Mistake of Fact

Section 76 Act done by a person bound, or by mistake of fact believing himself

bound, by law:

Nothing is an offence which done by a person who is, or who by reason of

mistake of act and not by reason of a mistake of law in good faith believes himself
to be, bound by law to do it.
Section 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 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.

Mistake is stated as when a person who is ignorant of existence of relevant facts

or has mistaken them, does some wrongful act, he neither intents or foresee the
resulted unlawful consequences.
The court while determining the guilt of the that person looks on the basis of
‘believed facts’ and not the ‘real facts’. Mistake negates the existence of a
particular intent or foresight and thus the court look into the mind’s operation of
the wrongdoer.
The mistake to be considered as a extenuating factor it has to meet the following
requirements:

that the state of things believed to exist would, if true, have justified the act
done.

that the mistake must be reasonable

the mistake must relate to fact and not to law.

The state of things if true should justify the act done can be understood by the
illustration that a burglar breaks into house no 5 instead of house no 6 then he
cant use this defence as in both these instances there involved actus rea and
mens rea that would have been the same.

Mistake of Fact 1
 Supertitious beliefs will not be considered a defence and thus who break law in
consequence of a belief that they are obeying a divine command cannot be said
to come under the ambit of mistake of fact it is an unreasonable fact.
Ignorance of law is not an excuse. Under both the sections mistake must be in
good faith and thus the there should not be any malafide intention behind the
commission of an act. there needs to be exercise of due diligence in good faith.

Mistake of law whether reasonable or unreasonable, even in good faith, does not
operate as an exonerating factor. if mistake of law is allowed, every accused will
take that as a defence and it will be difficult for the prosecution to refute on it. It
was also in the absence of evidence lead courts to be obliged to decide as to
whether the accused was indeed ignorant of law. it will create complications
making the administration of justice nearly impractical and introducing an element
of uncertainty in the administration of justice.
the view is that everyone is presumed to know law. Mistake of law even in good
faith cannot be considered a defence.

Mistake of fact precludes the accused from forming the required mens rea.
Mistake must be of material facts; i.e. the facts essential to constitute the offence
allegedly committed by the accused.
State of Maharashtra v. M.H. George- The respondent, Mayer Hans George, a
German national, was charged with bringing gold into india without the permission
of the Reserve Bank of India. In this case the Supreme court addressed the
question of whether a foreigner committing an offence within Indian territory could
be held liable under the Indian Penal code, 1860.
Gopalia Kalliya v. Emperor- In this case Gopalia Kalliya, a police officer from
South kanara District, ended up arresting someone else instead of Giria Chinka.
The court found that there was a reason for gopalia kalliya to arrest someone
without having some belief in his mind that he was the man whom he was after.
Although it may be suggested by the prosecution that he did not take all
precautions he might taken before arresting the complainant, there was nothing
on the record to satisfy the court that he did not honestly believe that the
complainant was a man whom he was directed to arrest.

Mistake of Fact 2
 Bhawoo Jivaji v. Mulji Dayal – The complainant was carrying some clothes with
him and going on his way. A police constable (respondent) saw the complainant
and thought that he was carrying some stolen property. On the basis of his
suspicions he went to the complainant and ask him about the clothes he was
carrying with him. The complainant gave him answers but the police constable
was not satisfied with his answers so he told the complainant that he wants to
inspect the clothes, for that the complainant refused. This caused a scuffle
between both of them because the constable suspecting some stolen property
with the complainant and the complainant denied the constable to inspect them.
The constable arrested the complainant based on his suspicions and took him to
the police station. The inspector of Police released the complaint. After that the
complainant filed a case of wrongful restraint and confinement against police
constable. The court said that even though the acts of the accused (constable)
cannot be said “strictly justified by law” but still the complainant had no right of
private defense in this case because the accused was an on duty public servant
and his acts were not grievous at all which can cause any apprehension of death
or grievous hurt. The court also held that when the constable was asking the
questions to clear his doubts and situations, it was a good faith and the constable
will be protected under section 79 of Indian penal code, 1860.

State of Orissa v. Ram Bahadur Thapa- in this the servant Ram bahadur thapa
along with his master went to take a stroll on night in a village where people
believed that ghosts come out at night. there on the way they saw some lights
flickering at a distance and they went there on reaching there Ram bahadur thapa
attacked presuming these lights to be ghost attacked people collecting mahua
flowers and thus ended up killing one person and injuring 2. The court gave the
exception of mistake of fact to him.
Good faith is defined in section 52 of the IPC. Nothing is said to be done or
believed in ‘good faith’ which is done or believed without due care and attention.
IPC lays emphasis on the aspect of due care and attention. however, what is due
care and attention depends on the position in which a man finds himself.
Due care and attention required under IPC, depends on three factors:

The nature of the act committed by the accused

Mistake of Fact 3
 its magnitude and importance

the facility a person had for the exercise of the care and attention.

Mistake of Fact 4