September 27, 2021

Case Brief: State of Orissa v. Ram Bahadur Thapa

Court: Orissa High Court

Citations: AIR 1960 Ori 161, 1960 CriLJ 1349

Bench: R Narasimham, S Barman

Theme: Mistake of fact being a ground for acquittal

Subject: Criminal Law

Judgement: India


The case pertains to the respondent, one Mr. Ram Bahadur Thapa, who attacked and killed women mistaking them to be ghosts.

The incident happened around midnight of Tuesday, May 20th 1958 when the respondent along with his employer Mr. Jagat Bandhu Chatterjee and their landlord one Krishna Chandra Patro of village Rasgovindpur in Orissa had gone to validate the popular belief amongst the village locals of the presence of ghosts on specific nights of the week in an area near an abandoned aerodrome in the village.

Upon reaching the area, all of the above-named people saw what seemed to be apparitions in a flickering light and the respondent indiscriminately attacked the apparitions with his “khurki”. Later it was discovered that what the respondent had thought were ghosts were actually women of a nearby locality who were collecting ‘Mohua’ flowers at that hour of the night, under a hurricane lantern.

In consequence of the indiscriminate attack by the respondent one Gelhi Majhiani was killed, and two other females namely Ganga Majhiani and Saunri Majhiani were grievously injured. In addition, Krishna Chandra Patro as stated above, was also injured.

Mr. Thapa was charged under Section 302 of IPC for the murder of Gelhi Majhiani, under Section 326 of IPC for causing grievous hurt to Ganga Mujhiani and Saunri Mujhiani, and Section 324 of IPC for causing hurt to Mr. Patro.

The Sessions Judge acquitted the respondent, on the grounds of bona fide mistake of fact, under Section 79 IPC. The plaintiff appealed to the High Court. However the High Court Judges upheld the original acquittal.


Whether the sessions court rightfully acquitted the respondent on the grounds that a mistake of fact took place in good faith? And therefore was the standard of care met?


The Sessions Judge acquitted the respondent, on the grounds of bona fide mistake of fact, under Section 79 IPC. The respondent genuinely understood the apparitions to be ghosts, and therefore attacked them. The intention was present to attack ghosts, not harm people.

The Prosecution contended that although intention was not present, it depended upon the accused to act with ‘due care and attention’. And since the respondent did not, he should be held liable.

Justice R Narasimham, in the appellant Court, agreed only partially. While he agreed that the concept of duty of care falls within the ambit of good faith, as seen in Section 52 of IPC, he also specified that the standard of care differs from case to case. As decided in Emperor v. Abdeol Wadood Ahmed (ILR 31 Bom 293), when ascertaining the standard of care the “capacity and intelligence” of the accused must also be considered. This is because what a calm, experienced mind may conclude from a situation of excitement will be different from that of an untrained, inexperienced mind. And the court must account for this inexperience on an individual basis.

It was known that the respondent had a firm belief in ghosts, and this was seen when he attacks the figures without a second thought. It must also be noted that there were multiple factors that might have convinced him of his sightings of the ghost like – being new to the place, the incident taking place on a night known for supernatural activity, and going out with the aim to view ghosts etc. What was also observed was how convincing the situation was. This was confirmed by the action or inaction of Mr. Chatterjee and Mr. Majhi (people of higher attainment), as they made no attempt to dissuade the respondent. According to the Judge, it would not be logical to expect the respondent to check whether the figures were ghosts after crying out and pointing out that they were ghosts.


The Orissa High Court Judges agreed with the earlier decision of acquittal of the respondent by the Sessions Court Judge.




Personally, I agree with the judgement. The law cannot expect a person to act rationally when they are instilled with emotions, such as fear and excitement. This is influenced by their experience in handling such situations. However the rule cannot be used in an absolute manner.

For example in the present environment a rational person will take all measures to avoid contracting the COVID-19 disease or spread the virus by isolation, wearing masks and sanitisation. However in a situation where a person does not believe in the existence of germs (1) and therefore takes no measures to protect themselves or those around them, will not look at the option of getting checked for the virus even if they have the symptoms as the possibility of them contracting the disease, in their head, is impossible. Thus he may contract the virus and spread it because of their own ignorance and negligence will not be held liable because of this rule.

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Contributed by: Daivik Chatterjee (O.P Jindal Global University)


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