Aadesh Kumar Garg vs State Of Uttarakhand

“4.

Non-examination of the material witnesses, namely Sumit, So far is the case diary, where in the statement of the painter, namely Uttam Singh Negi was recorded. However, the painter Sumit who was present and was a independent witness, the investigating agency has not recorded his statement which clearly reflects that the investigation was done in a very poor manner where the investigating agency has not even recorded the potential independent fitness who could confirm or contradict the statement of Uttam Singh Negi. Sumit was present and was doing the painting work when such a accused came in the house as prospective tenant and has committed such a hideous crime.

5.

That non-examination of the shopkeeper who sold elected murder weapon, which was recovered by the prosecution. It is necessary to mention here that the paper cutter which was used during the crime by the accused and later the same was recovered at the pointing out of the accused person, namely Naveen. The investigating agency has not even considered this aspect which was relevant and materially important as the shop from where this paper cutter was purchased, neither the statement of the shopkeeper was recorded, not the salesman who sold the paper cutter was taken by the investigating agency or any other witness who was present at the time. When this paper cutter was sold, such important aspect was not even being considered nor it was being recorded by the investigating agency, and therefore the applicant preferred the present petition for the further investigation and also pray that the further investigation may either be directed to be done under the supervision of the honourable court or by an independent agency.

6.

That non-examination of red E rickshaw driver, which was important for the investigation was not even done by the IO. And therefore the applicant pray for the further investigation before this on the court. It is necessary to mention here that the prosecution relies upon the movement of the accused using red E rickshaw, however, the statement of the driver of red E Rikshaw was not even recorded nor it was taken into consideration. The driver of Red E rickshaw is an independent witness as he would be able to establish from where he picked the accused, where he dropped them at what time they travel, the condition of the accused person and also identify the outfit of the accused, which would be materially important for the fair and just investigation and therefore the applicant pray for the further investigation by the police under the supervision of the honourable court or by some other independent investigating agency.

7.

That absence of fingerprint investigation which was necessary to be conducted during the investigation and the I.O. either intentionally or under the lack of the knowledge has forget to conduct fingerprint investigation. The investigation report suggest that the police has seized number of objects like tea, cups, wallet, ATM, card, personal articles, weapon, and has also failed to conduct the fingerprint investigation over the door handles, bathroom surfaces and other household items which would be necessary in the investigation and such scientific investigation would clearly reflect the role of the accused and therefore the applicant pray before this court for further investigation under the supervision of the court or by some independent agency.

8.

That incomplete mobile phone forensic examination which or to have been done during the investigation, which investigating agency has failed to perform as the same was important. It is necessary to mention here that the police has recovered mobile phone which belongs to the accused and the forensic examination of the phone could have been reveal. The role of the accused and the mobile phone forensic examination could have been investigated like WhatsApp chat, SMS record, call logs, deleted data., Google map, history, Google timeline, browser, history, financial app usage, cloud, data, and etc could be material important to corroborate the moment of the accused, and therefore the applicant pray for the further investigation under the supervision of the court or by some independent agency.

9.

That the investigating agency has failed to consider CDR and mobile location analysis which was relevant and has not been done as per law. The CDR, tower, location movement construction was necessary to be considered during the investigation, but investigating agency has failed to consider the same and therefore the applicant pray for further investigation under the supervision of this court.

10.

That the police has further not considered CCTV reconstruction, which was relevant for the investigation as the CC footage from multiple location could have been relevant to corroborate the role of the accused as they were present in the house of the deceased representing themselves to be the proposed tenant, which was verified by the painters and the CCTV footage could be material, but the same was not collected by the I.O. either in lack of knowledge or intentionally and therefore the applicant pray for the further investigation under the supervision of this on a court or by some other independent agency.

11.

That the incomplete ATM and banking investigation which was necessary, but the same was not been done by the investigating agency. The ATM withdrawal records was not even considered by the investigating agency, ATM. CC footage was not even taken into consideration, failed transaction attempts was not even considered which were necessary for the investigating agency in order to complete the investigation chain and therefore the applicant pray for the further investigation under the supervision of the honourable court.”

“193(9). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court.”