The Madhya Pradesh High Court has reaffirmed the stringent threshold for admitting additional evidence under Section 391 of the Code of Criminal Procedure, dismissing an application seeking to introduce mobile phone recordings to challenge a rape conviction. The judgment underscores that appellate courts cannot become forums for belated evidence absent proof of unavoidable impediment during trial.
Background & Facts
The Dispute
The appellant, Raja Kha, was convicted by the trial court for an offence under Section 376 IPC relating to rape of a woman. The prosecution case was based on the victim’s testimony and corroborative medical evidence. The appellant was sentenced to rigorous imprisonment and fined. He filed a criminal appeal before the High Court challenging the conviction.
Key Facts
- The alleged incident occurred on an unspecified date prior to the filing of the FIR
- The FIR was registered on 12.03.2023
- The trial commenced on 15.07.2023 and concluded with judgment on 20.11.2023
- The appellant gave his statement under Section 313 CrPC on 05.10.2023, denying all allegations and claiming the relationship was consensual but not disclosing any digital evidence
- The appellant did not apply for production of his mobile phone or call records during trial
- The victim was examined as a witness on 18.09.2023 and testified to non-consensual intercourse
- The appellant’s mobile phone was in his custody throughout the trial period
- On 10.01.2025, the appellant filed Criminal Appeal No. 6917 of 2025 before the High Court
- On 15.03.2025, he filed I.A. No. 17349/2025 seeking to lead additional evidence: call recordings and call detail records (CDR) from his mobile phone
- The appellant claims the recordings prove the victim was in a consensual romantic relationship and had promised marriage
- The victim married another person on 28.12.2024, after which the appellant allegedly realized he had been deceived
Procedural History
- 12.03.2023: FIR registered under Section 376 IPC
- 15.07.2023: Trial commenced
- 05.10.2023: Appellant examined under Section 313 CrPC; no mention of digital evidence
- 18.09.2023: Prosecutrix examined and testified
- 20.11.2023: Trial court convicted appellant and sentenced him
- 10.01.2025: Criminal Appeal filed before Madhya Pradesh High Court
- 15.03.2025: I.A. No. 17349/2025 filed seeking additional evidence under Section 391 CrPC
- 08.04.2026: Hearing on application; judgment delivered
The Parties' Positions
For the Appellant:
- The mobile phone containing voice recordings is in his custody
- The recordings prove the victim was a willing participant and had promised marriage
- He refrained from raising this defence during trial to protect the victim’s reputation
- The change in the victim’s marital status (married on 28.12.2024) triggered his decision to seek evidence
For the Respondent/State:
- No application for production of mobile phone or CDR was filed during trial
- No such defence was raised during Section 313 statement
- The appellant had full opportunity and access to the evidence during trial
- The application is an afterthought, not a result of newly discovered facts
- Reliance on Ajeet Singh Chenuji Rathor v. State of Gujarat (2024) 4 SCC 453
Relief Sought
The appellant sought permission to lead additional evidence under Section 391 CrPC, specifically:
- Production of call recordings from his mobile phone
- Direction to telecom service provider to produce call detail records for the period of alleged relationship
- Use of such evidence to challenge the conviction on grounds of consent
The Legal Issue
Can an appellant invoke Section 391 of the CrPC to introduce mobile phone recordings as additional evidence in appeal, where the evidence was in his possession throughout the trial and no explanation is offered for its non-production?
Arguments Presented
For the Appellant
The appellant’s counsel argued that the recordings constituted crucial exculpatory evidence proving consent, which was withheld during trial to preserve the victim’s dignity. He contended that the victim’s subsequent marriage constituted a supervening circumstance that justified the belated application. He relied on the equitable principle that justice should not be defeated by technicalities, and that the court should exercise discretion under Section 391 to prevent miscarriage of justice.
For the Respondent
The State countered that the appellant had complete access to the mobile phone during trial and made no attempt to seek its production. The failure to raise the defence under Section 313 CrPC indicated a deliberate tactical choice. The State relied on Ajeet Singh Chenuji Rathor v. State of Gujarat (2024) 4 SCC 453, which held that Section 391 CrPC requires proof of due diligence and that the evidence must have been unavailable or inaccessible during trial. The State argued that the appellant’s claim of protecting the victim’s reputation was not a legally recognized ground for non-production.
The Court's Analysis
The Court examined the requirements under Section 391 CrPC and the binding precedent in Ajeet Singh Chenuji Rathor v. State of Gujarat. The Supreme Court in that case had laid down a two-pronged test: (1) the party must demonstrate due diligence in attempting to produce the evidence during trial, and (2) the evidence must have come to light only after trial or been inaccessible despite reasonable efforts.
The Court found no evidence of due diligence. The appellant’s mobile phone was in his possession throughout the trial. There was no assertion that the device was seized, damaged, or inaccessible. The appellant did not seek its production, nor did he mention the existence of recordings during his Section 313 statement.
"There is not a whisper in the application that why the appellant could not produce that evidence before the trial court."
The Court rejected the appellant’s argument that he withheld the evidence to protect the victim’s chastity, calling it "an innovative and out of the box argument" that lacked legal foundation. The Court held that the victim’s subsequent marriage did not constitute a new fact arising after trial, but merely a change in her personal circumstances.
The Court emphasized that Section 391 CrPC is not a substitute for proper trial strategy. Allowing such applications would undermine the integrity of trial proceedings and encourage litigants to withhold evidence strategically, knowing they could later invoke appellate jurisdiction.
The Verdict
The application under Section 391 CrPC was dismissed. The Court held that the appellant failed to establish due diligence or the unavailability of evidence during trial. The appeal remains pending, and the State was granted four weeks to file objections. The case was listed for hearing in the week commencing 11.05.2026.
What This Means For Similar Cases
Due Diligence Is Non-Negotiable
- Practitioners must document all efforts to obtain evidence during trial, including written applications for production of digital devices
- Failure to seek production of a device in one’s own custody will bar relief under Section 391 CrPC
- Claims of "protecting the victim’s reputation" are not legally valid justifications for non-disclosure
Digital Evidence Must Be Disclosed Early
- Mobile phone recordings, messages, or call logs must be formally disclosed during trial
- If the evidence is in the accused’s possession, the burden is on him to seek its admission
- Post-trial discovery of digital evidence is not sufficient unless the device was genuinely inaccessible
Strategic Silence Has Consequences
- Defence under Section 313 CrPC must include all material facts, including claims of consent
- Omission of key exculpatory facts during trial cannot be remedied on appeal
- Courts will not entertain belated attempts to introduce evidence that could have been presented at trial
