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State of Orissa Vs. Khora Ghasi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in45(1978)CLT593; 1978CriLJ1305
AppellantState of Orissa
RespondentKhora Ghasi
Cases Referred(Bonda Kui v. Emperor). In
Excerpt:
.....in the impugned judgment we are satisfied that the finding of the court below, that the accused shot the arrow under the bona fide belief and impression that he was shooting that arrow at a bear which had entered into his field arid was destroying his maize crop, is perfectly correct and justified. on that day visibility was poor due to drizzling of rain. by the lower court, was acquitted on the ground that she believed in good faith at the time of her attack that the object of the attack was not a living human being but a ghost or some object other than a living human being, and the intention to do wrong or to commit an offence against a human being was not present in that case. the better judicial opinion is that if the accused believed in good faith at the time of the assault that..........case, in short, is that in the night of 16-8-75 the deceased stealthily had entered into the maize field of the accused for committing theft of maize therefrom. the accused who was watching his maize field at that time heard some sound inside his field, and thinking that a bear had entered into the maize field, he shot an arrow towards the place from which the said sound was heard. that arrow hit the deceased on the right side of his belly and caused a gaping and bleeding injury at that place. the deceased ran back to his house and informed his grandmother, p. w. 1, that the accused shot an arrow at him and caused that injury on his person. soon thereafter the deceased became unconscious and he died after two hours.the next day morning the father of the deceased convened a.....
Judgment:

S. Acharya, J.

1. This is an appeal against the order of acquittal passed by the court below in favour of the respondent who was charged and tried Under Section 302 I.P.C. in that court.

2. The prosecution case, in short, is that in the night of 16-8-75 the deceased stealthily had entered into the maize field of the accused for committing theft of maize therefrom. The accused who was watching his maize field at that time heard some sound inside his field, and thinking that a bear had entered into the maize field, he shot an arrow towards the place from which the said sound was heard. That arrow hit the deceased on the right side of his belly and caused a gaping and bleeding injury at that place. The deceased ran back to his house and informed his grandmother, P. W. 1, that the accused shot an arrow at him and caused that injury on his person. Soon thereafter the deceased became unconscious and he died after two hours.

The next day morning the father of the deceased convened a Panchayat in the village where the accused admitted that he shot the arrow thinking that it was a bear. The father of the deceased thereafter lodged the F. I. R. Ext. 2 at the police station; After investigation and commitment proceeding the accused stood his trial for an offence Under Section 302 I.P.C. of which he has been acquitted.

3. The accused in his statement Under Section 313 Cr. P.C. admitted that he shot the arrow thinking that he was shooting a bear which had strayed into his maize field and was destroying his maize crop. It must be noted that the accused made the same or similar statements before the Bhadraloks in the village and before a Magistrate who on 22-8-75 recorded his statement Under Section 164, Cr. P.C. (Ext. 12).

4. There is no doubt that the deceased died a homicidal death.

5. P. Ws. 1. 3 and 4, who attended the Panchayat on the next morning, state that the accused admitted in the Panchayat that he shot the arrow under the impression that he was shooting at a bear which was damaging his maize crop in his maize field. P. Ws. 1, 3 and 4 state that the night of occurrence was a dark night, it was drizzling and the moon was not visible in the sky at the time of the occurrence. The place of occurrence, as admitted by the prosecution witnesses, is surrounded by forests on all sides, and bears and boars were in abundance in that locality. They further state that such and other animals very often damage the crops of the villagers. The maize plants in the field of the accused were about four feet high. The deceased admittedly had a black blanket on his body when he had gone inside the accused's maize field. The prosecution case itself is that the deceased had gone there after midnight to commit theft of maize therefrom. One ordinarily would not expect a man to get into a maize field surrounded by jungles and infested with wild animals in a dark drizzling night. The prosecution witnesses have admitted that there was no enmity or ill feeling between the accused and the deceased. Absolutely no reason for intentional shooting of an arrow at the deceased by the accused could ever be suggested by the prosecution.

6. On a perusal of the evidence on record and the discussion of the same in the impugned judgment we are satisfied that the finding of the court below, that the accused shot the arrow under the bona fide belief and impression that he was shooting that arrow at a bear which had entered into his field arid was destroying his maize crop, is perfectly correct and justified. On that finding, the court below rightly holds that in the facts and circumstances of this case the accused is entitled to the protection Under Section 80 I.P.C.

In this connection I should refer to the decision reported in AIR 1952 Nag 268 : 1952 Cri LJ 1191 State of M. P. v. Ranga-swami cited by Mr. Nanda, the learned Counsel for the respondent. An employee in an Ammunition Depot, during the forenoon on a particular day, went along with his co-employees towards the place of occurrence with the intention of shooting a hyena which was seen in that locality on the previous day and which they honestly believed had reappeared there. On that day visibility was poor due to drizzling of rain. On the bona fide belief that the moving object seen by them was a wild animal and not a human being, and not anticipating the presence of any human being at that place at that time the accused fired a gun shot at the moving object, and to their surprise the object aimed at was found to be a human being who died at the spot. On these facts their Lordships of that Court upheld the order of acquittal in respect of the charge Under Section 304-A, I.P.C. against the accused. Their Lordships in that decision have referred to the decision reported in AIR 1926 Lah 554 : 28 Cri LJ 39 (Waryam Singh v. Emperor) and the decision of the Patna High Court reported in (1942) 43 Cri LJ 787 (Bonda Kui v. Emperor). In the Patna decision the accused, who had been convicted Under Section 304 I.P.C. by the Lower Court, was acquitted on the ground that she believed in good faith at the time of her attack that the object of the attack was not a living human being but a ghost or some object other than a living human being, and the intention to do wrong or to commit an offence against a human being was not present in that case.

Their Lordships of the Lahore High Court in the decision reported in AIR 1926 Lah 554 : 28 Cri LJ 39 on an examination of several cases cited at the bar held that:.the better judicial opinion is that if the accused believed in good faith at the time of the assault that the object of his assault was not a living human being but a ghost or some object other than a living human being then he cannot be convicted of an offence under Section 302 or Section 304 of the I.P.C. The ground for such opinion is that mens rea or an intention to do wrong or to commit an offence does not exist in such a case and that the object of 'culpable homicide' can be a 'living human being' only.

Their Lordships held that on the aforesaid facts of that case the appellant's case would come Under Section 79 I.P.C. and he could not be convicted Under Section 302 or Under Section 304 I.P.C., and that Section 304-A of the I.P.C. would not apply to a case of that nature.

7. On the facts and circumstances of this case we are satisfied that the complained of act of the accused comes clearly Under Section 79 or 80 I.P.C., and so the order of acquittal passed in this case is perfectly correct and justified. There is no merit in this appeal. The appeal accordingly is dismissed. The respondent, if in custody, be released forthwith.

K.B. Panda, J.

8. I agree.


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