Supreme Court Sets Aside Order for Additional Evidence in Asharam Case: State of Rajasthan vs. Asharam @ Ashumal (2023) INSC 338 (17 April 2023)

Date of the Judgment: 17 April 2023
Citation: (2023) INSC 338
Judges: Sanjiv Khanna, J. and M.M. Sundresh, J.
Can a High Court order additional evidence based on a book’s claims when the trial court has already considered the facts? The Supreme Court addressed this question in a criminal appeal concerning the conviction of Asharam @ Ashumal. The Court set aside the High Court’s order to summon a police officer as a witness based on statements in his book. The bench, comprising Justices Sanjiv Khanna and M.M. Sundresh, delivered a unanimous judgment.

Case Background

The case revolves around the conviction of Asharam @ Ashumal for various offenses, including sexual assault of a minor. The victim filed a complaint on the night of August 19/20, 2013, leading to a ‘Zero’ FIR in Delhi and subsequently, a formal FIR in Jodhpur on August 21, 2013. The trial court convicted Asharam on April 25, 2018. The High Court of Rajasthan at Jodhpur, however, allowed an application by Asharam to summon a police officer, Ajay Pal Lamba, as a witness, based on claims in his book.

Timeline

Course of Proceedings

The High Court allowed an application under Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.) filed by Asharam. This application sought to summon Ajay Pal Lamba as a witness, based on claims in his book that he had recorded a video of the crime scene on his mobile phone on August 21, 2013. The High Court reasoned that this evidence was crucial because the defense argued the victim was tutored based on this video before the spot panchnama was created. The trial court had rejected the argument that the victim was tutored based on a video of the crime scene. The High Court, however, found merit in the argument and allowed the application.

Legal Framework

The judgment primarily discusses Section 391 of the Cr.P.C., which allows an appellate court to take additional evidence. The Supreme Court also refers to Section 311 of the Cr.P.C., which empowers a trial court to summon or recall witnesses. The court emphasizes that the power under Section 391 is to be exercised cautiously and not routinely. The court also refers to Section 161 of the Cr.P.C. which deals with examination of witnesses by police.

Arguments

Arguments by Asharam @ Ashumal (Respondent):

• Asharam argued that the victim (PW-5) was never inside the ‘Kutiya’ (the room where the crime allegedly occurred) before the spot panchnama.
• He contended that the victim was tutored based on a video recorded by Ajay Pal Lamba on his mobile phone on August 21, 2013, a day before the site maps were drawn.
• Asharam highlighted discrepancies between the victim’s initial statements and her later statement under Section 161 of the Cr.P.C., which contained a detailed description of the ‘Kutiya’.
• He relied heavily on Ajay Pal Lamba’s book, where Lamba mentioned recording a video of the crime scene.

Arguments by the State of Rajasthan (Appellant):

• The State argued that the High Court’s decision to allow additional evidence was based on mere conjectures and without appreciating the scope of Section 391 of the Cr.P.C.
• It was emphasized that the police had indeed visited the ‘Kutiya’ on August 21, 2013, and the trial court had already considered this fact.
• The State pointed out that Ajay Pal Lamba’s book was a dramatized version of events and should not be relied upon as factual evidence.
• The State argued that the trial court had already determined that the victim’s description of the ‘Kutiya’ was accurate, based on her own testimony and the evidence presented.

Innovativeness of the argument: The respondent’s argument was innovative in relying on a book written by a police officer to challenge the prosecution’s case. This was a novel approach to introduce new evidence at the appellate stage.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues, but the core issue was whether the High Court was justified in allowing the application under Section 391 of the Cr.P.C. to summon Ajay Pal Lamba as a witness based on his book.

The sub-issue was whether the High Court had correctly interpreted the scope of Section 391 of the Cr.P.C. and the need for additional evidence.

Treatment of the Issue by the Court

Authorities

Cases Relied Upon by the Court:

Legal Provisions Considered by the Court:

Judgment

How each authority was viewed by the Court?

• Rajeswar Prasad Misra v. State of West Bengal and Another [CITATION]: The Court used this case to emphasize that additional evidence should only be allowed if it’s essential to prevent a failure of justice.
• Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others [CITATION]: The Court cited this case to highlight the need to balance the right to additional evidence with the right to a fair hearing for all parties.
• State (NCT of Delhi) v. Shiv Kumar Yadav and Another [CITATION]: This case was used to emphasize that the recall of witnesses should not be done lightly and must be based on tangible reasons.
• Girish Kumar Suneja v. Central Bureau of Investigation [CITATION], P. Ponnusamy v. State of Tamil Nadu [CITATION] and State of West Bengal v. Amiya Kumar Biswas [CITATION]: These cases were cited to highlight the importance of balancing the rights of the accused with the rights of the victim and society.
• Ritesh Tewari and Another v. State of Uttar Pradesh and Others [CITATION]: This case was used to emphasize the importance of truth-seeking in a criminal trial.

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with ensuring that the legal process was followed correctly and that the High Court did not overstep its bounds. The Court emphasized that the power to take additional evidence under Section 391 of the Cr.P.C. is not to be exercised routinely and that there must be a valid reason for doing so. The court also emphasized that the trial court had already considered the facts, and the High Court’s order was based on mere conjectures. The court also took into consideration the delay caused in the process.

The Court’s reasoning was based on the procedural aspects of the case, particularly the scope of Section 391 of the Cr.P.C. The Court emphasized that the High Court should not have allowed additional evidence based on a book when the trial court had already considered the facts and the police visit to the crime scene. The Court also noted that the High Court’s decision was based on mere conjectures and not on any tangible evidence.

The Supreme Court did not discuss any alternative interpretations, as its focus was on the procedural impropriety of the High Court’s decision. The Court’s decision was unanimous.

The Supreme Court stated, “In our opinion, 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.”

The Court also observed, “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).”

The Court further stated, “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.”

Key Takeaways

• The Supreme Court clarified the scope of Section 391 of the Cr.P.C., emphasizing that additional evidence at the appellate stage should not be allowed routinely.
• The Court highlighted that the appellate court should not interfere with the findings of the trial court unless there is a clear failure of justice.
• The judgment underscores the importance of adhering to legal procedures and not relying on extraneous materials like books to introduce new evidence.
• The Court emphasized the need for speedy trials and that the right to a speedy trial is not just for the accused, but also for the victim and society.

Directions

The Supreme Court directed the High Court to take up the appeal for an expeditious hearing, given that Asharam had already been incarcerated for nearly ten years.

Development of Law

The ratio decidendi of this case is that the appellate courts must exercise caution while allowing additional evidence under Section 391 of the Cr.P.C. The court reiterated that the power to take additional evidence is to be exercised to prevent injustice and failure of justice, and not routinely. This judgment reinforces the existing position of law on Section 391 of the Cr.P.C.

Conclusion

The Supreme Court set aside the High Court’s order to summon Ajay Pal Lamba as a witness, emphasizing that the High Court had erred in its interpretation of Section 391 of the Cr.P.C. The Court stressed that additional evidence should only be allowed in exceptional circumstances to prevent a failure of justice. This decision underscores the importance of adhering to legal procedures and respecting the findings of the trial court.