Orissa High Court

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

Equivalent citations: AIR 1960 Ori 161, 1960 CriLJ 1349

Author: Narasimham

Bench: R Narasimham, S Barman

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 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 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 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, 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.