Bombay High Court
Sana Amankhan Pathan (In Jail) vs State Of Maharashtra Thr. Police ... on 12 March, 2018
Author: B.R. Gavai
Bench: B.R. Gavai, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.94 OF 2017
Sana Amankhan Pathan
Aged about 19 years R/o.
Near Water Tank, Tahsil
Ballarpur, District Chandrapur ..... Appellant
Versus
State of Maharashtra,
through Police Station Officer,
Ballarpur, District Chandrapur. ...... Respondent.
____________________________________________________________
Mr. Nihalsingh Rathod, Advocate for the Appellant.
Mr. N.R. Patil, APP for the Respondent/State
____________________________________________________________
CORAM : B.R. GAVAI &
M.G.GIRATKAR, JJ.
DATED : 12.3.2018
ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] Appellant has approached this Court being aggrieved by the judgment and order dated 13.05.2016 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No.147 of ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 2 crapeal-94-17-j.
2013, thereby convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and further directing him to pay fine of Rs 25000/- and in default to suffer rigorous imprisonment for six months.
2] The prosecution case, as could be gathered from the material placed on record, is thus :-
3] The accused and the first informant are related to each other. The deceased Shafak Khan, aged about 10 years and Mahek Khan aged about 8 years were son and daughter of the first informant P.W.3 - Mohd. Israil Khan. The accused and P.W.3 resided near the houses of each other. It is the prosecution case that, around 3 to 4 months prior to the incident, wife of the first informant alongwith other relatives, had complained to the parents of the accused about her behaviour and asked them to get her married and advised them that, she should not be allowed to roam alongwith boys as it affects the reputation of the family. It is the prosecution case that, the accused was upset due to such remarks and had malice in her heart against the informant and his family. It is further the prosecution ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 :::
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case that, on the date of the incident i.e. on 13/09/2013, at around 10.15 A.M., the accused had called children of the first informant at her home by sending a message through one boy Rohit Thakur. It is further their case that, when children were inside her house, she increased volume of TV. Thereafter, she committed murder of Shafak Khan by strangulating his neck with a nylon rope and also committed murder of Mahek Khan by strangulating her neck by the wire of phone charger and by drowning her in the water. 4] After coming to know that the children of P.W. 3 - Mohd. Israil Khan were found inside the house of the accused, he lodged an oral report on the basis of which, an offence came to be registerd vide Crime No. 203/2013 for the offence punishable under Section 302 of the Indian Penal Code. After completion of the investigation, charge-sheet came to be filed in the Court of the learned Magistrate, Chandrapur. Since the case was exclusively triable by the learned Sessions Judge, it came to be committed to the Court of Sessions. The learned Sessions Judge framed charge for the offence punishable under Section 302 of the Indian Penal Code below Exhibit-5. The accused pleaded not guilty and claimed to be tried. Her defence was of insanity. The accused also examined five witnesses in support of ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 4 crapeal-94-17-j.
her defence of unsoundness of the mind. The learned Trial Judge, at the conclusion of the trial, held that the prosecution has proved the case beyound reasonable doubt and as such, convicted the acused of the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer imprisonment for life and to pay fine of Rs 25000/- and in default to suffer rigorous imprisonment for six months. Being aggrieved thereby, the present appeal. 5] Mr. Rathod, learned Counsel appearing on behalf of the Appellant, submits that the present case, is a case based on circumstantial evidence. He submits that, the prosecution has utterly failed to prove the incriminating circumstances beyond reasonable doubt and in any case, has failed to establish the chain of events which is so interwoven with each other that, it leads to no other conclusion than the guilt of the accused. He further submits that the learned Trial Judge has also not taken into consideration the evidence of D.W. 1 - Mohd. Yunus Mohd. Shakur, who is the Priest, D.W. 3 - Pratibha Chauhan, as also of D.W. 4 - Dr Imran Ali Shivji and D.W. 5 - Dr. Kiran Anant Deshpande, who are the Medical Experts. He further submits that, the learned Trial Judge has not taken into consideration the evidence of D.W.2 - Aman Khan, father ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 5 crapeal-94-17-j.
of the Appellant and D.W. 3 - Pratibha Chauhan, who was inmate with her in the prison. The learned Counsel therefore submits that the appeal deserves to be allowed and judgment and order of conviction set aside.
6] The learned APP, on the contrary, submits that the learnted Trial Judge has rightly come to the conclusion that the prosecution has proved each and every incriminating circumstance beyond the reasonable doubt and further established the chain of events which is so interwoven with each other that leads to no other conclusion than the guilt of the accused.
7] The principles on which the accused can be convicted in a case of circumstantial evidence have been very well culled out by Their Lordships of the Apex Court in the case of Sharad Birdichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, wherein it is observed as under ;
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 :::
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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. "
8] It could thus be clearly seen that Their Lordships have held that, there is not only grammatical distinction between "may" and ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 7 crapeal-94-17-j.
"must", but also a legal distinction. It has been held that unless prosecution proves that it is the accused and the accused alone who has committed the crime, conviction under Section 302 of the Indian Penal Code would not be tenable. It has been held that all the probabilities except the one which is consistent with the guilt of the accused have to be ruled out. In the light of these guiding principles laid down by the Hon'ble Apex Court, we will have to examine, as to whether the prosecution in the present casef has been in a position to establish that, it is only the accused who has committed the crime or not.
9] From the evidence of P.W. 7 - Dr. Subhash Kumbhare, it can clearly be seen that the prosecution has proved beyond reasonable doubt that death of Safak was due to strangulation and that of Mahek was by drowning. Even the learned Counsel for the Appellant did not attack the finding that death of both the victims was homicidal. 10] The learned Trial Judge has culled out the following circumstances to come to the conclusion that the prosecution has proved beyond the reasonable doubt that it is only the accused who had committed the crime :-
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"[i] Accused had called the 2 children Safak and Mehak at her house when the accused was alone at home.
[ii] Both Safak and Mahek were last seen entering the house of accused and none of the two kids came out from the house of accused. Only Mehak came out once when she was sent by accused to buy recharge for phone but she also came back and entered the hosue of accused again.
[iii] The chappal of Safak was found lying in the house of accused.
[iv] When Nazama (PW-8) enquired from accused about her children in the presence of Rehmat (PW-6), accused lied to her that they had gone to bring manchurian.
[v] After the children entered the house of accused, there was loud noise of TV from her house and shouts of Safak were also heard by Rehmat (PW-6).
[vi] Sayyad (PW-11) heard Mehak crying in the
house of the accused.
[vii] Bodies of both the kids were recovered from
the house of accused, one in room and other from
water tank.
[viii] The accused has failed to give any
explanation as to how the bodies of the deceased children came to be recovered from her house."
11] P.W. 3 - Mohd. Israil Khan is a father of both the unfortunate children. He states that, on 13.09.2013, at around 10.15 ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 9 crapeal-94-17-j.
a.m., one Rohit Thakur came to his home and told his children that one Sana Mawasi was calling them. As it was school time of children, he did not send both to Sana. Thereafter, his wife got her daughter ready. At that time, Rohit Thakur again came and asked that Sana Mawasi was calling both the children. He states that, his wife Nazama told Rohit to take her children to Sana for two minutes. Rohit took his son Safak Khan and Daughter Mahek Khan to the accused. At about 11.00 A.M., his wife came shouting and weeping from the house of the accused and told that there was noose around the neck of son Guddu, which was a pet name of his son. He and his nephew Rahmat therefore rushed to the house of the accused. They saw that there was noose around the neck of his son Safak and he was tied to the middle door with rope. He thought that he may be alive and he took out noose from his neck and took him to Government Hospital, Ballarshah. Doctor examined him and declared him to be dead. He thereafter realized that, his daughter Mahek had also gone with his son. He came to his home and went to the house of the accused alongwith his brother to search Mahek. At that time, Mahek was found drowning in water tank and there was mobile charger wire around her neck. They took Mahek out of the water tank. She was also taken to the Government Hospital, Ballarshah. Doctor ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 10 crapeal-94-17-j.
examined her and declared her to be dead. He informed the police about it on the basis of which an FIR came to be registered. This witness has been thoroughly cross-examined. Though there are certain minor contradictions and omissions, his evidence has remained unshattered insofar as Rohit coming to his house and informing that the accused has called for the children and children going to the house of the accused; thereafter, his wife coming home shouting and weeping and informing that there was noose around the neck of his son Safak, he taking him to the hospital where he was declared to be dead; thereafter, he realizing that Mahek had also gone with his son and after going to the house of the accused Mahek being found in the water tank.
12] P.W. 4 - Rohit is the most material witness. He states that, the deceased Mahek and Safak were his friends. He states that, on 13.09.2013, at around 10.00 A.M., he was playing glass balls with Kayyum and Sana Sayyad in front of the house of the accused. The accused came to them and asked Kayyum to call Mahek and Safak from their house. Kayyum refused to go. Thereafter, she asked this witness to call Mahek and Safak. He went to the hosue of Mahek and Safak and brought both of them to the house of the accused. They ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 11 crapeal-94-17-j.
both entered the house of the accused and he was playing outside. After some time, Mahek came to him and told that Sana Didi asked her to bring recharge. He and Mahek went to nearby shop for bringing recharge. As recharge was not available they came back. Mahek alongwith money went inside the house of the accused and he was playing outside. After some time, the accused came to him and asked him where was his younger brother and sister. He told her that they were not at home and went outside. On him asking the accused that Mahak and safak came to her house and where they were, the accused told that they were sent to bring chinese. Thereafter, since it was his school time, he went to school. He has also been thoroughly cross-examined. However, nothing damaging has come in his evidence. He specifically denied the suggestion that, while playing, children enter the house of the accused from one side and come out from another side. Though this witness has been thoroughly cross- examined, nothing damaging has come on record. On the contrary, it has come in his cross-examination that, a loud sound of TV was coming from the house of the accused.
13] The evidence of P.W.4 is corroborated by P.W.6 - Sheikh Rahamt. He states that, on the date of incident, at around 10.00 to ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 12 crapeal-94-17-j.
10.15 A.M., he was standing in front of his house, brushing his teeth. He saw the accused coming out of the house. At that time, some boys were playing in front of her house. She told Rohit to call Safak and Mahek. Rohit went to the house of Safak and Mahek and called both of them. He saw Safak and Mahek going inside the house of the accused. After some time, a loud sound of TV came from the house of Sana. He states that, in spite of the said loud sound, he also heard shouts of Safak. However, he thought that since children were playing, he did not pay attention to it. He states that, after some time, mother of Safak and Mahek viz. Nazama came to his house and inquired about Safak and Mahek. He told her that Safak and Mahek went to the house of the accused. Thereafter, Nazama went to the house of the accused and was enquring with her about Safak and Mahek. On that, the accused told her that she had sent them to bring Manchurian. Thereafter, Nazama came out of the house of the accused and stood there. Nazama again asked the accused as to why it was so late. On that, the accused told her that she should bring both of them. Thereafter, the accused came out of the house, took something from the hands of Rohit and proceeded towards railway station. Thereafter he (P.W.6) told Nazama that he had not seen children coming out of the house of the accused and that they might ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 13 crapeal-94-17-j.
be inside the house of the accused. At that time, Nazama entered the house of the accused. After some time, he heard shouts of Nazama as "Mera Baccha, Mera Baccha". He then entered the house of the accused. He saw that the neck of Safak was tied with nylone rope with the latch of door. He and Israil cut the rope around the neck of Safak and took him to Government Hospital, Ballarshah. Doctor examined him and declared him dead. At that time, he recollected that Mahek was also not seen. Therefore, he and his brother Farooq went to the house of the accused and searched Mahek. When they went to bathroom of the accused, they saw Mahek in water tank of the accused. When he put his hand into the water tank, he realized body of Mahek and therefore he took it out. He saw that, around the neck of Mahek, mobile charger and the purse were lying. He took out the charger wire and purse from the neck of Mahek. Thereafter, Mahek was taken to Government Hospital, Ballarshah. Doctor examined her and declared as dead. This witness also has been thoroughly cross-examined. However, nothing damaging has come on record. The evidence of this witness is sought to be challenged on the ground that he is an interested witness since he is a relative of the first informant. However, it is to be noted that the accused and the first informant are also related to each other and as such, the said ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 14 crapeal-94-17-j.
witness is also related to the accused/appellant. There is no reason as to why the said witness would lie against one relative. There is not even a suggestion that the relation between the said witness on one hand and the accused and her father on the other hand were strained or not cordial. On the contrary, in the cross-examination itself it has been brought on record that the accused had no enmity with the said witness or neighbours.
14] P.W. 8 - Nazama is a mother of the deceased children. She states that on 13.09.2013, at around 9.30 A.M., the children Safak and Mahek had been to her mother Shamim Bano for watching TV. As it was school time at 10.00 A.M., she came out of the house to bring them. She narrates about she meeting the accused while going to her mother's house to bring back the children. She further states that, after she brought her children to the house, one boy named Rohit came to her house and asked Mahek and Safak that the accused was calling them. On Mahek and Safak seeking permission, she told them to go and come back immediately. Then along with Rohit, Mahek and Safak went to the house of the accused. However, since children did not come for some time, she went towards the house of the accused to bring them. She saw, her nephew Rahmat ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 15 crapeal-94-17-j.
was sitting at the door of his house cleaning his teeth and his mother Nasreen was standing there. "She asked Rahmat about Mahek and Safak. He told that both the children had entered the house of the accused and he had not seen them coming out of the house. By opening tin door of the accused, she went inside. She entered the house calling 'Guddu, Guddu'. She opened the kitchen door. In the meantime, accused came from bathroom. She had worn gown and her clothes were wet. On being asked about her children, the accused told her that they had gone to bring Manchurian. Thereafter, the accused came out to the courtyard and she also followed her. She asked the accused that her son does not go out without Chappal and the Chappal was lying there. On that, accused told her that he might have forgotten to wear the Chappal. The accused was washing her hands and legs from the drum water and told her to give Rs 2/- to her to purchase 'Dillagi' as she gave Rs 100/- to purchase Manchurian. She told the accused that she had no money. From the courtyard, accused asked as to who were standing outside. She told her that her sister Nasreen, nephew Rahmat and Fayyum were standing outside. At that time, the accused went inside the house. She then left the house of the accused and came to Rahmat and told him that the accused was telling that children went to bring Manchurian. On that, ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 16 crapeal-94-17-j.
Rahmat told that, the children went inside in his presence and they did not come out. Meanwhile, the accused came out from the tin door. She wore red top and black jeans. She again asked the accused that, the children did not return till now. At that time, the accused told whether they had not come with Manchurian and she went towards railway station by road. At that time, Rohit came there. She asked him whether her children had gone with him. Rohit told her that Mahek was inside the house of the accused. She alone entered the house of the accused. First, she went to kitchen and no one was there. She then went to bed room, the door was open from one side and closed from other side. She opened the door. At that time, Safak fell on her leg and the nylon rope was tied around his neck. She came out shouting and told Rahmat and others that Safak was strangulated around neck. At that time, her husband and other persons in the locality had assembled. They took Sapak to Government Hospital, Ballarshah. Thereafter, she realized that Mahek was also not seen. She told this fact to all. At that time, people in the locality went into the house of the accused and brought Mahek in their hands. On seeing her, she became unconscious. ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 :::
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15] Prosecution has also examined P.W. 11 - Sayyad Kayyum. His testimony also corroborates the prosecution version. 16] It could thus be seen from the testimony of P.W. 3 - Mohd. Israil, P.W. 4 - Rohit, P.W. 6 - Sheikh Rahmat, P.W. 8 - Nazama and P.W. 11 Sayyad Kayyum that, the prosecution has established beyond reasonable doubt that the accused had asked P.W. 4 - Rohit to call the deceased children. He had called them. They went inside the house of the deceased. They were inside the house of the deceased for some time. Since the deceased children did not come home, P.W. 8 - Nazama went to the house of the deceased. The accused gave false explanation. P.W. 8 again went inside the house of the accused. When she opened the door of the bedroom, Safak fell on her leg and nylon rope was tied around his neck. She came out shouting. Safak was taken to the Government Hospital. He was declared dead. Thereafter, body of Mahek was found in the water tank, the neck tied with the wire of mobile charger. When she was taken to the Government Hospital, she was also found dead. No doubt, there are certain contradictions in the evidence of witnesses. However, it may be noted that all these witnesses come from poor strata of the society. There are certain differences with regard to narration of events by ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 18 crapeal-94-17-j.
them. If their evidence would have been stereotype, it could have been attacked on the ground that they are tutored witnesses. It could thus be seen that, their evidence appears to be natural. We are therefore of the considered view, that the prosecution has proved beyond reasonable doubt that it is the Appellant who had called for the said children. They were last seen in the company of the accused and thereafter immediately their death had occurred. We find that, after the prosecution has discharged its burden of proving its case beyond the reasonable doubt, the onus is shifted on the Appellant under Section 114 of the Indian Evidence Act, which burden has not at all been discharged. We therefore find that, the prosecution has proved beyond reasonable doubt that it is the present Appellant who is an author of the crime.
17] That leads us to second question, as to whether the Appellant would be entitled to the benefit of Section 84 of the Indian Penal Code. It will be relevant to refer to the following observations of their Lordships of the Apex Court in the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat1 :-
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"9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."
It could thus be seen that, it is for the accused, who claims the benefit of Section 84, to discharge the burden that, at the time of commission of an offence, the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that what he/she was doing was either wrong or contrary to law. The defence in this respect, has examined five witnesses. Insofar as D.W. 1 - Mohd. Yunus is concerned, he states that the accused and her father used to visit Sailani Baba Dargah. When the accused had come to Dargah two years before, she told him that she sees her deceased mother, her mother haunts her and talks with her. Her ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 :::
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father also told same thing to him. He provided water, sacred thread and prasad to her. Even taken this evidence at its face value, it cannot be said that the accused was of unsound mind to understand as to what she was doing was right or wrong.
18] Insofar as D.W. 2 - Aman Khan is concerned, he is the father of the Appellant. He states that, after death of the mother, Sana used to shout like inane person, that her mother is beating her etc. However, in his cross-examination, he categorically admits that, when Sana used to behave like insane person, he had not taken her to doctor, though he gives an explanation that he had not taken her to doctor but had taken her to Dargah. Possibility of this witness raising a false plea to save his daughter, cannot be ruled out.
19] Insofar as D.W. 3 - Pratibha is concerned, she is an inmate alongwith the Appellant in Ladies Barrack in prison. She states that, the accused was brought to the prison 20 days after she was brought in jail. She states that, in sleep, the accused holds her own neck and says "Mummy is coming, Mummy is coming, she is sitting on her chest", and she used to get irritated. The accused used to behave like mentally retarded. However, the said evidence would be of no assistance to find ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 ::: 21 crapeal-94-17-j.
out as to what was the mental state of the accused immediately prior to committing the crime and soon thereafter.
20] We find that the best evidence to come to the conclusion as to whether the accused/appellant was of unsound mind was that of medical expert. D.W. 4 - Dr. Imran Ali states that, the accused met him in the prison and that he was treating her in jail since 22.11.2013 till 22.1.2016. During that period, he has treated her every month He states that, he was treating her for headache, giddiness, lack of sleep, numbness over head, nausea, pulling of head, abdominal pain and dreams. He states that as per her complaint, he has stated in his medical document that the appellant sees her mother in her dreams and her head gives a feeling of pulling. However, he has denied the suggestion that, she sees her mother even without dreams. He has also denied the suggestion that all these symptoms are shown due to the impact of the death of the mother of the accused. He has also denied the suggestion again in his examination-in-chief that if a person sees a dead person during the day, it is a sign of schizophernia. He has further denied a suggestion that, if there is such a person who sees dead person during the day, he can commit any offence unknowingly. He further admits in cross- ::: Uploaded on - 16/03/2018 ::: Downloaded on - 17/03/2018 01:32:40 :::
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examination that during the treatment for the period from 2013 to 2016, he did not observe any abnormal behaviour in the accused. 21] D.W. 5 - Kiran is a Psychiatrist. However, he has not examined the accused/appellant personally. He has stated in his examination-in- chief that if a person sees that his deceased mother is talking to him and trying to press his neck, it will be called as his visual hallucination. He has further categorically stated in his cross-examination that he cannot state what is the mental state of the patient without examining the patient. We therefore find that his evidence would not be of much assistance to the defence raised by the Appellant. We therefore find that the accused/appellant has failed to establish that she is entitled to the benefit of Section 84 of the Indian Penal Code.
22] In the result, appeal stands dismissed.
JUDGE JUDGE
BDP-SPS
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