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STATE OF ORISSA v. BHAGABAN BARIK, 1987

STATE OF ORISSA v. BHAGABAN BARIK, 1987

Petitioner: State of Orissa

Respondent: Bhagaban Barik

FACTS

The deceased was returning from the house of a villager after reciting bhagbat where some other villagers including the respondent was also present. When he reached near the house of the respondent he was assaulted by the respondent with a lathi blow on his head. On hearing the hue and cry the other villagers got collected 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 the blood. The deceased told the villagers that the respondent had assaulted him. 

ARGUMENTS OF THE RESPONDENT

The respondent stated that during the day time his bell-metal utensils had been stolen and he was keeping a watch for     the thief when 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 deceased. The deceased also told his  wife that he had been assaulted by the  respondent in the presence of his son and grandson.

  On appeal the High Court accepted the defense plea and the respondent was protected under Sec.79 of the IPC and acquitted him.

On appeal to the hon’ble Supreme Court

    HELD

 1. The judgment of acquittal entered by the High Court was held to be erroneous and manifest of miscarriage of justice.

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. 

    3.But in the present case there was complete absence     of good faith on the part of the respondent. The deceased and the respondent were having strained relations. From the dying declaration as well as the extrajudicial confession it was 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     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. 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 with  great force on a vulnerable part of the body like     the  head  which  resulted in his death. There was  no suggestion that he wielded  the lathi in the right of self defense. 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 evidence on record shows that the respondent and the deceased had strained relations over grazing of cattles. 


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 defense 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 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 nothing is an offence which is done by any person who is justified 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, although 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 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' 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. ‘Mistake’ is not mere forgetfulness. It is a slip ‘made, not by design, but by mischance.

The cases on which the High Court has relied were cases where 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, or mistake as to them. In Chirangi v. State  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. 


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.




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