Important Note: This article is for general information and educational purposes only—not legal advice. It draws on the reported judgment in Bonda Kui v Emperor (AIR 1943 Pat 64).
Some cases lodge themselves in the memory because they test the law at its most human edges. Bonda Kui v Emperor, decided by the Patna High Court in 1940, is one of them. On a November night in a small Indian village, a 50‑year‑old woman killed what she believed to be a flesh‑eating spirit. The law had to decide whether her mistake excused her.
1. The Night of the Incident
Bonda Kui, a 50-year-old woman, lived in a small village in India called Purnapani. On the night of the tragic incident, Bonda and her niece were the only ones at home. The menfolk were away at the barn.
The facts of Bonda’s case do not make clear what she was doing just before the tragedy. Then, in the middle of that night, she saw it: a human-like figure dancing in the dark. It was naked, with a broomstick tied to one side of its body and a torn mat wrapped around its waist. Having lived her life in a remote village, surrounded by superstitious beliefs, Bonda thought she had just come across an evil spirit. Not just any spirit but one that fed on human flesh. As the judgment noted, the sight was one that would have terrified anyone, especially someone in her situation.
Bonda took off her clothes. She grabbed a hatchet and repeatedly struck the figure until it fell to the ground. Upon closer investigation, she discovered she had killed what she believed was an evil spirit. Convinced she had destroyed the creature, she immediately told her niece, Gurubari Kui.
She told Gurubari she had killed “an evil spirit or a witch or something” and asked her to see it. Together they found the corpse in the courtyard. After seeing the body, Gurubari suggested they inform the Munda, the village headman, who came and confirmed that a human being had been killed. The victim was later identified as Bonda’s sister-in-law—the wife of Bonda’s husband’s brother. She was 55 years old.
2. The Sessions Court Conviction
Bonda was convicted by the Sessions Court for killing the wife of her brother-in-law. Despite being aware of Bonda’s cultural background and superstitious beliefs, the Sessions Court denied her the protection she sought under the law and sentenced her to six years’ rigorous imprisonment.
3. The High Court Reversal
Bonda’s fate took a different turn when the High Court reversed her punishment and ordered her release. The High Court ruled that Bonda could not be found guilty of killing given the situation she was in when her sister-in-law died. She met the three conditions required to excuse her from the crime:
Mistake of fact, not law: Bonda made a mistake about the facts when she committed the killing. She thought the dancing figure she saw that night was an evil spirit that feeds on human flesh. She did not for a second think she was confronting a human. She had all along, from the time she saw the dancing spirit until the time the Munda arrived, maintained that she had killed a ghost.
Good faith: Bonda made the mistake in good faith. She was not making up excuses; she genuinely believed she had killed an evil spirit. Given her superstitious beliefs and the terrifying scene before her—a dark night and the naked, dancing figure—her belief made sense.
No belief that her action was against the law: She did not think her action was against the law because in her world killing a thing that fed on human flesh was not a crime. It was survival. To her she was not committing murder. She was protecting herself from a monster.
4. The Defence of Mistake of Fact
In legal terms, Bonda was absolved of criminal liability because she fulfilled the requirements under Section 79 of the Indian Penal Code (IPC) 1860. The section says, an act is not a crime if it falls under one of these situations:
Situation 1: Your action is allowed by the law.
Situation 2: You made an honest mistake concerning the facts, not the law (getting the rules wrong), and you genuinely believed that the law allowed you to do what you did.
Bonda’s circumstances fell squarely under situation 2. The High Court agreed that her mistake was one of fact, made in good faith and that she truly believed she wasn’t doing anything illegal. As Justice Manohar Lall observed, in a judgment with which Chief Justice Harries concurred:
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 niece, the male members being away to khalihan (barn). Now, in the middle of the night if a person stark naked began 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 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.
5. Still Good Law
The principle that freed Bonda is not unique to India and it is still good law today.
Worth noting: Section 79 of the Indian Penal Code (IPC) 1860 and Section 79 of the current Malaysian Penal Code (Act 574) are identical in substance and wording. This is because the Malaysian Penal Code was drafted according to the IPC model. Over time Malaysia has made changes to suit its local context, but the core ideas—including the defence of mistake of fact—remain the same.
As for India, the Indian Penal Code 1860 has been replaced by the Bharatiya Nyaya Sanhita (BNS) 2023, which came into effect on July 1, 2024. However, the defence of mistake of fact has been preserved. It is now covered under Sections 14 and 17 of the BNS, with Section 17 being the direct equivalent of the old Section 79.