State of Orissa V/s Ram Bahadur Thapa

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

Case name:State of Orissa V/s Ram Bahadur Thapa
Case number:AIR 1960 Ori 161
Court:High court of orissa
Decided on:09-11-1959
  • In village Rasgovindpur in Balasore district there is an abandoned aerodrome, 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 persons nearby aerodrome have strong belief in ghosts and the abandoned aerodrome earned a notoriety in that area as being infested with ghosts.
  • 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 here 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), 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.
  • 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.
  • 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.
  • On the aforesaid facts the respondent was charged under Section 302 I.P.C and 326. 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.
  • Hence 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.
  • Whether session court was right in order of acquittal?
  • The court observed that 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.
  • The court held that 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.
  • Considering the status and intellectual attainments of the respondent and the place and time and the circumstances, the court said that 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.
  • The court after referring various precedents 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.
  • The order of acquittal was confirmed and this appeal is dismissed.

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