STATE OF RAJASTHAN versus ASHARAM @ ASHUMAL

Citation: [2023] 4 S.C.R. 1 · Decided: 17-04-2023 · Supreme Court of India · Bench: SANJIV KHANNA · Disposal: Appeal(s) allowed

Cited by 9 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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[2023] 4 S.C.R. 1
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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 Court
allowed the application filed by the respondent u/s.391 of Cr.P.C.,
directing summoning and recording of evidence of one DCP, who
wrote a book “Gunning for the Godman:The True story behind
Asaram Bapu’s conviction” – In the said book, DCP disclosed that
he had recorded a video of the scene of the crime (i.e. Kutiya) on
his mobile phone on 21.08.2013, which is the day prior to the
drawing of the site maps on 22.08.2013 – It was alleged that the
victim was tutored based on the videography of the scene of the
crime a day prior to the preparation of the spot panchnama and
site maps on 22.08.2013 – Therefore, assertions were made that
site maps (Exhibits P-13 and P-14) were false and ought to be
discarded – On appeal, held: It is not the prosecution’s case and
version that police team/officers had not visited the place of
occurrence or scene of crime on 21.08.2013 – Presence of police
team on 21.08.2013 is not disputed and it is an accepted position –
The findings recorded by the trial Court is based on detailed
examination of the evidence of the victim and investigating officer
– Whether finding is correct will be tested in the appeal – When the
prosecution states that on 21.08.2013 the police team had visited
the scene of the crime, that is, the ‘Kutiya’, the plea to examine DCP
on the ground that he had purportedly recorded a video of the
‘Kutiya’ on his mobile phone is completely inconsequential and
irrelevant – The impugned judgment is unsustainable and mistaken
in both facts and law and the reasoning is based upon mere
conjectures, and that too without appreciating the scope and object
of s. 391 Cr.P.C.
Code of Criminal Procedure, 1973 – s. 391 – Additional
evidence at appellate stage – The touchstone of when the additional
evidence at the appellate stage may be taken on record is not the
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
impossibility or inability to pronounce the judgment in its absence,
but whether there would be a failure of justice without such
additional evidence – This discretion is not to be exercised lightly
but requires caution and care.
Code of Criminal Procedure, 1973 – ss. 311, 391 –
Comparative analysis – Both s. 311 and 391 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 – The
discretion u/s. 391 should be read as somewhat more restricted in
comparison to s. 311 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 – Further, 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.
Trial – Right to speedy trial – Additional evidence at appellate
stage – Appellate court must be equally, if not more cautious, of the
desire to delay the hearing of the appeal, or the attempt to lead
additional evidence to explore a chance of contradictory evidence
– The prayer for leading additional evidence should be permitted
to correct a bona fide error or otherwise, and a party may be entitled
to further opportunity without any fault on the part of the opposite
party, the request for recall should be bona fide and is to be balanced
carefully with relevant considerations, including hardship to the
witness and delay of the proceedings – Also, Right to speedy trial,
including speedy disposal of an appeal, is not the exclusive right of
an accused, but an obligation of the court towards the society in
general, and the victim in particular.
Allowing the appeal, the Court
HELD: 1. The case of the prosecution, as held by the trial
court in paragraphs 298 to 303, as quoted above, is that the victim
(PW-5) was not tutored and, therefore, her version as to the details
of the ‘Kutiya’ were narrated by her to the police without being
taken inside the room or the bathroom. This version and stand
of the prosecution, as accepted by the trial court, is not on the
ground and reason that the police team had not gone inside the
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room or the bathroom on 21.08.

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