The Appeal Of State Vs Asharam @ Ashumal: Issue Of Additional Evidence And Suspension Of Sentence

Case title:

State Of Rajasthan Vs Asharam @ Ashumal 

Date of Order:

17th April, 2023

Bench:

Hon’ble Justice Sanjiv Khanna

Parties:

APPELLANT: State Of Rajasthan

RESPONDENT: Asharam @ Ashumal

SUBJECT:

• The State of Rajasthan has filed this appeal in response to the judgment dated High Court of Rajasthan at Jodhpur allowing the application filed by the respondent - Asharam @ Ashumal under Section 391 of the Code of Criminal Procedure, 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”
• Asharam, also known as Ashumal, filed an application to suspend his sentence on the basis that he had been in jail for almost 9 years and 7 months. 
• However, the High Court rejected this application on July 7th, 2022, citing that the defense had previously requested multiple adjournments, and Asharam had two prior applications for sentence suspension that were dismissed. Furthermore, Asharam remained in custody for another trial in Gujarat. 
• The appellant, in a special leave petition (Diary No. 33636 of 2022), challenged the High Court's order, arguing that the respondent's appeal cannot proceed until the evidence of Ajay Pal Lamba is recorded. The High Court has deemed additional evidence to be essential for a just decision of the appeal.
• The Supreme Court is not considering whether there is sufficient evidence and material to support the respondent's conviction - Asharam @ Ashumal - except from the facts and material referred to in paragraphs 298 to 303 of the trial court judgment. 
• SC refrain and would prefer not to get into these details because these are merits issues that the High Court would address while hearing the criminal appeal against conviction.

IMPORTANT PROVISIONS:

The Code of Criminal Procedure, 1973

Section 391- Appellate Court may take further evidence or direct it to be taken.

OVERVIEW:

• Asharam @ Ashumal was charged on 06.11.2013 and was found guilty of several offenses after a trial lasting almost five years.
• He was convicted of offenses under several sections of the Indian Penal Code, the Juvenile Justice Act, and the POCSO Act and has been sentenced to undergo rigorous imprisonment for different periods and life imprisonment for the remainder of his natural life, with a fine and default stipulations.
• The victim had given a handwritten complaint on 19/20.08.2013, and a Zero FIR was registered at Police Station Kamla Market, Central District, Delhi.
• The victim interacted with an NGO, and a report was prepared by the NGO. The victim's statement under Section 164 of the Cr.P.C. was recorded before the Metropolitan Magistrate in New Delhi.
• The offense was committed in Jodhpur, and the investigation was transferred to the Police Station of competent jurisdiction, and an FIR was registered at Police Station Mahila Pashchim, Jodhpur District, Rajasthan on 21.08.2013.
• The investigation in the case was conducted by Chanchal Mishra, the then Assistant Commissioner of Police (West), Jodhpur, Rajasthan, who has deposed as PW-43.
• The statements of the victim and Investigating Officer Chanchal Mishra were recorded on different dates, and they were examined and cross-examined on multiple dates.

ISSUES RAISED:

Challenging the order of the High Court which regarding the respondent’s application for suspension of jail.

ARGUMENTS ADVANCED BY THE APPELLANT:

• It was argued on behalf of the appellant - the State of Rajasthan - that Ajay Pal Lamba had provided an explicit disclaimer and said that the Book is a dramatized account of the events. We don't need to investigate this element given our previous findings.
• The counsel discusses the specific findings of the trial court in the Asharam Bapu rape case and rejects the arguments raised by the respondent. 
• Counsel refers to the testimony of the Investigating Officer, Chanchal Mishra, who had received medical reports of the victim, a copy of the statement of the victim under Section 164 of the Cr.P.C., and had recorded the statement of the victim under Section 161 of the Cr.P.C. 
• The presence of a police team on the day of the incident is not disputed, but the prosecution's case is that the victim was not tutored or prompted by the police. The trial court had accepted this based on detailed examination of the evidence of the victim and Investigating Officer, and this finding will be tested in the appeal. 
• The reasoning given in the impugned judgment to summon and examine Ajay Pal Lamba as a court witness cannot be sustained on the ground that Ajay Pal Lamba had purportedly recorded a video on his mobile phone, and the deposition given by a witness under oath in the court constitutes evidence. 
• Both Sections 311 and 391 of the Cr.P.C. relate to the power of the court to take additional evidence, but 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.

JUDGEMENT ANALYSIS:

• In Rajeswar Prasad Misra v. State of West Bengal and Others, this Court held that because new evidence may be required for a variety of reasons, the legislative body has refrained from limiting the appellate court's power. 
• The litmus test for when more evidence may be taken on record at the appellate stage is not the impossibility or incapacity to pronounce the verdict in its absence, but whether there would be a failure of justice in the absence of such additional evidence.
• This discretion should not be utilized lightly, but with caution and attention, since it should only be used when the appellate court determines, on reasonable and justifiable grounds, that there would be a failure of justice if the additional evidence was not taken into account. However, once this criterion is met, there are no restrictions on the type of evidence that can be received, which can be formal or substantial.
• In Zahira Habibulla H. Sheikh and Others v. State of Gujarat and Others, this Court elaborated on the issue of exercise of discretion, emphasizing the balance that courts must maintain in order to not deny the right to additional evidence in order to do justice, as well as the importance of the right to a fair hearing for both the accused and the prosecution.
• The right to a fair hearing is fundamental in the concept of due process of law and truth-finding. Similarly, there may be a failure of justice if the court's discretion to allow additional evidence at the appellate stage is exercised in a routine and liberal manner, without the court being satisfied that the prayer bears the imprints of reasonableness and genuineness to at least consider the worth, credibility, and acceptability of the material sought to be brought on record.
• In brief, the case concerns an application filed under Section 391 of the Cr.P.C.11 by the respondent Asharam @ Ashumal, in which he alleges that the victim (PW5) had never been inside the house described as ‘Kutiya’, and therefore, the entire case against him that he had sexually abused and raped the victim is false and concocted. 
• The application asserts that the victim was tutored based on the videography of the scene of the crime shown to the victim a day prior to the preparation of the spot panchnama/Mauka Naksha and site maps. 
• The defense had given definite suggestions to the victim and the Investigating Officer that a video recording of the crime scene was shown to the victim and on the basis thereof, the victim was familiarized with the crime scene. 
• The court allowed the application for summoning and recording evidence of Ajay Pal Lamba, who had stated in a book that he had filmed a video of the place on his mobile phone, should he need to refer to it at some point during the course of the investigation. The court observed that the recording itself would be valuable as evidence.
• The Supreme Court has deemed the earlier court judgment to be unsustainable and mistaken in facts and law. The reasoning was based on mere conjectures and failed to appreciate the scope and objective of Section 391 of the Cr.P.C.
• SC did not want to make observations on the case's merits, but due to the respondent's stand, the relevant observations made in the trial court judgment were reproduced. 
• The trial court's judgment emphasized the statements made by witnesses, and there was evidence of the victim entering the room and the bathroom, which the defense had denied. The victim had denied that she had come to know about the details of the room only after the photo was published in the newspaper. The Defense's statement that no one was allowed to go inside the Kutiya was contradicted by evidence of the Victim entering the room and the bathroom.
• “The case of State (NCT of Delhi) v. Shiv Kumar Yadav and Another highlights the importance of exercising discretion under Section 311 of the Cr.P.C. with care and caution when considering an application for the recall of a witness”- Supreme Court.
• Further highlighting the case of NCT of Delhi vs Shiv, SC held that the court should not be swayed by arguments that only the accused who is in custody will suffer from the prolongation of proceedings, as this may not serve the ends of justice. The court must consider not only the issue of delay but also the hardship faced by witnesses when they are recalled for examination. Recall of a witness is only permitted if it is essential for a just decision and there is a tangible reason that a fair trial would suffer without it. 
• The discretion to recall a witness must be exercised judiciously to prevent failure of justice and not exercised arbitrarily. The appellate court must be cautious of delaying the hearing of an appeal or attempting to lead additional evidence to explore a chance of contradictory evidence. While a request for leading additional evidence should be permitted to correct a bona fide error or otherwise, the request for recall must be bona fide and balanced carefully with relevant considerations, including hardship to the witness and delay of the proceedings. 
• The right to a speedy trial is not the exclusive right of an accused, but an obligation of the court towards society in general and the victim in particular. 
• The balance between the rights of an accused and the interests and rights of an individual victim and society, without compromising the right of the accused to a fair trial, has been highlighted by the Court in previous cases. 
• The process of ascertaining the truth requires compliance with procedures and rules of evidence, and the burden of proof to establish a fact beyond a 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 must be exercised for good and valid reasons necessitating the acceptance of the prayer.

CONCLUSION:

• The State v. Shiv Kumar Yadav case emphasizes that when considering a request to recall a witness under Section 311 of the Cr.P.C. the court should not be swayed by arguments that only the accused in custody will suffer from prolonging the proceedings. 
• The court must balance the interests and rights of the victim, the accused, and society, without compromising the accused's right to a fair trial. 
• In the present case, the Supreme Court believes that the test for allowing additional evidence has not been satisfied, and delaying the criminal appeal by filing an application for recording additional evidence eight years after the occurrence is not serving the interests of justice. 
• The court has concerns that allowing the request to recall the victim and Investigating Officer for further examination at the appellate stage could lead to re-opening the entire case.
• Given the foregoing findings, the appeal is granted by the Supreme Court, and the contested judgment is reversed. SC seek that the High Court hear the appeal as soon as possible because the respondent, Asharam @ Ashumal, has already been imprisoned for nearly ten years. 
• SC also explains that the observations made in this judgment are for the purpose of resolving the problems addressed, and the criminal appeal will be considered by the High Court independently of any observations and findings recorded below.