Judgement

SEN, J.:- After hearing learned counsel for the parties, we are satisfied that the judgment of acquittal entered by the High Court was apparently erroneous and has caused manifest miscarriage of justice. We are rather surprised that the High Court should have given credence to the defence plea of mistake of fact under S. 79 of the Indian Penal Code, 1860. The evidence on record shows that the respondent and the deceased had strained relations over grazing of cattles. On the date of incident the deceased had gone to the house of PW 2 for recital of Bhagbat. Some other villagers including the respondent was also present there. At about 10 p.m. recital of Bhagbat was over and the deceased returned to the house. Some time thereafter, a hue and cry was raised from near the house of the respondent. Several villagers including PWs 2, 3. 4 and 5 ran to the place. They 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 was till then on his senses and on query by the villagers stated that the respondent had assaulted him. On being questioned, the respondent stated that during the day time his bell-metal utensil had been stolen and he was keeping a watch for the thief. 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. On being taken back to his house the deceased told his wife PW 6 that he had been assaulted by the respondent in the presence of his son and grandson PWs 8 and 7. The Doctor PW 9 who performed the post-mortem examination found multiple injuries on the body. On dissection he found a depressed comminuted fracture over the right perietal bone and a transverse fracture extending below left parietal prominence. As per the doctor, the head injury could have been caused by a single stroke by means of a lathi if the stroke was dealt with great force. On this evidence, the learned Sessions Judge very rightly and properly held the respondent guilty of culpable homicide not amounting to murder punishable under S. 304, Part II of the Indian Penal Code,

2. 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 defence 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.

3. 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 b