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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: BHAGABAN BARIK

DATE OF JUDGMENT02/04/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 AIR 1265            1987 SCR  (2) 785  1987 SCC  (2) 498        JT 1987 (2)    96  1987 SCALE  (1)712

ACT:     Indian Penal Code, 1860--s. 79 or 304 Part  II--Strained relations  between deceased and respondent--Lathi  blow  in- flicted  with  full  force on deceased’s  head  causing  his death--Respondent claiming to have acted in private  defence of his property believing the deceased to be a  thief--Inci- dent took place near the house of Respondent--Whether  right of private defence available--Mistake of fact and good faith not established--Whether s. 79 attracted or conviction under s. 304 Part II justified.     Words  and Phrases: ’Mistake of fact’ and ’good  faith’- Meaning of.

HEADNOTE: On the date of incident when the deceased was returning from the ’house of PW 2 after reciting Bhagbat, where some  other villagers  including the respondent were also  present,  and reached near the house of the respondent he was assaulted by the  respondent. On hearing a hue and cry several  villagers including  PWs. 2, 3, 4 and 5 ran to the place and  saw  the deceased lying on the ground in a pool of blood with a  head injury.  The respondent along with his mother and wife  were tending the deceased and wiping out blood. The deceased told the  villagers  that the respondent had assaulted  him.  The respondent  stated that during the day time  his  bell-metal utensils had been stolen and he was keeping a watch for  the thief, he saw a person coming inside his premises and think- ing him to be a thief he dealt a lathi blow but subsequently discovered that it was the deceased. The deceased also  told his  wife that he had been assaulted by the  respondent.  On the basis of the evidence on record the trial court convict- ed and sentenced the respondent under s. 304 Part Il of  the IPC.     On  appeal the High Court accepted the defence plea  and held  that the respondent had not committed any offence  and was protected under s. 79 of the IPC and acquitted him. Allowing the appeal of the State, 786     HELD:  1. The judgment of acquittal entered by the  High Court  was  apparently  erroneous and  has  caused  manifest miscarriage of justice. It is surprising that the High Court

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should have given credence to the defence plea of mistake of fact under s. 79 of the IPC 1860. [787E-F]     2.  Under  s. 79 of the IPC although an act may  not  be justified by law, yet if it is done under a mistake of fact, in  the belief of good faith that it is justified by law  it will  not be an offence. The question of good faith must  be considered with reference to the position of the accused and the circumstances under which he acted. In view of s. 52  of the IPC "good faith" requires not logical infallibility  but due care and attention. The question of good faith is always a  question of fact to be determined in accordance with  the proved facts and circumstances of each case. It may be  laid down  as general rule that an alleged offender is deemed  to have acted under that state of things which he in good faith and on reasonable grounds believed to exist when he did  the act alleged to be an offence. Section 79 is attracted  where the circumstances showed that the accused acted under a bona fide  belief that he was legally justified in doing the  act owing  to ignorance of the existence of relevant  facts,  or mistake as to them. [789A-E; 790A]     Rattan Lal and Dhirajlal’s Law of Crimes, 23rd edn.,  p. 199 and Russel on crimes, vol. 1, p. 76; 79 relied upon  and Emperor  v.  Jagmohan Thukral & Anr., AIR  (1947)  All.  99, Dhara  Singh v. Emperor, AIR (1947) Lahore 249 and  Chiranji v. State, AIR (1952) Nag. 282, distinguished.     3.  But the present case was not the one where a  person being  ignorant  of the existence of the relevant  facts  or mistaken  as to them is guilty of conduct which may  produce harmful  result which he never intended. There was  complete absence  of  good faith on the part of the  respondent.  Un- doubtedly  the  deceased  and  the  respondent  were  having strained  relations. From the dying declaration as  well  as the  extrajudicial  confession it is apparent that  the  de- ceased  after  the recital of Bhagbat had gone near  to  the pond  to take the bell-metal utensils. Apparently,  the  re- spondent  was waiting for an opportunity to settle  the  ac- count  when he struck the deceased with the lathi  blow  and there was no occasion for him in the circumstances proved to have  believed that he was striking at a thief. Even  if  he was  a  thief,  that fact by itself would  not  justify  the respondent dealing a lathi blow on the head of the deceased. The deceased had not effected an entry into the house nor he was  anywhere  near  it.  It  appears  that  the  respondent stealthily  followed him and took the opportunity to  settle score by dealing him with lathi 787 with  great force on a vulnerable part of the body like  the head  which  resulted in his death. There is  no  suggestion that he wielded the lathi in the right of self defence.  The respondent, therefore, must face the consequences.  Although it cannot be said from the circumstances appearing that  the respondent  had any intention to kill the deceased, he  must in  the circumstances be attributed with knowledge  when  he struck  the  deceased on the head with a lathi that  it  was likely  to  cause his death. Therefore,  the  respondent  is convicted  under s. 304 Part I1 of the IPC and sentenced  to undergo rigorous imprisonment for three years. [791C-G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 405 of 1978.     From  the Judgment and Order dated 9.8.1977 of the  High Court of Orissa in Criminal Appeal No. 131 of 1975.

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Prithvi Raj and R.K. Mehta for the Appellant. G.S. Chatterjee for the Respondent. The Judgment of the Court was delivered by     SEN,  J. After hearing learned counsel for the  parties, we  are satisfied that the judgment of acquittal entered  by the  High  Court  was apparently erroneous  and  has  caused manifest  miscarriage  of justice. We are  rather  surprised that  the High Court should have given credence to  the  de- fence  plea  of mistake of fact under s. 79  of  the  Indian Penal  Code,  1860. The evidence on record  shows  that  the respondent  and  the deceased had  strained  relations  over grazing of cattles. On the date of incident the deceased had gone to the house of PW 2 for recital of Bhagbat. Some other villagers  including the respondent was also present  there. At  about  10 p.m. recital of Bhagbat was over and  the  de- ceased  returned to the house. Some time thereafter,  a  hue and  cry was raised from near the house of  the  respondent. Several  villagers  including PWs 2, 3, 4 and 5 ran  to  the place.  They saw the deceased lying on the ground in a  pool of  blood with a head injury. The respondent along with  his mother  and  wife were tending the deceased and  wiping  out blood. The deceased was till then in his senses and on query by  the villagers stated that the respondent  had  assaulted him. On being questioned, the respondent stated that  during the daytime his bellmetal utensil had been stolen and he was keeping a watch for the thief. He saw a person coming inside his premises and thinking him to be a thief he dealt a lathi blow but subsequently discovered that it was the 788 deceased. On being taken back to his house the deceased told his  wife PW 6 that he had been assaulted by the  respondent in  the  presence of his son and grandson PWs 8 and  7.  The Doctor PW 9 who performed the post-mortem examination  found multiple  injuries  on the body. On dissection  he  found  a depressed  comminuted fracture over the right perietal  bone and  a  transverse fracture extending  below  left  parietal prominence.  As per the doctor, the head injury  could  have been  caused by a single stroke by means of a lathi  if  the stroke  was  dealt with great force. On this  evidence,  the learned  Sessions Judge very rightly and properly  held  the respondent  guilty  of culpable homicide  not  amounting  to murder  punishable under s. 304 Part II of the Indian  Penal Code.     According to the High Court, the dying declaration  made by  the deceased as also the extra-judicial confession  made by  the  respondent showed that the deceased  had  kept  the bell-metal  utensil under water in the pond. At the time  of occurrence,  the deceased had been to the pond to  take  out the bell-metal utensil. Admittedly, it was a dark night. The defence  plea was that the respondent had been  apprehensive of  further theft of his bell-metal utensils. When he  found someone near the pond, he asked who the person was. As there was  no  response, believing that person to be a  thief,  he assaulted  him  but thereafter discovered that  it  was  the deceased. The High Court held that in the circumstances, the respondent  had not committed any offence and was  protected under  s. 79 of the Indian Penal Code. It accepted that  the onus  to establish the facts to sustain the plea of  mistake of  fact  under s. 79 lay on the respondent and  he  had  to establish  his plea of reasonable probability or,  in  other words,  on preponderance of probability either  by  adducing evidence or by cross-examining the prosecution witnesses. It referred to some cases where different High Courts under the facts  and  circumstances of the particular  case  appearing extended  the benefit of s. 79 of the Indian Penal  Code  to

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the  accused where it was proved that the accused had  acted under a mistake of fact i.e. an honest and reasonable belief in  the existence of circumstances which, if  proved,  would make  the act for which the accused is indicted an  innocent act.     Section 79 of the Indian Penal Code provides that  noth- ing is an offence which is done by any person who is  justi- fied by law, or who by reason of mistake of fact and not  by reason of mistake of law, in good faith, believes himself to be  justified by law, in doing it. Under this  section,  al- though an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by 789 law  it will not be an offence. Such cases are not  uncommon where  the  Courts  in the facts and  circumstances  of  the particular  case have exonerated the accused under s. 79  on the  ground  of  his having acted in good  faith  under  the belief, owing to a mistake of fact that he was justified  in doing the act which constituted an offence. As laid down  in s.  52 of the Indian Penal Code, nothing is said to be  done or believed in good faith which is done or believed  without due  care and attention. The question of good faith must  be considered with reference to the position of the accused and the  circumstances  under which he acted. ’Good  faith’  re- quires not logical infallibility but due care and attention. The  question of good faith is always a question of fact  to be  determined in accordance with the proved facts and  cir- cumstances of each case. ’Mistake of fact.’ as put succinct- ly  in Ratanlal and Dhirajlal’s Law of Crimes, 23rd edn,  p. 199 means:               "’Mistake’ is not mere forgetfulness. It is  a               slip ’made, not by design, but by  mischance’.               Mistake, as the term is used in jurisprudence,               is  an erroneous mental condition,  conception               or conviction induced by ignorance,  misappre-               hension or misunderstanding of the truth,  and               resulting in               some act or omission done or suffered  errone-               ously  by  one  or both of the  parties  to  a               transaction, but without its erroneous charac-               ter being intended or known at that time." It  may be laid down/as a general rule that an  alleged  of- fender  is deemed to have acted under that state  of  things which he in good faith and on reasonable grounds believed to exist  when he did the act alleged to be an offence. In  the classical  work Russel on Crime, vol. 1, p. 76, the  concept of mistake of fact is tersely stated thus:               "When a person is ignorant of the existence of               relevant  facts, or mistaken as to  them,  his               conduct  may produce harmful results which  he               neither intended nor foresaw." At p. 79, the law is stated in these words:               "Mistake can be admitted as a defence provided               (1) that the state of things believed to exist               would,  if true, have justified the act  done,               and  (2) the mistake must be  reasonable,  and               (3)  that the mistake relates to fact and  not               to law." The  cases  on which the High Court has  relied  were  cases where 790 the circumstances showed that the accused had acted under  a bona fide belief that he was legally justified in doing  the act  owing to ignorance of the existence of relevant  facts,

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or  mistake  as to them. There is no need  to  encumber  the judgment  with many citations. We would only refer to  three illustrative  cases. In Emperor v. Jagmohan Thukral &  Anr., AIR 1947 All. 99 the accused while travelling from  Saharan- pur  to Dehradun near the Mohand pass picked up  the  loaded gun when he saw the eyes of an animal and fired at it  which unfortunately  hit two military officers. There was  nothing to show that the accused knew that there was a military camp or that any military exercise was going on. The question was whether  the  accused  was liable for  having  committed  an offence  punishable under s. 307 of the Indian  Penal  Code. The  Court  held  that the accused was protected  by  s.  79 observing. "If he mistook something else as an animal, then s. 79 Penal Code comes to his rescue." That was a case where the accused under a bona fide  mistake shot  at  an  object thinking him to be an  animal  and  the mistake  was  held to be one made in good  faith.  In  Dhara Singh  v. Emperor, AIR 1947 Lahore 249 it was held that  the accused was labouring under a mistake of fact with regard to the  identity  of the persons who had surrounded  his  house followed  by  an exchange of fire, thinking them to  be  his adversaries and by reason of that mistake of fact,  Explana- tion I to s. 99 gave to him a right of private defence. This again  was a case where the accused shot and killed  another person  under  a mistaken belief, in good faith,  that  such person had intruded his house for the purpose of killing him and that he has a reasonable belief that he was entitled  to open  fire  in  exercise of his supposed  right  of  private defence. In Chirangi v. State, AIR (1952) Nag. 282 where  an accused under a moment of delusion, considered that his  own son, to whom he was attached, was a tiger and he accordingly assaulted him with an axe, thinking by reason of mistake  of fact  that he was justified in destroying the deceased  whom he  did not regard to be a human being but a dangerous  ani- mal. It was held that the accused was protected under s.  79 of  the Indian Penal Code. The Court held that the  poignant case  which  resulted in a tragedy was due  to  delusion  of mind, and stated:               "It is abundantly clear that if, Chirangi  had               for a single moment thought that the object of               his attack was his son, he would have desisted               forthwith. There was no reason of any kind why               he  should  have attacked him and,  as  shown,               they were mutually devoted. In short, all that               happened               791               was that the appellant in a moment of delusion               had considered that his target was a tiger and               he accodingly assailed it with his axe." These considerations do not arise in the present case. There was  complete absence of good faith on the part of  the  re- spondent.  It  cannot be doubted that the deceased  and  the respondent were having strained relations and the respondent knew full well that the deceased had come for the recital of Bhagbat  at the house of PW 2 which he attended  along  with others.  From  the dying declaration as well as  the  extra- judicial  confession it is apparent that the deceased  after the  recital of Bhagbat had gone near the pond to  take  the bell-metal  utensil. Apparently, the respondent was  waiting for an opportunity to settle the account when he struck  the deceased  with the lathi blow and there was no occasion  for him in the circumstances proved to have believed that he was striking at a thief. This is not a case where a person being ignorant of the existence of the relevant facts or  mistaken

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as  to them is guilty of conduct which may  produce  harmful result which he never intended. Even if he was a thief, that fact  by itself would not justify the respondent  dealing  a lathi blow on the head of the deceased. The deceased had not effected  an entry into the house nor was he  anywhere  near it. He had gone to the pond to fetch his bellmetal  utensil. It  appears that the respondent stealthily followed him  and took  the opportunity to settle score by dealing him with  a lathi with great force on a vulnerable part of the body like the head which resulted in his death. There is no suggestion that he wielded the lathi in the fight of self-defence.  The respondent therefore must face the consequences. Although it cannot  be  said from the circumstances appearing  that  the respondent  had any intention to kill the deceased, he  must in  the circumstances be attributed with knowledge  when  he struck  the  deceased on the head with a lathi that  it  was likely  to  cause his death. The  respondent  was  therefore guilty of culpable homicide not amounting to murder under s. 304 Part II of the Indian Penal Code.     We accordingly allow the appeal, set aside the  judgment and  order of the High Court and convict the respondent  for having committed an offence punishable under s. 304 Part  II of  the  Indian Penal Code. The respondent is  sentenced  to undergo rigorous imprisonment for a term of three years. The bail  bonds of the respondent shall stand cancelled  and  he shall  be  taken  into custody forthwith to  serve  out  the remaining part of the sentence. A.P.J.                                                Appeal allowed. 792