JUDGMENT

Boys, J. - Ramnath, the appellant, was put on his trial on a charge u/s 302, I.P. C, of having murdered his wife on 26th August 1928. We have read the judgment of the learned Additional Sessions Judge and the material evidence and, as the learned Additional Sessions Judge says in his judgment, the facts are not in dispute. We need not therefore recapitulate them further than is necessary for the purposes of the present judgment. On 28th July 1928, Ramnath made a confession which was recorded u/s 164, Criminal P. C, it is only necessary to read that statement to appreciate that Ramnath was at that time either wandering in his mind or shamming. The committing Magistrate, however, who heard the witnesses and who again had of course to take the statement of Ramnath, recording it u/s 364, expressed in his commitment order the view that whether or no Ramnath was at the time of committing the offence of unsound mind, he was at the time of the inquiry before the committing Magistrate capable of making his defence. He found as follows:

From the statement of this very witness (Bachchoo) it appears that there is a history of accused having gone mad at one time some two years ago. He is, however, quite fit to make his defence, gave quite rational replies to all questions put to him by the Court at the inquiry.

2. The case apparently came before the Additional Sessions Judge and the assessors for the first time on 13th October 1928, The learned Additional Sessions Judge on that date took the statement of Dr. Gade, an Assistant Civil Surgeon, who furnished a certificate (Ex. K) to the effect that in his opinion the accused was not insane. Dr. Gade further stated on oath that be had the accused under observation for three days from 10th October to 12th October, that Ramnath answered questions rationally, looked sane and slept well and showed no signs of insanity. He stated that he thought that Ramnath could understand the nature of the proceedings and that if the three days' observation had indicated any suggestion of insanity he would have kept the man under observation longer. Ramnath was also examined by the Court and he made a statement which again clearly indicated that his mind was wandering or that he was pretending. All three assessors thought, on hearing the doctor's statement and the evidence of an uncle of the accused and what the accused had to say, that the latter was "sanki," which the learned Judge says was stated to mean "a state of mind when a man ceases to act like a responsible agent," We think that both the Judges and the assessors were right, on the materials at any rate that they then had before them, in not being satisfied that the accused was capable of defending himself. The learned Judge said that he thought that it was desirable that Ramnath should be kept under observation in a hospital for at least three weeks before he could be certified to be in a fit state of mind to stand his trial. The case was adjourned until 12th January 1929, but owing to the absence of two out of the three assessors had to be adjourned again to 6th February. The order-sheet shows that in the interval an Assistant Civil Surgeon had certified that he could find no reason for holding the accused to be insane. This is disclosed further by a certificate of the doctor of 30th November 1928. It was upon receipt of this certificate by the learned Judge that on 12th December he fixed a date for the trial.

3. So far there is, in our view, no fault to be found with the proceedings. Section 465 requires that the question of whether the accused is of unsound mind and consequently incapable of making his defence should be tried by the Court with the aid of assessors, and should be deemed to be part of his trial before the Court. We are satisfied that the learned Judge was himself of opinion on seeing the second certificate by an Assistant Civil Surgeon given after observation for a considerable period, that the accused was not then of unsound min