It is humbly submitted that there was no bonafide mistake of fact.

The mistake of Fact means it is a wrong belief as to something factual. The mistake of a fact is just a mistake relating

to some fact. It always supposes some error of opinion as to the real facts. As per section 791 the ingredients of

mistake of fact are that the act is done by a person under mistake of fact; mistake relates to fact and not law; mistake

must be committed in good faith; the person doing the act is either justified by law or believes himself to be justified
by law in doing the act.

An actual mistake of fact is not sufficient. The apprehension of danger must be bona fide and
reasonable. It is not ever mistake that furnishes a defence, mistake must be reasonable and in
good faith. Therefore, there must be evidence of such a state of facts which would justify the
belief in good faith. The expression good faith is interpreted with reference to section 52 2 of the
IPC.

Absence of good faith, according to the Code, only means carelessness or negligence. Mere
good faith in the sense of simple belief with any grounds for believing is not sufficient; the belief
must be some reasonable, not an absurd belief; that is, there must be some reasonable ground for
it. Good faith requires due care and attention.

The phrase “due care and attention” implies genuine effort to reach the truth and not ready
acceptance of an ill-nurtured belief.

It has been held that when a question arises as to whether a person acted in good faith, and then it
devolves upon him to show not merely that he had a good insertion but that he exercised such
care and skill as the duty reasonably demanded for its due discharge.

It is humbly submitted that in the present case it was clear that the respondent had a torch in his
hand and if he had cared to flash the torch at the moving figures around the flickering light he

1
Section 79 Act done by a person justified, or by mistake of fact believing himself justified, by law.—Nothing is an
offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason
of a mistake of law in good faith, believes himself to be justified by law, in doing it
2
Section 52 - “Good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed
without due care and attention.
would at once have realised that they were human beings. If there had been any lurking doubt in
his mind he would certainly have flashed the torch.

The two leading decisions on the question of criminal liability where a person kills what he
considers to be ghosts are Waryam Singh v. Emperor, AIR 1926 Lah 554 and Bouda Kui v.
Emperor, AIR 1943 Pat 64. In these two cases also, if the assailant had taken special care to
ascertain who the person assailed was, he would have easily known that he was attacking a
human being and not a ghost.

In the case of Hayat v. Emp., the accused in the early gloaming saw a stooping child in a place which
was believed by him and other villagers to be haunted. Believing the child to be a spirit or demon he
attacked it and gave blows which resulted in its death before he realised his mistake. He was convicted
under section 304-A of the Code and his defence under section 79 of the Code was rejected on the
ground that he had not acted in good faith.