IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SMT. JUSTICE SUNITA YADAV th ON THE 27 OF MAY, 2024 MISC. CRIMINAL CASE No. 43558 of 2023 BETWEEN:-

SHAKUR KHAN S/O GAFFAR KHAN, AGED ABOUT 31 YEARS, OCCUPATION: PRIVATE WORK, R/O BASAN KA PURA DISTRICT DATIA (MADHYA PRADESH)

.....APPLICANT (BY MR. SUSHIL GOSWAMI - ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION KOTWALI DISTRICT DATIA (MADHYA PRADESH)

.....RESPONDENTS (BY MRS. ABHA MISHRA - PUBLIC PROSECUTOR)

This application coming on for Admission this day, the court passed the following:

ORDER

This petition under section 482 of Cr.P.C. has been filed against the impugned order dated 12.09.2023 passed by First Additional Sessions Judge, Datia in Sessions Trial No. 16 of 2023, by which, an application under Section

91 and 311 of Cr.P.C. filed by the petitioner has been dismissed.

The facts in brief to decide this petition are that police of police station Kotwali, District Datia registered a Crime No.614 of 2022 under Sections 294 and 302/34 of IPC against the petitioner-accused. After investigation, charge- sheet has already been filed. During trial, statements of prosecution witnesses have been recorded. The petitioner has filed an application under Sections 91 Signature Not Verified and 311 of Cr.P.C. which was dismissed by the order impugned. Against which, this petition has been filed.

Learned counsel for the petitioner argued that the impugned order is per se illegal and against the facts available on record. Learned trial Court has erred in dismissing the application despite the order of this Court passed in M.Cr.C. No. 54342 of 2022 for fair investigation, therefore, the order impugned deserves to be dismissed and the application filed by the petitioner be allowed as well as learned trial Court be directed for re-examination of the witnesses, which have already been examined.

On the other hand, learned Counsel for the State vehemently opposed the application and argued that in this case the recording of evidence of prosecution witnesses is already complete and the case is listed for recording of defense witnesses. It is further argued that present petitioner is still absconding in the matter. In such circumstances, present petition deserves to be dismissed.

Heard and perused the record.

In this case the petitioner-accused has taken a plea of alibi. Though this Court had directed for fair investigation in the matter, however, that does not mean admission of evidence which is not admissible under the provision of Evidence Act. The record reveals that petitioner has failed to reflect the origin of C.D. and pen drive, wherein he pleads innocence. Under these circumstances, when the origin has not been described in certificate under Section 65-B of Evidence Act, the learned trial Court has not erred in rejecting the application holding that no certificate of the person who allegedly had prepared the video which have gone viral so also the origin of video and certificate has not been filed of that person, the C.D. and Pen drive are not Signature Not Verified admissible. Since aforesaid evidence cannot be admitted in evidence, therefore, rejection of application for recalling the witnesses filed under Sections 91 and

311 of Cr.P.C. is also in accordance with law.

In view of aforesaid discussion, this petition sans merits and is hereby dismissed.

(SUNITA YADAV)

JUDGE (LJ*)

Signature Not Verified