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TMI Blog2022 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000 1 Year's R.I. Section 376D IPC Life Imprisonment (The remainder of Natural Life of the Accused) Rs. 1,00,000 1 Year's R.I. 2. While the appeals of the appellant-applicant and the other co-accused persons were listed for hearing, an Interlocutory Application No. 01/2021 came to be filed on behalf of the appellant Asharam @ Ashumal under Section 391 Cr.P.C. for taking additional evidence by way of summoning the police officer Shri Ajay Pal Lamba, posted as DCP (West), Jodhpur at the time of the alleged incident, as a Court witness and to allow the applicant to cross-examine him. 3. The foundation of the application is based on the contents of a book authored by the said Shri Ajay Pal Lamba titled as "GUNNING FOR THE GODMAN, THE TRUE STORY BEHIND ASARAM BAPU'S CONVICTION". The substratum of the grounds as set out in the application for summoning Shri Lamba as a court witness and to record his evidence in this appeal is based on certain excerpts of the said book. 4. It is asserted in the application is that the entire prosecution case is false and fabricated. In the handwritten complaint submitted at the Police Station Kamla Market, Central District, Delhi o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 230 of the impugned Judgment where a pertinent argument was raised by the defence that videography of the crime scene was conducted beforehand and was shown to the victim and also towards the conclusion at para No. 297 of the Judgment that no videography was undertaken of the crime scene by the SHO Shri Madan Beniwal. Shri Kamat urged that the circumstances unequivocally support the contention of the defence that the victim never entered 'the Kutia' as alleged in the FIR and in the subsequent statements including her sworn testimony. She was shown the video recorded by Shri Ajay Pal Lamba on 20.08.2013 whereafter, her police statement (Ex. D/2) was recorded on 21.08.2013 wherein, a detailed description of the Kutia was set out for the first time after the alleged incident. Shri Kamat further drew the Court's attention to the sworn statement of the victim Mst. 'S' (PW-5) where, she was confronted with a news item published in "Dainik Bhaskar" Newspaper on 22.08.2013 and was given a suggestion that she was made familiar with the crime scene by aid of the photographs and that is why, she could describe the same at a later point of time. Shri Kamat pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislature intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal recollections of an author so as to impeach the evidence of the victim who is still suffering from the agony of the sexual assault made on her by the appellant and reopening of the proceedings in garb of this frivolous application would refresh her wounds. On these grounds, learned Public Prosecutor and the learned counsel representing the complainant sought dismissal of the application preferred under Section 391 of the Cr.P.C. 7. We have given our thoughtful consideration to the submissions advanced at bar and, have carefully gone through material placed on record. 8. Law is well settled by a catena of Supreme Court Judgments that power of recording additional evidence during the course of trial by virtue of Section 311 Cr.P.C. and at the appellate stage by virtue of Section 391 Cr.P.C., is to be exercised sparingly and should be resorted to only if recording of such evidence is considered essential for the just decision of the case. In the case of V.N. Patil Vs. K. Niranjan Kumar, reported in (2021) 3 SCC 661, Hon'ble the Supreme Court, extensively analysed the concept of recording additional evidence in a criminal trial and observed as below: "14. The scope of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for strong and valid reasons and with caution and circumspection to meet the ends of justice." 9. Having deliberated upon the submissions advanced at bar and, after going through the record of the case to be precise, the FIR and the statements of the material prosecution witnesses, we feel that it would be premature for this Court to comment that for describing the crime scene, the victim was tutored on the basis of some videography. Irrespective of the disclaimer, referred to supra, factum of recording of the video of the crime scene, some time before the victim's statement under Section 161 Cr.P.C. (Ex. D/2) was recorded, is no longer in doubt in view of the above referred excerpts from the book written by Shri Ajay Pal Lamba. We are rather of the view that it was absolutely unwarranted for Shri Lamba to have published the book while the matter was still pending consideration at the stage of appeal and it may be viewed as an attempt to influence the Judicial proceedings. 10. Be that as it may. Now, the cat is out of the bag and the book has been published wherein, Shri Lamba, who was posted as DCP (West), Jodhpur at the relevant point of time, has emphatically written hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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