Understanding The Defence Of Mistake Of Fact


Defence in case of an act committed under mistaken fact situation has been duly taken care under IPC. Innocent persons who may have committed a crime as a result of mistaken circumstance without the presence of the mens rea required are provided due protection under §. 76[1] and §. 79[2] of the IPC. The burden to prove the existence of this general exception however lies on the person accused of the wrong. Although the wrong doer does not have to prove his innocence “beyond any reasonable doubt” but he can be discharged if he is successful in proving “preponderance of probability”. [3]

In this project I have dealt on the issue of mistake of fact in descriptive manner. Emphasis has been made to study the ingredients of §. 76 and §79 and certain special circumstances have also been deliberated upon, substantiated with relevant case laws and authorities wherever required.

Nature Of Mistake

Mistake is when the person, who has committed a crime, does the act in a state of affairs where, he is either completely oblivious of the pertinent facts or when he has erroneous understanding of the facts. Mistake, in such cases is a mitigating factor because the person under faulty belief, neither anticipated and nor did he intend to cause the final unlawful outcome as an aftermath of his acts. In such cases, the court takes the situation of mistaken facts as the true facts and the proceedings goes on, adopting the belief that the mistaken facts were actually the genuine facts scenario. Mistake in a crime removes the presence of intention to execute the said crime or the knowledge and forethought of the illicit consequence. Mistake, enables the court to look into the accused person’s functioning of the brain at the time of acting under the mistaken particulars. It acts as an alleviating factor for the person who has committed the wrong since the prerequisite of intention or knowledge is not fulfilled.

However, for mistake to be considered as a palliating factor, the following conditions should be satisfied –

  • Had the incorrect facts been existent, the act done would have been justified.
  • The error must be a reasonable one.
  • The mistake must be with regards to facts and not law.[4]

Firstly, the mistake must be of such a nature that if the erroneous situation had been actually true, the act of the malefactor would be completely defensible under law. The defendant would have been precluded of any accountability had the mistaken facts were real. For instance, in a case where the robber was disallowed the defence of mistake when he was caught committing a robbery in a house which he mistook for another house in which he actually wanted to commit the act of robbery. Thus, the defence is not applicable because the basic mens rea for executing the said crime is present in both the real and mistaken fact situations.[5]

Secondly, the mistake should be a reasonable one. The judges are also human beings who need to determine whether the mistaken facts being told actually were thought of in the mind or not, that is what was the actual state of affair in the wrongdoer’s mind. There have been cases were as a result of denying medical help to ill kids, “odd people of this mindset” were prosecuted because this was based on unreasonable beliefs.[6] Additionally, the courts which allow for the defence of mistake in offences such as bigamy, require that the mistake must be reasonable.[7] Therefore, this principle of reasonableness helps in the determination process by acting as a realistic tool.[8]

Thirdly, the mistake must be of facts and not of law. It has been established that oversight of law can be no defense since then everyone will plead obliviousness of law and commit crime with a free hand, making it difficult to ascertain whether he knew the law or not.[9]

Mistake Of Fact v. Mistake Of Law

  • . 76 and 79 absolve the liability of a person only in case if he has mistaken the facts of the situation and not in case of his obliviousness or error in interpreting the law. This is clearly based on the maxim of “ignorantia facti doth excusat, ignorantia juris non excusat” which means that unawareness of the facts can be an excuse but not the ignorance with regards to the existence or interpreting of law. However, drawing a logical distinction between these two aspects of mistake is not a very easy task.[10]

Alexander talks about two kinds of mistakes of law, distinguishing between one with respect to criminal statute and the other not with respect to criminal statute.[11] However both the sections under the Code clearly state that no vindication will be provided in case a person is unaware of the laws. The reason for assuming that everyone is aware of legal provisos, remains that if this plea is accepted, then the court would have endless cases to deal with as it would become problematic to ascertain who was in reality unaware of the law. However, there is a lot of debate with this regard since many scholars are of the opinion that both the mistakes should be available as defence since both show lack of mensrea.

The fault with regards to fact scenario can absolve the person, based on the conditions that, there should have been reasonable enquiry, before the act was committed and the plea of mistake will not be accepted if the act is made reus, with no reference to mens rea of the person committing the act.[12]

Simons has discussed on some problems with reference to the difficulty in distinguishing between the two kinds of mistake.[13] The article enumerates how there is no specific criteria that can be used to correctly evaluate whether the ac was done lawfully. It further points out that the reasonability and unreasonability debate is still existing. There is no proper way of saying with surely if the mistake was reasonable or not. As the common law is a developing arena, the demarcation and standards set up to differentiate the two mistakes become blurry. Further there is no clarity that which cases come under the attempt liability ones.

There are different views with regard to treatment of both the mistakes. These are equivalence, moderate, liberal and conservative view. These views offer differential treatment of the mistakes with equivalence view offering similar punishment for both mistake and each further view becoming more stricter.[14]

Mistake of fact is an offence which is gauged through the act of the person committing the wrong. Although confusions exist yet courts have been fairly able to distinguish between the two aspects of the mistake by confirming mistake of fact from the existence of certain conditions of intention, honesty and proper care and caution.

Ingredients of §.76 & §. 79

The defence of mistake of fact has been discussed in the sections §. 76 and §. 79 of the IPC. Although the both sections read on similar lines of providing an exemption when a person, under a fallacious fact situation and not error of law, acts, in good faith. However, the difference in the provisions lies there as §. 76 talks about exonerating the person “bound by law” and §. 79 lays down the clause for exonerating the person “justified by law in doing the act”. In this section, I will be discussing the ingredient of “good faith” and the difference between both sections.

·        Good Faith

one of the main makings of these sections is that the act committed must be done in good belief. §. 52 of the IPC defines the term in a negative connotation. It explains that “an act which is done without due care and attention is not done in good faith.”[15]  The “General Clauses Act, 1897” states under §. 3(2) that “an act is done in good faith, if it actually done honestly, whether or not there was negligence in doing the act.”[16] This act has a positive way of explaining the term. It emphasizes on the component of honesty and liberates a person of liability even if his act is honest but negligent. The difference between the two acts lie in the requirement of honesty that is present in §.3(2) is not present in §. 52, so if a person though honestly, commits an act, but acting without caution , he is still liable to be punished under IPC.[17] “Good faith”, under IPC requires that the person who is suspect should have enquired into the circumstances that could have an impact on the act he was committing. If due to lack of exercising this due caution and attentiveness, the person fails to know any fact that could have been easily available to him had he questioned into the same, he would be held liable under the §.76,79. He will not be allowed to excuse himself from the act he has committed, although under mistaken facts, because it was his liability to implement proper care before acting.

Faith has been a question of fact and it is the courts which decide whether the person has been able to prove that he acted under bona fide intention.[18] Thus, “due care and attention” , under IPC depends basically on three major factors which are:

1) What is the nature of the offence that has been committed.

2) What is the enormity of the act that has been committed.

3) What capacities did the accused have for the exercise of care. [19]

·        Bound by Law v. Justified by Law

  • . 76 and §. 79 both discuss the mitigating factor of factual mistake in case an act is done under good intentions. The only difference between these is about the aspects of “bound by law” in §. 76 and “justified by law” in §. 79.

“§. 76 absolves a person from liability if the person was bound by law to do the act or if under mistaken belief considered himself bound by law to perform the act.” The term “legally bound to do” has been explained under §. 43 [20] as an act which if not performed would mean the doing of an illicit act. The illustration that helps to understand this section is that when a police officer has an order to arrest a person but after due query about the identity of that person, believing some other person as the person to be arrested, arrests the wrong person, that police officer will be absolved under s. 76. [21] This section would forgive for only those acts which a person is obliged to do by law and not for acts like making a defamatory statement against a person, while being a witness in the court because there was no legal boundation in such a case to make a defamatory statement.[22] Similarly, a person who kidnaps a girl and pleads that he committed the offence on the say of the girl’s mother will not be vindicated and provided protection under §.76 because there was no law requiring him to do the same.[23]

As per the general defences, a person will not be liable under the Code “if the offence that he has committed is wholly justified by law, or if he mistakenly, under bonafide belief thinks that he is justified by law”. Such acts do not bring in criminal liability as per the provision of §.79. For instance, this section exonerates the person who cuts the branches of a neighbor’s tree that penetrate into his land, who otherwise would have been charged with mischief under the §.427.[24]  Also, as per §. 43 Cr Pc, a private individual is allowed to arrest a person who executes a non- bailable offence infront of him or is a declared criminal. This section would justify his act and protect him from any punishment.[25] As per §.72,73 of Cr Pc [26], the act of a private person assisting an individual who has a warrant to arrest an offender would be would be protected under §. 79.[27] §. 79, provides protection in case of act being warranted or if a person believed that the act was defensible by law but this does not mean absolute protection in all circumstance. The SC denied to absolve the accused in case where it held that all acts done by a police men in discharge of his duties, can’t be said to be acceptable.[28] Acts of thrashing, and detaining an injured person are not a part of the investigation procedure.

Thus, for protection under both the sections, the offender needs to prove his bona fide belief that the law bound him or justified his act, otherwise protection can not be availed.

Certain Special Situations

  • ·        Superstitious Beliefs

There has been plea of defence of mistake in many cases of offence committed due to superstitions and other religious belief, however this defence is not acceptable because of the doctrine of reasonability that has been adopted in the various provisions of law.[29] English cases have been successful in punishing “peculiar people”, who denied medical aid to sick child [30] and thus clearly establishing the principle that such acts committed due to whatever reasons are not justifiable or reasonable.

However, the position of Indian law is not the same is this case since there have been cases where the persons acting out of superstitious or religious notions, have been successfully acquitted of criminal liability. In the case of Bonda Kui [31], a women killed a person thinking that it was evil spirit or a thing that would devour humans. The women was protected under the defence of mistake, citing that it was a mistaken belief and she was justified in thinking so. Further, there have been cases like Chirangi[32], where a boy was killed, mistaking him for a tiger, or Waryam[33], where a person was killed because of belief that he was ghost and not a human, the court accepted the plea that these acts were done under mistaken belief in good faith and justified under § 79 of IPC.

The Indian cases in this regard have been against the principle of reasonableness and the law that such acts are justified under the good faith should not hold.

  • Acts Under Superior’s Authority

Act done under the command of the higher authority can be a defence to absolve liability in case the act ordered was a legal act and the subordinate was bound to follow the command by law or in the particular situation, he believed that he was bound by the command. However, not all acts are protected under this act, if the orders of the superior are to commit an act which is illegal in nature, then the defence is not applicable.[34]

In a case where the ACP was injured in mob violence, the DCP ordered to open fire. The constables who were accused were given protection under §.76, since under the given situation, they were bound by the orders of the superior.[35] However, IPC does not recognize that the soldiers or officers should blindly follow the orders of their superiors. Therefore, in the case where convict warders beat and cause death of two convicts, they are not given any protection under this section because they should have been aware that such orders of merciless beating are against the law.[36]

Therefore, only legal acts and not illegal acts, absolve liability in case of criminal liability arising due to superior’s command.

  • ·        Ignorance Of Statute Passed Recently

If a statute that makes an offence a criminal act, has been so freshly passed that the communication of such statute could not have even reached the place where the offence has been committed, yet the person committing such act will be held criminally liable and not absolved under these sections. [37]  Indian law is applicable in the territory of India and the publishing or knowledge of this law outside the Indian territory is not necessary for the law to operate within India, as held in a case where the plea of ignorance of a French national travelling from Zurich to Manila(via India), about a notification of RBI, restricting gold transit to a place outside India  .[38]

The state has the duty to publish the law. Hence, If a law is published and the offence is committed afterwards then no acquittal can be pleaded by reason of ignorance.[39]

Therefore, we can clearly see that the ignorance about a newly passed law does not act as an acquitting factor. This stance can be necessary because if such pleas are taken up, then anybody can commit a crime taking up the justification of obliviousness.

Rules Regarding Usage Of Mistake As Defence

In the case of R v. Prince, which is a leading case in the common law jurisdictions in the arena of defence of mistake of fact or law, the following five invaluable rules were laid down by a bench of fifteen acclaimed judges-

  • An act which is in itself so dangerous and the existence of some unkown fact situation would have increased the danger of such an act, then the unawareness about the existence of such certain facts can not be used as defence.
  • If an act is on the face of it, guiltless but with existence of some unknown circumstances would become criminal in nature, then the ignorance about such situations can be pleaded as a defence.
  • The accused should be completely unaware about the presence or the absence of the circumstance that would have changed the nature of the offence.
  • If a person commits an act which is in itself a wrongful one, then if presence of certain circumstance makes the act criminal, then the person cannot plea ignorance of those situations which changed the wrong into a crime.
  • In case where an act is made a criminal offence by a statue, then it depends on the phrasings or the purpose of making the statute that whether the responsibility to determine existence of particular circumstance is on the wrongdoer or not. [40]


The Law Commission, acknowledging the principles of general defences enshrined in the §.76 and §. 79 of the IPC, did not recommend any fundamental amendment in these sections. one of the main changes that was suggested was clearly to bring in more clarity to the provisions of both sections. The suggestion was to club together the first parts of both the sections together and the new §76 would read as follows – “§.76 : Act done by a person bound by law or justified by law – Nothing is an offence which is done by a person who is bound by law or justified by law to do the act.”[41] The second parts would be combined to make the new §. 79 which will have the elements of mistake and good faith. The new §. 79 would read as “§. 79 : Act done by a person by mistake of fact believing himself bound or justified by law – Nothing is an offence which is done by a person, who by reason of mistake of fact and mot by reason of mistake of law, in good faith, believes himself bound by law or justified by law to do it.”

This suggestion can be adopted to give these sections a step wise approach and will help to make both sections a lot more clear, bringing the common elements together and avoiding any confusions that otherwise exist.

Moreover, the author thinks that concerning the cases of superstitious beliefs that have been decided in India, these cases were decided keeping in mind the superstitious upbringing of people and relate to olden times. Today, this represents bad law because this will negative the principle of reasonableness and such acts can’t be justified under good belief principle. Moreover, this presents a blurry line with respect to §. 84, the defence of unsoundness of mind. These cases should be dealt under the provision of insanity and should not be held to be justified under the good faith principle. Looking at the development in laws with recent judgements like the Sabrimala , S.377 or S.497 judgments show that new outlook to these situations will be adopted as well.

[1] The Indian Penal Code, 1860, §.76.

[2] The Indian Penal Code, 1860, §.79.

[3] SP Sengupta, Sarkar & Justice Khastgir Indian Penal Code,1860 Vol. 1, ¶239 (3rd ed).

[4] KI Vibhute, PSA Pillai’s Criminal Law, ¶70 (13th ed.,2018).

[5] Id.

[6] Queen v. Robert Downes, (1875) 1 QBD 25.

[7] R v. Tolson, (1889) 23 QBD 168.

[8] Owen E. Jr. Woodruff, Mistake of Fact as a Defense, 63 Dick. L. Rev. 319 (1958), ¶333.

[9] R.L. Narasimham & R.L. Narasimhan, Ignorantia Juris Non Excusat: Ignorance Of Law Is No Excuse, 13 JILI 1 (1971), ¶70.

[10] Winfield, Mistake of law, 49 LQJ 327 in Supra at 4 ,¶71.

[11] Larry Alexander, Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory

of Myke Balyes, 12 Law and Philosophy 1 (1993 ), ¶33-70.

[12]  Supra at 4, ¶74.

[13] Kenneth Simons, Mistake of Fact or Mistake of Criminal Law? 3 Criminal Law And Philosophy ¶213-239 (2009).

[14] Supra at 11.

[15] The Indian Penal Code, 1860, §. 52.

[16] The General Clauses Act, 1897, §. 3(2).

[17] Ganapathia Pillai v. Unknown, AIR 1953 Mad 936, para 5.

[18] Harbhajan Singh v. State Of Punjab (1966) Cri LJ 82, para 11.

[19] Supra at 4 , ¶81.

[20] The Indian Penal Code, 1860, §.43.

[21] The Indian Penal Code, 1860, §.76(Ill. 2).

[22] Supra at 4 , ¶75.

[23] Id.

[24] SK Sarvaria, RA Nelson’s Indian Penal Code, Vol.1 ¶553 (9th ed., 2003).

[25] The Code Of Criminal Procedure,1973, §. 43.

[26] Id., §. 72-73 .

[27] Supra at 20 .

[28] State of Andhra Pradesh v. Venugopal, AIR 1964 SC 33, para 18.

[29] Supra at 24 ,¶533.

[30] Supra at 6 .

[31] Bonda Kui v. Emperor, (1942) Cri LJ 787, in Chirangi v. State 1952 Cr LJ 1212, para 8.

[32] Chirangi v. State 1952 Cr LJ 1212 (M.P).

[33] Waryam Singh v. Emperor, 28 Cr. L.J. 39, in id., para 7.

[34] Supra at 4 , ¶75.

[35] State Of West Bengal v. Shew Mangal Singh (1981) Cr LJ 1683 (SC).

[36] Chaman Lal v. Emperor AIR 1940 Lah 210.

[37] K Kannan & Anjana Prakash, Ratanlal & Dhirajlal The Indian Penal Code, ¶103,104 ( 36th ed., 2019).

[38] State of Maharashtra v. Mayor Hans George, (1965) 1 SCR 123 in K.D. Gaur, A Textbook on The Indian Penal Code, ¶130,131 (4th ed., 2011).

[39] Cf. J. Horder, Reconsidering Psychic Assault (1998) Crim LR 392, in Andrew Ashworth & Jeremy Horder, Principles of Criminal Law, ¶219 (7th ed., 2013).

[40] The King v. Tustipada Mandal, AIR 1951 Ori 284, para 24.

[41] Law Commission of India, The Indian Penal Code, Report No. 42 (1971), ¶ 82-83.

Author: Sakshi Sharma,
NUJS, first year

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