JUDGMENT 1. - The matter came-up for orders on application No.12007 dated 19.11.2013 filed by the accused-appellants under Section 391 Cr.P.C. for taking the original letters allegedly written by the prosecutrix to accused-appellant-Shri Hanuman and Video C.D. containing her recorded statement as additional evidence. Alongwith the application both the letters as well as Video CD have been filed.The question posed for decision of this Court in this application may be stated as below:- "Whether a statement made by a witness and evidence coming into existence subsequent to the judgment of the trial Court can be permitted to be produced as additional evidence under Section 391 Cr.P.C." The facts and circumstances of the case in brief in which the aforesaid application has been filed and the question has been raised for decision of this Court are that accused-appellants were tried for the offences under Sections 366, 342, 376 (2) (g) and 323 IPC by the Additional Sessions Judge (Fast Track No.1), Jaipur District (Jaipur) in Sessions 2 Case No.52/2010 and each of them was convicted for the aforesaid offences and sentenced for the maximum sentence of rigorous imprisonment for ten years for the offence under Section 376 (2) (g) IPC. For the incident of 21.02.2010 allegedly occurred at 7.00 p.m., FIR No.41/2010 came to be registered against the appellants at mid-night of 21.02.2010 and 22.2.2010. During trial statement of the prosecutrix was recorded on 28.09.2010 as PW12. After trial the learned trial Court vide judgment and order dated 9.12.2010 found the appellants guilty for the aforesaid offences. Feeling aggrieved the appellants filed the appeal under Section 374 Cr.P.C. on 03.01.2011 and the same was admitted vide order dated 12.01.2011. 2. The application under Section 391 Cr.P.C. was filed with the averments that after decision of the trial Court prosecutrix met the wife of accused-appellant-Shri Hanuman namely Smt. Kaushalya and infront of mobile camera she made a categorical statement to the effect that the appellants have not committed any offence with the prosecutrix and in fact on her call appellant-Hanuman met with her only for two minutes, but the villagers misunderstood their meeting and under their pressure she made incorrect statement before the trial Court. It was also stated in the application that the conversation between the prosecutrix and wife of the accused appellant-Shri Hanuman was recorded first in the mobile phone and later on it was converted and transferred in the 3 form of Video CD. It was also averred in the application that after the judgment of the trial Court the prosecutrix herself wrote two letters to the appellant-Shri Hanuman in Jail. The first letter was received by him on 8.6.2012 and the second on 30.10.2012. In both these letters the prosecutrix has written that she under the pressure of villagers made false and incorrect statement with regard to the incident by the appellants. It was also stated in the letters that accused-appellant- Shri Hanuman on her call came to meet her and there was no sexual relation between them but the villagers misunderstood their meeting and under their pressure she lodged false and frivolous FIR and she was forced to give a false statement before the Court. It has been prayed in the application that additional evidence in the form of aforesaid letters and Video CD is most relevant to resolve the controversy of the case and for just decision of the same. 3. Opportunity to file reply to the application was afforded to the respondent-State of Rajasthan, but the same was not availed. 4. In support of the application, learned counsel for the appellants submitted as below:- (i) Evidence in any form coming into existence even after decision of the trial Court can be permitted to be produced as additional evidence under Section 391 Cr.P.C. as the scope of this provision is very wide and there is no legal requirement that evidence which was available during trial, 4 but could not be produced at that stage for any reason can be produced under Section 391 Cr.P.C. in appeal. (ii) Section 391 Cr.P.C. is a salutary provision empowering the Court to effectively decide an appeal and if the appellate Court considers additional evidence to be necessary, it is open to it to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking of further evidence in support of the prosecution, it is open to the Court to direct that the accused-person may also be given a chance of adducing further evidence, who may file an application in this regard, in an appropriate case. The appellate Court can direct the taking of further evidence in support of the prosecution, it is open to the Court to direct that the accused-person may also be given a chance of adducing further evidence, who may file an application in this regard, in an appropriate case. (iii) At the stage of considering the application under Section 391 Cr.P.C., creditworthiness and acceptability of depositions made in earlier evidence or additional evidence due to contradictions/inconsistencies there-between cannot be considered and it can be seen only after permission is granted to produce additional evidence. Additional evidence cannot be rejected at initial stage merely because of contradictions between the additional evidence and the evidence recorded during trial. 5. In support of his submissions, learned counsel for the appellants relied upon the cases of Sudevanand v. State through CBI reported in 2012 Cr.L.J.1320 (SC) and Zahira Habibulla H.Sheikh and anr. v. State of Gujarat and ors. reported in (2004) 4 SCC 158 . 6. Supporting the submissions made on behalf of the appellant, learned counsel for the complainant submitted that permission can be granted by the appellate Court for the production of additional evidence under Section 391 Cr.P.C. even if the same has come into existence after decision of the trial Court. 7. On the other hand, it was submitted by the learned Public Prosecutor that although appellate Court has wide power under Section 391 Cr.P.C. to allow additional evidence if the facts of the case so requires but it is restricted to the evidence which was in existence at the time of trial, but by any reason could not be produced. It was further submitted that no evidence which has been created subsequent to the conclusion of the trial can be produced as additional evidence in appeal. 8. I have considered the submissions made on behalf of the respective parties, perused the material available on record as well as the relevant legal provisions and the case law including that relied upon by the appellants. 9. 8. I have considered the submissions made on behalf of the respective parties, perused the material available on record as well as the relevant legal provisions and the case law including that relied upon by the appellants. 9. Although, in the application filed under Section 391 Cr.P.C. only a limited prayer has been made to take on record as additional evidence the letters and the Video CD filed alongwith the application, but I am of the opinion that if the application is allowed and the aforesaid material is taken on record, the same would be of no use unless it is proved and admitted in evidence in accordance with the provisions of Criminal Procedure Code and the Evidence Act. It is well settled that only evidence produced during trial before a Court is substantive piece of evidence and, therefore, the material filed alongwith the present application cannot be said to be of the category of substantive evidence and it cannot be taken into consideration for the disposal of the appeal unless it is proved and admitted in evidence in accordance with law. To prove the letters and the alleged statement of the prosecutrix produced in the form of Video CD, the prosecutrix is required to be produced as a witness before Court or any other Court as directed by Court and her statement is required to be recorded. As the prosecutrix appeared before the trial Court as prosecution witness and she supported the prosecution case, she cannot now be expected to be produced as prosecution witness to prove the letters and her alleged statement as these are diametrically opposite to her statements during trial and also the FIR and her statements under Sections 161 and 164 Cr.P.C. recorded during investigation. I am of the opinion that she cannot be produced as a defence witness also as the same person cannot be a witness for prosecution as well as for accused, but she can be cross-examined by the accused-appellants on the basis of aforesaid letters and her statement recorded in the form of Video CD and she can be asked which of the two is true. If any inconsistency comes in her cross-examination, reexamination can be directed to explain the same. If any inconsistency comes in her cross-examination, reexamination can be directed to explain the same. Thus, it is clear that unless the prosecutrix again appears as a witness 7 and proves the aforesaid evidence, it would be of no use to allow the application and take on record the material produced alongwith the application. 10. Section 311 Cr.P.C.provides for power of the Court to summon material witness, or examine person present before it. It is as follows:- Section 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case. Section 391 Cr.P.C. provides for production of additional evidence in appeal, which may be quoted as below:- Section 391. Appellate Court may take further evidence or direct it to be taken - (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. 11. Section 145 of the Evidence Act which provides for cross-examination on the basis of a previous statement in writing of a witness is also relevant for the disposal of this application, which is as below:- Section 145. 11. Section 145 of the Evidence Act which provides for cross-examination on the basis of a previous statement in writing of a witness is also relevant for the disposal of this application, which is as below:- Section 145. Cross- examination as to previous statements in writing.- A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 12. In the case of Sudevanand v. State through CBI (supra), relied upon by the appellant. Hon'ble Supreme Court in facts and circumstances of the case found that application for summoning approver for further examination under Section 391 Cr.P.C. cannot be rejected only on the ground that his statement allegedly made in Jail has no legal sanctity and was not properly recorded. 13. Learned counsel for the appellants heavily relied upon this decision in support of his submissions that evidence coming into existence even after decision by the trial Court can be permitted to be produced under Section 391 Cr.P.C. as additional evidence, but being based on entirely different set of facts, it is no help to him. From the facts of the case it appears that the accused-persons were mainly convicted on the basis of evidence of the approver and against the judgment of the trial Court appeal was filed before the High Court. During pendency of the appeal, statement of the approver was recorded when he was in Jail and he retracted from his earlier statement incrementing himself and other accused in trial and he made diametrically opposite statement. It was 9 found by the Hon'ble Supreme Court that CBI and the State (CID) seem to be at loggerheads with the one accusing the other of manipulating and using the approver for its own designs. In these special facts and circumstances of the case, Hon'ble Supreme Court allowed the application filed under Section 391 Cr.P.C. for production of the statement of the approver recorded in Jail as additional evidence. In these special facts and circumstances of the case, Hon'ble Supreme Court allowed the application filed under Section 391 Cr.P.C. for production of the statement of the approver recorded in Jail as additional evidence. A close reading of the aforesaid case clearly shows that the statement coming into existence after decision of the trial Court was allowed to be produced as additional evidence in appeal under Section 391 Cr.P.C. in the special facts and circumstances of the case. It cannot be said that principle of law of general applicability was laid down by the Hon'ble Court. 14. Similarly, being based on peculiar facts and circumstances of the case, Zahira Habibulla H.Sheikh (supra), is also of no help to the appellants.. It was observed by Hon'ble Supreme Court that this appears to be a case where truth has become a casualty in the trial. The Court was satisfied that it is a fit and proper case, in the background of the additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation a retrial is a must and essentially called for in order to save and preserve the justice delivery system unsullied and unscathed by vested interests. The case is without parallel and comparison to any of cases where even such grievances were sought to be 10 made. It is to be noted that in the case of Satyajit Banerjee v. State of West Bengal reported in (2005) 1 SCC 115 , Hon'ble Supreme Court explained the very exceptional nature of Zahira Habibulla H. Sheikh's case and observed that the decision cannot be applied to all cases against the established principles of criminal jurisprudence. 15. Recently, Hon'ble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar & anr. reported in 2013 Cr.L.J. 3777 , considered the provisions of Section 311 Cr.P.C. in detail and following principles have been laid down which have to be borne in mind by the Courts while dealing with an application under Section 311 Cr.P.C. The Hon'ble Supreme Court has held as under:- "(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? (b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. (c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. (d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to 11 the accused, resulting in miscarriage of justice. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. (h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. (i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. (j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. (k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a 12 constitutional goal, as well as a human right." Similarly, in the case of Natasha Singh v. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741 , provision of Section 311 were considered and it has been held that:- "The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as `any Court, `at any stage", or `or any enquiry, trial or other proceedings, `any person and `any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a 13 constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same." In the case of Ashok Tshering Bhutia v. State of Sikkim reported in (2011) 4 SCC 402 , provisions of Section 391 Cr.P.C. were considered and it was laid down as below:- "Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary." In the case of Mishrilal & Ors v. State of M.P. & Ors., reported in (2005) 10 SCC 701 , Hon'ble Supreme Court has held that:- "Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him." 16. The facts of the aforesaid case are like this that statement of PW2-Mokham Singh was recorded during trial and he supported the prosecution story. Subsequently his statement was again recorded before the Juvenile Court in which he did not support the prosecution case. A witness could be confronted only with a previous statement made by him." 16. The facts of the aforesaid case are like this that statement of PW2-Mokham Singh was recorded during trial and he supported the prosecution story. Subsequently his statement was again recorded before the Juvenile Court in which he did not support the prosecution case. Thereafter, an application was filed by the accused of the first case to recall the aforesaid witness so that he can be further cross-examined and confronted with his subsequent statement recorded before the Juvenile Court. The application was allowed by the Sessions Judge. The matter went upto Hon'ble Supreme Court. It was observed that a witness could be confronted only with a previous statement made by him and at the time of examination of PW2-Shri Mokham Singh on 6.2.1991 there was no such previous statement and the defence counsel did not confront it with any statement allegedly to have been made previously. It was also observed that this witness must have given some other version before the Juvenile Court for extraneous reasons and he should not be given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. 15 Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses. 17. In the present case, the letters written by the prosecutrix to one of the accused-appellant while he was in Jail and her alleged statement recorded in the form of Video CD after conclusion of the trial and coming into existence during pendency of the appeal do not come within the category of her previous statements and in view of Section 145 of the Evidence Act cannot be used by the appellants to cross-examine the prosecutrix and to confront/contradict her from her statements recorded during investigation or trial. 18. Similarly, in the case of Hanuman Ram v. Stae of Rajasthan & ors., reported in (2008) 15 SCC 652 , Hon'ble Supreme Court relied upon the case of Mishrilal & Ors v. State of M.P. & Ors. 18. Similarly, in the case of Hanuman Ram v. Stae of Rajasthan & ors., reported in (2008) 15 SCC 652 , Hon'ble Supreme Court relied upon the case of Mishrilal & Ors v. State of M.P. & Ors. (supra), and held that a witness cannot be recalled under Section 311 Cr.P.C. for cross-examination with respect of a statement given by him subsequent to his examination during trial. In this case also two witnesses were sought to be recalled for cross-examination on the basis of their subsequent statements recorded by the children Court. 19. In the case of Anil Sharma & ors. v. State of Jharkhand, reported in (2004) 5 SCC 679 , it was held that:- "It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine or cavalier manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court ultimately can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in." 20. It is thus clear that a witness can be cross-examined/confronted/contradicted only on the basis of his previous statement. A statement of the witness coming into existence after recording of his statement during trial cannot be used for the aforesaid purposes. It is thus clear that a witness can be cross-examined/confronted/contradicted only on the basis of his previous statement. A statement of the witness coming into existence after recording of his statement during trial cannot be used for the aforesaid purposes. In the present case, as already observed, mere production of the evidence coming into existence after conclusion of trial is of no use unless the same is proved in accordance with law and the prosecutrix again appears as a witness and opportunity is given to the appellants to cross-examine/confront or contradict her on the basis of this subsequent evidence. There is no provision which allows the use of such evidence for the aforesaid purposes. According to Section 145 of the Evidence Act only a previous statement of the witness to be used for the aforesaid 17 purposes. In the case of Mishrilal and Hanuman Ram even the subsequent statement of the witness recorded before a competent Court of law was not allowed to be used whereas in the present case it is alleged by the appellants that during pendency of this appeal two letters were written by the prosecutrix to one of the accused-appellants and her statement made before the wife of the accused-appellant-Shri Hanuman Ram was recorded in the form of Video CD. I am of the considered view when the evidence coming into existence after decision of the trial Court has no evidentiary value, it would be of no utility even if application under Section 391 Cr.P.C. is allowed and the evidence filed alongwith it is taken on record. 21. Consequently, the application filed under Section 391 Cr.P.C. being without any merit is, hereby, dismissed.Application u/s. 391 Cr.P.C. dismissed. *******