Greaves and Panton, JJ.
1. The accused in this case is a boy of 16, and he was charged with having committed rape. It is not suggested that he was of unsound mind at the time the offence was committed, but a petition was put in on his behalf showing that since his apprehension he had become a person of unsound mind. Accordingly, under the provisions of Section 465 of the Code of Criminal Procedure, a jury were empanelled for the purpose of trying the fact of his unsoundness of mind and incapacity to make his defence. The only witness examined before the jury was Lt.-Col. A.C. McGilchrist of the Indian Medical Service who was the Civil Surgeon at Howrah. He was examined as a witness on behalf of the accused, and he stated that he did not think that the accused was in a fit state to understand the proceedings in Court or to stand his trial. He was cross-examined, and stated that he considered the accused mentally unsound, and that his actions were those of a person of unsound mind. The jury, after hearing the evidence and the charge of the Sessions Judge, delivered a unanimous verdict finding that the accused could stand his trial, and adding that the evidence of the Civil Surgeon was to their mind insufficient.
2. A preliminary objection was taken that we, could not deal with the matter in revision, having regard to the unanimous verdict of the jury and the provisions of Sub-section (2) of Section 465, but we have gone into the evidence, and it is better that we should decide the matter on its merits. On behalf of the accused it is said that the learned Sessions Judge was wrong in stating that it was for the defence to satisfy the Court with regard to the accused's capacity to stand his trial; and, secondly, it is said that there was no direction to the jury as to what they were to do if they felt any doubt. In support of the contention that the charge on the first point to which we have referred was wrong, we were referred to the case of Reg. v. Davies (1853) 6 Cox C.C. 326. We do not think that the learned Judge should have charged the jury as he did, so far as this point was concerned, but taking the charge as a whole we are not prepared to say that there was sufficient misdirection on this point and non-direction on the other point as to justify us in not accepting the verdict of the jury. After all, the verdict of the jury was unanimous, and it was open to them, we think, to say that they were not satisfied with the evidence that had been laid before them and to find, as they have done, that the accused was capable of standing his trial, and we do not think that we should be justified on the facts before us in interfering with the unanimous verdict of the jury that the accused was fit to stand his trial.
3. The Rule is accordingly discharged, and with the discharge of the Rule the stay of the hearing of the case goes.