MUNISHWAR NATH BHANDARI, J.

Heard on the Application (Inward No. 92403/2018), filed under Section 391 Cr.P.C. by the prosecution.

2. The accused-appellants were convicted and sentenced for the offences under Sections 364A, 302, 120B and 201 IPC. The appellants preferred an appeal to challenge the order of the trial court and prayed for their acquittal. The appeal came up for hearing before this court after submission of the paper book. In the midst of arguments, learned Public Prosecutor prayed for time to submit an application under Section 391 Cr.P.C. and pursuant to the liberty, the application has been filed.

3. Learned Public Prosecutor submits that in a case of kidnapping a girl (Megha) at the age of four years followed by her murder, the prosecution caused investigation. They recorded statements of witnesses and collected material. It includes recovery of mobile sets with call details so as to connect the accused-appellants with the crime. It is for the reason that after kidnapping of girl-Megha, two calls were received by the complainant for ransom. The mobile numbers of those calls were disclosed in the investigation. The prosecution collected call details of SIMs of the mobile sets so recovered from the accused. Unfortunately, those call details were not produced in the evidence due to oversight and inadvertence.

4. A register brought by PW6-Chirayu Chawla for issuance of SIM to the accused was not taken in evidence by the court below though it was material to prove the case. A reference of statements of PW 1-Anil Kumar Jain and PW2-Sunil Kumar Jain has been given apart from Exhibit-PIO, 11, 12 and Exhibit-P23 to show recovery of mobile sets and SIMs.

5. The IMEI numbers of the mobile sets were also detected by the prosecution so as to show that SIMs used by the accused were from the mobile sets, so recovered from them. They were used to to call the complainant for ransom. A reference of statement of PW26-Om Prakash Yadav, Investigating Officer, has also been given. The prayer is for reexamination/recall of the said witness to prove call details. An oral prayer was also made to recall PW6-Chirayu Chawla along with a register to show issuance of SIMs to the accused.

6. To support the arguments, learned Pubic Prosecutor has referred judgments of the Apex Court in the case of Mannan Shaikh v. State of West Bengal, reported in (2014) 13 SCC 59, Natasha Singh v. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741 and in the case of Mina Lalita Baruwa v. State of Orissa, reported in (2013) 16 SCC 173. Therein, the Apex Court has dealt with the issue. It is held that vital evidence should be allowed by the court. A prayer is made to allow the application.

7. Learned counsel for appellants has opposed the application. It is submitted that Section 391 Cr.P.C. can be invoked only to bring certain documents on record, as given under Section 293 Cr.P.C.

8. The evidence under Section 391 Cr.P.C. is subject to the provisions of Chapter XXIII. The prosecution wants to recall the witnesses apart from production of documents. It is not permissible, looking to the nature of documents. The oral evidence cannot be produced under Section 391 Cr.P.C.

9. It is also stated that call details were recovered by the police during the investigation but were not produced in trial. It is now to fill up the lacuna, an application under Section 391 Cr.P.C. has been filed. It is not a case where the prosecution could not collect material evidence during the course of investigation or it came to their notice later on so as to be produced at the appellate stage.

10. It is also stated that an application under Section 391 Cr.P.C. has been filed with delay. The appeal is pending before this court for last many years. No application was filed by the prosecution at the initial stage. The application has been filed in the midst of arguments. Accordingly, on the aforesaid ground also, the application deserves to be dismissed.

11. Learned cou