This Article is written by Hia Sharma student of Himachal Pradesh National Law University Shimla.
Criminal law in India is guided by The Indian Penal Code, 1860. This was created as a statute in the year 1860 and it came into force on 1st January 1862.
The criminal liability is subject is subject to limitation which can be indicated by the legal maxim, actus non facit reum, nisi mens sit rea, which means that the act itself cannot make a man guilty if no guilty mind was attached to it. To make a man guilty for criminal wrong it must be proved that the act done by the man is forbidden by law and he acted with a guilty mind. Thus every act has two components that is actus reus that is the physical conduct of the person and the mens rea which is the guilty mind of the person.
In law it is generally assumed that each of the individual should know the law of the land. An individual needs to know the nature and the consequences of his act and be responsible for it. This is also explained by the legal maxim, Ignorantia juris non excusat, which states that the ignorance of law is no excuse or a person who is not aware of the law of the land cannot take the plea of ignorance. This is to ensure the credibility of the laws otherwise the laws will lose their effect as anyone can pretend ignorance of the law.
However there are certain exceptions to the liability being faced by an individual. Similarly the criminal liability also has certain exception to it. A person may be excused from the criminal liability if the essential elements to initiate a criminal liability are missing, as the element of mens rea or guilty mind was not present.
A person is also excused from the criminal liability according to certain provisions specified by the law. These provisions are known as general exceptions or general exceptions to the criminal liability and are dealt as a separate chapter, Chapter IV, Sections 76-106, of the Indian Penal Code, 1860.
Burden of proof means the obligation to prove the truth or falsehood of a factor proposition. The burden of proof can refer to its two senses of meanings, first is the burden to establish the case as to what has happened and second is to specify the evidences. The burden to establish the case is fixed by the law and is on the party whether the defendant or the appellant who says that a particular thing has taken place. The burden to specify the evidences is shifting in nature and keeps on shifting to the appellant or to the defendant. The rule is also stated by the maxim ‘ei qui affirmat non ei qui negat incumbit probatio’, it means ‘he who seeks the aid of a court should be the first to prove that he has a case’.
In this article we will discuss about the Mistake as Defence to Criminal Liability, which is provided by the section 76 and section 79 of The Indian Penal Code, 1860.
Mistake as a Defence
Section 76 and section 79 of The Indian Penal Code deals with mistake as a defence to the criminal liability. Simply, these point out to the fact that a person is not liable for the offence he did if he was bound by the law or he believed to be bound by the law, in a good faith.
A person is not liable for the offence he did if it was justified by the law or the person believed it to be justified by the law in a good faith.
Russell has defined the nature of mistake-
(1) That the state of things believed to exist would, if true, have justified the act done;
(2) That the mistake must be reasonable; and
(3) The mistake must relate to fact and not to law.
The first condition states that the mistake under which the act was done must be of the nature that if the supposed situation has been true, the liability attached to the person must has been prevented . The second condition states that the mistaken belief must be a reasonable one. Superstitions or false beliefs that a reasonable prudent man will not believe to be true, cannot exempt a person from criminal liability.
The mistake should relate to mistake of fact not to the mistake of law or ignorance of law. These two sections of the Indian Penal Code, 1860 are guided by the legal maxim, ‘Ignorantia facti excusat and Ignorantia juris not excusat’.
It means that the ignorance of fact is an excuse and ignorance of law is no excuse.
An essential thing to be noted here is that the two sections provides exemption from the criminal liability only for those offences that were done under mistake of fact and not under mistake of law. ‘Ignorantia juris not excusat’ means that the ignorance of law is no excuse. An individual is presumed to know the laws of the land, the nature of work he is doing and its consequences thereof.
Mistake of law is no excuse to a crime. It was held by the Supreme Court in the case of State of Maharashtra v Mayer Hans Georgethat ignorance of law is no excuse.
Section 76- It deals with those offences where a person by reason of a mistake or ignorance of fact, in good faith considers himself to be bound by law to do that particular act.
Section 79-It deals with those offences a person by reason of a mistake of fact considers himself justified by law to do an act in a particular way.
The two provisions are different from each other by the words bound by law and justified by law which are also clear by the two illustrations given with the sections.
The offenders are exempted from the criminal liability if they act with a good faith under a mistake to be bound by law or to be justified by law because in such situations, mens rea or guilty mind or the intention to commit the offence cannot be present and thus the essentials of criminal liability will not be fulfilled. The person acting under mistaken belief is surely not working with a guilty mind.
One of the essential ingredients required for an accused to get the protection under the sections 76 and 79 is that his action must be done in ‘good faith’. Section 52 of the Indian Penal Code defines the term ‘good faith’. The term ‘good faith’ as defined in this section is in the negative form. Under the Code, the emphasis is on whether the person has done an act with due care and attention. So, if a person, howsoever honest in his intention, blunders, he cannot get the protection under the IPC because apart from an honest intention, he is also expected to act with due care and caution.
The Supreme Court has held in the case State of WB v Shew Mangal Singh, “Carrying out the orders of a superior in good faith believing to be bound by law is a defence under IPC, section 76 and as a result acquittal can be done.”
In this some police officers were charged under section 302 read with section of the IPC for causing the death of two persons with a gun. It was held by the court of law that the police were given order by the officials and thus they cannot be held liable for the murder of the deceased. Moreover the order to open fire was justified by the law and the officials accused of murder were bound to obey their senior’s orders.
In the case Chirangi v State, the facts were, Chirangi Lohar, went to a hillock with his son. When he returned home and slept, his nephew found that the son is not with him and he has a axe with his stained with blood. On being enquired he said that I became insane and I killed my son on the false belief that a tiger was approaching me. His statement of being insane was proved by his psychiatrist. He said that Chirangi could really be under false belief that his son was a tiger. Moreover the two had a very good relationship between them which further proves that Chirangi had no reason to kill his own son. Therefore, he was allowed the defence under section 79 of IPC as he was under mistake of fact.
Mistake of fact is not a valid defence in the cases where the act committed is wrong in itself such as abduction. It was held in the case of R v. Princes, where a man was accused for illegally taking away with himself a 16 year old unmarried girl. The accused took the plea that he was under mistake that the girl is a major and is above 18 years. But his defence was held to be an invalid one as abduction is in itself a wrong and immoral act.
In this article we discussed one of the general exceptions to the criminal liability that is mistake of fact. Section 76 of the Indian Penal Code that talks about mistake of fact where a person is bound or he believes himself to be bound by the law; criminal liability cannot be framed against him. Section 79 of the Indian Penal code that talks about mistake of fact where a person believes that he is justified by the law in doing the same act. Mistake upon which the act of the accused person lies must relate to mistake of fact and no to the mistake of law. Act must be done in good faith and without any criminal intent. Though it is difficult to ascertain as to what the accused intended while performing the act, it is taken as what a reasonable prudent man would have done while taking required due care and precaution.
- Chirangi v State, AIR 1952 Nag 282 : 1952 Cr LJ 1212 (MP).
- R v. Princes(1875) LR 2 CCR 154
- 1 Russell on Crime 75 (JW Cecil Turner (ed), vol 1, 12th edn, Stevens & Sons, London, 1964);https://www.wildy.com/isbn/004451/russell-on-crime-12th-ed-hardback-2-volumes-sweet-maxwell-ltd
- State of Maharashtra v Mayer Hans George, AIR 1965 SC 722 :  1 SCR 123
- State of WB v Shew Mangal Singh, AIR 1981 SC 1917 : (1981) 4 SCC 2 : 1982 SCR