SASIDHARANNAMBIAR, J.

Appellant was convicted and sentenced to imprisonment for life and a fine of Rs.50,000/-and in default, simple imprisonment for six months for the offence under section 302 of Indian Penal Code by the I Additional Sessions Judge, Kozhikode in S.C.No.603 of 2005.

2. The prosecution case is that accused married deceased Sheeba 2= years earlier to the date of the incident and they were residing at Goodallur and a child was born in that wedlock. On 15.10.2003, accused along with his wife and child came to the family house of Sheeba. Sheeba was then pregnant. Appellant suspected that he is not responsible for the said pregnancy of Sheeba. On 17.10.2003, at about 3 p.m., accused inflicted an injury on the neck of Sheeba with intention to cause her death, from the bed room while she was feeding the child and thereby caused her death and committed the offence under section 302 IPC. When the final report was filed, the case was committed to Sessions Court, by Judicial First Class Magistrate-I, Thamarassery. The learned Sessions Judge took the case on file and made it over to the First Additional Sessions Court, for trial. Appellant was produced before the learned Sessions Judge and he was defended by a counsel of his choice. When charge for the offence under section 302 IPC was framed, read over and explained, appellant pleaded not guilty. Prosecution examined 17 witnesses, marked 15 exhibits and identified 7 material objects. After closing the prosecution evidence, the accused was questioned under section 313 of Code of Criminal Procedure. He denied the incriminating evidence put to him and filed a written statement contending that he was cultivating plantains and earning livelihood. In 2002, he sustained loss in the cultivation and from Onam 2003 onwards, he was mentally disturbed and therefore, came to Kozhikode for treatment from a Psychiatrist and started residing in his wife's house. He came to know later that his wife sustained injury and died. He got that information only while he was in Central Prison, Kannur. He has no knowledge as to what transpired after he reached his wife's house. While he was in Central Prison, Kannur, he was treated at District Hospital, Kannur for mental illness. After he was released on bail, he was treated for mental illness in Mental Health Centre, Kuthiravattom, Kozhikode and is even now under the treatment for mental illness.

3. Learned Sessions Judge finding that appellant cannot be acquitted under section 232 of Code of Criminal Procedure (hereinafter referred to as the 'Code'), called upon the appellant to enter on his defence and adduce evidence. Appellant then examined DWs 1 and 2 and marked exhibits D1 to D3(d). At that stage, appellant filed CMP.No.17 of 2008 before the learned Sessions Judge seeking a direction to send him for examination before the medical board to ascertain his mental condition and to issue a certificate. Learned Sessions Judge, by order dated 22.1.2008, finding that accused had undergone treatment for some period, directed the Superintendent of Medical College, Kozhikode to constitute a medical board at the earliest and to examine the accused and to forward a certificate on his mental condition. Appellant was admitted in the psychiatry ward of Medical College Hospital, Kozhikode on 1.2.2008 and was discharged on 7.2.2008, after evaluation by the medical board. The medical board, after evaluation, reported that the accused is fit to stand for trial, though he needs continuation of treatment under supervision and periodic follow up. The appellant thereafter examined DW3 and got marked Exts. D4, D5 and X1. The learned Sessions Judge, on hearing the learned Public Prosecutor and the counsel appearing for the appellant found that the plea raised by the appellant was under section 84 IPC and though the evidence show that appellant was treated for mental illness later, there is no evidence to prove that at the time of committing the offence, appe