioned as ‘original CD’ instead of ‘original CDs’ in the covering letter forwarded to the CBI.
After hearing manipulation issue, Justice Ramakumar, who initially raised doubts about the FSL now indicted CBI and observed that the laboratory had not indulged in either editing or manipulation of the CDs on the narco-analysis procedure of three suspects so as to make them “incongruous, illogical or incompatible with the narco-reports submitted by them.” (An unusual encomium with impressive epithets lavishly thrown at)
Justice Ramkumar’s encomiums brought jubilation to FSL and Deccan Herald dated 06 September, 2008 published the news item captioned “CBI asked FSL to lie”. The news, as informed by a highly placed source said “the CBI official came to FSL on August 29 (2009) and requested them to inform the Court that they have indeed given the Bureau only one CD”. The source cited the entry made in the laboratory records about the visit of the CBI official as proof (?), It is not known how the ‘visit entry’ made by lab staff would indicate that CBI compelled FSL to lie. Of course I have no soft corner for CBI but at the same time I take the above story as that of cock and bull.
But the jubilation at FSL didn’t last long. Justice K. Hema of Kerala High Court, who had subsequently dealt with the case and granted bail to the accused, had held that “the CDs are not only edited but also manipulated”. She observed “according to me, in all probabilities, those are edited and manipulated at the Forensic laboratory itself by the person and persons who were doing the analysis”. The judge had also raised suspicions about the then assistant director of FSL, Bangalore Dr S Malini who handled the narcoanalysis.
On subsequent developments, the Ernakulam Chief Judicial Magistrate Court directed that the Centre for Development of Imaging Technology (C-DIT) in Thiruvananthapuram to verify the compact discs and report the result. The Court had also appointed advocate Sajeev T Prabhakaran as the Commissioner to monitor the examination at C-DIT.
The expert panel of C-DIT had examined the CDs and found that they had been tampered with. It found many cuts and overlapping in the videos of the analysis carried out on the accused Fr Thomas Kottoor, Fr Jose Puthrukkayil and Sister Sephy. The 32-minute, 50-second CD of the narco analysis performed on Fr Kottoor was edited at 30 places. The CD of Fr Puthrukkayil (40 minutes, 55 seconds) was edited at 19 places and the 18-minute, 42-second CD of Sister Sephy was edited at 23 places. Techniques such as ‘dissolve’ were used on the CDs, and in many places the audio track failed to synchronise with lip movements.
It is necessary for us to know at this stage how the Narco CDs are produced in FSL Bangalore. Inadvertently both the terms ‘tape’ and ‘CD’ are used without any differentiation until this day.
The entire proceedings of narcoanalysis are recorded by camcorders (video cameras) that use videotapes as the ‘storage device’ and therefore the ‘master copy’ of the recorded narcoanalysis procedure could only be a video cassette and not CD”.
Actually on completion of the recording in the hospital operation theatres, the video cassettes are removed from the camcorder and taken to the FSL where the original recordings from the video tapes are recorded (downloaded) to a storage device, usually the hard disc, of a computer for archiving or further processing” It is from this ‘storage device’ of the computer the recordings are copied (burnt) onto compact discs, popularly known as ‘CDs’. It is in this further processing, the recordings are copied as such or after employing cutting, editing, manipulating, dissolving or masking facilities
The old models of camcorders employed analog recording onto videotape. Since 1990s digital recording has come in vogue, but tape remained the primary recording media. But modern camcorders use optical disks, hard disk drives and flash memory. All tape-based camcorders have removable media in form of video cassettes. Solid-state camcorders can have either removable media in form of memory cards, or built-in memory, or both. HDD-based camcorders usually have non-removable media in form of a hard disk drive (HDD). All are aware FSL Bangalore uses only tape-based Camcorder
Malini herself explains the recording procedure in FSL Bangalore in her signed written statement dated 12.04.07 furnished in another enquiry thus:
“Normally, during narcoanalysis test the entire proceedings are video-graphed. On completion, video cassettes are taken to the FSL to the psychology lab where they are downloaded to a computer specifically earmarked for this purpose. The computer is password protected and only two persons have access to it (Myself and the Scientific Assistant Praveen). This computer is kept secured. Due to shortage of memory in the computer on completion of 30 Narco Analysis test the data is stored on cassettes sealed and kept in sealed almirah. Apart from the both of us, nobody else has any access to the data regarding the Narco Analysis test conducted by me. The typed reports regarding.... .....have not been prepared. Only the CDs have been handed over to the IO’s/IO’s representatives.”
I do not know whether typed reports have been prepared in Abaya Case. All seem to be interested only in CDs
Now the CBI says after a week’s grilling of FSL personnel including Mohan and Malini that the hard disc they had procured contains the original recording. Hard disc can contain only copy of proceedings from the tape and not original.
I am perplexed to read the consistently inconsistent statements given to the media by my young friend Dr. Mohan on many issues. At one stage Mohan claimed that his lab does not possess editing facilities and in another instance he blurted out “How can we give the CDs without editing”. When I confronted him with the question ‘how the lab officials can interrogate the testees when there is no legal sanction’ he tracked back saying “we do not interrogate, we only interview”. I recollect watching ‘Telgi’s narco CD show’ in which Mohan himself was going around the hospital OT wearing mask and apron and slapping Telgi’s cheek and interrogating him with the oft repeated question “tell me Telgi, I will keep the secret with me”.
I was astonished to read Dr. Mohan’s interpretation of the recent (2005) amendment to CrPC Section 53’. He has been saying aloud on many occasions that the term ‘other tests’ in the amendment would actually mean the polygraph, narcoanalysis and brain mapping tests as contemplated by our Parliamentarians!
If we browse the net we will know how Malini’s statements to the press about her qualifications and experience are immeasurably inconsistent. Her claim about her internment in medicine in Canada, PhD from Calgary University, specialisation in industrial psychology etc were contradicted by her own statements to the press on other occasions and turned out to be a hoax when the certificates furnished by her were verified. The locally fabricated Calgary university certificates showed the spellings as “CALAGARY” and “CANNADA”. Even Calgary University had taken note of the ‘Calgary farce’ enacted by Malini. Her most intelligent query posed before the camera in the CNNIBN show viz “how can I be born in 1960 when actually my parents got married in 1962?” stunned many. In one of the cases I had dealt with, Malini had written in report that the testee during narcotest has confessed to her about the murder. But when the defence lawyer questioned why this statement did not find a place in the CD, she coolly answered that there was power failure at that time.
To solve the manipulation issue, the following exhibits are required.
Exhibit 1- three master video cassettes
Exhibit 2- One CD containing statements of all the three accused. This CD is the one submitted by CBI to the Court in the first instance.
Exhibit 3- Three CDs directly submitted subsequently to the High Court by FSL. I do not know whether three more CDs were handed over to CJM Ernakulam also.
The following examinations are to be carried out
i) Whether the CDs in Exhibits 2 & 3 are CDR or CDRW.
ii) Transcribe the entire contents of all the three exhibits.
iii) Examine the three cassettes in Exhibit 1 for the presence of cuts, overlapping, editing and manipulation using techniques such as dissolve. Also examine whether audio and video tracks synchronise
iv) Whether the contents in the three CDs in Exhibit 3 are copied verbatim in the single CD, Exhibit 2.
v) By examining the Master tapes, find out what are the portions which are edited, sliced, dissolved or manipulated and are not copied in the CDs in Exhibits 2 and 3.
It is also essential to examine the master tapes of few other cases along with the corresponding CDs produced. It will be very useful if all the five master tapes of Fahad’s narcoanalysis and corresponding CDs are examined for the presence of preferential editing.
I hope and trust that CBI had carried out its probe on the above lines and perhaps in many other angles to establish truth in respect of manipulation of CDs and they had magnanimously absolved FSL. I do not know FSL also will come forward to absolve CBI.
Of course I condemn wholly the narcoanalysis and the associated truth detecting techniques. The 'four-in-one package'marketed to Indian Police is indeed ad nauseum tomany. Is not known why CBI didnot goin for the four-in one package. It is a shame that the apex body of this country was taken for a ride by the discredited Bangalore duo even at this stage. But that doesn’t prevent me from finding out the truth behind the manipulation of discs. The CBI should also get cleared from the open accusation made by FSL that CBI has manipulated the discs especially when at least one observation of a Kerala High Court judge also tows in line with that of FSL.
But regarding the further probe to establish truth behind the death of Sister Abaya, I would strongly suggest that a third agency, constituted for the purpose, consisting of honest and efficient police officers from other states conduct with confidence proper investigation adopting sustained interrogation techniques enquiring not only the suspects but also the whole range of investigating officers of the Kerala police and the earlier CBI teams involved in the investigation.

No investigating agency should go in again for narcoanalysis, especially after the test has lost its credibility due to the murkier things that had happened between FSL and CBI.