Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. To elucidate the specific findings as recorded above, and reject the arguments raised by the respondent – Asharam @ Ashumal and the grounds/reasoning given by the High Court, we would advert to paragraph 62 of the judgment of the trial court, which refers to the testimony of the Investigating Officer – Chanchal Mishra (PW-43) to the effect that she was 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 had received two medical reports of the victim (Exhibits P1 to P-3 and P-12 respectively), a copy of the statement of the victim (PW-5)under Section 164 of the Cr.P.C. (Exhibit P-7) etc. There upon, the Investigating Officer – Chanchal Mishra (PW-43) had proceeded to record the statement of the victim (PW-5) under Section 161 of the Cr.P.C. (Exhibit D-2) which was videographed. Thereafter, the Investigating Officer – Chanchal Mishra (PW-43) had visited the place of occurrence. Clearly, it is not the prosecution’s case and version that the police team/officers had not visited 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 where the incident allegedly occurred was published in ‘Dainik Bhaskar’ newspaper on 22.08.2013, in which we note a police officer can be seen. 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 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 room or the bathroom on 21.08.2013, but by rejecting the argument that the police officer 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 examination of the evidence of the victim (PW-5), as well as the Investigating Officer – Chanchal Mishra (PW-43). Whether this finding is correctwill be tested in the appeal, albeit 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. The statement made by Ajay Pal Lamba in the Book, as quoted above, which statement is heavily relied upon by the learned Senior Advocate for the respondent – Asharam @ Ashumal, nowhere mentions that the video, which he had purportedly recorded on his mobile phone, was handed over, given or transferred by him to the Investigating Officer – Chanchal Mishra (PW-43), or that it was shown by him to the victim (PW-5). In our opinion, 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 Ajay Pal Lamba on the ground that he had purportedly recorded a video of the ‘Kutiya’ on his mobile phone is completely inconsequential and irrelevant to the factual matrix of the presentcase. Further, the deposition given by a witness under oath in the court constitutes and is read as evidence. Statements recorded under Section 161 of the Cr.P.C. by a police officer during investigation cannot be used as evidence, albeit the accused may use a part of the statement in terms of the proviso to Section 162 of the Cr.P.C.
12. We are not examining whether there is sufficient evidence and material to uphold the conviction of the respondent – Asharam @ Ashumal, independent of the evidence and material referred to in paragraphs 298 to 303 of the trial court judgment. We refrain and would not like to go into these aspects as these are questions of merits to be STATE OF RAJASTHAN v. ASHARAM @ ASHUMAL [SANJIV KHANNA, J.] considered by the High Court while adjudicating the criminal appeal against conviction.
13. Similarly, on behalf of the appellant – State of Rajasthan, it was submitted that Ajay Pal Lamba had made a specific disclaimer and had stated that the Book is a dramatized version of the events. We need not examine this aspect in view of our findings recorded above.
14. This Court in Rajeswar Prasad Misra v. State of West Bengal and Another13 has opined that as additional evidence may be necessary for various reasons, the legislature has refrained from curtailing such discretion of the appellate court. The touch stone of when the additional evidence at the appellate stage may be taken on record is not the 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 as it is to be exercised only in cases when the appellate court finds, on good and justifiable grounds, that there would be a failure of justice without the additional evidence being taken on record. However, once this condition is satisfied, there is no restriction on the kind of evidence received, which may be formal or substantial.
15. In Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others14, this Court has elaborately dealt with the aspect of exercise of discretion, highlighting the balance which the courts have to 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 the prosecution. The right to fair hearing is inherent to the concept of due process of law and ascertainment of truth. Equally, there can be failure of justice if this 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 has imprints of reasonableness and genuineness to at least consider the worth, credibility and acceptability of the material sought to be brought on record.
16. 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 13 (1966) 1 SCR 178. 14 (2004) 4 SCC 158. 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 caseswherein the decision has already been pronounced.
17. State (NCT of Delhi) v. Shiv Kumar Yadav and Another15 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.It is not only the matter of delay but also the hardship to the victim/witnesses when they are recalled for examination. Recall is certainly permitted if essential for the just decision and for which there should be a tangible reason that fair trial would suffer without it. The discretion is to be exercised judiciously to prevent failure of justice, and must not be exercised arbitrarily. In our opinion, the 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. While 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 bonafide and is to be balanced carefully with relevant considerations, including hardship to the witness and delay of the proceedings. Right to speedy trial, including speedy disposal of an appeal, is not the exclusive 15 (2016) 2 SCC 402. STATE OF RAJASTHAN v. ASHARAM @ ASHUMAL [SANJIV KHANNA, J.] right of an accused, but an obligation of the court towards the society in general, and the victim in particular. Balance between the rights of an accused and the interests and rights of an individual victim and the society, without compromising the right of the accused to a fair trial, has been highlighted by this Court in Girish Kumar Suneja v. Central Bureau of Investigation16, P. Ponnusamy v. State of Tamil Nadu17 and State of West Bengal v. Amiya Kumar Biswas18. Every criminal case, it is stated, is a voyage of discovery in which the truth is the quest.19 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.
18. 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. If we carefully look at the reasons given, which have found favour in the impugned judgment, we can easily visualize that there could be further applications 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 over a prolonged period on eleven occasions in the case of the victim (PW-5) as well as the Investigating Officer – Chanchal Mishra (PW-43). The attempt is to re-open the entire case and seek re-examination of these witnesses 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 SCC 677.
19. The respondent – Asharam @ Ashumal had filed an application20 for suspension of sentence on the ground of, inter alia, having suffered incarceration for nearly 9 years and 7 months. This application was rejected by the High Court vide order dated 07.07.2022 noting that the defence has sought for multiple adjournments in the past, two previous applications for suspension of sentence have been dismissed and the respondent – Asharam@ Asharam @ Ashumal continues to be in custody in another trial in Gujarat.One of the grounds taken by the appellant in the special leave petition bearing Diary No. 33636 of 2022, which challenges the High Court order dated 07.07.2022, is that the appeal preferred by the respondent – Asharam @ Ashumal cannot be heard till the evidence of Ajay Pal Lamba is recorded, as the High Court has observed that additional evidence is absolutely necessary for the just decision of the appeal.
20. In view of the aforesaid findings, the appeal is allowed, and the impugned judgmentis set aside. We request the High Court to take up the appeal for an expeditious hearing, as the respondent – Asharam @ Ashumal has already suffered incarceration for nearly ten years. We also clarify that the observations made in the present judgment are for the disposal of the issues raised, and the criminal appeal will be decided by the High Court without being influenced by any observations and findings recorded herein. Ankit Gyan Appeal allowed. (Assisted by : Mahendra Yadav, LCRA) STATE OF RAJASTHAN v. ASHARAM @ ASHUMAL [SANJIV KHANNA, J.] 20 D.B. Criminal Misc. Third Suspension of Sentence Application (Appeal) No. 220/ 2022.