LexSTATE OF ORISSA versus BHAGABAN BARIK
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
STATE OF ORISSA
A
v.
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BHAGABAN BARIK
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APRIL 2, 1987
[A.P. SEN AND V. BALAKRISHNA ERADI, JJ.]
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Indian Penal Code, 1860-s. 79 or 304 Part JI-Strained relations
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between deceased and respondent-Lathi blow inflicted with full force
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on deceased's head causing his death-Respondent claiming to have
~ acted in private defence of his property believing the deceased to be a
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thief-Incident took place near the house of Respondent--Whether right c
of private defence available-Mistake of fact and good faith not
established-Whether s. 79 attracted or conviction under s. 304 Part II
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justified.
Words and Phrases:
ingof.
'Mistake of fact' and 'good faith'-Mean· D
On the date of incident when the deceased was returning from the
house of PW 2 after reciting Bhagbat, where some other villagers in-
eluding the respondent were also present, and reached near the house of
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the respondent he was assaulted by the respondent. On hearing a hue E
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
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respondent had assaulted him. The respondent stated that during the
day time his bell-metal utensils had been stolen and he was keeping a F
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watch for the thief, he saw a person coming inside his premises and
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thinking him to be a thief he dealt a lathi blow but subsequently dis-
covered 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 convicted and sentenced the respondent under
s. 304 Part II of the IPC.
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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,
H
785
786
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A
HELD: 1. The judgment of acquittal entered hy the High Court
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was apparently erroneous and has caused manifest miscarriage of
justice. It is surprising that the High Court 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
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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
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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
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"good faith" requires not logical infallibility but due care and atten-
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tion. The question of good faith is always a question of fact to be de-
c termined 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
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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
D 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
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Russel on crimes, vol. 1, p. 76; 79 relied upon and Emperor v. Jag-
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mohan Thukral & Anr., AIR (1947) All. 99, Dhara Singh v. Emperor,
E AIR (1947) Lahore 249 and Chiranji v. State, AIR (1952) Nag. 282,
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distinguished.
3. But the present case was not the one where a person being
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ignorant of the existence of the relevant facts or mistaken as to them is
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guilty of conduct which may produce harmful result which he never
. 'r-- ....
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intended. There W3.'> complete absence of good faith on the part of the
respondent. Undoubtedly the deceased and the respondent were having
strained relations. 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 to the pond to take the bell-metal utensils.
Apparently, the respondent was waiting for an opportunity to settle the
G account when he struck the deceased with the lathi blow and there was
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no occasion for him in the circumstaExcerpt shown. Read the full judgment & AI analysis in Lexace.