Law:

Section:

(a) Evidence Act (I of 1872), S. 33-Witness of tender age­---Not answering questions but crying due to nervousness-Statement of witness before Committing Magistrate cannot be transferred to Sessions file under S. 33. A small girl cited as a prosecution witness in a murder case was given up by the Public Prosecutor, presumably because of her tender age (about seven years), but the Sessions Judge examined her as a Court witness. When the Sessions Judge pro­ceeded to examine her, she started crying, due to nervousness. Thereupon, the Sessions Judge decided to transfer her statement before the committing Magistrate, purportedly under section 33 of the Evidence Act. Held, that provisions of section 33, Evidence Act were not applicable. Where a witness proves shy and speechless in the Sessions Court, section 33 of the Evidence Act does not apply and the evidence before the committing Magistrate cannot be ipso facto treated as evidence at the trial. The proper course in such cases would be to allow the prosecution, under section 154 of the Evidence Act, to ask the witness a leading question and then to get an admission or denial. Moti Ram v. Emperor 75 I C 152 rel. (b) Confession--- Extra-judicial-Incorporated in First Informa­tion Report lodged by accused-May be safely acted upon. (c) Penal Code (XLV of 1860), S. 300, Exception 1-Grave and sudden provocation-Conviction under S. 302, P. P. C. based on confession containing plea of grave and sudden provocation---­Conviction altered to one under S. 304, P. P. C. JUDGMENT ABDUL AZIZ KHAN, J.---This is an appeal, through jail, by Mewa, who has been convicted under section 302 of the P. P. C. by the learned Sessions Judge, Dera Ghazi Khan, and has been sentenced to death for the murder of his brother's wife Mst. Durnaz, on the 12th of February 1957, at 1-30 p.m., in the area of Mauza Miranpur, District Dera Ghazi Khan. The case is also before us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference for the confirmation of the death sentence. 2. The prosecution case is that on the eventful day, at zoharwela, Sahiban,…

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