A PROJECT SUBMITTED IN FULFILLMENT OF COURSE CRIMINAL LAW-I, 3RD SEMESTER

DURING THE ACADEMIC YEAR 2017-18

SUBMITTED BY:-

RAJNEESH KUMAR

BBA LLB

ROLL NO :- 1636

SUBMITTED TO:-

DR. FATHER PETER LADIS

FACULTY OF CRIMINAL LAW-I

CHANAKYA NATIONAL LAW UNIVERSITY

,MITHAPUR , PATNA

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 ACKNOWLEDGEMENT

I owe a great many thanks to many great people who helped and supported me
during the completion of the project.

My deepest thanks to lecturer Dr. Father Peter Ladis , the guide of the project for
guiding and correcting various documents of mine with attention and care . He has
taken pain to go through the project and make necessary correction as and when
needed. I would also thank my Institution and my faculty members without whom
this project would have been a distant reality. I also extend my heartfelt thanks to
my family and well-wishers.

RAJNEESH KUMAR

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 TABLE OF CONTENTS
RESEARCH METHODOLOGY: ............................................................................5

INTRODUCTION: ...................................................................................................8

1.MISTAKE - A Conceptual Understanding:...........................................................9

2. ADMISSIBILITY OF MISTAKE AS A VALID DEFENCE IN CRIMINAL

JURISPRUDENCE:................................................................................................11

I. Mistake of Law: ...............................................................................................11

A. MISTAKE OF LAW IS NOT A VALID DEFENCE-..............................11

B. LEGAL POSITION IN INDIA .................................................................12

II. Mistake of Fact:...........................................................................13

A. Essential Ingredients In The Law Relating to Mistake of

Fact- ................................................................................15
B. SITUATIONS TO ILLUSTRATE THE USAGE OF
GOOD FAITH.17

3. MISTAKE AS DEFENCE IN CASES OF STRICT LIABILITY: ....................18

I. Concept and Rationale Behind Strict Liability:....................................18

II. Mistake Of Fact As A Defence In Strict Liability Cases: Position in

India..........................................................................................................19

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4. COMPARITIVE POSITIONS OF MISTAKE AS A DEFENCE IN COMMON
LAW COUNTRIES:................................................................................................19

I. Britain:........................................................................................................19

II. Australia: ..................................................................................................20

III. Canada:....................................................................................................20

IV. America:..................................................................................................21

5. MISTAKE OF FACT IS A VALID DEFENCE IN INDIA: JUDICIAL

PRECEDENTS: ..22

CONCLUSION:.....................................................................................................25

BIBLIOGRAPHY:.................................................................................................27

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RESEARCH METHODOLOGY:
Objective: The aim of this write up has been to identify and gauge the status of
mistake as a valid defence in common law. Also, the objective has been to study
the various case laws in order to understand the practical applicability of the
defence in criminal cases.

Scope and Limitations:

Through this write up, the author has tried to study the different elements of
mistake as a defence. It has also tried to get an overview of the position of the
defence in not only India, but also in other common law countries. However, the
write up lacks an extensive overview of the legal provisions of different countries
that validate mistake as a defence. It also lacks an extensive study of foreign cases
regarding mistake as a defence.

Research Question:
Whether or not mistake of fact and mistake of law both are applied by Courts as a
defence to prevent criminal liability of the accused.

Hypothesis:
No, mistake of law is no defence in criminal law, whereas mistake of fact is not
used as a valid defence in criminal law.

Sources: The author has used both primary sources and secondary sources for the
research. The primary sources include mainly the Indian Penal Code, the General
Clauses Act, various Indian as well as foreign cases. The secondary sources
include mainly books by prominent authors, research papers and journals on
criminal law. The research is purely doctrinal in nature.

Mode of Citation:
The author has followed a uniform mode of citation.

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CHAPTERIZATION:-
A brief overview of the chapters that have been included in the write up has been
given below-

1. Mistake- A Conceptual Understanding:

It deals with the basic concept of mistake as a defence, mentioning the

provisions of the Indian Penal Code, 1860 that deal with it. It also classifies
between mistake of facts and mistake regarding the law.

2. Admissibility of Mistake As A Defence In Criminal Jurisprudence:

This chapter discusses separately the concepts of mistake of facts and mistake
of law. Under the head of mistake of law, it discusses its validity as a defence,
the rationale behind ignorantia juris, critics of the maxim and the legal position
of mistake of law as a defence in India. Under the head mistake of fact, the
theory of admissibility of mistake of fact as a valid defence, the essential
ingredients contained in Section 76 and Section 79 of the Indian Penal Code,
1860, also the discussion between the two have been discussed.

3. Mistake As A Defence In Cases Of Strict Liability:

This chapter initially discusses the concept and rationale behind strict liability,
followed by a study of the legal position in India of mistake as a defence in
strict liability offences.

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4. Comparative Positions Abroad:

This chapter deals with the status of mistake as a defence in common law
countries. The present write up deals with the study of a few common law
countries, namely, Britain, Australia, Canada and America.

5. Mistake of Fact and Judicial Precedents:

This chapter has tried to bring to light a few landmark cases in order to
understand the practical application of the theoretical idea of mistake as a
defence as discussed in the earlier chapters. Conclusion: It contains a brief
summary of the contents that has been dealt in all the chapters in the write up.

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 INTRODUCTION
The Indian Penal Code, along with other criminal systems all over the world
provide certain excuses, justifications and defences. Such excuses and
justifications are nothing but certain means of prescribing and proscribing certain
behavioural pattern and also serve as means for considering an individual innocent
or guilty. In serving this purpose, a justification, defence or excuse functions on a
principle of exculpation in order to find out whether the accused is guilty or
innocent. This is to say that even though the accused has committed the crime or
done everything to commit the crime, or has caused harm to another, the defence
would release him of all charges, in spite of such commission of crime. In this
light, it must also be mentioned that defences may be excusable, justifiable and
partial in nature. Excusable defences are the ones that totally excuses the
commission of the crime. Justifiable defences, on the other hand, are such that they
do not excuse the commission of the crime prima facie, but will only do so, if in
the Court of law, it can be shown that even though the accused committed the
crime, there is some justification to it. Such justification generally comes in the
form of certain external circumstances mainly as threat from third parties. In case
of justifiable defence, necessary components of mens rea and intention have been
met, but are justified. Whereas, in excusable defence, mens rea does not generate.
Partial defences (like, sudden and grave provocation) are such defences in which,
the law does not encourage the commission of the crime, but shows pity on the
offender and accepts the defence. Mistake is an excusable defence. No mens rea
generates in case of a mistake. This is primarily because, the law considers that, in
the absence of knowledge of the circumstances, it is not possible to generate a
guilty mind, the act committed is nothing but a mere actus reus, done under a
mistaken belief of fact, without the required mental element. Hence, many critics

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are reluctant to consider mistake as a separate defence, rather consider the situation
as one lacking the element of mens rea, hence not resulting in conviction. The
present write up however, deals with mistake as a distinct defence and its position
in common law.

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 1. MISTAKE A CONCEPTUAL UNDERSTANDING

The Indian Penal Code, 1860 recognizes mistake as a defence in avoiding

liability after the commission of offences. Like, most common law nations, in India
too, mistake is considered to be an excusable defence1 because the person
committing the offence had no intention to do the same, nor could foresee the
possible legal effects of the act. The question of mistake generally arises when
conflicts exist between existent fact situations and the impressions on the mind of
the accused which is subjective in nature.2 A particular act that would otherwise be
a crime, might be excused by the Court if it is satisfied that the concerned person
or the accused has committed it by virtue of a mistaken, but honest belief, about
the existence of a set of facts which if true, would have made the act of the accused
illegal.3 The burden of proving such mistake however, rests on the accused to the
extent that, unless some form of evidence has been brought before the Court to
prove the same, the Court would not consider the presence of any mistake.4

However, the difference lies in the two closely linked yet parallel concepts of
mistake of facts and mistake of law. While, the former does act as a valid
defence as enumerated under Chapter IV- General Exceptions of the Indian Penal
Code, 1860, the latter does not stand as a valid defence. In general terms, the word
mistake in the context of defence in criminal jurisprudence, refers to the mistake
in fact and not in law.

1
1 Indian Penal Code, Excusable Defences,
http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CODE,%201860.pdf, last visited on
20th March, 2015.
2
Why Doesnt Ignorantia Juris Excuse?, Ankit Majumdar, Nandan Kamath,
https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf, last visited on 20th March, 2015.
3
The Defence Of Obedience To Superior Orders In International Law, Yoram Dinstein 33, 1st Ed. 2012, Oxford
University Press,.
4
Section 105, Indian Evidence Act, 1872.

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Section 76 and Section 79 of the Indian Penal Code, 1860 deals with situations of
mistake of fact as a defence in criminal law. In the view of a layman, mistake of
fact would refer to a situation in which, the accused was unaware of or was
ignorant about the facts of the situation in which he acted. In such a situation, a
mistake, provided that it was one of facts, and the facts match the facts that was
assumed by the accused , it would act as a defence to the crime which he has been
charged with.5 Such a mistake is not considered to be a defence in reducing or
nullifying liability in a criminal offence.

5
Textbook on the Indian Penal Code, Krishna Deo Gaur 76, 4th Ed. 2011, Universal Law Publishing Co.

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2. ADMISSABILITY OF MISTAKE AS A VALID DEFENCE IN
CRIMINAL JURISPRUDENCE
I. MISTAKE OF LAW
A. MISTAKE OF LAW IS NOT A VALID DEFENCE

Rationale behind the theory- Ignorantia Juris

The discussion regarding a mistake of law in criminal jurisprudence must start

with the Common Law principle of ignorantia facti doth excusat, ignorantia juris
non excusat, which says that mistake as to facts may be an excuse, but mistake of
law acts as no excuse. The rationale behind application of the aforementioned
principle is that if every person accused of committing an offence is given the
option of exercising the defence of mistake of law, it would come as a difficult task
for the prosecution to rebut it and prove that the one accused was actually aware of
the law.6 Hence, this would lead to a situation of ambiguity in the criminal justice
administration, making it impractable to render justice. In the aforementioned
situation, if the plea of the accused is accepted, effect has to be given to the law as
he thinks it to be. This would most likely lead to a violation of the rule of law.
According to the rule of law,

Rules of law are objective.

Particular people, in the form of authorized officials can declare such rules, only
after following a procedure.

The rules and their interpretations are binding in nature.

6
PSA Pillais Criminal Law, K I Vibhute, 12th Ed. 2014 65, LexisNexis.

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Hence, allowing the defendant to interpret the law based on his opinion and thus
excusing him from criminal liability, would thus act as a violation from the basic
legal order.7

Critics to the maxim of ignorantia juris

The justification behind the application of the maxim, ignorantia juris non excusat
might seem well grounded and clear. However, it has faced criticism from well
known critics all over the world.

Glanville Williams has observed that the proposition of everyone knowing the law
of the land cannot be a true legal proposition, and would remain as a mere legal
fiction.8 He raises the objection that, a lawyer or a barrister has at his disposal,
innumerable sources other than the bare statute to know and interpret the law. A
layman however, without the access to any added source, is expected not only to
know the law, but also interpret it in a way that it matches the way the Court would
interpret it, for resolving any form of uncertainty or ambiguity.9 Other critics like,
Justice Maule has criticised the maxim in the case of Martindale v. Falkner,10
saying that a presumption of every individual knowing the law would clearly be in
contrast with reason and a common sense.

B. LEGAL POSITION IN INDIA

Section 76 and Section 76 of the Indian Penal Code clearly point out that it is a
mistake of fact that can act as an excuse for avoiding criminal liability and not a
mistake pertaining to the law prevailing in the land.In India, mistake of law
7
Ignorance and Mistake In Criminal Law, Jerome Hall, vol 33, Issue 1, Article 1, Indiana Law Journal 1957.
8
Ibid.
9
Textbook Of Criminal Law, Glanville Williams, 2nd Ed. 2009 451, Universal Law Publishing Company Pvt. Ltd.
10
Martindale v. Falkner, (1846) 135 ER 1124

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includes two facets of it- a mistake about the existence of any form of law on the
concerned subject and a mistake as to the contents of the law on the particular
subject.11 Moreover, because a law on a specific subject, acts a sense of
objectiveness to it, a citizen thus, should not be allowed to add a subjective
element to it due to his mistaken view regarding the law.12

II. MISTAKE OF FACT

Theory behind admissibility of mistake of fact as a valid defence

Section 76 of the Indian Penal Code, 1860 deals with,Act done by a person
bound, or by mistake of fact believing himself bound, by law.

Section 79 of the Indian Penal Code, 1860, deals with,Act done by a person
justified, or by mistake of fact believing himself justified, by law.

It is the major function of a criminal justice system to not only implement and
impose such corrective and preventive measures that are able to prevent the
incidence of criminal offences, but also, focuses on correcting the mental status of
a person who has been responsible for the said offence. Had the law not taken care
of the mental state of the accused, it would lead to the conviction of any person
irrespective of the fact that he might have participated only negligently,
unintentionally or unconsciously in the commission of the offence. This therefore,
would nullify the requirement of mens rea and would result in conviction based
solely on the actus reus of the commission of the criminal act. In this regard, the
principle, actus facit reum nisi mens sit rea becomes important. It is in light of this

11
King Emperor v. Tustipada Mandal, AIR 1951 Ori 284
12
2 Clarkson and Cleating Criminal Law, CMV Clarkson, HM Keating and SR Cunningham, 6th Ed. 2007 201, Sweet &
Maxwell Limited.

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doctrine that mistake has gradually been accepted as an excuse to escape liability
in criminal jurisprudence. The principle lies- one is generally presumed to be
aware of the nature and consequences the act that he indulges in, hence, is found
responsible for the same. However, certain exceptions exist to the general rule,
whereby one might be excused.13 Mistake with the absence of the mental element,
mens rea qualifies as such an extraordinary excuse. Therefore, mistake of fact is
considered as a valid excusable defence in the eyes of law. The justification that
lies behind exempting a person under a mistake of fact, from any criminal liability,
is grounded on the principle that one who is under a mistake as to the facts cannot
necessarily form an intention and hence is not held liable for the consequences of
his deeds done under such mistake.14 The incorporation of this is also found in the
common law doctrine, the Latin maxim, ignorantia facit doth excusat, ignorantia
juris non excusat, which essentially means, ignorance of fact is an excuse, but
ignorance of law is no excuse. The first application of this principle has been found
in the case of R v. Levett15, wherein the person accused of an offence was released
on the aforementioned ground. However, after the above case, may developments
and a series of evolutionary steps have followed in the law relating to mistake of
fact.

13
Supra note 2.
14
The Indian Penal Code: Differences Between Justification and Excuses and Mistakes, Necessity and Accidents as
Defences, Sarica Ashok Reddy.
15
(1839) Cro Car 538.

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 A. ESSENTIAL INGREDINTS IN THE LAW RELATING TO MISTAKE OF FACT

The purpose of Section 76 and Section 79 of the Code, is to provide

immunity from conviction to such persons who are ordinarily bound or
justified by law to involve in a certain act, but, have committed an offence
due to ignorance of facts. However, in order to invoke mistake as a valid
defence, a basic requirement is the presence of good faith and diligence
while being under a mistaken belief as to the fact situation.

BOUND BY LAW
Under Section 76 of the Indian Penal Code, one must be bound by law to
perform the act which he has performed under a mistake pertaining to the
fact situation. Hence, it follows that, if a person has to invoke the defence
under Section 76, he must show that he has been aware only of a particular
set of facts that would support the belief that he was under a legal
compulsion to do the act.16 If however, he act done under mistake, is per se
illegal, the defence would not apply.

Justified by law
In order to invoke Section 79 of the Indian Penal Code, one who has been
accused of committing a particular offence, must be able to show that the act
that he has indulged in is justified by law. As a valid defence in criminal
jurisprudence, Section 79 exonerates the accused based on his bonafide
intention and belief, though a mistaken one, which deletes his culpability.17

16
Re Latifkhan, (1895) ILR 20 Bom 394.
17
PSA Pillais Criminal Law, K I Vibhute, 12th Ed. 2014 70, LexisNexis..

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 Good faith
Both Section 76 and section 79 of the Indian Penal Code, 1860 contain the
element of good faith. Here, it must be mentioned that the Indian Penal
Code defines good faith as Nothing is said to be done or believed in good
faith which is done or believed without due care and attention.18
On the other hand, the General Clauses Act defines good faith as, A thing
shall be deemed to be done in "good faith" where it is in fact done honesty,
whether it is done negligently or not.19
There lies a subtle distinction between the two in the fact that the former is
an objective, while the latter is subjective in essence. On one side, the
argument lies that an act, in order to be said to have been done in good
faith must have been done with due diligence and care as would be
reasonably expected of him, besides the presence of a bonafide intention.
However, this requirement of reasonableness has been discarded in common
law.20 A blunderer who is honest is always shielded by good faith as per the
definition provided in The General Clauses Act, 1897, but, under the Indian
Penal Code, a blunderer even though acting honestly, will not be shielded by
good faith for his negligent acts.21
A careful study of cases in India will depict that the Courts have used the
test of good faith in a manner very subjective, thereby construing it more
in consonance with the definition given in the General Clauses Act, 1897,
than the one in the Indian Penal Code, 1860. In the case of Bonda Kui v.
Emperor22, the use of the good faith test as a means of testing the
genuineness of the belief or idea that the accused held while committing the
18
Section 52, Indian Penal Code, 1860.
19
Section 3, The General Clauses Act, 1897.
20
DPP v. Morgan, (1975) 1 All ER 8.
21
Re Ganpathia Pillai, AIR 1953 Mad 936.
22
AIR 1943 Pat 64.

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 act under mistake of the facts was seen. Also, in the case of State of Orissa
v. Ram Bahadur Thapa23 , the Court focussed more on the honest belief of
the accused and not on his reasonableness of his action, thereby moving
closer to the definition as per the General Clauses Act, 1897. The definition
of good faith as provided by the Indian Penal Code, 1860, contains in it an
element of due care. Due care basically is a measure of the reasonableness
that is supposed to exercise while taking care. The Indian Courts however,
construe the presence of such due care, not very objectively, importance is
given to the position of the accused, his capacity, all other circumstances
surrounding the act,24 thus adding a tone of subjectivity to it. Therefore, it is
the honest belief of a person as to the facts of the case that fulfils the
requirement of good faith as an important component of mistake under
Section 76 and Section 79 of the Indian Penal Code, 1860.

B. SITUATION TO ILLUSTRATION THE USAGE OF GOOD FAITH

Cases in which one was implementing or carrying out the orders given to him by
his superior, thereby believing himself to be legally bound to do the particular act.
In such cases, the accused is acquitted by virtue of applicability of mistake as a
defence under Section 76 of the Code.25 Cases in which the accused has done a
particular act in good faith believing it to be justified by the law. In such cases
too, no conviction results and the accused is acquitted by virtue of applicability of
mistake as a defence under Section 79 of the Code.26

DISTINCTION BETWEEN SECTION 76 AND SECTION 79 OF THE CODE

23
AIR 1960 Ori 161.
24
Ibid
25
State of West Bengal v. Shew Mangal Singh, AIR 1987 SC 1917.
26
Chirangi v. State, 1952 CriLJ 1212 MP.

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The distinction between Section 76 and Section 79 lies in the elements of a legal
compulsion in the former and a legal justification in the latter. Section 76 requires
the person concerned to be legally bound to do the particular act, whereas, Section
79 simply requires that the act performed by the person must have a proper
justification by law.

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3. MISTAKE AS DEFENCE IN CASE OF STRICT LIABILITY
I. CONCEPT AND RATIONALE BEHIND STRICT LIABILITY
At the very outset, it must be mentioned and must be kept in mind that the term
strict liability is conferred different meanings in different countries with different
jurisdictions. In the English jurisdiction, strict liability generally refers to offences
which do not require the element of mens rea. In other countries like, Canada and
Australia, the meaning differs slightly. However, for the purposes of this study,
strict liability will be given the meaning as per common consonance in criminal
jurisprudence. It typically refers to an offence where criminal liability is imposed
without any evidence or proof of default by the defendant.27 Cases of strict liability
are exceptions to the main ground of criminality that says that both actus reus and
mens rea need to be proved in order to prove the commission of an offence. The
main purpose and object behind the strict liability principle is the placing of burden
or onus on such people who are engaged in a certain act, in order to ensure that no
violation of any legally laid down prohibition is made. Strict liability and absolute
liability find similarity in the fact that both lack the requirement of a mental
element. However, they can be differentiated by the application of the defence of
mistake.

II. MISTAKE OF FACT AS A DEFENCE IN STRICT LIABILITY CASES:

POSITION IN INDIA

In India, strict liability offences are given the facility of invoking mistake of fact as
a defence. The Indian position remains distinct from the conflicts in common law.

27
Textbook On Criminal Law, Michael T. Molan, 3rd Ed. 2001 46, Old Bailey Press

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It is clear that if the law lays down or creates an offence, requiring it to be free
from the mental component, carrying with it no mandatory requirement to prove
mens rea, the Courts must respect the nature of such offence as laid down by the
statute.28 Here, the argument that holds ground is that, all those offences must be
considered to be governed by Chapter IV of the Indian Penal Code, 1860. Hence,
the accused in such offences would get the privilege of the general exceptions,
including the defence of mistake of fact. However, mistake of law does not act as a
valid defence for strict liability offences. Absolute liability offences, in which the
liability is absolute does not get the privilege of the defence of mistake.

28
Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform,
Wing Cheong Chan, Barry Wright, Stanley Yeo 51, Ashgate Publishing Ltd, 2011.

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4. COMPARATIVE POSITION OF MISTAKE AS A DEFENCE IN
COMMON LAW COUNTRIES:

I. BRITAIN

Mistake of fact, irrespective of its reasonableness is a defence and excuses criminal

liability. Mistake of law does not, however, act as a defence because mens rea does
not include knowledge that the act is forbidden by law. Decision in the case of
DPP v.Morgan29, narrowed down on the point that mistake as to the facts in a
case(other than a case of negligence) need not necessarily be a reasonable one. An
honest belief as to the facts would be sufficient as a defence.30 The idea of mistake
as a defence is almost identical to the view in Indian law. The only difference
between the two lies in the fact that Indian law contains a hint of reasonableness in
the due care to be taken, unlike the position in English law.

II. AUSTRALIA:

Like English law, the criminal jurisprudence in Australia too, considers mistake as
a valid defence, that negates the mental component-mens rea, not affected by the
presence or absence of reasonableness. In the case of He Kaw Teh v. The King31, it
was observed that the prosecution gets defeated if it is found that the accused had
honest belief which clearly indicates the lack of intention or a guilty mind. Here,

29
[1975] 2 All ER 347
30
Barrett and Barret, (1980) 72 Cr App Rep 121.
31
(l985) 157 CLR 523.

22
the reasonableness of the belief is not of much value. Also, mistake of fact acts as
defence that the accused may invoke in cases involving strict liability.

III. CANADA:

In Canada, the important case of R v. Park32, decided by the Canadian Supreme

Court held that mistaken beliefs that lack reasonableness must be reserved for the
jury so that they consider the same.

IV. AMERICA
In the American criminal justice system, a clear distinction is drawn between
mistake of law and mistake pertaining to a fact situation. There are four
perspectives that are kept in mind while deciding the admissibility of mistake of as
a valid defence. Firstly, the equivalence view considers both mistake of law and
mistake of fact to be on an equal footing. The liberal view an dthe moderate view,
consider the question of admissibility of mistake of law as a defence, keeping in
mind the reasonableness of such mistake. The conservative view however, goes to
the extreme and propounds that mistake of law can never act as a valid defence in
criminal law. Here it must be noted that a distinction lies between the British
criminal system and the American criminal system as far as the question of
considering mistake as a valid defence is raised. An important point to note, in this
regard is that the English approach aims at containing a subjectivity in the defence
of mistake as to a fact situation, whereas, the Courts in America, by incorporating
32
[1995] 2 S.C.R. 836

23
the element of reasonableness adds an objective element in the test for
determining the validity of mistake of facts as a defence.33 In the criminal
jurisprudence in America, it is important to prove the following points in order to
construe mistake as a valid defence: Harm done was due to a voluntary act of the
defendant. Such act would not be done by a reasonable and prudent man, based on
the belief of facts as the defendant construed it to be.34 Thus, according to the
Model Penal Code, mistake pertaining to the facts that negatives the mens rea in a
criminal law is a valid defence.

33
The Mistake Of fact Defense And The Reasonableness Requirement, Margaret F. Brinig, Notre Dame Law School,
Scholarly Works, 1978, Paper 793.
34
Ibid.

24
 5. MISTAKE OF FACT IS A VALID DEFENCE IN INDIA:
JUDICIAL PRECEDENTS
In the case of State of West Bengal v. Shew Mangal Singh35, the police officer
was on patrol in the outskirts of town at midnight. During this time, they were
attacked by a few armed men, in which event, the Assistant Commissioner of
Police was injured grievously. In response to this, the Deputy Commissioner of
Police ordered to fire such unknown armed men, two of whom died. Here, the
prosecutions case was that the one deceased along with his brother were dead
due to police firing. The defence view was, the police officers had acted in good
faith under superiors order to protect and preserve public peace. Both the High
Court and the Honble Supreme Court held that in this case, Section 76 of the
Indian Penal Code would apply, because good faith was exercised by the
accused who was simply complying with the orders of the superior. The basic
principle that was brought about in this case was that the subordinate officers
must feel that the order was given in good faith, not any order like that of
torturing an innocent, police custody deaths, etc will not get the protection by
Section 76. It is important to mention that in a case where, the accused in good
faith, based on the belief that a particular set of facts existed, Section 76 will
apply and no conviction will take place. This was brought forth in the case of R
v. Tolson36, where, the accused remarried believing that her husband was dead
and was hence, accused for committing the crime of bigamy. But, it was held

35
AIR 1981 SC 1917.
36
(1889) 23 QBD 169.

25
 that, because her second marriage was not immoral and was based on good faith
led mistake of fact, she could not be convicted of bigamy. This is however,
different from the case R v. Prince37, in which, the accused was held liable for
taking away a girl of around sixteen years from her fathers possession against
his wish. Here, the view of the defence was that the accused had acted bona fide
because he did not know that the girl was of sixteen years. However, the Court
held that because the act of taking away the girl was itself illegal, the defence of
mistake of fact will not apply in this case. Therefore, it is clear that once
something is considered unlawful, it is no excuse to say that one was unaware
of such existing law. However, in an urge to compare the cases of R v. Prince
and r v. Tolson, it has to be remembered that in the former case, the act that was
in question was wrong itself, that is, mala in se, which, if committed by a
person, makes him liable for the same whether or not he had knowledge of the
same. In the latter however, the act of the accused marrying for the second time,
during the course of her spouses lifetime, was not in itself a wrong, but was
mala in prohibit, meaning, prohibited by law. In the case of State of
Maharashtra v. Mayer Hans George38 , the respondent carrying around 34 kgs
of slabs of gold was found guilty for violating the provisions of the Foreign
Exchange Regulation Act and a notification dated 24th November, 1962, the
respondent having boarded the plane on 27th November, 2002. Here, the Court
held that the respondent, a foreign national could not take the plea that he was
not aware of the existing Indian law, being unaware of the RBI notification and
thus, was convicted. Such law however, in order to operate inside the territory
of India, does not mandatorily be made known or published beyond the Indian

37
(1875) LR 2 CCR 154.
38
AIR 1965 SC 722.

26
 territory.39 Another set of cases arise when the accused, in a mistake of fact, felt
that he was justified under the law to do the same. For instance, in the case of
Chirangi v. State of Madhya Pradesh40, the accused, in a confused and unstable
state of mind had visualized a tiger instead of his son and in a mistake that it
was his son, killed him. The Madhya Pradesh High Court, in this case, held that
the accused was under a mistake of fact that it was a tiger and not his son,
hence, believed himself to be justified by law to have killed the tiger in his own
protection. Protection was thus given to the accused under Section 79 of the
Indian Penal Code and thus was acquitted. A similar case, Bondi Kui v.
Emperor41 came up before the Patna High Court in which the accused, a woman
mistakenly thinking her brother-in-laws wife to be an evil spirit had beaten her
to death. The Court held that the accused was not liable under Section 302 of
the Indian Penal Code and was fully protected under Section 79 of the Code
because she was under the mistaken belief that the deceased was an evil spirit
that could cause harm to humans and not a human being herself. While deciding
on the applicability of Section 79 to a particular situation, it is important to
consider the mental faculty or attitude of the accused. For instance, in the case
of State of Orissa v. Khora Ghasi42 the accused, while he was on guard his field,
had shot a man, thinking him to be a bear. The Court, on account of the bona
fide belief of the accused, held that he was not liable under Section 302 as he
was completely protected by Section 79 of the Indian Penal Code. Thus, the
above series of cases gives an overview of the applicability of Section 76 and
Section 79 as defences in criminal law, also viewing the status of mistake of
law as a defence.

39
Ibid.
40
(1952) 53 CrLJ 1212 (M.P).
41
AIR 1943 Pat 64.
42
1978 Cr:LJ 1305.

27
 CONCLUSION

Mistake as a defence in common law brings with it two wings- mistake of law
and mistake of fact. The primary question that arises is, regarding the
applicability of both mistake of alw and of fact as valid defences in criminal
law. The legal position in common law countries, though substantially the
same, differ slightly. However, from the above discussion regarding mistake as
a defence in common law, it is hence clear that mistake can be used a valid
defence in criminal offences. The application of such defence however might
differ from country to country or even among different Courts in the same
country. While mistake of fact is a valid defence in most of the jurisdictions, a
mistake of law is considered as no excuse in criminal law. Another facet of
difference is the requirement of reasonableness while dealing with the question
as to whether or not an act was done in good faith. As discussed above, the
Indian criminal jurisprudence contains the element of mistake as a defence
under two provisions of the Indian Penal Code, 1860. Also, the two provisions
deal with two categories of cases, that might seem identical but have a subtle
difference- Section 76 concerns acts that one thought to be bound by law to do
it, whereas, Section 79 concerns such acts which are not prohibited by law and
if done, will not attract any impunity. Acts under Section 76, on the other hand,
bring about a kind of compulsion. Mistake has another facet when it comes to
offences involving strict liability. Slight differences exist between the existent
legal position in India and in other common law countries regarding the
28
applicability of mistake as a defence in strict liability cases. Further detailed
discussions of a few landmark cases show that the Indian Courts have used
mistake as a defences in criminal offences, in a very subjective manner. The
requirement of due care and attention has not been given utmost importance.
Good faith based on the honest intention of the accused has been enough to
successfully apply mistake of fact as a defence. the law tries to protect the ones
who have committed an act under a genuine mistake because, an act done
without the perfect intention to do it, lacks mens rea. Punishing one for such an
act would defeat the basic principles of criminality. However, the law does not
excuse one if he claims that he was unaware of the law. This is because, such a
plea, if accepted would be highly problematic, attracting innumerable people
who would seek to escape the clutches of justice and punishment by pleading
ignorance of the law. Thus, it is mistake of fact and not a mistake of law that is
considered as a valid defence by the Courts by and large.

29
 BIBLIOGRAPHY

BOOKS:-

PSA Pillais Criminal Law, by K I Vibhute, LexisNexis, 12th Edition 2014.

Ignorance and Mistake In Criminal Law, by Jerome Hall, 1957, Indiana Law
Journal, vol 33.

Textbook Of Criminal Law, by Glanville Williams, 2nd Edition, 2009,

Universal Law Publishing Company Pvt. Ltd.

Clarkson and Cleating Criminal Law, by CMV Clarkson, HM Keating and SR

Cunningham, 6th Edition 2007, Sweet & Maxwell Limited.

Textbook On Criminal Law, Michael T. Molan, 3rd edition 2001, Old Bailey
Press.

Codification, Macaulay and the Indian Penal Code: The Legacies and Modern
Challenges of Criminal Law Reform, edited by Wing Cheong Chan, Barry Wright,
Stanley Yeo, Ashgate Publishing Ltd, 2011.

JOURNALS:-

30
 The Indian Penal Code: Differences Between Justification and Excuses and
Mistakes, Necessity and Accidents as Defences, Sarica Ashok Reddy.

The Mistake Of fact Defense And The Reasonableness Requirement, by

Margaret F. Brinig, Notre Dame Law School, Scholarly Works, 1978, Paper 793

INTERNET SOURCES:-

http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CO
DE,%2 01860.pdf

https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf
https://books.google.co.in/books?id=2Dp6pK4uGIC&pg=PR23&dq=defence+of+
mistake+of+fact&hl=en&sa=X&ei=Jm0MVc3uKePCmAWsnILYCA&ved=0CB
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