NDLI: State of Rajasthan Vs. Asharam @ Ashumal

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	s.391 Additional evidence at appellate stage Cr.P.C
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Criminal Procedure, 1973 (2 of 1974)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Code of Criminal Procedure, 1973 – s. 391 – High Court allowed the application filed by the respondent u/s. 391 of Cr.P.C., directing summoning and recording of evidence of one DCP, who wrote a book “Gunning for the Godman: The True story behind Asaram Bapu’s conviction” – In the said book, DCP disclosed that he had recorded a video of the scene of the crime (i.e. Kutiya) on his mobile phone on 21.08.2013, which is the day prior to the drawing of the site maps on 22.08.2013 – It was alleged that the victim was tutored based on the videography of the scene of the crime a day prior to the preparation of the spot panchnama and site maps on 22.08.2013 – Therefore, assertions were made that site maps (Exhibits P-13 and P-14) were false and ought to be discarded – On appeal, held: It is not the prosecution’s case and version that police team/officers had not visited the place of occurrence or scene of crime on 21.08.2013 – Presence of police team on 21.08.2013 is not disputed and it is an accepted position – The findings recorded by the trial Court is based on detailed examination of the evidence of the victim and investigating officer – Whether finding is correct will be tested in the appeal – 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 DCP on the ground that he had purportedly recorded a video of the ‘Kutiya’ on his mobile phone is completely inconsequential and irrelevant – The impugned judgment is unsustainable and mistaken in both facts and law and the reasoning is based upon mere conjectures, and that too without appreciating the scope and object of s. 391 Cr.P.C.Code of Criminal Procedure, 1973 – s. 391 – Additional evidence at appellate stage – 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. Code of Criminal Procedure, 1973 – ss. 311, 391 – Comparative analysis – Both s. 311 and 391 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 – The discretion u/s. 391 should be read as somewhat more restricted in comparison to s. 311 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 – Further, 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. Trial – Right to speedy trial – Additional evidence at appellate stage – 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 – 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 – Also, 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.
Judge	Hon'ble Mr. Justice Sanjiv Khanna
Neutral Citation	2023 INSC 383
Petitioner	State Of Rajasthan
Respondent	Asharam @ Ashumal
SCR	[2023] 4 S.C.R. 1
Judgement Date	2023-04-17
Case Number	1156

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