CASE COMMENT
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
PETITIONER:...........................“State of Orissa”
V.RESPONDENT:......................“Ram Bahadur Thapa”
DATE OF JUDGMENT- 09/11/1959 BENCH:
R NarasimhamS Barman
CITATION:
AIR 1960
Ori 161
1960 CriLJ 1349
INTRODUCTION:
It is the
essential principle of criminal jurisprudence that crime cannot be committed by
an innocent mind. Mens Rea, the mental element is sine qua non for proving an
offence. Whereas the accused can take the defence of 'Mistake of fact' of
section 76 and 79 under the chapter of General Exception of IPC[1]. Section 76
provides the defence, when a person believed himself to be bound by law to
perform the act in question as a result of mistake of fact in good faith,
whilst in section 79 provides the same in case the person believes himself to
be justifies by law. Going by the doctrine, Ignorantia facti doth excuse, which
means ignorance of fact is excusable and ignorance includes mistake.
The Present case
is a landmark precedent on mistake of fact resulting acquittal of accused. In
1958 a judgment was passed by the sessions judge, acquitting the accused
charged of section. 302[2],section 324[3] and section 326[4] of IPC on ground
of benefit of mistake of fact in good faith under section 79[5] of IPC, which
was upheld by the High Court of Orissa in appeal.
PROVISIONS OF LAW
INVOLVED:
While discussing
that under Section 79 of Indian Penal Code a crime committed under good faith and the person believing that he was
justified in his/her act and Section 52 of IPC stating that good faith requires due attention and
care, the court cited Emperor v. Abdool Wadood Ahmed1 . The conduct of the
person who is in question is determined on the basis of the intelligence and
capacity of the person. It is only to be expected that the honest conclusions
drawn by a mind of a calm and philosophical person would differ from the
conclusions drawn by a mind of sectarian zeal and untrained to the habits of
reasoning. The court held the reasoning
in Bhawoo Jiwaji v. Mulji Dayal2 that the law does not expect all persons to take due care and attention
regardless of the positions they hold. The question of good faith should be
considered according to the facts and circumstances of the case. The court
cited the two leading decisions in Waryam Singh v. Emperor3 and Bouda Kui v.
Emperor4 . These two cases also involved the question thaif the accused had
taken a little bit of extra attention
and care, the incident could have been averted. Nevertheless, the High
Court ruled that the accused would be protected
under Section 79 of Indian Penal Code because the circumstances under which the apparition took
place before him and pre-disposition, it would
be reasonably believed that the accused believed in good faith that
there were ghosts present at the spot.
RELEVANT
ACTS/ SECTIONS :
SECTION 79 ,
SECTION 302 , SECTION 326 , SECTION 324 , Indian Penal Code 1860
ISSUES:
1. Firstly,
whether the act of the respondent can be protected under section 79 of IPC or
not? .
2. Secondly,
whether the act of respondent can be placed under "good faith" ?
3. Thirdly
whether the order of acquittal passed by the Honourable court was correct or
not?
FACT OF THE CASE
In a village named Rasgovindpur in the
Balasore district of Orissa, an aerodrome was
abandoned. There was a lot of valuable scrap in the aerodrome and so,
the Garrison Engineer of the Defence
Department kept the aero scrap in charge of two chowkidars, namely Dibakar and Govind to prevent the theft of the scrap.
One Jagat Bandhu of Chatterji Brothers, Calcutta came to Rasgovindpur accompanied by a Nepali
servant named Ram Bahadur Thapa to
purchase the scrap sometime in April 1958. They were staying at the
house of one Krishna Chandra Patro who
was a tea stall owner in the area.
Adivasis comprising of Santals and Majhis resided in the nearby villages
of the aerodrome and it was believed
that ghosts lived in the aerodrome. As most of the footpaths to villages
cut across the aerodrome, the Adivasis
preferred not to go out alone at night along these paths. On 20th May, 1958 one Chandra Majhi who resided
in the village Telkundi went to Krishna Chandra Patro’s tea stall at 9 p.m. and
fearing the ghosts decided to seek shelter at the tea stall for the night.
Instead of the notoriety the place had attained and the fear spread among the
people, Jagat Bandhu Chatterji and his servant, Ram Bahadur Thapa were eager to
see the ghosts. So, they persuaded
Krishna Chandra Patro to accompany them. The three men escorted Chandra Majhito
his village Telkundi and then started walking through a footpath across the
aerodrome to reach Rasgovindpur. While they were passing through Camp No. IV,
they noticed a flickering light at a
distance of 400 cubits along the pathway. The blowing wind and the movement of
lights created an impression that it was not a natural light but a ‘will-o the
wisp’. There were also some apparitions
seen in the light and the party suspected that the ghosts were dancing in the light and rushed to the place. The Nepali
servant reached the spot first and started attacking the figures
indiscriminately with a ‘khurki’. Krishna Chandra Patro reached the spot
sometime later and was mistakenly
attacked by the servant (respondent) with a massive blow of the khurki. Krishna Chandra Patro cried in agony
and started shouting that the Nepali had hit him. In the meantime, the rest of the figures also
started crying in pain and the respondent stopped in his actions. It was later discovered that
the figures attacked by the respondent were not ghosts but the local Majhi women who had gathered
around a ‘mohua tree’ at that hour of night to collect ‘mohua’ flowers with the
help of a hurricane lantern. Resulting from the indiscriminate attacks of Ram
Bahadur Thapa, one Gelhi Majhiani was killed and two women, named Ganga
Majhiani and Saunri Majhiani were grievously injured. Krishna Chandra Patro was also grievously
hurt. The respondent was charged under Section 302 of the Indian Penal Code
(IPC) for the murder of Gelhi Majhiani and under Section 326 of Indian Penal
Code for injuring Ganga Majhiani and Saunri Majhiani and also under Section 324
of Indian Penal Code for causing hurt to Krishna Chandra Patro.The Session
court acquitted the accused servant on the reasoning that he was protected
under Section 79 of Indian Penal Code based on the facts and circumstances of
the case.
CONTENTIONS:
Arguments given by Petitioner:
The appellant counsel argued that
under section 52 of IPC it is said that:
Nothing is said to be done or
believed in good faith which is done or believed without due care and
attention. Except the facts and circumstances signified in this case the
respondent can be fairly held that he did not act in good faith. Under section
52 of IPC to prove the act was done in good faith it is required to be done
with due care and attention.
If the
respondent had acted with due care and attention the life of a women can be
saved and now that she will be alive. But the respondent did not act with due
care and attention by this the respondent can be held guilty under section 304A
of IPC for having caused death of Gelhi majhiani and under section 336 of IPC
for having caused hurt to the other persons.
Arguments given by Respondent:
The counsel for the respondent, Ram
Bahadur Thapa contented that the respondent had either the necessary criminal
intention or knowledge for his act and when he attacked the victims, he
believed that he was attacking ghosts and not human beings. The benefit of
section 79 of IPC is provided to a person who by reason of mistake of fact in
good faith and believes himself to be justified by law in doing an act. With
the circumstance in this case, it is clear that the respondent believes himself
that he was attacking ghosts and hence he would be entitled to get protection
from section 79 of IPC.
DEFECTS OF THE LAW:
1). There
Should be no Spread of Such Ghost Stories .
2). The
Department Should also regularly or in some basis must check their area &
the local people.should aware of it.
RATIONAL:
Section 79 in The Indian Penal Code
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.
Illustration A sees Z commit what
appears to A to be a murder. A, in the exercise, to the best of his judgment
exerted in good faith, of the power which the law gives to all persons of
apprehending murderers in the fact, seizes Z, in order to bring Z before the
proper authorities. A has committed no offence, though it may turn out that Z
was acting in self-defence.
INFERENCE:
Section 79 IPC stated about the
mistake of fact as a general exception where the crime is committed. It states that when the person believes or
assumed anything else which is mistaken of fact and by that fact he actually
believes his act to be valid under law such as self defense than the act will
be termed as committed under good faith[3]. No mistake on the part of law is
accepted here and only the mistaken part on the facts of the situation can be
considered under section 79 of IPC. This is the defense which the accused can
be supported by when he believes that he actually acted in the mistake of fact.
Under the case, the Nepali servant
i.e. respondent believes on the existence of the ghosts as the era was very old
where the existence of ghost are widely accepted by the people. In that era
everyone believes on the existence of ghost where judiciary being a normal
people also believes in these supernatural things. Respondent was clear about
the presence of ghost hence he was mistaken human beings as ghosts and thus
attacked on them. This made him mistaken of fact as he recognized human beings
as the ghosts.
This was the complete consequence of
the indiscriminate attack where the counsel of respondent argues that his
client genuinely believed on the existence of the ghosts which is the reason of
the attack. This statement is highly supported by the time period of the case
which is late 1950s time period.
The question was raised by the
opposite party counsel i.e. prosecutor, where they asked about the duty of care
and attention. This argument was rebutted by the justice R Narasimham itself in
the appellate court where he contented on the section 52 of IPC which defines
the good faith. Further the duty of care and the definition of the good faith
differ from case to case and situation to situation. There is no uniform way to
explain the term ‘good faith’.
In emperor case[4], the court
answered the very debatable issue by stating that the accurate test for ‘due
care’ would be to check for the ‘capacity and intelligence’ of the accused.
Hence if any case aroused than the intelligence or the presence of mind of the
accused will be checked before granting him the benefit of the section 79 IPC.
Under the case, the respondent acted without applying any mind which means the
attack was the instant reaction without having any second thought. The people
around him were shouting that there is a ghost’, which provoked him and made
him to believe more on the existence of ghost around hi the attack was the
reaction out of the self defense. The individual was untrained person with inexperienced
mind.
There are many factors which supports
his mental condition. Firstly the respondent was very new to that place and
completely unaware about the custom and the living style of that area which
made him to believe and act according to the direction of the localite people.
The localite filled his mind with all the ghost’s thoughts which made his mind
filled up with emotions of fear at the same time. Moreover, those people firmly
believed in the supernatural power that they reported that Tuesday and Saturday
are the two most horrific day of the week and surprisingly the day on which the
accident happened was one of these two days. The respondent was very sure about
the presence of ghost due to this so called customary mark of that village.
Secondly there were many
circumstantial evidence which crystallized o the presence of some supernatural
activity like there was flickering of lights, heavy blowing of winds and the
presence of woman at night who was indulging in plucking flowers as it is hard
to believe that woman came out for flowers on such supernatural night.
There was no action recorded on the
part of Mr. chatterjee i.e his employer for stopping him or discouraging him
while he was making attack in self defense. There were neither efforts nor
prevention on the part of other two people who accompanied the respondent by
which it can be assumed that those people were also terrified by that situation
and they believed the action of respondent justified.
The point of checking on the person
who cried out of the pain is illogical as no human being go for verification
when it is believed that it’s a supernatural night and the circumstantial
evidence indicated towards it.
Law cannot expect from person to act
in a required manner when he is in fear and completely pervaded with the
emotions.
By these factors and the observations
it is believed and supported the judgment given by the session court. But this
judgment won’t be much relevant in current scenario as the present situation is
much different from 1959 time period. Currently there will be hardly any
defense on the ground of supernatural powers as judiciary doesn’t believe on
the presence of such activity.
CONCLUSION :
The broad
interpretation of the court on “ Good Faith “ and “ Due care and attenation”
served as a landmark precedent in criminal jurisprudence . It is obvious that
law cannot expect a person to act rationally in different forms of emotions
like fear , excitement , but in today’s era where due to such mammoth
developments in science and technology , social attitudes, granting the
protection of defence under Mistake of fact ( section 79 IPC ) on reason of
superstitious belief or ghosts would be totally irrelevent . Judiciary would
have abstain itself from grating a protection to the accused charged of heinous
crime like murder only on sole ground of superstitious belief. It would not be
prudent to do so.
The learned
Sessions Judge was therefore right in acquitting the appellant. The order of
acquittal is confirmed and this appeal is dismissed.
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