State of Rajasthan vs Asharam @ Ashumal

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.

Allowing the appeal, the Court

HELD: 1. 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 (PW43). Whether this finding is correct will be tested in the appeal, albeit the reasoning given in the impugned judgment to summon and examine DCP as a court witness cannot be sustained on the ground that DCP had purportedly recorded a video on his mobile phone. The statement made by DCP in the Book, which statement is heavily relied upon by the learned Senior Advocate for the respondent, 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 (PW-43), or that it was shown by him to the victim (PW-5). 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 to the factual matrix of the present case. [Para 11][13-A-G]

2. 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 condition is satisfied, there is no restriction on the kind of evidence received, which may be formal or substantial. 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. [Paras 14, 15][14-C-F]

3. 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 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. [Para 16][14-G; 15-A-C]

4. 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 caref ully w ith 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. The process of ascertaining the truth requires compliance of procedures and rules of evidence. In a welldesigned 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. [Para 17][15F-G; 16-A-D]

Rajeswar Prasad Misra v. State of West Bengal and Another [1966] 1 SCR 178; Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others (2004) 4 SCC 158 : [2004] 3 SCR 1050 ; State (NCT of Delhi) v. Shiv Kumar Yadav and Another (2016) 2 SCC 402 : [2015] 10 SCR 455; Girish Kumar Suneja v. Central Bureau of Investigation (2017) 14 SCC 809 ; P.

Ponnusamy v. State of Tamil Nadu 2022 SCC Online SC 1543; State of West Bengal v. Amiya Kumar Biswas (2004) 13 SCC 671 – referred to.