State of Orissa Vs Ram Bahadur Thapa - AIR 1960 Ori 161, 1960 CriLJ 1349
State of Orissa. Appellant  v/s Ram Bahadur Thapa...Respondent

Summary Of The Facts:
The state of Orissa made an appeal against the order passed by the sessions judge of Mayurbhanj for acquitting the respondent in a case for murder under section 302, 324 and 326 of IPC.

In Rasgovindpur village there is an abandoned aerodrome which was collected in a large quantity. The Garrison engineer of defence department kept the aero scrap in charge of two chaukidars. From the firm of Chatterjee brothers, Jagat Bandhu Chatterjee came to the village to purchase the aero scarp with the Nepali servant named Ram Bahadur Thapa (respondent). There was a fear of ghosts in the village and the Adivasis would not ordinarily venture out at night.

But Jagat Bandhu Chatterjee and Ram Bahadur Thapa were anxious to see the ghosts, so they convinced Krishna Chandra Patro and Chandra Majhi to accompany them to see the ghosts. Chandra Majhi guided them to his village. Hence at about midnight they went to see the ghosts and then began returning to the village through a foot-path across the aerodrome.

While returning they noticed a flickering light at a distance and they also found some apparitions moving around the flickering light. The Ram Bahadur Thapa was first to reach the place and without thinking for a second he with his khurki began to attack the ghosts indiscriminately and when he hit Krishna Chandra Patro, he shouted that the respondent had attacked him and in the meantime the victims also raised a cry of distress so the respondent stopped attacking the people.

The persons whom the respondent attacked and injured were some female majhis of the locality who came to collect mohua flowers under a mohua tree with hurricane lantern at that hour of night. By the indiscriminate attack one girl called Gelhi Majhiani was killed and other two females were grievously injured. For this indiscriminate act of attacking the people the respondent, Ram Bahadur Thapa was charged for murder under section 302 and for hurt and grievous hurt under section 324 and section 326 of IPC.

Issues In The Case:

1. Whether the order passed by the secession court is correct?
2. Can the respondent be protected under section 79 of IPC?

Contentions:
Appellant:
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[1]. 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.

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.

Decision Made By The Court:
It was held by the hon�ble high court that the respondent was protected under section 79 of IPC, because it would be fairly inferred that the respondent believed himself and acted in good faith while attacking the females that he was attacking the ghosts. The court further held that the mere fact that the if the respondent had acted with extra care and attention the incident might have been averted is not a valid ground for denying him from the protection of the section 79 of IPC. The hon�ble high court held the judgment of the learned sessions judge was right and the order of acquittal was confirmed and the appeal was dismissed.

Dissenting Opinion:
The murderer was acquitted because he acted in good faith under section 79 of IPC. But when we look into the facts of the case the respondent started to attack the people thinking of ghosts and did not stop even when he heard them screaming. In this kind of circumstance there arise a question whether the defence under section 79 of IPC can be given even in the cases where there exists certain proof that shows the pre-emption of attack and gross negligence by the accused.

When we look into the judgement of The King v. Tustipada Mandal and ors.[2] it was held that the accused must be completely unaware of the real circumstances in which that person was acting to constitute a mistake of facts. Additionally, in the reference case, Ganapathia Pillai & Anr [3] it was held that an honest blunder can never be acting within the meaning of good faith for acting negligently.

From the judgement of the cases, we can say that if an accused gets protection under section 79 of IPC, he must act with good faith which is clearly defined under section 52 of IPC. Section 52 of Indian penal code says that:
Nothing is said to be done or believed in good faith which is done or believed without due care and attention[4].

The main feature of the provisions are the words due care and attention. The importance of the words due care and attention was highlighted in the case of Emperor v. Abdool Wadood Ahmed[5], where a person acted with the injurious intention would come under acting without due care and attention. The person can be protected under section 79 of IPC only when he acted on good faith and good faith under section 52 is said that the person should acted with due care and attention.

With the two most important judgement, Waryam Singh v. emperor[6] and Bouda Kui v. emperor[7], we can find the answer to the question of criminal liability where a person kills what he considers to be ghosts. In the above mentioned two judgements, if the accused had taken special care to ascertain who the person attacked was, he would have easily known that he was attacking a human being and not a ghost. In the current case Ram Bahadur Thapa, the blow with the khurki was done with the intention to injury the victims.

With this we can say that no due care and attention was taken plan, and if the accused had attacked with due care and attention the life of the person can be saved. Hence the judgement given the hon�ble supreme court gives a way to the accused to escape from these kinds of murder with the protection of section 79 of IPC.

Conclusion:
The defence of mistake of facts used in the cases may vary to certain extent depending on the facts of that case. The duty of the law is to ensure that the defence of mistake of facts is not misused or justice is not denied to the victims. This can be done by ensuring certain standards or principles which can apply to all cases universally.

The court is in a place where it has to observe that the accused did act in good faith which is defined under section 52 of IPC and also ascertain the fact that he did not had any injurious intention while he was attacking the person, in addition to it the accused must also acted with due care and attention. Understanding the term good faith is not only used to determine the mental state of the accused but also for the reasonableness of the offence and it has to be a relevant consideration in allowing the defence.

There are two basic principles which helps as to make a difference between what was a genuine mistake of law and what was a fabricated or an attempt to misuse the defence. The first one is the mistake of fact must be allowed to the accused only when there is a reasonable mistake made and unreasonable mistake is a borderline on negligence.

On the other hand, an objective theory of justification which is applied by the court of law is to find out whether the act committed by the accused was actually justified under the law which is in force. These principles would also make sure that justice is served to the victims by punishing the accused for not acting in good faith or where the act was not justified under the law.

End-Notes:

1. Section 52 of Indian penal code
2. Equivalent citations: AIR 1951 Ori 284
3. Equivalent citations: AIR 1953 Mad 936
4. Section 52 of Indian penal code
5. Equivalent citations: (1907)9 BOMLR 230
6. AIR 1926 Lah 554
7. AIR 1943 Pat 64
   
   Award Winning Article Is Written By: Ms.Aiswarya Lakshmi.J.S

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