Dave, J.—This is an appeal by the accused Kishna against the judgment of the Sessions Judge, Kishangarh, dated the 31st October 1949, by which he has been convicted under sec. 307 I.P.C. and sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs. 200/- or suffer six months further rigorous imprisonment in default.

2. The applicants advocate contends that the main evidence in this case is that of the complainant, prosecution witness Mst. Chandri, alone that it is neither sufficient nor reliable to base the appellants conviction and, therefore, he should be acquitted. The Government Advocate, on the other hand, argues that Chandris statement was fully supported by the appellants own confession recorded under section 164 Cr. P.C. and that this important piece of evidence being wrongly rejected by the Sessions Judge it should be admitted now.

3. It appears from the record of the Sessions Judges court that on the 17th of October, 1949 when the Public Prosecutor had examined three prosecution witnesses, he presented an application before that court with a request to summon the Magistrate, Shri V. V. Halve, and examine him about the appellants confession which he had recorded under section 164 Cr.P.C. This petition was turned down by the court on the ground that the witness was neither cited before nor examined by the committing Magistrate. It was, however, ordered that if the said Magistrate could be persuaded to come to the court by the prosecution he would be examined. The Public Prosecutor thereupon made a written request to Shri Halve to appear -in the Sessions Court but he wrote back saying that he could do so only if summoned by the court. His reply was then forwarded to the Sessions Judge with further remarks to the effect that the Magistrate was willing to give statement and that he was present within the precincts of his own court, but the learned Judge filed this application saying that no other order could be passed. It further appears that the Public Prosecutor tendered this document in evidence again on the 18th October 1949 when he was examining the Sub-Inspector Ghisalal but the court again refused to admit it in evidence saying that it was not exhibited in the committing Magistrates court.

4. It is clear from the above that the learned Sessions Judge has failed to make a correct application of the law on the subject. The committing Magistrate has referred to this document in his committal report and it was also forwarded by him to the Sessions Judge along with other papers. Since he has pointedly referred to this document in his committal report it follows that he had admitted it in evidence and by his mere failure to exhibit this document it cannot be said that it was rejected by him. Section 80 of the Indian Evidence Act, provides as follows:—

"80. Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the court shall presume-that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."

5. It is clear from the language of this section that in case the statement or confession of a prisoner or an accused is found by the court to be taken in accordance with law and if it purports to be signed by the Magistrate,then it is obligatory for the court to presume that the document is genuine. In other words if the necessary formalities mentioned in this section are found to have been performed, the document is admissible in evidence without further proof. When the committing

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