General Defence: – Mistake of Fact


General defences mean those excuses of law that help a person to escape from his liability, if the act done is qualified under general defences.

Mistake is a general defence defined in Section 76 and 79 of the Indian Penal Code, 1860. Mistake is further classified into two types: –

Section 76 and 79 IPC are based on legal principle: –

“Ignorance of fact excuses; ignorance of law excuses not”

Mistake (here) means ‘wrong conclusion’.

Example – You saw a tree but from a long distance, as you get closer you found it to be a standing man i.e. your conclusion was wrong first, which is a mistake.

Ignorance (here) means ‘not having the knowledge’.

Example – You throw a box from a window into your backyard where usually nobody goes, even no noise was coming from there, but the thrown box hit a person who was there. It is also wrong conclusion, but difference is, this time you don’t have the knowledge.

Generally, it is believed that every person knows and understands law of the land except minors and person of unsound mind and mistake of law is no defence if law is violated.

Intentional mistake of fact is not defence. Whether the mistake of fact is intentional or not depends on the circumstance/situation of the case. Burden of proof regarding existence of a situation of general defences lies on the accused.

Mistake Of Fact u/s 76 IPC

Section 76 excuses a person from liability who has done an act which is offence under law, but has done under a misconception of fact, which made him believe (in good faith) that law commands me to do it.

According to the section above, mistake should be bona fide i.e. in good faith, which is considered as according to the circumstances of the case and the position of the accused.

In case of Ghansham Das, accused killed a person believing him to be a ghost. He under good faith to protect himself attacked the ghost which he later found to be a person. The court held that accused under mistake of fact acted in good faith, hence protected u/s 76 IPC.

In the case of The State of Maharashtra v. Mayer Hans George 1965 AIR 722, 1965 SCR (1) 123, ‘A’ is an officer of the court. Court ordered him to arrest ‘Y’. ‘A’ arrest ‘Z’, as he believes ‘Z’ to be ‘Y’. Here, A can take the ground of good faith or a bona fide intention as a defence in the mistake of fact.

Exceptions to Section 76 IPC

  • Mistake of fact without enquiry is not defence i.e. if the accused has enquired, he would have known the fact.
  • In case where the court presumes that the act was done with guilty mind e.g. in case of kidnapping.

In case State of West Bengal v. Shiv Mangal 1982 SCR (1) 360, while the police were controlling in the out of the tower in the night. Some armed people attacked the, ACP was badly injured. DCP ordered firing against the unknown persons. Two persons died, the court held that police were protected u/s 76 IPC, because they were bound to protect law and order but it doesn’t mean that every superior officer’s firing order is protected u/s 76 and 79 IPC. The order must be given in good faith to protect the peace, law and order. 

Dhaki Singh v. State, AIR 1955 All 379, the accused shot an innocent person mistaking him to be a thief, although he believes that he is bound to nab the thief. According to the officer’s finding, he was not in the position to apprehend him, fired at him. Here, he cannot take the defence of mistake of fact as the act done by him was not justified.

In Chirangi v. the State of M.P (1952)53 CrLJ 1212 (M.P.), a widower holding axe accompanied by his son, went to woods to gather ‘siadi’ leaves. After some time, his nephew discovered that the accused was sleeping under the tree and the child was missing. Later the child was found dead. It was transpired in evidence that the accused at the time being was seized of the state of mind in which he visualized that a tiger was going to attack him as by mistake he killed his son considering his son as the tiger. The court stated that it was a mistake of fact that immunized him from liability. He had no intention to kill his son.


The Mistake of fact is defence for accused when the mistake was done in good faith believe that it is lawful to do it in order to protect oneself or other, or while doing an act which in general is offence under law.

But the mistake of law is no defence, because it is believed that every person knows the law of the land, except a person with unsound mind, or a minor. Application of section 79 IPC i.e. mistake of law is very limited and differently considered with respect to the circumstances of the case and position of the accused.

Aishwarya Says:

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