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Orissa High Court
State Of Orissa vs Ram Bahadur Thapa on 9 November, 1959

Equivalent citations: AIR1960ORI161, 1960CRILJ1349, AIR 1960 ORISSA 161, 26

CUT L T 238 ILR (1960) CUT 22, ILR (1960) CUT 22

JUDGMENT

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
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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 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 ereated 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
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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 Chandra Patro's evidence cannot be given much
importance because he has materially contradicted bis 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 bis 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
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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 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, ILK 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,
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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, 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. 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 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.
Barman, J.
11. I agree.
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