Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Criminal Appeal @ SLP (Crl.) No. 2044 of 2022 Page 1 of 20
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
. 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
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
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
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
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
. 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.
APRIL 17, 2023.


Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India