Asharam @ Ashumal vs State - 2022 Supreme(Raj) 114

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Raj) 114

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANDEEP MEHTA, VINOD KUMAR BHARWANI, JJ.
Asharam @ Ashumal – Appellant
Versus
State – Respondent
D.B. Criminal Appeal No. 123/2018, D.B. Criminal Appeal (Sb) No. 622, 665/2018 &
Decided on : 10-02-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Devadatt Kamat, Sr. Advocate, assisted by Mr. Rajesh Inamdar, Mr. Karan Khanuja, Ripul Swati Mr. Ramendra Singh Saluja, Mr. Pradeep Choudhary (All through VC).
For the Respondent: Mr. R.R. Chhaparwal, PP. Mr. P.C. Solanki (through VC).

Headnote:
Indian Penal Code,1860 - Sections 370(4), 342 , 506 , 376(2)(f) and 376D - Criminal Procedure Code,1973 - Sections 391, 311 , 386 , 161 and 164 - Evidence Act - Section 165 - Criminal Intimidation – Appeal against conviction - Handwritten complaint submitted at the Police Station Central District (PW-5) claimed to have been ravished inside a hut like room appellant-applicant - Neither in this handwritten complaint nor in the statement of the victim visited crime scene and conducted extensive site inspection and also undertook videography of crime scene which fact has been described at length in the book – Held, Argument was raised before the trial court that videography of crime seen was done by police and was shown to victim and that is why, she was able to vividly describe the crime scene her statement was recorded - Argument is noted at judgment - Trial court did not accept the said contention of defence for the obvious reason that there was no significant evidence to support this defence theory - Court that it is absolutely essential in interest of justice and for a just decision of the case to exercise 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 defence as well as the prosecution - Court for recording his evidence as a court witness at the appellate stage for the limited purpose of extracting truth about video recorded - Application allowed.

JUDGMENT :

SANDEEP MEHTA, J.

1. The appellant-applicant Asharam @ Ashumal (undergoing imprisonment at the Central Jail, Jodhpur) has been convicted and sentenced as below vide judgment dated 25.04.2018 passed by the learned Judge, Special Court, POCSO Act Cases, Jodhpur in Sessions Case No.116/2016 (152/2013) (NCV No.129/2016):

Offences	Sentences	Fine	Fine Default sentences
Section 370(4) IPC	10 Years' R.I.	Rs.1,00,000/-	1 Year's R.I.
Section 342 IPC	1 Year's R.I.	Rs.1,000/-	1 Month's R.I.
Section 506 IPC	1 Year's R.I.	Rs.1,000/-	1 Month's R.I.
Section 376(2)(f) IPC	Life Imprisonment (The remainder of Natural Life of the Accused)	Rs.1,00,000	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 on 19.03.2013 (Ex.P/4), the victim Mst. 'S' (PW-5) claimed to have been ravished inside a hut like room (hereinafter referred to as 'the Kutia') in the Aashram of the appellant-applicant situated at Jodhpur. Neither in this handwritten complaint nor in the statement of the victim recorded on 20.08.2013 (Ex.P/7), was any description of the interiors of "the Kutia" given. Shri Ajay Pal Lamba, visited the crime scene on 21.08.2013 and conducted extensive site inspection and also undertook videography of the crime scene which fact has been described at length in the book, referred to supra.

Advancing his arguments in support of the prayer for summoning of Shri Lamba by way of additional evidence at the appellate stage, Shri Kamat, learned Senior Counsel representing the appellant, drew the Court's attention to the following excerpts of the book, referred to supra, wherein, Shri Lamba, wrote:

"I immediately swung into action and sent a team to the location to scan and examine it thoroughly. I also gave clear instructions to the Station House Officer (SHO) of Soorsagar, Sub-Inspector Madan Beniwal, within whose jurisdiction the Scene of Crime (SoC) fell, to seal and secure the entire campus until investigations were completed. The investigating team would be required to visit the SoC multiple times and the evidence, any that remains, would need to be safeguarded. In any case, one would not be very wrong to assume that not much of the Forensic evidence would be found at the SoC because of first, the sheer delay in filing the FIR, and second, whatever important forensic evidence there was, which would have proven crucial for the case, would have most likely been destroyed by now. ....

..... 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." (Emphasis Supplied).

5. Shri Kamat referred