STATE OF ORISSA Vs. RAM BAHADUR THAPA

JUDGEMENT

(1.) This is an appeal by the State of Orissa against an order of acquittal passed by the Sessions Judge of Mayurbhanj in a case under Sections 302, 324 and 326 I.P.C. instituted against the respondent, a Nepali named Ram Bahadur Thapa.

(2.) In village Rasgovindpur in Balasore district there is an abandoned aerodrome in which was collected a large quantity of valuable aeroscrap. The Garrison Engineer of the Defence Department kept the aeroscrap in charge of two choukidars mimed Dibakar (P.W. 22) and Govind (P.W. 23) with a view to prevent pilferage by unauthorised persons. One Jagat Bandhu Chatterjee (P.W. 29) of the firm of Chatterji Brothers, Calcutta, came to Rasgovindpur accompanied by a Nepali servant named Ram Bahadur Thapa (respondent) sometime in April 1958 for the purpose of purchasing the said aeroscrap. He and his Nepali servant stayed in the house of one Krishna Chandra Patro (P.W. 26) who was keeping a tea stall in village Rasgovindpur. All round the aerodrome there are Adivasi villages, inhabited mostly by Santals and Majhis. These, persons have strong belief in ghosts and the abandoned aerodrome earned a notoriety in that area as being infested with ghosts. There are several footpaths cutting across the aerodrome, leading from one village to another. But on account of their fear of ghosts the Advasis would not ordinarily venture out at night alone, along those paths, On the 20th May 1958 one Chandra Majhi P.W. 11 who is a resident of village Telkundi close by went to the tea-stall of Krishna Chandra Patro (P.W. 26) in village Rasgovindpur at about 9 p.m. and took shelter there for the night because he was afraid of proceeding alone to his village (Telkundi) at that hour of the night for fear of ghosts. But Jagat Bandhu Chatterji (P.W. 29) and his Nepali servant (respondent) were anxious to see the ghosts. Hence at about midnight they persuaded Krishna Chandra Patro (P.W. 26) to accompany them to see the ghosts and they all woke up Chandra Majhi (P.W. 11), escorted him to his village of Telkundi, and then began, returning to Rasgovindpur through a footpath across the aerodrome. While passing through camp No. IV they noticed a flickering light at a distance of about 400 cubits from the path-way. There was a strong wind blowing and the movement of the light in that breeze ereated in them an impression that it was not ordinary light but 'will-o' the wisp.' They also found some apparitions moving around the flickering light. They thought that some ghosts were dancing round the light and they all ran towards that place. The Nepali servant reached first, and with his "khurki' be began to attack the ghosts indiscriminately. Krishna Chandra Patro (P.W. 26) arrived there sometime later, but the respondent did not notice him and one of his Kurki blows caused a severe injury to Krishna Chandra Patro who screamed aloud saying that the Nepali had injured him. In the meantime other injured persons also raised a cry of distress and then the respondent stopped attacking the people. 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. In consequence of the indiscriminate attack by the respondent with his 'Kurki' one Gelhi Majhiani was killed, and two other females namely Ganga Majhiani (P.W. 28) and Saunri Majhiani (P.W. 27) were grievously injured. In addition, Krishna Chandra Patro (P.W. 26) as stated above, was also injured.

(3.) On the aforesaid facts the respondent was charged under Section 302 I.P.C. for the murder of Gelhi Majhiani, under Section 326 I.P.C. for having caused grievous hurt to P.Ws. 27 and 28 and under Section 324 I.P.C. for having caused hurt to Krishna Chandra Patro (P.W. 26). The learned Sessions Judge held that the respondent committed the said acts, under a bona fide mistake of fact, thinking that he was attacking ghosts and not human beings and hence he acquitted him relying on Section 79 I.P.C.