STATE OF RAJASTHAN versus ASHARAM @ ASHUMAL on 17 April 2023

[2023] 4 S.C.R. 1

STATE OF RAJASTHAN

v.

ASHARAM @ ASHUMAL

(Criminal Appeal No. 1156 of 2023)

APRIL 17, 2023

[SANJIV KHANNA AND M. M. SUNDRESH, JJ.]

Code of Criminal Procedure, 1973 – s.391 – High Courtallowed the application filed by the respondent u/s.391 of Cr.P.C.,directing summoning and recording of evidence of one DCP, whowrote a book “Gunning for the Godman:The True story behindAsaram Bapu’s conviction” – In the said book, DCP disclosed thathe had recorded a video of the scene of the crime (i.e. Kutiya) onhis mobile phone on 21.08.2013, which is the day prior to thedrawing of the site maps on 22.08.2013 – It was alleged that thevictim was tutored based on the videography of the scene of thecrime a day prior to the preparation of the spot panchnama andsite maps on 22.08.2013 – Therefore, assertions were made thatsite maps (Exhibits P-13 and P-14) were false and ought to bediscarded – On appeal, held: It is not the prosecution’s case andversion that police team/officers had not visited the place ofoccurrence or scene of crime on 21.08.2013 – Presence of policeteam on 21.08.2013 is not disputed and it is an accepted position –The findings recorded by the trial Court is based on detailedexamination of the evidence of the victim and investigating officer– Whether finding is correct will be tested in the appeal – When theprosecution states that on 21.08.2013 the police team had visitedthe scene of the crime, that is, the ‘Kutiya’, the plea to examine DCPon the ground that he had purportedly recorded a video of the‘Kutiya’ on his mobile phone is completely inconsequential andirrelevant – The impugned judgment is unsustainable and mistakenin both facts and law and the reasoning is based upon mereconjectures, and that too without appreciating the scope and objectof s. 391 Cr.P.C.

Code of Criminal Procedure, 1973 – s. 391 – Additionalevidence at appellate stage – The touchstone of when the additionalevidence at the appellate stage may be taken on record is not the

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Aimpossibility or inability to pronounce the judgment in its absence,but whether there would be a failure of justice without suchadditional evidence – This discretion is not to be exercised lightlybut requires caution and care.

Code of Criminal Procedure, 1973 – ss. 311, 391 –BComparative analysis – Both s. 311 and 391 relate to power of thecourt to take additional evidence; the former at the stage of trialand before the judgment is pronounced; and the latter at the appellatestage after judgment by the trial court has been pronounced – Thediscretion u/s. 391 should be read as somewhat more restricted incomparison to s. 311 as the appellate court is dealing with an appeal,Cafter the trial court has come to the conclusion with regard to theguilt or otherwise of the person being prosecuted – Further, theappellate court can examine the evidence in depth and in detail, yetit does not possess all the powers of the trial court as it deals withcases wherein the decision has already been pronounced.D

Trial – Right to speedy trial – Additional evidence at appellatestage – Appellate court must be equally, if not more cautious, of thedesire to delay the hearing of the appeal, or the attempt to leadadditional evidence to explore a chance of contradictory evidence– The prayer for leading additional evidence should be permittedEto correct a bona fide error or otherwise, and a party may be entitledto further opportunity without any fault on the part of the oppositeparty, the request for recall should be bona fide and is to be balancedcarefully with relevant considerations, including hardship to thewitness and delay of the proceedings – Also, Right to speedy trial,including speedy disposal of an appeal, is not the exclusive right ofFan accused, but an obligation of the court towards the society ingeneral, and the victim in particular.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. The case of the prosecution, as held by the trialGcourt in paragraphs 298 to 303, as quoted above, is that the victim(PW-5) was not tutored and, therefore, her version as to the detailsof the ‘Kutiya’ were narrated by her to the police without beingtaken inside the room or the bathroom. This version and standof the prosecution, as accepted by the trial court, is not on theground and reason that the police team had not gone inside theH

room or the bathroom on 21.08.2013, but by rejecting theargument that a police officer or the Investigating Officer hadprompted or tutored the victim (PW-5) to give the descriptionand details of the room and bathroom. This finding recorded bythe trial court is based on the detailed examination of the evidenceof the victim (PW-5), as well as the Investigating Officer (PW-43). Whether this finding is correct will be tested in the appeal,albeit the reasoning given in the impugned judgment to summonand examine DCP as a court witness cannot be sustained on theground that DCP had purportedly recorded a video on his mobilephone. The statement made by DCP in the Book, which statementis heavily relied upon by the learned Senior Advocate for therespondent, nowhere mentions that the video, which he hadpurportedly recorded on his mobile phone, was handed over, givenor transferred by him to the Investigating Officer (PW-43), orthat it was shown by him to the victim (PW-5). When theprosecution states that on 21.08.2013 the police team had visitedthe scene of the crime, that is, the ‘Kutiya’, the plea to examineDCP on the ground that he had purportedly recorded a video ofthe ‘Kutiya’ on his mobile phone is completely inconsequentialand irrelevant to the factual matrix of the present case. [Para11][13-A-G]

2. The touchstone of when the additional evidence at theappellate stage may be taken on record is not the impossibilityor inability to pronounce the judgment in its absence, but whetherthere would be a failure of justice without such additional evidence.This discretion is not to be exercised lightly but requires cautionand care as it is to be exercised only in cases when the appellatecourt finds, on good and justifiable grounds, that there would bea failure of justice without the additional evidence being takenon record. However, once this condition is satisfied, there is norestriction on the kind of evidence received, which may be formalor substantial. The right to fair hearing is inherent to the conceptof due process of law and ascertainment of truth. Equally, therecan be failure of justice if this discretion to allow additionalevidence at the appellate stage is exercised in a routine and liberalmanner, without the court being satisfied that the prayer hasimprints of reasonableness and genuineness to at least consider ABC

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Athe worth, credibility and acceptability of the material sought tobe brought on record. [Paras 14, 15][14-C-F]

3. Both Sections 311 and 391 of the Cr.P.C. relate to powerof the court to take additional evidence; the former at the stageof trial and before the judgment is pronounced; and the latter atBthe appellate stage after judgment by the trial court has beenpronounced. It may not be totally correct to state that the sameconsiderations would apply to both situations as there is adifference in the stages. Section 311 of the Cr.P.C. consists oftwo parts; the first gives power to the court to summon any witnessat any stage of inquiry, trial or other proceedings, whether theCperson is listed as a witness, or is in attendance though notsummoned as a witness. Secondly, the trial court has the powerto recall and re-examine any person already examined if hisevidence appears to be essential to the just decision of the case.On the other hand, the discretion under Section 391 of the Cr.P.C.Dshould be read as somewhat more restricted in comparison toSection 311 of the Cr.P.C., as the appellate court is dealing withan appeal, after the trial court has come to the conclusion withregard to the guilt or otherwise of the person being prosecuted.The appellate court can examine the evidence in depth and indetail, yet it does not possess all the powers of the trial court asEit deals with cases wherein the decision has already beenpronounced. [Para 16][14-G; 15-A-C]

4. The appellate court must be equally, if not more cautious,of the desire to delay the hearing of the appeal, or the attemptto lead additional evidence to explore a chance of contradictoryFevidence. While the prayer for leading additional evidence shouldbe permitted to correct a bona fide error or otherwise, and aparty may be entitled to further opportunity without any fault onthe part of the opposite party, the request for recall should bebona fide and is to be balanced carefully with relevantGconsiderations, including hardship to the witness and delay ofthe proceedings. Right to speedy trial, including speedy disposalof an appeal, is not the exclusive right of an accused, but anobligation of the court towards the society in general, and the victim in particular. The process of ascertaining the truth requirescompliance of procedures and rules of evidence. In a well-designed system, judicial findings of formal legal truth shouldcoincide with substantive truth. This happens when the factscontested are skillfully explored in accordance with the procedureprescribed by law. Further, in a criminal trial, burden of proof toestablish the fact, which has to be proven beyond reasonabledoubt, is on the prosecution. The power to take additionalevidence in an appeal is to be exercised to prevent injustice andfailure of justice, and thus, must be exercised for good and validreasons necessitating the acceptance of the prayer. [Para 17][15-F-G; 16-A-D]

Rajeswar Prasad Misra v. State of West Bengal andAnother [1966] 1 SCR 178; Zahira Habibulla H. Sheikhand Another v. State of Gujarat and Others (2004) 4SCC 158 : [2004] 3 SCR 1050 ; State (NCT of Delhi)v. Shiv Kumar Yadav and Another (2016) 2 SCC 402 :[2015] 10 SCR 455; Girish Kumar Suneja v. CentralBureau of Investigation (2017) 14 SCC 809 ; P.Ponnusamy v. State of Tamil Nadu 2022 SCC OnlineSC 1543; State of West Bengal v. Amiya Kumar Biswas(2004) 13 SCC 671 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1156 of 2023.

From the Judgment and Order dated 10.02.2022 of the High Courtof Judicature for Rajasthan at Jodhpur in DBCRA No. 123 of 2018.

Dr. Manish Singhvi, Devadatt Kamat, Sr. Advs., Ashok Basoya,Sandeep Kumar Jha, Arpit Prakash, Vikalp Sharma, Anish R. Shah, RajeshInamdar, Revanta Solanki, Abhiyudaya Vats, Advs. for the appearingparties.

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AThe Judgment of the Court was delivered by SANJIV KHANNA, J.

Leave granted.

2. The present appeal preferred by the State of Rajasthan takesexception to the judgment dated 10.02.2022 passed by the High Court ofBRajasthan at Jodhpur[1], allowing the application[2] filed by the respondent– Asharam @ Ashumal under Section 391 of the Code of CriminalProcedure, 1973[3], and directing summoning and recording of evidenceof Ajay Pal Lamba, who was posted as Deputy Commissioner of Police(West), Jodhpur, Rajasthan in August 2013 and has written a bookC“Gunning For The Godman: The True Story Behind Asaram Bapu’sConviction”[4].

3. The respondent – Asharam @ Ashumal was charge-sheetedon 06.11.2013, and after a trial lasting almost five years, vide judgmentdated 25.04.2018 passed by the Magistrate, Special Court, Protection ofDChildren from Sexual Offences Act, 2012[5], Jodhpur, Rajasthan, he hasbeen convicted for the offences under Sections 370(4), 342, 354-A,376(2)(f), 376-D, 506, 509/34 and 120-B of the Indian Penal Code, 1860,Sections 23 and 26 of the Juvenile Justice (Care and Protection ofChildren) Act, 2000[6], and Sections 5(f)/6, 5(g)/6, and 8 of the POCSOAct. He stands sentenced to undergo rigorous imprisonment for differentEperiods, and life imprisonment for the remainder of his natural life, withfine and default stipulations.

4. Earlier, the victim had given a handwritten complaint (ExhibitP-4) on the intervening night of 19/20.08.2013 at 11:55 p.m., pursuant towhich ‘Zero’ F.I.R. dated 20.08.2013(Exhibit P-11) was registered atFPolice Station Kamla Market, Central District, Delhi at 2:50 a.m. Thevictim was spoken to and had interacted with a Non-GovernmentalOrganization[7], and a report dated 20.08.2013 (Exhibit D-4) was preparedby the N.G.O. On the same day, the victim had appeared before theMetropolitan Magistrate in New Delhi, and her statement under Section G1 For short, ‘the High Court’.

2 D.B. Criminal Misc. Application No. 1 of 2021 in D.B. Criminal Appeal No. 123 of 2018.

3 For short, ‘Cr.P.C.’.

4 For short ‘the Book’.

5 For short, ‘POCSO Act’.

6 For short, ‘JJ Act’.

H7 For short, ‘N.G.O.’.

164 of the Cr.P.C. (Exhibit P-7) was recorded. As the offence wascommitted in Jodhpur, the investigation was transferred to the PoliceStation of competent jurisdiction and, consequently, F.I.R. No. 122 of2013 (Exhibit P-106) was registered at Police Station Mahila Pashchim,Jodhpur District, Rajasthan on 21.08.2013 at 6:15 p.m.

5. The investigation in the case was conducted by ChanchalMishra, the then Assistant Commissioner of Police[8], (West), Jodhpur,Rajasthan, who has deposed as PW-43. As per the prosecution’s version,the Investigating Officer – Chanchal Mishra (PW-43) had recorded thestatement of the victim under Section 161 of the Cr.P.C. on 21.08.2013.For some reason, the entire statement of the victim under Section 161the Cr.P.C. recorded on 21.08.2013 has been marked as Exhibit D-2[9].The Investigating Officer – Chanchal Mishra (PW-43) was examinedand cross-examined on as many as eleven dates between 09.07.2015and 03.03.2016. The victim, who has deposed as PW-5, was examinedand cross-examined on eleven dates between 11.04.2014 and 13.06.2014.

6. As a limited issue arises for our consideration, and keeping inmind that the appeal preferred by the respondent – Asharam @ Ashumalis pending adjudication before the High Court, we would refrain fromreferring to the evidence in detail, and avoid expressing any opinion onmerits, albeit we would confine ourselves to the record on the issueraised before us.

7. In 2021[10], the respondent – Asharam @ Ashumal filed anapplication under Section 391 of the Cr.P.C.[11], in which the impugnedjudgment has been passed, alleging that the victim (PW-5) had neverbeen inside the house described as ‘Kutiya’ and therefore, the entirecase against the respondent – Asharam @ Ashumal that he had sexuallyabused and raped the victim (PW-5), is false and concocted. Theapplication asserts that the victim (PW-5) was brought to the ‘Kutiya’for the first time by the police for the spot panchnama/Mauka Nakshaon 22.08.2013, which visit was duly video-graphed (Exhibit P-70) andafter that, a transcription vide compact disc (Article-16) was prepared, 8 For short, ‘ACP’.

9 Whether the entire statement recorded under Section 161 of the Cr.P.C. can be exhibited,and canbe read in evidence is not the subject matter of the present appeal and we makeno comments and observations on this aspect.

10 The exact date of filing the application is not available on record.

11 For short, ‘the application’.

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Aand the site maps (Exhibits P-13 and P-14), were drawn. It is allegedthat the victim (PW-5) was tutored based on the videography of thescene of the crime shown to the victim a day prior to the preparation ofthe spot panchnama/Mauka Naksha and site maps on 22.08.2013. Inthis context, the application records that Ajay Pal Lamba, who was thethen Deputy Commissioner of Police (West), Jodhpur, Rajasthan, in theBBook, has disclosed having recorded a video of the scene of the crimeon his mobile phone on his first visit to the ‘Kutyia’ on 21.08.2013, whichis a day prior to the drawing of the site maps (Exhibits P-13 and P-14)on 22.08.2013. The assertion in the application is that the site maps(Exhibits P-13 and P-14) are false and ought to be discarded. It is allegedCthat there is a discrepancy between video recording (Article-15) andstatement of the victim (PW-5) recorded under Section 161 of the Cr.P.C.dated 21.08.2013 (Exhibit D-2). If the description of the ‘Kutiya’, asgiven by the victim (PW-5), which, as per prosecution’s case, was madein her statement under Section 161 of the Cr.P.C. for the first time on21.08.2013 (Exhibit D-2), is falsified and rejected, the prosecution’s caseDwouldnot be able to link the victim (PW-5)’s presence with the respondent– Asharam @ Ashumal at the scene of the crime on 15.08.2013, thedate when the offences were allegedly committed.

8. The impugned judgment refers to quotes from a portion of theBook, wherein Ajay Pal Lamba has stated that on learning about theEoffence, he had swung into action and had sent a police team to scanand examine the location. Ajay Pal Lamba had asked Sub-InspectorMadan Beniwal to seal and secure the entire campus until the investigationwas completed. The impugned judgment dated 10.02.2022, at thesametime, quotes Ajay Pal Lamba’s assertion in the Book – “In anyFcase, one would not be very wrong to assume that not much of theforensic evidence would be found at the [scene of the crime] becauseof...the sheer delay in filing the FIR...”, as the offence was stated tohave occurred on 15.08.2013, while the F.I.R. No. 122 of 2013 (ExhibitP-106) was registered on 21.08.2013. Nevertheless, the application underSection 391 of the Cr.P.C. for summoning and recording evidence ofGAjay Pal Lamba has been allowed primarily relying on the followingstatement by Ajay Pal Lamba in the Book:

“….. While I was there, I thought it would be prudent to film avideo of the place on my mobile phone, should I need to refer to itat some point during the course of the investigation. And so, IHdid.”

9. The impugned judgment refers to judgments concerning Sections311 and 391 of the Cr.P.C., to observe that while it will be premature forthe High Court to comment on whether the victim (PW-5) was tutoredon the basis of some video recording of the crime scene, as referred toin the book written by Ajay Pal Lamba, his examination and the recordingitself would be valuable as evidence, given the fact that the defence hadgiven definite suggestions to the victim (PW-5) and the InvestigatingOfficer – Chanchal Mishra (PW-43) that a video recording of the crimescene was shown to the victim (PW-5) and on the basis thereof, thevictim (PW-5) was familiarized with the crime scene. The impugnedjudgment observes that the defence had relied on contradictions betweenthe first version given by the victim (PW-5) in the ‘Zero’ FIR (Exhibit P-11) and the statement of the victim (PW-5) under Section 164 of theCr.P.C. (Exhibit P-7), vis-à-vis the statement under Section 161 of theCr.P.C (Exhibit D-2), stated to be recorded by the Investigating Officer– Chanchal Mishra (PW-43) on 21.08.2013, which contains a graphicdescription of the place/scene of the crime. The High Court observesthat the trial court had rejected the argument by the defence thatvideography of the crime scene was done by the police on 21.08.2013,and was shown to the victim (PW-5), and consequently placed relianceon the victim (PW-5)’s description of the scene of crime in view of herstatement, Exhibit D-2, given to the Investigating Officer – ChanchalMishra (PW-43) under Section 161 of the Cr.P.C. on 21.08.2013.Accordingly, the High Court allowed the application and has directedthat Ajay Pal Lamba is to be summoned as a witness, for the followingreason:

“……. Now with the publication of the book, referred to supra,the defence has right to claim that video of the crime scene wasunquestionably recorded which fact is sufficient to convince theCourt that it is absolutely essential in the interest of justice and fora just decision of the case to exercise the power under Section391 Cr.P.C. for summoning and examining Shri Ajay Pal Lambaas a court witness in this case while giving access of crossexamination to the defence as well as the prosecution.”

10. In our opinion, the impugned judgment is unsustainable andmistaken in both facts and law. The reasoning is based upon mereconjectures, and that too without appreciating the scope and object ofSection 391 of the Cr.P.C. As stated above, we do not wish to make AB

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Aobservations on merits, albeit in view of the stand taken by the respondent– Asharam @ Ashumal, we have to reproduce the relevant observationsmade in the trial court judgment, to which our attention was drawn, andreliance was placed by the learned Senior Advocate appearing for therespondent – Asharam @ Ashumal in support of his submissions. Therelevant portion[12] of the judgment of the trial court reads:B

“298-In my humble opinion circumstances make statements morethan the witnesses. It is notable that PW-43 Chanchal MishraInvestigation Officer in her statement has told that after conductingthe inspection of the place of incident Site Inspection of the placeof incident Ex.P-13, Memo of Site Inspection and Site Map ofCplace of incident and Ex.P-14 circumstances of the site preparedon the identification of the Victim. She says that she conductedthe videography and photography of the place of incident. Afterthe videogrpahy of the place of incident the witness saidtranscription C.D. Article-16 was prepared. PW-30 PapparamDsaid that C.D. of videography of the circumstances told by theabove victim was prepared in his presence. He said that he playedthe above C.D. on Laptop and typed the circumstances as told bythe victim on computer. He proved the sealed C.D. its Memo ofTranscription by exhibiting the same in evidence as Ex.P—69and Ex.P-70 respectively. Witness PW-30 Ramdev has alsoEconfirmed the statements of above witnesses. In this regard thedefence while giving emphasis on Ex.D-103 and ExD-104 hasargued that SHO of P.S. Soorsagar Sh. Madan Benival and hispolice staff had reached at the spot. After doing the videographyof the spot they showed it to the victim on the next day. Hence,Fthe victim clearly stated the circumstances inside Kutiya. In myhumble opinion there is no abstract in these pleas. This is correctthat it appears form Ex.D-103 and Ex.D-104 that Staff of P.S.Soorsagar and SHO Madan Beniwal had gone at the spot but hewould have done the videography of the place of incident orperused the place of incident, such does not appear from bothGabove documents.

299- We have carefully perused the Ex.P-69 Memo ofTranscription, part of which is Ex.P-70 print out.

12 We may note that there appears to be misnumbering in the paragraphs of the trialHcourt judgment dated 25.04.2018.

300- According to the above memo on dated 22.8.2013 at thetime of site inspection videogrpahy regarding the room, bathroomof Kutiya at the place of incident was conducted from the witnessand after typing the details of the circumstances of the place ofincident as told by the Victim, in computer the print out was takenand the detailed document of transcription has been included inthe case file. We perused the Ex.P-70 Transcription (Print out oftranscription).

301- This is clear that the Investigation Officer while takingprecautions has asked from the Victim her details by taking her atHariom Farm House without taking her inside the Kutiya and hasdone its videography. Transcription of the above videogrpahy ofthe details without going inside is Ex.P-70. In the abovetranscription Ex.P-70 we matched the facts told by the victimabout taking inside Kutiya from the Ex.P-13 and Ex.P-14 andphotographs Ex.P-16 to Ex.P32. The details of inside Kutiya whichhas been told by the victim without going inside, the samecircumstances appear from the site map and circumstances ofthe site and photographs and matches with it. In my humble opinionit is proved from this evidence that the victim had gone inside theroom and had gone in the bathroom too. In such a situation thisstatement of the defence is not believable that the victim wouldhave not even entered in Kutiya.

301. The defence has said that photo of room is published inDainik Bhaskar on 22.8.2013 and has asked from the Victim incross-examination that due to this she knew about inside the room.This is the clear statement of the victim that this is wrong to saythat because of publishing photo in newspaper she came to knowabout that room. She has been suggested that what were thethings in the room and where it were situated, details of whichhave not been mentioned in the FIR, NGO’s report and statementsof Section 164 CrPC. The statement of the witness is this thatregarding bed and light is written in NGO report and she has alsotold about Room’s light and bed in Section 164 of CriminalProcedure Code and also there is details of locking the room.Thus the witness has clearly denied that she would have come toknow about the inside things of the rooms after publishing photoin newspaper.

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A302- The statement of the Defence is this that no one was allowedto go inside the Kutiya whereas it has become clear from theabove deliberation that the Victim without going inside Kutiya,has told that whole inside details of Kutiya, which has been foundabsolutely correct. This has been suggested to the Victim in thecross-examination that she would have seen Kutiya of accusedBAsaram situated Haridwara, Shahjahanpur, from which she hasdenied. In this situation now the Onus to give this clarificationgoes on to the Defence to tell that how the Victim came to knowabout the real and actual inside situation of Kutiya without goinginside? This is the clear principle of law that a person can speakClie but circumstances never speak lie. Above mentionedcircumstances are expressing this truth before the Court that theVictim had sent inside the above Kutiya wherein as per theDefence no one was allowed to go.

303- Therefore, the prosecution has been successful to proveDthis that the Victim had gone in the above mentioned Kutiya situated atthe place of incident means the victim’s visit to the above room is provedby evidence.”

11. To elucidate the specific findings as recorded above, and rejectthe arguments raised by the respondent – Asharam @ Ashumal and theEgrounds/reasoning given by the High Court, we would advert to paragraph62 of the judgment of the trial court, which refers to the testimony of theInvestigating Officer – Chanchal Mishra (PW-43) to the effect that shewas posted as the ACP at Jodhpur Commissionerate on 21.08.2013.After the recording of F.I.R. No. 122 of 2013 (Exhibit P-106), she hadreceived two medical reports of the victim (Exhibits P1 to P-3 and P-12Frespectively), a copy of the statement of the victim (PW-5)under Section164 of the Cr.P.C. (Exhibit P-7) etc. There upon, the Investigating Officer– Chanchal Mishra (PW-43) had proceeded to record the statement ofthe victim (PW-5) under Section 161 of the Cr.P.C. (Exhibit D-2) whichwas videographed. Thereafter, the Investigating Officer – ChanchalGMishra (PW-43) had visited the place of occurrence. Clearly, it is notthe prosecution’s case and version that the police team/officers had notvisited the place of occurrence or scene of the crime on 21.08.2013.When we refer to the quoted paragraphs in the trial court judgment,paragraph ‘301.’ specifically records that a photograph of the room wherethe incident allegedly occurred was published in ‘Dainik Bhaskar’

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newspaper on 22.08.2013, in which we note a police officer can beseen. Therefore, the presence of a police team on 21.08.2013 in the‘Kutiya’ is not disputed; it is an accepted position. The case of theprosecution, as held by the trial court in paragraphs 298 to 303, as quotedabove, is that the victim (PW-5) was not tutored and, therefore, herversion as to the details of the ‘Kutiya’ were narrated by her to thepolice without being taken inside the room or the bathroom. This versionand stand of the prosecution, as accepted by the trial court, is not on theground and reason that the police team had not gone inside the room orthe bathroom on 21.08.2013, but by rejecting the argument that the policeofficer or the Investigating Officer had prompted or tutored the victim(PW-5) to give the description and details of the room and bathroom.This finding recorded by the trial court is based onthe detailed examinationof the evidence of the victim (PW-5), as well as the Investigating Officer– Chanchal Mishra (PW-43). Whether this finding is correctwill be testedin the appeal, albeit the reasoning given in the impugned judgment tosummon and examine Ajay Pal Lamba as a court witness cannot besustained on the ground that Ajay Pal Lamba had purportedly recordeda video on his mobile phone. The statement made by Ajay Pal Lamba inthe Book, as quoted above, which statement is heavily relied upon by thelearned Senior Advocate for the respondent – Asharam @ Ashumal,nowhere mentions that the video, which he had purportedly recorded onhis mobile phone, was handed over, given or transferred by him to theInvestigating Officer – Chanchal Mishra (PW-43), or that it was shownby him to the victim (PW-5). In our opinion, when the prosecution statesthat on 21.08.2013 the police team had visited the scene of the crime,that is, the ‘Kutiya’, the plea to examine Ajay Pal Lamba on the groundthat he had purportedly recorded a video of the ‘Kutiya’ on his mobilephone is completely inconsequential and irrelevant to the factual matrixof the presentcase. Further, the deposition given by a witness under oathin the court constitutes and is read as evidence. Statements recordedunder Section 161 of the Cr.P.C. by a police officer during investigationcannot be used as evidence, albeit the accused may use a part of thestatement in terms of the proviso to Section 162 of the Cr.P.C.

12. We are not examining whether there is sufficient evidenceand material to uphold the conviction of the respondent – Asharam @Ashumal, independent of the evidence and material referred to inparagraphs 298 to 303 of the trial court judgment. We refrain and wouldnot like to go into these aspects as these are questions of merits to be AB

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Aconsidered by the High Court while adjudicating the criminal appealagainst conviction.

13. Similarly, on behalf of the appellant – State of Rajasthan, itwas submitted that Ajay Pal Lamba had made a specific disclaimer andhad stated that the Book is a dramatized version of the events. We needBnot examine this aspect in view of our findings recorded above.

14. This Court in Rajeswar Prasad Misra v. State of West Bengaland Another[13]has opined that as additional evidence may be necessaryfor various reasons, the legislature has refrained from curtailing suchdiscretion of the appellate court. The touch stone of when the additionalCevidence at the appellate stage may be taken on record is not theimpossibility or inability to pronounce the judgment in its absence, butwhether there would be a failure of justice without such additionalevidence. This discretion is not to be exercised lightly but requires cautionand care as it is to be exercised only in cases when the appellate courtDfinds, on good and justifiable grounds, that there would be a failure ofjustice without the additional evidence being taken on record. However,once this condition is satisfied, there is no restriction on the kind ofevidence received, which may be formal or substantial.

15. In Zahira Habibulla H. Sheikh and Another v. State ofEGujarat and Others[14], this Court has elaborately dealt with the aspectof exercise of discretion, highlighting the balance which the courts haveto maintain so as to not deny the right to additional evidence to do justice,and the importance of the right to fair hearing of the accused as well theprosecution. The right to fair hearing is inherent to the concept of dueprocess of law and ascertainment of truth. Equally, there can be failureFof justice if this discretion to allow additional evidence at the appellatestage is exercised in a routine and liberal manner, without the court beingsatisfied that the prayer has imprints of reasonableness and genuinenessto at least consider the worth, credibility and acceptability of the materialsought to be brought on record.G16. Both Sections 311 and 391 of the Cr.P.C. relate to power ofthe court to take additional evidence; the former at the stage of trial andbefore the judgment is pronounced; and the latter at the appellate stage 13 (1966) 1 SCR 178.H14 (2004) 4 SCC 158.

after judgment by the trial court has been pronounced. It may not betotally correct to state that the same considerations would apply to bothsituations as there is a difference in the stages. Section 311 of the Cr.P.C.consists of two parts; the first gives power to the court to summon anywitness at any stage of inquiry, trial or other proceedings, whether theperson is listed as a witness, or is in attendance though not summoned asa witness. Secondly, the trial court has the power to recall and re-examineany person already examined if his evidence appears to be essential tothe just decision of the case. On the other hand, the discretion underSection 391 of the Cr.P.C. should be read as somewhat more restrictedin comparison to Section 311 of the Cr.P.C., as the appellate court isdealing with an appeal, after the trial court has come to the conclusionwith regard to the guilt or otherwise of the person being prosecuted. Theappellate court can examine the evidence in depth and in detail, yet itdoes not possess all the powers of the trial court as it deals withcaseswherein the decision has already been pronounced.

17. State (NCT of Delhi) v. Shiv Kumar Yadav and Another[15]emphasises that in exercise of the discretion under Section 311 of theCr.P.C., the court, while considering an application for recall of witness,should not get swayed by the argument that only the accused who is incustody will suffer by the prolongation of proceedings, as this may notbe valid and serving the ends of justice.It is not only the matter of delaybut also the hardship to the victim/witnesses when they are recalled forexamination. Recall is certainly permitted if essential for the just decisionand for which there should be a tangible reason that fair trial wouldsuffer without it. The discretion is to be exercised judiciously to preventfailure of justice, and must not be exercised arbitrarily. In our opinion,the appellate court must be equally, if not more cautious,of the desire todelay the hearing of the appeal, or the attempt to lead additional evidenceto explore a chance of contradictory evidence. While the prayer for leadingadditional evidence should be permitted to correct a bona fide error orotherwise, and a party may be entitled to further opportunity without anyfault on the part of the opposite party, the request for recall should bebonafide and is to be balanced carefully with relevant considerations,including hardship to the witness and delay of the proceedings. Right tospeedy trial, including speedy disposal of an appeal, is not the exclusive AB

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Aright of an accused, but an obligation of the court towards the society ingeneral, and the victim in particular. Balance between the rights of anaccused and the interests and rights of an individual victim and the society,without compromising the right of the accused to a fair trial, has beenhighlighted by this Court in Girish Kumar Suneja v. Central Bureauof Investigation[16], P. Ponnusamy v. State of Tamil Nadu[17]and StateBof West Bengal v. Amiya Kumar Biswas[18]. Every criminal case, it isstated, is a voyage of discovery in which the truth is the quest.[19] Theprocess of ascertaining the truth requires compliance of procedures andrules of evidence. In a well-designed system, judicial findings of formallegal truth should coincide with substantive truth. This happens whenCthe facts contested are skillfully explored in accordance with theprocedure prescribed by law. Further, in a criminal trial, burden of proofto establish the fact, which has to be proven beyond reasonable doubt, ison the prosecution. The power to take additional evidence in an appealis to be exercised to prevent injustice and failure of justice, and thus,must be exercised for good and valid reasons necessitating theDacceptance of the prayer.

18. When we apply the aforesaid dicta to the factual matrix andbackground of the present case as held in paragraph 11 above, we donot think that the test to allow additional evidence is satisfied. On theother hand, the criminal appeal, which is ripe for hearing before the HighECourt, has not been taken up and has been delayed by moving theapplication under Section 391 of the Cr.P.C. for recording of additionalevidence, which was filed nearly eight years after the date of occurrence.If we carefully look at the reasons given, which have found favour in theimpugned judgment, we can easily visualize that there could be furtherFapplications for recording of additional evidence of the main witnesses,the victim (PW-5) and/or the Investigating Officer – Chanchal Mishra(PW-43), who have already been subjected to lengthy examinations overa prolonged period on eleven occasions in the case of the victim (PW-5)as well as the Investigating Officer – Chanchal Mishra (PW-43). Theattempt is to re-open the entire case and seek re-examination of theseGwitnesses at the appellate stage.

16 (2017) 14 SCC 809.17 2022 SCC Online SC 1543.18 (2004) 13 SCC 671.19 See Ritesh Tewari and Another v. State of Uttar Pradesh and Others, (2010) 10 SCCH677.

19. The respondent – Asharam @ Ashumal had filed anapplication[20 ]for suspension of sentence on the ground of, inter alia,having suffered incarceration for nearly 9 years and 7 months. Thisapplication was rejected by the High Court vide order dated 07.07.2022noting that the defence has sought for multiple adjournments in the past,two previous applications for suspension of sentence have been dismissedand the respondent – Asharam@ Asharam @ Ashumal continues to bein custody in another trial in Gujarat.One of the grounds taken by theappellant in the special leave petition bearing Diary No. 33636 of 2022,which challenges the High Court order dated 07.07.2022, is that theappeal preferred by the respondent – Asharam @ Ashumal cannot beheard till the evidence of Ajay Pal Lamba is recorded, as the High Courthas observed that additional evidence is absolutely necessary for thejust decision of the appeal.

20. In view of the aforesaid findings, the appeal is allowed, andthe impugned judgmentis set aside. We request the High Court to takeup the appeal for an expeditious hearing, as the respondent – Asharam@ Ashumal has already suffered incarceration for nearly ten years. Wealso clarify that the observations made in the present judgment are forthe disposal of the issues raised, and the criminal appeal will be decidedby the High Court without being influenced by any observations andfindings recorded herein.

Ankit Gyan(Assisted by : Mahendra Yadav, LCRA)

Appeal allowed.

20 D.B. Criminal Misc. Third Suspension of Sentence Application (Appeal) No. 220/2022.

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