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.
Defence that accused didn’t know the law is no defence because it is believed that every person knows and understands law of the land except minors and person of unsound mind. That is why mistake of law is not defence but mistake of fact can be a defence.
Mistake of law is a defence when the offender misunderstood the law as it existed at the time. Example – offender will not be able to claim that he was not aware that murder was a crime, but he may be able to argue that he was justified in murdering a person.
Section 79 IPC has three basic requirements: –
- Act done in good faith.
- The act is believed to be justified by law.
Good faith is considered in reference with the position of the accused and the circumstances of the case.
Mistake of fact and mistake of law are very similar provisions, and the difference between the two is only that, in mistake of fact the accused commits an act in misconception of fact and in mistake of law the accused commits an act believing him to be justified by law.
Even under Indian Contract Act,1872, the validity of the contract is not affected by the mistake of law and does not make the contract voidable on the same ground.
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
In this case murder of two persons by the police is justified by law, hence the order of DCP got protection u/s 76 and 79 IPC.
In case of Bonda Kui, she woke up in the night and saw some human form dancing in the state of complete nudity with a stick and a mat like thing around the waist. She considered it to be evil spirit which eat humans. She attacked her and killed the evil spirit, but later the evil spirit like thing was found to be wife of his husband’s brother. Bonda kui was convicted and sentenced.
Matter went to Patna High Court, the court set aside the conviction and held that women (Bonda Kui) was justified in doing this act under mistake of fact and has done the act in good faith in order to protect her.
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.
Muhammad Faizan Qazi
3rd year law student
The Law School, University of Jammu.