2022 (1) TMI 1268 - HC - Indian Laws

Court permits summoning of author as witness for crucial video evidence

Asharam and Ors. Versus State

The court allowed the appellant's application under Section 391 Cr.P.C. to summon Shri Ajay Pal Lamba as a court witness based on the book authored by ... Production of additional evidence - Summoning Shri Lamba as a court witness and to record his evidence in this appeal is based on certain excerpts of the book 'GUNNING FOR THE GODMAN, THE TRUE STORY BEHIND ASARAM BAPU'S CONVICTION' - HELD THAT:- 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. 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 his memoirs and mentions that he visited the crime scene on 21.08.2013 and recorded a video thereof with his mobile phone so that it could be used for future references. He also emphasised on the need to protect the crime scene for future references and investigational purposes. The video would definitely be a valuable piece of evidence because it was recorded during 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 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. Accordingly, it is directed that the witness Shri Ajay Pal Lamba, the then DCP (West), Jodhpur shall be summoned in this Court for recording his evidence as a court witness at the appellate stage for the limited purpose of extracting the truth about the video recorded, with the book published at his behest with the title GUNNING FOR THE GODMAN, THE TRUE STORY BEHIND ASARAM BAPU'S CONVICTION' - Application allowed. Issues Involved:1. Conviction and sentencing of the appellant.2. Application under Section 391 Cr.P.C. for taking additional evidence.3. Allegations of false and fabricated prosecution case.4. Relevance of the book authored by Shri Ajay Pal Lamba.5. Arguments for and against summoning Shri Ajay Pal Lamba as a court witness.6. Legal principles regarding additional evidence and fair trial.Detailed Analysis:1. Conviction and Sentencing of the Appellant:The appellant, undergoing imprisonment at the Central Jail, Jodhpur, was convicted and sentenced under various sections of the IPC, including Section 370(4) IPC (10 years' R.I.), Section 342 IPC (1 year's R.I.), Section 506 IPC (1 year's R.I.), Section 376(2)(f) IPC (Life Imprisonment for the remainder of natural life), and Section 376D IPC (Life Imprisonment for the remainder of natural life). The sentences included fines and default sentences for non-payment of fines.2. Application under Section 391 Cr.P.C. for Taking Additional Evidence:An Interlocutory Application No. 01/2021 was filed by the appellant under Section 391 Cr.P.C. to summon Shri Ajay Pal Lamba, the then DCP (West), Jodhpur, as a court witness and to allow cross-examination. The application was based on the contents of a book authored by Shri Lamba, which allegedly contained significant details about the investigation.3. Allegations of False and Fabricated Prosecution Case:The appellant asserted that the prosecution case was false and fabricated. The victim's initial complaint and subsequent statements did not describe the interiors of the crime scene ('the Kutia'). It was alleged that the victim was shown a video of the crime scene recorded by Shri Lamba, which influenced her detailed description of the crime scene in her later statements.4. Relevance of the Book Authored by Shri Ajay Pal Lamba:The application was founded on excerpts from Shri Lamba's book 'GUNNING FOR THE GODMAN, THE TRUE STORY BEHIND ASARAM BAPU'S CONVICTION,' which described his actions during the investigation, including sealing the crime scene and recording a video for future reference. The defense argued that this video was shown to the victim, influencing her testimony.5. Arguments for and Against Summoning Shri Ajay Pal Lamba as a Court Witness:For Summoning:- The defense argued that the book revealed new evidence (the video recording) that was not available during the trial.- Citing Supreme Court judgments, the defense emphasized the court's duty to uncover the truth and ensure a fair trial by allowing additional evidence if necessary.Against Summoning:- The prosecution and complainant's counsel argued that the book contained dramatized and fictional elements, as indicated by a disclaimer.- They contended that reopening the case based on a fictional narrative would cause undue distress to the victim and was unnecessary.6. Legal Principles Regarding Additional Evidence and Fair Trial:The court referenced several Supreme Court judgments, emphasizing that the power to record additional evidence under Section 391 Cr.P.C. should be exercised sparingly and only if essential for a just decision. The judgments highlighted the court's role in actively seeking the truth and ensuring justice for both the accused and the community.Conclusion:The court found that the publication of the book by Shri Lamba, which mentioned the video recording of the crime scene, provided sufficient grounds to consider the defense's claim. The court noted that the video could be a valuable piece of evidence and that summoning Shri Lamba was essential for a fair and just decision of the case. Consequently, the application under Section 391 Cr.P.C. was allowed, and Shri Ajay Pal Lamba was to be summoned as a court witness for the limited purpose of extracting the truth about the video recorded.