The failure to present necessary evidence precludes summoning defense witnesses in a fair trial.

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA th ON THE 20 OF MAY, 2025 MISC. CRIMINAL CASE No. 16343 of 2025 BHEEM @ JITENDRA Versus THE STATE OF MADHYA PRADESH Appearance:

Mr. Arvind Kumar Dwivedi - Advocate for the applicant.

Dr. Anjali Gyanani - Public Prosecutor for the respondent / State.

Mr. Akhand Pratap Singh - Advocate for the complainant.

ORDER This petition under Section 528 of B.N.S.S. / 482 of Cr.P.C. has been filed against the order dated 05.03.2025 passed by Second Additional Sessions Judge, Bhind in S.T. No.45/2018 by which application filed by the aplicant for summoning Ashfaq Khan and Satpal Singh as defene witness has been rejected.

2. Challenging the order passed by the court below, it is submitted by Shri Arvind Dwivedi that merely because the aforesaid two witnesses were cited as prosecution witnesses, therefore, it cannot be said that they cannot be called in defence specifically when they were given up by the prosecution. To buttress his contentions, counsel for the applicant relied upon the judgment passed by the Supreme Court in the case of Rohtash Kumar Vs.

State of Haryana in CRA No.896/2011 decided on 29.05.2013.

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3. Per contra, the application is vehemently opposed by counsel for the State as well as Shri Akhand Pratap Singh.

4. Considered the submissions made by counsel for the parties.

5. In order to call Satpal Singh as a defence witness, counsel for the applicant has drawn the attention of this Court to the charge-sheet, according to which Satpal Singh is a Patwari and has also independently prepared the spot map. It is submitted by Shri Dwivedi that the prosecution has proved the spot map prepared by Sher Singh, Investigating Officer, as well as the spot map prepared by Satpal Singh by examining Sher Singh only.

6. Accordingly, counsel for the applicant was directed to point out the aforesaid fact from the deposition of Sher Singh. It was fairly conceded by counsel for the applicant that deposition of Sher Singh has not been placed on record.

7. Another question was put to Shri Dwivedi that whether any objection was raised by the defence at the time when the spot map prepared by Satpal Singh was being exhibited or not? Counsel for the applicant fairly conceded that he is not in possession of the deposition of Sher Singh. Thus, it is clear that the arguments which were sought to be raised by the applicant to show the relevancy of Satpal Singh is based on the documents which even are not in possession of the applicant.

8. Once counsel for the applicant is not aware of the actual factual situation and has also not filed a copy of the deposition sheet of Sher Singh, this Court is of the considered opinion that examination of Satpal Singh as a defence witness is not necessary for just decision of the case.

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9. It is next contended by counsel for the applicant that gun was allegedly seized from the possession of Bhim @ Jitendra in the presence of Saurav and Ashfaq. It is submitted that although Saurav has been examined but Ashfaq was given up by the prosecution and, accordingly, the applicant wants to examine Ashfaq to show that the gun was not seized from his possession.

10. The prosecution has already examined Saurav, one of the seizure witnesses, and has also examined the Investigating Officer. The statement recorded under Section 27 of the Evidence Act cannot be read in respect to the admission made by the accused and only that part of the statement is admissible which leads to discovery of fact. Recovery of weapon is only a corroborative piece of evidence where case is based on eye-witness.

11. Under these circumstances, this Court is of the considered opinion that the examination of Ashfaq as defence witness is not necessary for just decision of the case.

12. Therefore, trial court did not commit any mistake by rejection the prayer of the appl