Asaram Bapu Case : Can HC Summon Additional Witness Based On Statements In Book? Supreme Court Reserves Judgment

The Supreme Court, on Friday, reserved its judgment in the petition filed by the State of Rajasthan challenging the 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.

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. The High Court 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."

While issuing notice the Apex Court had stayed the order of the Rajasthan High Court.

Appearing before a Bench comprising Justice Sanjiv Khanna and Justice M.M. Sundresh, Senior Advocate, Mr. Manish Singhvi, representing the State, argued 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 was concerned that on the basis 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 between 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 accordingly she gave her statement with vivid description of the crime scene.

“On 19th and 20th when the statement is recorded she does not exhibit any knowledge of the room. According to us it is a foisted case. The IO had shown the video recording of the room to the victim and according to that she gave a 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. Mr. Kamat added -

“The book is by the person who conducted the investigation….This is not a dramatized version.”

Referring to the impugned judgment of the High Court, he argued that it might not be correct to discard the evidence as irrelevant. 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. The relevant portion of the judgment reads as under -

"The question of admission of evidence initially or as additional evidence under Section 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits It is only after admission, the Court should consider in each case whether on account of earlier contradiction before Court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth."

He also averred that the onus is on the State to show that the additional evidence is irrelevant.

Senior Advocate Devdat Kammat and Advocate Rajesh Inamdar argued for the petitioner

[Case Title: State of Rajasthan v. Asharam @ Ashumal SLP(Crl) No. 2044/2022]

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