ORDER : Shri Mohd. Ali, learned counsel for the applicant. Shri R. S. Shukla, Panel Lawyer for respondent-State. 2. With the consent of learned counsel for the parties, the matter is heard finally. 3. This application under section 482 of the Criminal Procedure Code, is directed against the order dated 24-7-2016, passed by the Court of I Addl. Sessions Judge, Ashta, District Sehore (Smt. Alka Dubey) in S.T. No. 111/2013, whereby the application filed by the applicant under section 311 of Criminal Procedure Code, to give an opportunity for recording statement of defence witness, Additional Tehsildar, namely, Jamil Khan for whose examination case was fixed on 24-7-2016, but he could not turn on that day, has been dismissed. 4. To decide this petition, the relevant facts of the case are that S.T.No. 111/13, for offences punishable under sections 304-B and 498-A read with section 34 of Indian Penal Code, which was fixed for recording the evidence of defence witness Addl. Tehsildar Jamil Khan, but on that date he could not turn. Thereafter, the applicants filed an application seeking further time to examine the aforesaid witness, but the same was dismissed by learned trial Court by impugned order, saying that contents of dying declaration which ought to be proved by defence, being the document of prosecution, can be read in favour of defence. 5. Learned counsel for the applicants submitted that said defence witness Jamil Khan is an important witness as he had recorded dying declaration of the deceased and that dying declaration is in favour of applicants/accused. The said dying declaration had not been produced by the prosecution with charge-sheet, but it came in the knowledge of the defence during the examination of some prosecution witnesses and thereafter that dying declaration has been produced in the record. To prove that document, case was fixed on 27-7-2016, but defence witness Jamil Khan, was absent. On his absence, petitioners have filed an application and requested to fix the case on 19th or 20th of the next month by taking a plea that the said witness was posted as Sub Divisional Magistrate in District Mandla at the relevant time, who informed that he was not able to appear in the Court because he was pre-occupied in a meeting. The Court below after hearing both the parties, dismissed the application by observing that dying declaration, being the document of prosecution can be read in favour of applicants/accused. 6. Learned Panel Lawyer for the respondent-State opposed the application and prays for rejection of the application. 7. It is not disputed that said dying declaration is a document of prosecution. It had been written by Addl. Tehsildar, Jamil Khan, in presence of Dr. Shobha Chimaniya. As per arguments advanced by both the parties and on perusal of record before this Court, it is clear that dying declaration has not been produced by prosecution along with other documents annexed with the charge-sheet, but the same has been brought on record during the proceeding of cross-examination of prosecution witnesses. “It is settled and well recognized principle of law that document, which is not proved by the prosecution, cannot be read against the accused, but if it is a prosecution document, then it can be read in favour of the accused. No doubt, the said dying declaration has been recorded and collected by the prosecution, but prosecution has not relied on that evidence and due to that, prosecution has not produced that document along with the charge-sheet, but it has been produced during proceedings of cross-examination of prosecution witnesses as requested by defence. Therefore, in my considered opinion without proving its contents, it cannot be read in favour of applicants/accused and, accordingly, the Court below has committed legal error by rejecting the application under section 311 of Criminal Procedure Code.” 8. Section 311 of Criminal Procedure Code reads as under :— “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 appear to it to be essential to the just decision of the case.” 9. Looking to the aforesaid provisions of section 311 of Criminal Procedure Code, and the discussions made herein above, it would be proper in the interest of justice to give an appropriate opportunity to the applicants to summon said Jamil Khan, Addl. Looking to the aforesaid provisions of section 311 of Criminal Procedure Code, and the discussions made herein above, it would be proper in the interest of justice to give an appropriate opportunity to the applicants to summon said Jamil Khan, Addl. Tehsildar, to examine him as defence witness, to prove the contents of the said dying declaration, who had recorded it. 10. Accordingly, this M.Cr.C. stands allowed. The impugned order dated 24-7-2016, passed by First Addl. Sessions Judge, Ashta, District Sehore in S.T.No. 111/13, is hereby set aside and it is directed that the trial Court shall give an appropriate opportunity to the applicants to summon said Jamil Khan, Addl. Tehsildar, to examine him as a defence witness on behalf of applicants and thereafter the trial Court shall proceed with the matter, in accordance with law.