STATE OF RAJASTHAN VERSUS ASHARAM @ ASHUMAL

STATE OF RAJASTHAN  VERSUS ASHARAM @ ASHUMAL 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 1 of 20

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 2044 OF 2022)

STATE OF RAJASTHAN ..... APPELLANT

VERSUS

ASHARAM @ ASHUMAL ..... RESPONDENT

J U D G M E N T

SANJIV KHANNA, J.

Leave granted.

2. The present appeal preferred by the State of Rajasthan takes

exception to the judgment dated 10.02.2022 passed by the High

Court of Rajasthan at Jodhpur1

, allowing the application2

filed by

the respondent – Asharam @ Ashumal under Section 391 of the

Code of Criminal Procedure, 19733

, 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:

1 For short, ‘the High Court’.

2 D.B. Criminal Misc. Application No. 1 of 2021 in D.B. Criminal Appeal No. 123 of 2018.

3 For short, ‘Cr.P.C.’.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 2 of 20

The True Story Behind Asaram Bapu’s Conviction”4

.

3. The respondent – Asharam @ Ashumal was charge-sheeted on

06.11.2013, and after a trial lasting almost five years, vide judgment

dated 25.04.2018 passed by the Magistrate, Special Court,

Protection of Children from Sexual Offences Act, 20125

, Jodhpur,

Rajasthan, he has been convicted for the offences under Sections

370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the

Indian Penal Code, 1860, Sections 23 and 26 of the Juvenile

Justice (Care and Protection of Children) Act, 20006

, and Sections

5(f)/6, 5(g)/6, and 8 of the POCSO Act. He stands sentenced to

undergo rigorous imprisonment for different periods, and life

imprisonment for the remainder of his natural life, with fine and

default stipulations.

4. Earlier, the victim had given a handwritten complaint (Exhibit P-4)

on the intervening night of 19/20.08.2013 at 11:55 p.m., pursuant

to which ‘Zero’ F.I.R. dated 20.08.2013 (Exhibit P-11) was

registered at Police Station Kamla Market, Central District, Delhi at

2:50 a.m. The victim was spoken to and had interacted with a NonGovernmental Organization7

, and a report dated 20.08.2013

4 For short ‘the Book’.

5 For short, ‘POCSO Act’.

6 For short, ‘JJ Act’.

7 For short, ‘N.G.O.’.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 3 of 20

(Exhibit D-4) was prepared by the N.G.O. On the same day, the

victim had appeared before the Metropolitan Magistrate in New

Delhi, and her statement under Section 164 of the Cr.P.C. (Exhibit

P-7) was recorded. As the offence was committed in Jodhpur, the

investigation was transferred to the Police Station of competent

jurisdiction and, consequently, F.I.R. No. 122 of 2013 (Exhibit P106) was registered at Police Station Mahila Pashchim, Jodhpur

District, Rajasthan on 21.08.2013 at 6:15 p.m.

5. The investigation in the case was conducted by Chanchal Mishra,

the then Assistant Commissioner of Police8

, (West), Jodhpur,

Rajasthan, who has deposed as PW-43. As per the prosecution’s

version, the Investigating Officer – Chanchal Mishra (PW-43) had

recorded the statement of the victim under Section 161 of the

Cr.P.C. on 21.08.2013. For some reason, the entire statement of

the victim under Section 161 of the Cr.P.C. recorded on 21.08.2013

has been marked as Exhibit D-2

9

. The Investigating Officer –

Chanchal Mishra (PW-43) was examined and cross-examined on

as many as eleven dates between 09.07.2015 and 03.03.2016. The

victim, who has deposed as PW-5, was examined and cross8 For short, ‘ACP’.

9 Whether the entire statement recorded under Section 161 of the Cr.P.C. can be exhibited, and can

be read in evidence is not the subject matter of the present appeal and we make no comments and

observations on this aspect.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 4 of 20

examined on eleven dates between 11.04.2014 and 13.06.2014.

6. As a limited issue arises for our consideration, and keeping in mind

that the appeal preferred by the respondent – Asharam @ Ashumal

is pending adjudication before the High Court, we would refrain from

referring to the evidence in detail, and avoid expressing any opinion

on merits, albeit we would confine ourselves to the record on the

issue raised before us.

7. In 202110

, the respondent – Asharam @ Ashumal filed an

application under Section 391 of the Cr.P.C.11, in which the

impugned judgment has been passed, alleging that the victim (PW5) 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 (PW-5),

is false and concocted. The application asserts that the victim (PW5) was brought to the ‘Kutiya’ for the first time by the police for the

spot panchnama/Mauka Naksha on 22.08.2013, which visit was

duly video-graphed (Exhibit P-70) and after that, a transcription vide

compact disc (Article-16) was prepared, and the site maps (Exhibits

P-13 and P-14), were drawn. It is alleged that the victim (PW-5) was

tutored based on the videography of the scene of the crime shown

10The exact date of filing the application is not available on record.

11For short, ‘the application’.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 5 of 20

to the victim a day prior to the preparation of the spot

panchnama/Mauka Naksha and site maps on 22.08.2013. In this

context, 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

(Exhibits P-13 and P-14) on 22.08.2013. The assertion in the

application is that the site maps (Exhibits P-13 and P-14) are false

and ought to be discarded. It is alleged that there is a discrepancy

between video recording (Article-15) and statement of the victim

(PW-5) recorded under Section 161 of the Cr.P.C. dated

21.08.2013 (Exhibit D-2). If the description of the ‘Kutiya’, as given

by the victim (PW-5), which, as per prosecution’s case, was made

in her statement under Section 161 of the Cr.P.C. for the first time

on 21.08.2013 (Exhibit D-2), is falsified and rejected, the

prosecution’s case would not be able to link the victim (PW-5)'s

presence with the respondent – Asharam @ Ashumal at the scene

of the crime on 15.08.2013, the date when the offences were

allegedly committed.

8. The impugned judgment refers to quotes from a portion of the Book,

wherein Ajay Pal Lamba has stated that on learning about the

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 6 of 20

offence, he had swung into action and had sent a police team to

scan and examine the location. Ajay Pal Lamba had asked SubInspector Madan Beniwal to seal and secure the entire campus until

the investigation was completed. The impugned judgment dated

10.02.2022, at the same time, quotes Ajay Pal Lamba’s assertion

in the Book – “In any case, one would not be very wrong to assume

that not much of the forensic evidence would be found at the [scene

of the crime] because of...the sheer delay in filing the FIR...”, as the

offence was stated to have occurred on 15.08.2013, while the F.I.R.

No. 122 of 2013 (Exhibit P-106) was registered on 21.08.2013.

Nevertheless, the application under Section 391 of the Cr.P.C. for

summoning and recording evidence of Ajay Pal Lamba has been

allowed primarily relying on the following statement by Ajay Pal

Lamba in the Book:

“….. While I was there, I thought it would be prudent to

film a video of the place on my mobile phone, should I

need to refer to it at some point during the course of the

investigation. And so, I did.”

9. The impugned judgment refers to judgments concerning Sections

311 and 391 of the Cr.P.C., to observe that while it will be premature

for the High Court to comment on whether the victim (PW-5) was

tutored on the basis of some video recording of the crime scene, as

referred to in the book written by Ajay Pal Lamba, his examination

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 7 of 20

and the recording itself would be valuable as evidence, given the

fact that the defence had given definite suggestions to the victim

(PW-5) and the Investigating Officer – Chanchal Mishra (PW-43)

that a video recording of the crime scene was shown to the victim

(PW-5) and on the basis thereof, the victim (PW-5) was familiarized

with the crime scene. The impugned judgment observes that the

defence had relied on contradictions between the first version given

by the victim (PW-5) in the ‘Zero’ FIR (Exhibit P-11) and the

statement of the victim (PW-5) under Section 164 of the Cr.P.C.

(Exhibit P-7), vis-à-vis the statement under Section 161 of the

Cr.P.C (Exhibit D-2), stated to be recorded by the Investigating

Officer – Chanchal Mishra (PW-43) on 21.08.2013, which contains

a graphic description of the place/scene of the crime. The High

Court observes that the trial court had rejected the argument by the

defence that videography of the crime scene was done by the police

on 21.08.2013, and was shown to the victim (PW-5), and

consequently placed reliance on the victim (PW-5)’s description of

the scene of crime in view of her statement, Exhibit D-2, given to

the Investigating Officer – Chanchal Mishra (PW-43) under Section

161 of the Cr.P.C. on 21.08.2013. Accordingly, the High Court

allowed the application and has directed that Ajay Pal Lamba is to

be summoned as a witness, for the following reason:

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 8 of 20

“……. Now with the publication of the book, referred to

supra, the defence has right to claim that video of the

crime scene was unquestionably recorded which fact is

sufficient to convince the Court that it is absolutely

essential in the interest of justice and for a just decision

of the case to exercise the power under Section 391

Cr.P.C. for summoning and examining Shri Ajay Pal

Lamba as a court witness in this case while giving

access of crossexamination to the defence as well as

the prosecution.”

10. 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. As stated above, we do not wish to

make observations on merits, albeit in view of the stand taken by

the respondent – Asharam @ Ashumal, we have to reproduce the

relevant observations made in the trial court judgment, to which our

attention was drawn, and reliance was placed by the learned Senior

Advocate appearing for the respondent – Asharam @ Ashumal in

support of his submissions. The relevant portion12 of the judgment

of the trial court reads:

“298- In my humble opinion circumstances make

statements more than the witnesses. It is notable that

PW-43 Chanchal Mishra Investigation Officer in her

statement has told that after conducting the inspection

of the place of incident Site Inspection of the place of

incident Ex.P-13, Memo of Site Inspection and Site Map

of place of incident and Ex.P-14 circumstances of the

site prepared on the identification of the Victim. She

says that she conducted the videography and

12 We may note that there appears to be misnumbering in the paragraphs of the trial court judgment

dated 25.04.2018.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 9 of 20

photography of the place of incident. After the

videogrpahy of the place of incident the witness said

transcription C.D. Article-16 was prepared. PW-30

Papparam said that C.D. of videography of the

circumstances told by the above victim was prepared in

his presence. He said that he played the above C.D. on

Laptop and typed the circumstances as told by the

victim on computer. He proved the sealed C.D. its

Memo of Transcription by exhibiting the same in

evidence as Ex.P--69 and Ex.P-70 respectively.

Witness PW-30 Ramdev has also confirmed the

statements of above witnesses. In this regard the

defence while giving emphasis on Ex.D-103 and ExD104 has argued that SHO of P.S. Soorsagar Sh. Madan

Benival and his police staff had reached at the spot.

After doing the videography of the spot they showed it

to the victim on the next day. Hence, the victim clearly

stated the circumstances inside Kutiya. In my humble

opinion there is no abstract in these pleas. This is

correct that it appears form Ex.D-103 and Ex.D-104 that

Staff of P.S. Soorsagar and SHO Madan Beniwal had

gone at the spot but he would have done the

videography of the place of incident or perused the

place of incident, such does not appear from both above

documents.

299- We have carefully perused the Ex.P-69 Memo of

Transcription, part of which is Ex.P-70 print out.

300- According to the above memo on dated 22.8.2013

at the time of site inspection videogrpahy regarding the

room, bathroom of Kutiya at the place of incident was

conducted from the witness and after typing the details

of the circumstances of the place of incident as told by

the Victim, in computer the print out was taken and the

detailed document of transcription has been included in

the case file. We perused the Ex.P-70 Transcription

(Print out of transcription).

301- This is clear that the Investigation Officer while

taking precautions has asked from the Victim her details

by taking her at Hariom Farm House without taking her

inside the Kutiya and has done its videography.

Transcription of the above videogrpahy of the details

without going inside is Ex.P-70. In the above

transcription Ex.P-70 we matched the facts told by the

victim about taking inside Kutiya from the Ex.P-13 and

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 10 of 20

Ex.P-14 and photographs Ex.P-16 to Ex.P32. The

details of inside Kutiya which has been told by the victim

without going inside, the same circumstances appear

from the site map and circumstances of the site and

photographs and matches with it. In my humble opinion

it is proved from this evidence that the victim had gone

inside the room and had gone in the bathroom too. In

such a situation this statement of the defence is not

believable that the victim would have not even entered

in Kutiya.

301. The defence has said that photo of room is

published in Dainik Bhaskar on 22.8.2013 and has

asked from the Victim in cross-examination that due to

this she knew about inside the room. This is the clear

statement of the victim that this is wrong to say that

because of publishing photo in newspaper she came to

know about that room. She has been suggested that

what were the things in the room and where it were

situated, details of which have not been mentioned in

the FIR, NGO’s report and statements of Section 164

CrPC. The statement of the witness is this that

regarding bed and light is written in NGO report and she

has also told about Room’s light and bed in Section 164

of Criminal Procedure Code and also there is details of

locking the room. Thus the witness has clearly denied

that she would have come to know about the inside

things of the rooms after publishing photo in

newspaper.

302- The statement of the Defence is this that no one

was allowed to go inside the Kutiya whereas it has

become clear from the above deliberation that the

Victim without going inside Kutiya, has told that whole

inside details of Kutiya, which has been found

absolutely correct. This has been suggested to the

Victim in the cross-examination that she would have

seen Kutiya of accused Asaram situated Haridwara,

Shahjahanpur, from which she has denied. In this

situation now the Onus to give this clarification goes on

to the Defence to tell that how the Victim came to know

about the real and actual inside situation of Kutiya

without going inside? This is the clear principle of law

that a person can speak lie but circumstances never

speak lie. Above mentioned circumstances are

expressing this truth before the Court that the Victim

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 11 of 20

had sent inside the above Kutiya wherein as per the

Defence no one was allowed to go.

303- Therefore, the prosecution has been successful to

prove this that the Victim had gone in the above

mentioned Kutiya situated at the place of incident

means the victim's visit to the above room is proved by

evidence.”

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. Thereupon, 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). 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.’

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 12 of 20

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 a 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 on the detailed

examination of the evidence of the victim (PW-5), as well as the

Investigating Officer – Chanchal Mishra (PW-43). Whether this

finding is correct will 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

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 13 of 20

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 present

case. 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

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 14 of 20

would not like to go into these aspects as these are questions of

merits to be 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 touchstone 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

13 (1966) 1 SCR 178.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 15 of 20

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 after judgment by the trial court has been pronounced. It may

not be totally correct to state that the same considerations would

14 (2004) 4 SCC 158.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 16 of 20

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.

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

15 (2016) 2 SCC 402.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 17 of 20

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 bona fide 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 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

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 18 of 20

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

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.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 19 of 20

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 (PW5) 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.

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

20 D.B. Criminal Misc. Third Suspension of Sentence Application (Appeal) No. 220/2022.

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 20 of 20

@ 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 judgment is 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.

......................................J.

(SANJIV KHANNA)

......................................J.

(M.M. SUNDRESH)

NEW DELHI;

APRIL 17, 2023.