State of Orissa v. Ram Bahadur Thapa

Read this judgement to find out how the High Court gave protection to accused under Section 79 in view of the prevailing superstition in the society at that time as the same was justified to be a mistake of fact.
CITATIONAIR 1960 Ori 161
COURTHigh Court of Orissa
JUDGES/CORAMJustice R Narasimhan and Justice S Barman


This was an appeal filed by the State of Orissa against an order of acquittal passed by the Sessions Judge in a case under Sections 302, 324 and 326 of Indian Penal Code, instituted against the respondent, a Nepali named Ram Bahadur Thappa.


The facts of the case are as follows: Jagat Bandhu Chatterjee of the firm of Chatterji Brothers, Calcutta, came to Rasgovindpur accompanied by a Nepali servant named Ram Bahadur Thapa (Respondent) in April 1958 for the purpose of purchasing an aeroscape located there. Around the aeroscape there were Adivasis living who had strong belief in ghosts and the aerodrome had earned notoriety as been infested with ghosts especially on Tuesdays and Saturdays.

On 20.05.1958 at about midnight, Jagat Bandhu along with Ram Bahadur Thappa and Krishna Chandra, the person at whose house they were staying at, went to see the ghosts as they were very anxious about it.Near the aerodrome area, they noticed a flickering light at a distance, there was a strong wind blowing and they got an impression that the light was “will-o-wisp”. They thought that some ghosts were dancing and ran towards that place. The Nepali servant, Ram Bahadur with his “Khurki” started attacking the ghosts and accidently hit Krishna Chandra also in the process.

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. 

One of the female was killed, two females were grievously injured and Krishna Chandra was injured too. Respondent was charged under Section 302 I.P.C. for the murder of the female, under Section 326 I.P.C. for having caused grievous hurt to two other females and under Section 324 I.P.C. for having caused hurt to Krishna Chandra Patro.

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The main issues in the case were:

  1. Whether or not the respondent will be protected under Section 79 of IPC.
  2. Whether or not the order of acquittal was correct.

Summary of court decision and judgement

Sessions Judge held that the Respondent committed acts under Bona Fide mistake of fact that he was attacking ghosts and believed himself to be justified by law in doing an act, hence Section 79 of Indian Penal Code came to his rescue and he was protected under it.

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, 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 judge held that it cannot be said that he acted without due care and attention. 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.


Section 79 says that: 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.

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The benefit of Sec. 79 I. P. C. is available to person who by reason of mistake of fact in good faith, believes himself to be justified by law in doing an act, unless from the facts and circumstances established, it can be reasonably held that one did not act in good faith. Good faith requires due care and attention. There can be no general standard of care and attention applicable to all persons and under all circumstances. What is due care and attention depends on the position in which a man finds himself and varies in different cases. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acts. Keeping in mind the circumstances of the case, intellect of the servant and the beliefs in society as to the presence of ghosts, the judgment was correct. The servant acted in good faith, as he was a firm believer of ghosts. Jagat Bandhu and Krishna Chandar, despite being educated did not stop him in attacking the ghosts and made no efforts 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. However, it is necessary to educate the people in law and to improve legal-literacy in our society, as illiteracy is the root cause of superstition, ignorance of reality and many other problems.


If this case had taken place in today’s society, the defense of Section 79 of the Indian Penal Code would not have been given to the respondent as now the beliefs in superstitions are a lot less. At that time, it was a possibility that even the members of the judicial system believed in ghosts but that is not the case anymore.

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