Brief Facts
- The present appeal was preferred by the State of Rajasthan against the judgment passed by the High Court, allowing the application filed by the respondent – Asharam @ Ashumal under Section 391 of the CrPC, 1973 , and directing summoning and recording of evidence of Ajay Pal Lamba, who was posted as Deputy Commissioner of Police (West), Jodhpur, Rajasthan in August 2013 and has written a book “Gunning for the Godman: the True Story Behind Asaram Bapu’s Conviction”.
- Special Court, POCSO Act, 2012, Jodhpur, Rajasthan had convicted the accused for the offences under Sections 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the IPC, Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 , and Sections 5(f)/6, 5(g)/6, and 8 of the POCSO Act.
- The respondent filed an application under Section 391 of the Cr.P.C., in which the impugned judgment has been passed, alleging that the victim had never been inside the house described as ‘Kutiya’ and therefore, the entire case against the respondent – Asharam @ Ashumal that he had sexually abused and raped the victim, is false and concocted.
- The application records that Ajay Pal Lamba, who was the then Deputy Commissioner of Police (West), Jodhpur, Rajasthan, in the Book, has disclosed having recorded a video of the scene of the crime on his mobile phone on his first visit to the ‘Kutyia’ on 21.08.2013, which is a day prior to the drawing of the site maps on 22.08.2013.
- The High Court allowed the Application and directed that Ajay Pal Lamba is to be summoned as a witness, against which the state have filed the Appeal.
Issues
- Whether in the facts and circumstances of the case, the High Court was justified in allowing the Application of the Accused?
- Approach of the Appellate court in considering the Application under Section Sections 311 and 391 of the Cr.P.C.
Held
- The Appeal was allowed and the Supreme Court quashed the Order of the High Court.
- The impugned judgment is unsustainable and mistaken in both facts and law. The reasoning is based upon mere conjectures, and that too without appreciating the scope and object of Section 391 of the Cr.P.C.
- Both Sections 311 and 391 of the Cr.P.C. relate to power of the court to take additional evidence; the former at the stage of trial and before the judgment is pronounced; and the latter at the appellate stage after judgment by the trial court has been pronounced. It may not be totally correct to state that the same considerations would apply to both situations 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 any witness at any stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence 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. should be read as somewhat more restricted in comparison to Section 311 of the Cr.P.C., as the appellate court is dealing with an appeal, after the trial court has come to the conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and in detail, yet it does not possess all the powers of the trial court as it deals with cases wherein the decision has already been pronounced.
- The Supreme Court relied on the judgement in the case of State (NCT of Delhi) v. Shiv Kumar Yadav and Another (2016) 2 SCC 402 which emphasises that in exercise of the discretion under Section 311 of the Cr.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 in custody will suffer by the prolongation of proceedings, as this may not be valid and serving the ends of justice.
- Every criminal case, it is stated, is a voyage of discovery in which the truth is the quest. The process of ascertaining the truth requires compliance of procedures and rules of evidence. In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth. This happens when the facts contested are skillfully explored in accordance with the procedure prescribed by law. Further, in a criminal trial, burden of proof to establish the fact, which has to be proven beyond reasonable doubt, is on the prosecution. The power to take additional evidence in an appeal is to be exercised to prevent injustice and failure of justice, and thus, must be exercised for good and valid reasons necessitating the acceptance of the prayer.
- When we apply the aforesaid dicta to the factual matrix and background of the present case as held in paragraph 11 above, we do not think that the test to allow additional evidence is satisfied. On the other hand, the criminal appeal, which is ripe for hearing before the High Court, has not been taken up and has been delayed by moving the application under Section 391 of the Cr.P.C. for recording of additional evidence, which was filed nearly eight years after the date of occurrence.
Relevant Para No.
- 10, 16, 17, 18