Sandip Paul & Soumya Sahoo
SOA National Institute of Law, Odisha
CASE: STATE OF ORISSA VS RAM BAHADUR THAPA
DATE OF JUDGEMENT: 9 NOVEMBER, 1959
CITATIONS: AIR 1960 ORI 16 , 1960 CRILJ 1349
COURT: HIGH COURT OF ORISSA
BENCH: R NARASIMHAM, S BARMAN
One can take the plea of ignorance of fact( Ignorantia facti doth excuse) but not ignorance of law. Ignorance of facts is excuses which also includes mistake. Statutorily section 76 and 79 under the chapter of General Exception of Indian Penal Code, provides about the 'defence of mistake of fact'. The case of State of Orissa v. Ram Bahadur Thapa is one of the landmark precedent regarding excusing of ignorance of fact. The case relates to a murder of women by the accused in apprehension of ghost. What constitutes “good faith” and what is the degree of “due care and attention” under the law have been emphasized in this case. The notion of mistake of fact, which includes good faith have no standard value. It differs from person to person , basing on the personal intellect of a person. This case serve as vital precedent on how to adjudicate the bonafideness of a plea of general defence of Mistake of fact.
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. 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,section 324 and section 326 of IPC on ground of benefit of mistake of fact in good faith under section 79 of IPC, which was upheld by the High Court of Orissa in appeal.
The case is related to the respondent , Mr Ram Bahadur Thapa, who killed a women Gelhi Majhiani and caused grievous hurt to Ganga Majhiani and Saunri Majhiani, mistakenly apprehending them as ghost.
The incident occurred on May 20th 1958 in a village named Rasgovindpur of Balasore district. The area have a abandoned aerodrome. This aerdrome was surrounded by Adivasi villages mostly inhabited by santhals and Majhis. These, persons have strong belief in ghosts and the abandoned aerdrome earned a fame of notoriety in that area as being infested with ghosts. Thus the villagers would not ordinarily venture out at night alone.
One Jagat Bandhu Chatterjee accompanied by a Nepali servant named as Ram Bahadur Thapa(Respondent) and their landlord one Krishna Chandra Patro and Chandra Majhi, who is a resident of village Telkundi were anxious to see the ghosts near the abandoned aerodrome area of the village.
On reaching the area , all the four persons named above noticed a flickering light , which due to the reason of strong breeze started moving and created a fear of presence of apparitions moving around the flickering light. Perceiving it as ghosts dancing around the light , the respondent , Ram Bahadur Thapa attacked the ghosts indiscriminately with his “Khurki”. It was subsequently discovered that the persons against whom he attacked were some female Majhis of the locality who were collecting ‘Mohua’ flowers under the tree with a hurricane lantern at that hour of night.
In consequence of such indiscriminate attack by the respondent one female, Gelhi Majhani was killed and two other females namely Ganga Majhiani and Saunri Majhiani were grievously injured. In adition Krishna Chandra Patro was also injured.
Basing on such facts , Mr Ram Bahadur Thapa was charged under section 302 of IPC for murder of Gelhi Majhiani, under section 326 of IPC for causing grievous hurt to Ganga majhiani and Saunri Majhiani and under section 324 IPC for causing hurt to Krishna Chandra Patro..
The session judge acquitted the respondent , Ram Bahadur Thapa, on ground of commission of such act under bona fide mistake of fact under section 79 IPC, thinking that he was attacking ghosts not human being. On an appeal the High Court of Orissa even upheld such order of acquittal.
ISSUES IN THE CASE
Firstly, whether the act of the respondent can be protected under section 79 of IPC or not?
Secondly, whether the act of respondent can be placed under “good faith” ?
Thirdly whether the order of acquittal passed by the Honourable court was correct or not?
The acquittal order passed by the session judge was mainly based on ground of bona fide mistake of fact under section 79 of IPC. The respondent contended that he have committed such act thinking it as apparitions and had bona fide intention , only to attack the ghosts and not to cause any harm to any person. Their plea was, absence of criminal intention or knowledge when the respondent attacked the victim, he thought he was attacking ghosts and not human being.
The respondent also argued that , he was not a resident and a new comer to that place. He was a firm believer of ghost and the news that the village Rasgovindpur, specifically the area of aerodrome was infested with ghosts. This created obsession regarding presence of ghosts in the mind of the respondent . Thus he became super excited on seeing the moving light , attacked the figures immediately without pausing even for a moment thinking it as ghosts. It was also inferred from the testimony of the witnesses that, the respondent had torch in his hand , but in such a mood of fear and excitement he did not flash the torch, instead he attacked suddenly. This also corroborate his good faith.
The prosecution counsel on other hand contended that , though intention was not present, the accused have not acted with “due care and attention”, for which the fact of “good faith” cannot be presumed. Thus for it the respondent must be held liable.
The appellate High court, agreed partially. Agreeing to the fact that though the concept of duty of care or due care or attention falls within the purview of Good faith, as provided under section 52 of IPC but such specified standard of duty to care differs from case to case , intellects of the person and place , time and circumstances of the case.
RATIO DECIDENDI ( Court’s view on “Due care and attention” )
While adjudicating the ambit of “ Good faith” and due care and attention ,the court opined that it depends upon the intellectual attainments of the person. There can be no general standard of care and attention applicable to all persons and under all circumstances.
The court referred the ratio of case Emperor vs Abdeol Wadood Ahmed, “ The standard of care and caution must be judged according to the capacity and intelligence of person whose conduct is in question. It is expected that calm and philosophical mind may differ from person excited by zeal and untrained to habits of reasoning . The question of good faith must be considered with reference to positon on accused and the circumstances under which he acted. The law does not expect the same standard of care and attention from all persons.”
REFERENCES MADE BY THE COURT
Court referred the two leading decisions on question of criminal liability under case Waryam singh vs Emperorand Bonda kui vs Emperor. In these two cases, the court granted protection to the accused by section 79 of IPC,who was charged for murdering mistakenly thinking as ghost. The court in these cases , made it clear that , when there is no ground of opinion of Mens Rea or an intention to do wrong , then there is no commission of offence, and the object of culpable homicide could only be inferred against a living human being.
The High Court of Orissa upheld the earlier decision of acquittal of respondent passed by Session court in protection under section 79 of IPC.
CRITICAL ANALYSIS OF SECTION 79 IPC
Section 79 of IPC says , act done by a person bound , or by mistake of fact believing himself bound by law – “Nothing is an offence which is done by a person who is , 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 , bound by law to do it.”
The protection under this provision is available who have done any offence by mistake of fact in good faith, and as section 52 of IPC defines good faith as “ Nothing is said to be done or believed in good faith which is done or believed without due care and attention.” Thus due care an attention is the sine qua non to attract section 79 of IPC. It can be reasonably held that the notion of due care and attention have no general standard. It depends upon person to person as per their belief, psychological perspective . But a common reference can be drawn that under what circumstances, the accused have done such act. In instant case , the respondent Ram Bahadur Thapa, who believes in ghosts and the circumstances created an impression that those flickering lights are ghosts , and suddenly attacked on them. The respondent even not taken any interval to use his torch to realize whether it was a ghost or human being. Thus it shows the volition of mind , that there is no form of Mens rea he have adopted. It was a mistaken belief of facts , which can be held justified under section 79 of IPC.
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.
 Indian Penal Code, 1860  Section 302 Indian Penal Code,1860 ( punishment for murder )  Section 324 of Indian Penal Code , 1860 ( voluntarily causing hurt by dangerous weapons or means )  Voluntaily causing grievous hurt by dangerous weapons or means  Act done by a person justified or by mistake of fact believing himself justified by law  ILR 31 BOM 293  AIR 1926 LAH 554  AIR 1943 PAT 64