17 April 2023 5:32 AM GMT
The Supreme Court, on Monday, allowed the Special Leave Appeal filed by the State of Rajasthan challenging the Rajasthan High Court’s order to summon IPS Officer Ajay Pal Lamba for recording his evidence as a court witness in connection with Asaram's appeal challenging his conviction by lower Court in a minor's rape case.A Bench comprising Justice Sanjiv Khanna and Justice M.M. Sundresh...
The Supreme Court, on Monday, allowed the Special Leave Appeal filed by the State of Rajasthan challenging the Rajasthan High Court’s order to summon IPS Officer Ajay Pal Lamba for recording his evidence as a court witness in connection with Asaram's appeal challenging his conviction by lower Court in a minor's rape case.
A Bench comprising Justice Sanjiv Khanna and Justice M.M. Sundresh asked the High Court to take up Asaram's appeal for hearing expeditiously.
"We have allowed the appeal and set aside the impugned judgment. We request the High Court to take up the appeal for hearing expeditiously."
"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...The attempt is to re-open the entire case and seek re-examination of these witnesses at the appellate stage", the bench observed in the judgment.
Asaram’s appeal against his conviction is pending before the High Court wherein he has contended that the entire prosecution case is false and fabricated. Eventually an application was moved to summon Mr. Lamba, alleging that the victim was tutored on the basis of some videos of the scene of crime that were shot by him. The application indicates that the claim can be substantiated by the accounts mentioned in the book titled Gunning For The Godman, The True Story Behind Asaram Bapu's Conviction, co-authored by Mr. Lamba. After hearing arguments on the application, the High Court allowed it. While issuing notice the Apex Court had stayed the order of the Rajasthan High Court.
The High Court had noted in its order -
"The video would definitely be a valuable piece of evidence because it was recorded during the first visit by a police officer to the crime scene. Shri Lamba was not examined in evidence at the trial...Now with the publication of the book, referred to supra, the defence has the 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 cross-examination to the defence as well as the prosecution."
Senior Advocate, Mr. Manish Singhvi, representing the State, argued before the Supreme Court that the disclaimer inside the book clearly states that it is a dramatized version. He submitted that the application filed before the High Court was purely based on semi-fictional grounds. Mr. Singhvi expressed his concern that on the pretext of the book, Asaram was seeking re-opening of his conviction.
Senior Advocate, Mr. Devadutt Kamat appearing for Asaram pointed out that there were contradictions in the FIR, statements made on 19th-20th August, 2013, and the police statement recorded in Jodhpur, on 21st August, 2013. It appears that the description of the room came up for the first time in the police statement. He alleged that the survivor was shown a video of the room recorded by Mr. Lamba, the then DCP (West), Jodhpur, and thus she could provide a vivid description of the crime scene in her police statement. He emphasised that the Trial Court had dismissed this submission made by Asaram by stating there was lack of evidence to demonstrate that the video was indeed shown to the survivor. He insisted that under Section 391 Cr.P.C. when a court is examining new material, Asaram should be able to rely on the piece of evidence in hand. He referred to the judgment of the Apex Court in Zahira Habibullah Sheikh v. State of Gujarat (2004) to argue that under Section 391 it is only required to be shown that the evidence is relevant. He also averred that the onus is on the State to show that the additional evidence is irrelevant.
[Case Title: State of Rajasthan v. Asharam @ Ashumal SLP(Crl) No. 2044/2022]
Citation : 2023 LiveLaw (SC) 316
Click Here To Read/Download Judgment