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Mistake of fact

Mistake of fact



    The mistake of fact could be a shield to obviate a person from getting apprehend for his bona fide deeds. It excuses criminal liability, but still, the mistake of fact has also subjected to some exception. Indeed, the mistake of fact has as no defence for any attempt crimes or strict liability crimes. The offences against vulnerable groups mostly resulted in strict liabilities, where, even though there is an absence of the requisite 'mens rea' necessary for any crime. For example, mens rea is immaterial in the offence of kidnapping, certain offences related to human trafficking, and also section 268 of IPC does not require mens rea for punishing the deeds amounting to public nuisance. Generally, a person can be excused from the consequence of punishment for the reason of lacking the necessary mens rea for any criminal offence. This is based on the maxim, actus non facit reus, nisi mens sit rea, i.e., the Act itself does not make a man guilty unless his intention substantiates the same. Section 6 of the code elucidates the fact that every penal provision has been subjected to certain exceptions, which are specified under the chapter titled “General Exceptions.” Thus, the objective of such kind of chapter is that every penal clause will subject to several limitations and, no offence can be absolute without any exceptions. An offence committed by a minor or a lunatic person obviously cannot be treated in the same manner as an offence committed by a sane adult. Similarly, the person who would have committed an offense as a ramification of self-defence or accident or any other bonafide reason cannot be addressed equivalently to a person who has committed the misdeed with evil intention. Chapter 1V of the code consists of 31 sections; the mistake of fact and mistake of law (sections 76 and 79 of IPC) are also one of that. 


    Sections 76 and 79 of the Indian penal code incorporate the common law principle of ignorantia facit doth excusat, ignorantia Juris non-excusat – ignorance of fact excusable but, the ignorance of the law is not excusable. Thus, there are two types of mistakes that the hoi polloi can do

       - Mistake of fact

       - Mistake of law

     In general, the exceptions on the grounds of mistake of fact based on the principle that if a man commits an offence by the mistaken or ignorant about the existence of fact cannot form the requisite mens rea (intention) to constitute a crime. And therefore, with lacking mental element of the crime, the alleged person is not responsible before the law for his deeds.  

     On the other end of the spectrum, the mistake of law is no defence since it has presumed that every man should know the law of the land except minor, lunatic, or insane and, hence he is responsible in case of its violation.

          Burden of proof:

    The burden of proof can define the duty placed upon a party to prove or disprove the disputed act with reasonable evidence and fact. Generally, the burden of proof rests upon the person who substantially asserts the affirmative and not on the person who denies it. In criminal law, since every person has presumed to be innocent unless and until the contrary got proved. The burden of proof rests upon the prosecutor. This rule has its origin from the Roman maxim, ei qui affirmat non qui negat incumbit probatio, viz., he who seeks the aid of a court should be the first to prove that he has a case, and that is the nature of the thing it is more difficult to prove a negative than an affirmative[1].

    Example: In the criminal case where the accused charged under section 302 of IPC for causing murder, the prosecutor has to prove that accused intention and knowledge as mentioned under section 300 of IPC. If the prosecutor fails to evince the guilty intentions of the accused, then the accused is entitled to an acquittal of the charge and, there is no onus on him to take or prove any special plea. On the condition, where the accused contends his case might fall under any of the exceptions mentioned in Chapter IV of the code. Then the onus is on him to substantiate his plea.

      The definitions given in the code are also subject to exceptions:

    The object of this section 6 of IPC is to clarify that all those exceptions and extenuating circumstances that have been grouped under Chapter IV of the code under the title “General Exceptions” control the entire code.

     Section 6 of the code: “Throughout this code, every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled “General Exceptions” through those exceptions are not repeated in such definition, penal provision, or illustration.”

     Example: Many offences are defined in the code, but nowhere in the code except chapter IV mentions that wrong deeds of a child under the age of 7 would not amount to a crime. For instance, according to section 82, nothing is an offence that is done by a child under seven years of age. Ab initio, this rule is based on the general proposition that an infant below the age of seven is considered doli incapax in law.

        The general meaning of Mistake of fact:

    When a person unintentionally commits a wrongful deed because of either ignorance or misunderstanding the fact, it amounts to a mistake of fact.

     Since the mistake of fact negates the primary element of a crime, which is mens rea, it is a known defence that applies to various crimes. By using this as a defence, the criminal defendant should prove that he genuinely misunderstood the fact and with no intentionally committed that offence.

      Illustration; Reena takes her Pomeranian, Lucky, to the dog park every day so he can play off-leash with the other dogs. One day, Reena lost sight of Lucky for a few minutes. Back then, she found Lucky and walked him to the home. At home, Reena took a close look at Lucky and noticed he had a different collar with the name “Spiky” on it. Reena had mistaken Spiky for Lucky because they are both Pomeranian and look just alike. In this case, Reena has not committed the offence of theft since she genuinely thought that Spiky was her dog. And also, she lacks the mental element of theft mentioned in 378 of IPC.

         Mistake of fact – A defence under Indian Law:

    Section 76 of Indian penal code: A person committed an Act believing that his deeds are bound by the law of the land.

     “Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by the reason of a mistake of law in good faith believes himself to be, bound by law to do it”.

    Illustration: Sam is a forest officer to whom the information had given that Rocky has indulged in the activity of wildlife poaching. Back then, Sam went to the crime spot and mistakenly arrested Raju by genuinely believing that he is Rocky. In this case, Sam can take the defence of mistake of fact, since he lacks mental element and also he acted under the command of the law.

    In the case of Pantam Venkaya v. Emperor[2], the accused charged with the offence of personation under section 171D, IPC, for having voted once in the morning and again in the afternoon. But was acquitted later through the inquiry, it found that the accused had no guilty intention or corrupt motive. He did believe that he has entitled to vote twice since his name appeared in two different village voter lists.

     Similarly, in The State v. Siddhart Ganguram[3] case, an illiterate father (who had voted in the voter list but fell ill), asked his son (accused) to vote on his behalf. The son was held not guilty of the offence of personation at an election under section 171D and 171F of the penal code as he honestly believed in good faith. That, thus authorized by his father, he could exercise his father’s vote and applied for a voting paper and cast a vote in his father’s name.[4]

        Good faith:

     Section 52 of IPC, states that- nothing is said to be done or believed in “good faith” which is done or believed without due care and intention.  The onus is on the accused to prove him that, he did the alleged act in good faith.

    Illustration: Robert enters one way from the wrong side. A police officer caught him. Robert relied on the defence of mistake of fact and contented that he was genuinely incognizant of the one way. Regardless, in this instance, Robert could not get the immunity under the mistake of fact since he failed to take reasonable due care despite the sign signboard was placed in a visible place.

     Section 79 Indian Penal Code deals with the misdeed of a person, conducted by mistake of fact believing himself justified by law.

     “Nothing is an offence which is done by any  person who is justified by law, or who by the reason of mistake of fact and not by the reason of a mistake of law in good faith believes himself to be justified by law, in doing it”.

     Illustration: the contribution of S in arresting G for the crime of murder in order to bring him before the proper authorities, when G was acting in self-defence, is not homicide. S presumed in good faith that G was committing murder, and so he thought on reasonable ground that his act might justify by law to apprehend him. S may shield under this section. If only if the defender fruitfully proves that he committed the alleged deed in good faith. Also, he should prove that his act lacks the mental element of the said crime.

     Likewise, In Chirangi v. the State of M.P.[5] In this case, a widower (accused) went to the forest with his son to gather "siadi" leaves. Later his son was found dead while the accused and his nephew went on searching for him since he was missing. After the examination of the witness, his nephew informed that he had seen the accused napping under the tree when his son went missing. Back then, after investigations, it has found that the accused killed his son by mistakenly visualized him as the tiger which is going to attack him. Through shreds of evidence substantiating the same, the court held that since the accused lacks the mental element of the alleged crime. He could be shield by the mistake of fact as a defence.

     Also in the case of State of Orrisa v. Khora Ghasi[6], the accused got immunity under the mistake of fact since shot down a man with his arrows to death by mistakenly believed that it was a bear while guarding his filed.

         Mistake of fact- a defence at common law:

    The mistake of fact or ignorance of fact under common law is generally a defence, provided that it was one of a fact that had been passing over by the accused with no intention, who would have had the defence against the crime with which he might charge. In other words, to exempt a person from criminal liability:

        ·   Mistake committed by a person must be bona fide one without any ulterior intentions

       ·   It must be a reasonable mistake

     This ethical principle has long been existing in criminal law jurisprudence is apparent from an early seventeenth-century case R.V.Levet[7]. Here the alleged person did kill a woman who was hiding behind a curtain. The shotted woman was the servant of the accused friend. The court held the accused was not liable for committed homicide since he genuinely b the virtue of mistake of fact, killed the woman by believing her to the burglar. Hence it was a pure mistake of fact, by with no means of intention, the accused killed the innocent woman instead of killing the burglar.

    The mistake may give rise to the defence of an accident, as when a gun has being handled by a person who mistakenly believes it to be unloaded, goes off and kills someone, but the person is liable for the crime of negligence.[8]


    The difference between a mistake of fact and a mistake of law is often subtle, and courts vary in handling such mistakes. However, it is absolute that the mistake of fact can shield the accused as a defence under general exception exemplified in Chapter IV of IPC with reasonable justification and, the onus will always fall upon the defender to prove himself as innocent. But there is no defence for the mistakes of law in IPC, regardless of the alleged offence has committed with good faith. Since it presumed that all people know and understand the law of the land includes foreigners except minors, insane, or lunatics

[1] K.D. Gaur, The Indian Penal Code, 94-95 (1st ed. 2019).

[2] AIR 1930 Mad 246: 31 Cr LJ 329.

[3] 1956 CriLJ 1327.

[4] K.D.GAUR, THE INDIAN PENAL CODE, 102-103 (1st ed. 2019).

[5] (1952)53 CrLJ 1212 (M.P.)

[6] 1978 CriLJ 1305

[7] 1639 Cro Cat 538: 1 Hale  PC 474: 79 ER 1064.

[8] Reg. v. Frederick jones, XI Cox CC 544.