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Mistake of fact (IPC)

Updated: May 12

Mistake of fact (IPC)
Mistake of fact (IPC)


General Exceptions - Introduction

The principles outlined in the Chapter on 'General Exceptions' in the Indian Penal Code establish circumstances where the absence of mens rea exempts individuals from criminal responsibility.

These exceptions, classified as excusable and justifiable, cover acts done accidentally, by mistake of fact, or in self-defence. They are outlined in Sections 76 to 106 of the IPC.

Excusable exceptions include accidents, acts done by minors, the insane, or intoxicated individuals, and acts done in good faith. Justifiable exceptions encompass cases of mistake, judicial acts, necessity, and acts of private defence.

The burden of proof lies with the accused to establish circumstances entitling them to the general exception, which can be done by a preponderance of probability, unlike the prosecution's burden of proving guilt beyond reasonable doubt.

Various General exceptions are: 

  • Mistake of fact (Secs. 76, 79).

  • Judicial acts (Secs. 77-78).

  • Accident (Sec. 80).

  • Absence of criminal intention (Secs. 81-86, 92-94). 

  • Act done by consent (Secs. 87-91). 

  • Trifling act (Sec. 95).

  • Private defence (Secs. 96-106). 



'Mistake' refers to a mental supposition that doesn't align with reality, distinct from mere forgetfulness, as it arises from mischance rather than intent.

English criminal law acknowledges that an honest and reasonable belief in a set of facts, if true, can excuse an act that would otherwise be an offence.

This principle, affirmed in Tolson's case (1889) 23 QBD 168, equates an honest and reasonable mistake with conditions like infancy or lunacy. 

In both English law and Indian law, the principle is upheld that 'Mistake of fact' can be a defence, but 'Mistake of law' generally cannot.

This principle is enshrined in Sec. 76 of the Indian Penal Code, which states that an act done by a person who, by reason of a mistake of fact and not by reason of mistake of law, believes himself to be bound by law to do it, is not considered an offence.


  • A, an officer of a Court of Justice, being ordered by that court to arrest Y, and after due inquiry, believing Z to be Y, arrests Z. A has committed no offence.

  • A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. [In this illustration, the command of law is defence and not the order of superior officers.]

Mistake of Law

Sec. 79. Act done by a person justified, or 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 reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

  • Illustration - A sees Z commit what appears to be murder. He in good faith seizes Z, to hand him over to the police. A has committed no offence, though it may turn out that Z was acting in self-defence.


Mistake of Fact

Mistake of fact entails errors concerning true identities or sensory perceptions, such as temporary distortion of imagination.

As succinctly summarised in Ratanlal and Dhirajlal’s Law of Crimes, 23rd edn, p. 199, it represents an erroneous mental condition or conviction induced by ignorance, misapprehension, or misunderstanding of the truth, leading to an act or omission erroneously undertaken by one or both parties to a transaction, without its erroneous character being intended or known at the time.

Ignorance of fact is deemed excusable (Ignorantia Facti doth excuse), with ignorance encompassing mistakes, though mistakes do not inherently include ignorance. Mistake is viewed as a form of ignorance, essentially a 'temporary ignorance.'

Ignorance denotes a lack of knowledge, a general inertia of the human mind, whereas mistake does not arise from foolhardiness or lack of mental alertness. Mere forgetfulness does not constitute a mistake. Mistake entails knowledge but implies a wrong conclusion.


Distinction between Sec. 76 and Sec. 79

The distinction between Sec. 76 and Sec. 79 lies in the nature of legal implication: the former assumes legal compulsion, while the latter assumes legal justification.

Sec. 76 entails a belief in legal duty or compulsion, while Sec. 79 involves a belief in legal justification for the action taken. Both sections require a bona fide intention to comply with the law, with no mens rea present.

For instance, if A mistakenly takes another's umbrella, believing it to be his own due to intoxication, the defence is valid under Sec. 76.

Similarly, if A shoots at B, mistaking them for a burglar under circumstances justifying such belief, A would be entitled to claim the defence of justifiable mistake under Sec. 79.

‘Mistake of fact’ is excused due to the inherent fallibility of human cognition. Punishing someone for a genuine mistake undermines the principles of justice and deterrence.

Conversely, ‘mistake of law’ pertains to ignorance of legal principles, which is not excused as individuals are expected to know and abide by the law. Ignorance of the law is not accepted as a defence to prevent abuse and uphold societal order.

However, there are exceptions, such as when a person honestly believes they have a legal right to act in a certain way. In such cases, the court examines whether this belief was held in good faith.

The distinction between mistake of fact and mistake of law may blur in certain situations. For instance, in Tolson's case, the accused's genuine belief in her husband's death formed a valid defence to a charge of bigamy.

When determining culpability, courts consider whether the accused was misled by a mistaken understanding of the law or fact.

They also assess whether the act was inherently wrongful or only became so under certain circumstances. Ultimately, the defendant's state of mind regarding the circumstances of the act is crucial in determining legal liability.

Mistake Must be in Good Faith        

In both Sec. 76 and Sec. 79 of the IPC, the term "good faith" is crucial for a mistake of fact to be a valid defence. Without good faith, a mistake of fact is not sufficient as a defence. Good faith implies a genuine effort to ascertain the truth, not a careless or ill-intentioned belief.

Whether an action was done in good faith is a question of fact, determined by the surrounding circumstances and the individual's capacity and intelligence.

Under Sec. 79, even if an act is not legally justified, it may not be considered an offence if done under a mistake of fact, with a belief in good faith that it is justified by law. The accused must demonstrate a bona fide intention to act lawfully and exert due diligence in their judgement.

For example, in Keso Sahu v State, where individuals stopped buffalo carts believing in good faith that they were preventing a smuggling offence, they were protected under Sec. 79. Similarly, in Tolson's case, the accused's sincere belief in her husband's death formed a valid defence to a charge of bigamy.

However, if an individual fails to make a genuine effort to ascertain the truth, they cannot claim good faith.

For instance, in a case where a police officer hastily accused someone of theft without proper inquiry, it was deemed that there was no genuine effort to reach the truth, undermining the claim of good faith.

Belief: Bound or Justified by Law

Police and military personnel are obligated to follow orders from their superiors, but what happens if those orders seem unlawful?

In English and Indian law, superior orders typically don't excuse criminal behaviour, though exceptions are suggested for armed forces members.

For example, in the State of W.B. v Shew Mangal Singh, a police patrol party fired under orders after being attacked, and the order was deemed lawful. However, if a superior's order is obviously illegal (like killing an innocent or torturing a suspect), subordinates aren't protected by obeying.

The maxim "respondeat superior" doesn't apply in criminal law, meaning orders to commit offences aren't a valid defence. In cases like Gurdit Singh, soldiers firing at a non-violent mob were guilty of culpable homicide.

Similarly, in Charan Das v The State, a constable shooting an unarmed woman was deemed unlawful. "Justified" means actions are supported by credible evidence and legal validation.

For instance, in Raj Kapoor v Laxman, exhibiting a film with a valid certificate wasn't deemed an offence. However, torturing a suspect isn't justified by law, despite assumptions that harsh methods are permissible during investigations.


When Mistake of Fact is No Defence 

Mistake of fact doesn't serve as a defence if the fact itself is illegal or in cases of strict liability statutory offences. One can't commit an illegal act and then claim ignorance of the fact.

For instance, shooting someone mistakenly, intending to target another person, doesn't excuse the action. Similarly, if a person commits a crime under a mistaken belief, they won't be excused.

In cases like taking an underage girl against her father's will, mistaken belief about her age doesn't excuse the action.

Negligent mistakes aren't considered defences either. For example, marrying someone under the mistaken belief of divorce, without conducting proper inquiries, still constitutes bigamy.

Furthermore, the principle of "respondeat superior" doesn't apply in criminal law. Orders from a parent, master, or superior won't serve as a defence for illegal acts.

Leading Case Laws

STATE OF ORISSA v RAM BAHADUR THAPA (AIR 1960 Ori 161): In a case where a Nepali servant mistook villagers for ghosts and attacked them, resulting in death and injuries, the High Court applied Section 79.

Despite arguments that belief in ghosts is unfounded in the modern era, the court considered the accused's superstitious nature and lack of intellectual attainment. Factors such as his unfamiliarity with the area and the reputation of the place for being haunted were also noted.

The court highlighted that the accused's companions' behaviour further fueled his belief in ghosts. Although it was argued that exercising more care could have prevented the incident, the court reasoned that the accused genuinely believed he was attacking ghosts, not humans, due to his predisposition and fear.

Similar judgments have been made in cases like Waryam Singh v Emperor and Emperor v Jagmohan Thukral, where individuals mistook objects or animals for threats and acted accordingly. In such instances, Section 79 offers protection if the mistake was made in good faith.

STATE OF ORISSA v BHAGABAN BARIK (1987) 2 SCC 498]: In this case, the accused-respondent claimed the benefit of Section 79, IPC, for committing an offence under a 'mistake of fact'. He alleged that he mistook the deceased for a thief who had stolen his bell metal utensil during the daytime.

Upon seeing someone entering his premises, he struck them with a lathi, only to later realise it was the deceased.

The High Court ruled in favour of the respondent, finding no offence committed under the circumstances and granting protection under Section 79.

The Supreme Court emphasised that the determination of 'good faith' must consider the accused's position and the circumstances in which they acted. 'Good faith' requires due care and attention, not logical infallibility.

It is a factual question, assessed based on proven facts and circumstances in each case. The general rule is that an alleged offender is deemed to have acted based on what they sincerely believed to be true and reasonable at the time of the alleged offence.

In Dhara Singh v Emperor, a similar scenario unfolded where the accused, under a mistaken belief, shot and killed another person, thinking they were intruding his house to harm him. However, the court found no good faith in the respondent's actions.

It was evident that the respondent, aware of the deceased's presence for a Bhagbat recital, waited for an opportunity to settle a personal score. Striking the deceased with a lathi, even if mistaken for a thief, was unjustified as the deceased had not entered the house or posed any threat.

While the respondent may not have intended to kill the deceased, his actions, considering the circumstances, amounted to culpable homicide not amounting to murder under Section 304 Part II, IPC.


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