MANU/OR/0052/1960

Equivalent Citation: AIR1960Ori161, 1960C riLJ1349

IN THE HIGH COURT OF ORISSA

Govt. Appeal No. 7 of 1959
Decided On: 09.11.1959
Appellants: State of Orissa
Vs.
Respondent: Ram Bahadur Thapa
Hon'ble Judges/Coram:
R.L. Narasimham, C.J. and Sujit Barman Roy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Govt. Adv.
For Respondents/Defendant: Asok Das, Adv.
Case Note:
Criminal- Acquittal - Bonafide Mistake of Fact - Section 79 of Indian Penal
Code, 1860 (I.P.C.) - Respondent was acquitted by the Session Judge from
charges framed under I.P.C .under Section 302,324,326 I.P.C. on ground of
bonafide mistake of fact- Hence this appeal against the aforesaid order of
Session Judge- Held, as per the facts and circumstances of case and
evidences of witnesses Respondent was a firm believer in ghosts -
Respondent believed, in good faith, that he was attacking a ghost and not a
human being - Benefit of Section 79 I.P.C. available to a person who by
reason of mistake of fact in good faith, believes himself to be justified by
law in doing an act- Good faith requires due care and attention as per
Section 52 of I.P.C.-There can be no general standard of care and attention
applicable to all persons and under all circumstances-In present case,
Respondent was protected by Section 79 of I.P.C. - Impugned order upheld-
Appeal dismissed
JUDGMENT
R.L. Narasimham, C.J.
1. This is an appeal by the State of Orissa against an order of acquittal passed by the
Sessions Judge of Mayurbhanj in a case under Sections 302, 324 and 326 I.P.C.
instituted against the respondent, a Nepali named Ram Bahadur Thapa.
2 . In village Rasgovindpur in Balasore district there is an abandoned aerodrome in
which was collected a large quantity of valuable aeroscrap. The Garrison Engineer of
the Defence Department kept the aeroscrap in charge of two choukidars mimed
Dibakar (P.W. 22) and Govind (P.W. 23) with a view to prevent pilferage by
unauthorised persons. One Jagat Bandhu Chatterjee (P.W. 29) of the firm of Chatterji
Brothers, Calcutta, came to Rasgovindpur accompanied by a Nepali servant named
Ram Bahadur Thapa (respondent) sometime in April 1958 for the purpose of
purchasing the said aeroscrap. He and his Nepali servant stayed in the house of one
Krishna Chandra Patro (P.W. 26) who was keeping a tea stall in village Rasgovindpur.
All round the aerodrome there are Adivasi villages, inhabited mostly by Santals and
Majhis. These, persons have strong belief in ghosts and the abandoned aerodrome

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earned a notoriety in that area as being infested with ghosts.
There are several footpaths cutting across the aerodrome, leading from one village to
another. But on account of their fear of ghosts the Advasis would not ordinarily
venture out at night alone, along those paths, On the 20th May 1958 one Chandra
Majhi P.W. 11 who is a resident of village Telkundi close by went to the tea-stall of
Krishna Chandra Patro (P.W. 26) in village Rasgovindpur at about 9 p.m. and took
shelter there for the night because he was afraid of proceeding alone to his village
(Telkundi) at that hour of the night for fear of ghosts. But Jagat Bandhu Chatterji
(P.W. 29) and his Nepali servant (respondent) were anxious to see the ghosts. Hence
at about midnight they persuaded Krishna Chandra Patro (P.W. 26) to accompany
them to see the ghosts and they all woke up Chandra Majhi (P.W. 11), escorted him
to his village of Telkundi, and then began, returning to Rasgovindpur through a foot-
path across the aerodrome. While passing through camp No. IV they noticed a
flickering light at a distance of about 400 cubits from the path-way. There was a
strong wind blowing and the movement of the light in that breeze created in them an
impression that it was not ordinary light but 'will-o' the wisp.' They also found some
apparitions moving around the flickering light. They thought that some ghosts were
dancing round the light and they all ran towards that place.
The Nepali servant reached first, and with his "khurki' be began to attack the ghosts
indiscriminately. Krishna Chandra Patro (P.W. 26) arrived there sometime later, but
the respondent did not notice him and one of his Kurki blows caused a severe injury
to Krishna Chandra Patro who screamed aloud saying that the Nepali had injured him.
In the meantime other injured persons also raised a cry of distress and then the
respondent stopped attacking the people. It was subsequently discovered that the
persons whom he attacked and injured were some female Majhis of the locality who
had collected under a 'Mohua' tree with a hurricane lantern for the purpose of
gathering 'Mohua' flowers at that hour of the night. In consequence of the
indiscriminate attack by the respondent with his 'Kurki' one Gelhi Majhiani was killed,
and two other females namely Ganga Majhiani (P.W. 28) and Saunri Majhiani (P.W.
27) were grievously injured. In addition, Krishna Chandra Patro (P.W. 26) as stated
above, was also injured.
3 . On the aforesaid facts the respondent was charged under Section 302 I.P.C. for
the murder of Gelhi Majhiani, under Section 326 I.P.C. for having caused grievous
hurt to P.Ws. 27 and 28 and under Section 324 I.P.C. for having caused hurt to
Krishna Chandra Patro (P.W. 26). The learned Sessions Judge held that the
respondent committed the said acts, under a bona fide mistake of fact, thinking that
he was attacking ghosts and not human beings and hence he acquitted him relying on
Section 79 I.P.C.
4. It is not the prosecution case that the respondent had either the necessary criminal
intention or knowledge and it was fairly conceded by the learned Standing Counsel
that when the respondent attacked his victims he thought he was attacking ghosts
and not human beings. But it was urged that the respondent did not act with 'due
care and attention" and that consequently he should have been held guilty under S.
304A, I.P.C. for having caused the death of Gelhi Majhiani and under Section 336
I.P.C. for having caused hurt to the other persons.
5 . Before discussing the true import of Section 79 I.P.C. and its applicability to the
facts of this case it is necessary to come to a clear finding on facts. The
circumstances under which the respondent Nepali attacked the aforesaid persons are
proved by two witnesses viz. Krishna Chandra Patro (P.W. 26) and Jagat Bandhu
Chatterji (P.W. 29). There are some inconsistencies in their evidence. Krishna

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Chandra Patro's evidence cannot be given much importance because he has materially
contradicted his own previous statement made under Section 164 Cr. P. Code. Thus,
in his earlier statement under that section he admitted that the "Bengali Babu"
(meaning P.W. 29) forced him to go out of his house at mid-night to see witches. In
the Court of Session, however, he would not admit that he went with the Bengali
Babu to see witches. It is true that P.W. 29 is the master of the respondent and might
have some sympathy for him, but his evidence has been consistent and wherever
there is any discrepancy between his evidence and that of P.W. 26 I would prefer the
former. Chandra Majhi (P.W. 11) whom the party escorted to Telkundi is not also
reliable because though he had stated before the Police that on account of fear of
ghost he took shelter in the tea stall of P.W. 26 that night and did not venture out
until P.Ws. 28 and 28 and the Nepali agreed to escort him to his village, he resiled
from that statement while giving evidence in Court of Sessions Judge and tried to
make it appear as though he was a brave man who had no fear of ghosts. I would not
therefore attach much importance to his testimony.
6. From the evidence of P.W. 29 and those portions of the evidence of P.W. 26 which
are not contradicted by his previous statement, or by the evidence of P.W. 29 the
following facts clearly emerge. The respondent and his master Jagat Bandhu Chatterji
were strangers to the locality having come there only 6 months before the incident.
The aerodrome was reputed to be infested with ghosts and it was generally believed
that on Tuesdays and Saturdays after night-fall ghosts used to move about in open
fields, whimpering, singing and playing blind man's buff. At about 9 P.M. on the
night of occurrence, which was a Tuesday, Chandra Majhi (P.W. 11) of Telkundi took
shelter in the tea-stall of P.W. 26 saying that he would not venture to go to his
village on account of fear of ghosts. But P.Ws. 29 and his Nepali servant were
anxious to see the ghosts and therefore they induced Krishna Chandra Patro (P.W.
26) and Chandra Majhi (P.W. 11) to accompany them at about midnight.
The whole party was thus obsessed with the idea that there were ghosts in the
aerodrome and that they might be seen at that hour. After leaving Chandra Majhi at
Telkundi the party returned along the foot-path cutting across the aerodrome. Just
then they saw at a distance of 400 cubits away a flickering light which on account of
the breeze that was then blowing appeared like "Will-O'-the Wisp". There were also
some figures moving around that light and P.W. 26 pointed out shouting "Here are
the ghosts". Thereupon without thinking even for a moment the respondent rushed
towards the alleged ghosts armed with his "Kurki'' by the shortest cut and began
attacking them indiscriminately. P.W. 26 followed him by a regular path but he also
sustained injuries from the Kurki blows. Then he cried aloud and this brought the
Nepali to his senses. P.W. 29 further admitted that the respondent Nepali was a firm
believer in ghosts and stated that when the latter rushed towards the flickering light
he had no doubt in his mind that he was charging ghosts and not human beings.
7. The benefit of Section 79 I.P.C. is available to a person who by reason of mistake
of fact in good faith, believes himself to be justified by law in doing an act. In view
of the clear evidence of P.W. 29 to the effect that the respondent thought that he was
attacking ghosts he would be entitled to the benefit of that section, unless from the
facts and circumstances established in the case it can be reasonably held that he did
not act in good faith. Good faith requires due care and attention --see Section 52
I.P.C., but there can be no general standard of care and attention applicable to all
persons and under all circumstances. As pointed out in Emperor v. Abdeol Wadood
Ahmed, ILR 31 Bom 293:
"The standard of care and caution must be judged according to the capacity
and intelligence of the person whose conduct is in question. It is only to be

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 expected that the honest conclusion of a calm and philosophical mind may
differ very largely from the honest conclusions of a person excited by
sectarian zeal and untrained to the habits of reasoning.''
"The question of good faith must be considered with reference to the position
of the accused and the circumstances under which he acts .... . . ....... The
law does not expect the same standard of care and attention from all persons
regardless, of the position they occupy -- See Bhawoo Jiwaji v. Mulji Dayal
ILR 12 Bom 377
"What is due care and attention depends on the position in which a man
finds himself and vanes in different cases" -- see Po Mye v. The King 1940
Rang LR 109 (at p. 118S): (AIR 1940 Rang 129 at p. 132).
8. The respondent is a Nepali servant, who was a now comer to the place. He was a
firm believer in ghosts. The aerodrome had acquired a notoriety as being haunted by
ghosts on Tuesday and Saturdays and this created in him almost a certainty that
ghosts would be there at about midnight on that date. The party also left
Rasgovindpur far the purpose of seeing the ghosts. Neither the respondent's master
(P.W. 29) nor his landlord (P.W. 28) made any effort to remove this impression from
his mind. On the other hand they confirmed that impression by themselves offering
to go with him for the purpose of seeing the ghosts. When they noticed the flickering
light at a distance of 400 cubits it looked like "will-O'- the wisp" with some
apparitions moving round it and P.W. 26 shouted "Hark', here is the ghost."
Thereupon, the respondent who was highly excited rushed at the light and attacked
the figures surrounding it, immediately without pausing even for a moment.
Considering the status and intellectual attainments of the respondent and the place
and time and the circumstances, I do not think it can be said that he acted without
due care and attention. When even persons with a higher standard of attainments like
P.Ws. 26 and 29 thought that there were ghosts around the flickering light find when
neither of them dissuaded the Nepali from going there and when on the other hand
P.W. 26 cried out pointing out that it was a ghost it would not be proper to expect
that the Nepali should have paused and examined carefully whether the persons
moving round the figures were human beings or not.
His immediate reaction to such a situation was to rush at what he believed to be
ghosts. It was then urged that from the evidence of P.Ws. 22 and 23 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 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. But there was no reason for him to entertain any
doubt whatsoever about the existence of ghosts and his two companions also not
only did not disabuse him of that wrong impression but by their conduct practically
confirmed the same.
9. 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 MANU/BH/0066/1942. 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. Neverthless the
High Court held that the assailant was protected by Section 79 I.P.C. because, from
the circumstances under which the apparition appeared before him and his pre-
disposition, it would be reasonably inferred that he believed, in good faith, that he
was attacking a ghost and not a human being. There may be slight difference on facts
between these cases and the instant case. But on the evidence of the prosecution

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witnesses it is clear that the respondent is protected by Section 79 I.P.C. The mere
fact that had he exercised extra care and attention the incident might have been
averted is no ground for denying him the protection of that section.
10. The learned Sessions Judge was therefore right in acquitting the appellant. The
order of acquittal is confirmed and this appeal is dismissed.
Sujit Barman Roy, J.
11. I agree.

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