Bonda Kui vs Emperor

Manohar Lall, J.—The appellant, Bonda Kui, aged about fifty, has been convicted by the learned Additional Sessions Judge of Manbhum-Singhbhum for an offence u/s 804, Penal Code, and sentenced to six years'' rigorous imprisonment.

On the night of 15th November 1940, the appellant and her niece were the sole residents of the house in Purnapani, the male residents being away at their khalihans. In the middle of the night, the appellant saw a form, apparently a human form dancing absolutely naked with a broom-stick tied on one side and a torn mat round the waist. The appellant, taking this form to be an evil spirit or a thing which eats up human beings took off her own clothes and with repeated blows by a hatchet felled the thing to the ground. Upon a closer investigation she discovered that she had killed this being. She immediately informed her niece, Gurubari Kui, who states in her evidence that the appellant told her that she had killed an evil spirit or a witch or something and she was asked to see it. The appellant and her niece found the corpse in the angan of the house. At the suggestion of the niece the Munda was informed who came and saw that a human being had been killed. The deceased was recognised later on as the wife of a brother of the appellant's husband; she was aged about fifty five.

The only evidence in the case is the statements made by the appellant from time to time either to her niece or in the Committing Magistrate's Court or in the Court of the learned Sessions Judge. The appellant all along has maintained that she did not take the unfortunate deceased to be a human being at all but thought that it was something which eats up human beings. In these circumstances the learned Sessions Judge thought that the appellant was not protected by the provisions of Section 79, Penal Code, and has convicted her for the offence u/s 304, Penal Code. Having regard, however, to the state of the society to which the appellant belongs, the learned Sessions Judge thought that the appellant was a superstitious woman and she in the height of her superstition believed that she was justified in killing the witch. Accordingly the learned Judge has imposed upon her a sentence of six years'' rigorous imprisonment only.

It seems to me that the appellant is fully protected by the provisions of Section 79, Penal Code. It is provided by that Section that nothing is an offence which is done by any person who, by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law in doing it. The statements which the appellant has made from time to time show conclusively that the appellant thought that by a mistake of fact she'' was justified in killing the deceased whom she did not take to be a human being at all, but who she thought was a thing which eats up human being. The learned Assistant Government Advocate on behalf of the Crown suggested that the appellant did not commit the act in good faith and that she did not act with due care and caution before she proceeded to hack to death the deceased. But the circumstances in which the appellant was placed must be borne in mind; it was the dead of night, the only occupants of the house were the appellant and her neice, the male members being away to khalihans. Now, in the middle of the night, if a person stark naked begins to dance, the phenomenon would terrify any person and more so, a person in the position of the appellant. It is difficult to come to any other conclusion than that the appellant is telling the truth when she says that she did not take the deceased to be a human being at all. She made this statement immediately to her niece and they made a similar statement to the Munda.

In Waryam Singh v. Emperor AIR 1926 Lah. 554 a Division Bench of the Lahore High Court had to consider whether a person, who believed in good faith that the object of the assault was not a human being at all but a ghost and thus caused fatal injuries to him resulting in his death, was protected by the provisions of Section 79, Penal Code. The learned Judges, after examining a number of cases, gave their opinion that the better view was that if the accused believed in good faith at the time of the assault that the object of assault was not a living human being but a ghost or some object other than a living human being, then he cannot be convicted u/s 802 or Section 304, Penal Code, the reason for the opinion being that the intention to do wrong or to commit an offence does not exist in such a case. In the present case the statements of the appellant show conclusively that the appellant was under the impression that the object of her assault was not a living human being but a ghost or some object other than a living human being.

For these reasons I am of the opinion that the learned Sessions Judge was not justified in convicting the appellant of the offence u/s 304, Penal Code.

I would, therefore, allow this appeal, set aside the conviction and sentence imposed upon the appellant and direct that she be set at liberty forth, with.

Harries, C.J.

I agree.