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The position that the mistake of fact is a good defence while mistake of law is no defence in the Indian Penal Code

January 9, 2019 0 Comment

The burden of proof, therefore, lies upon the prosecution to establish the guilt of the accused. Section 105 of the Indian Evidence Act, however, provides that if the accused wants to take benefit of any of the Exceptions provided in the Indian Penal Code, the burden of proving the existence of such circum­stances bringing the case within any of the General Exceptions in the Penal Code is upon him and the Court shall presume the absence of such circumstances.

Such Exceptions have been provided in Chapter IV, comprising Sections 75 to 106 of the Code. They also denote the circumstances where a man is justified in committing acts which would otherwise be offences. They may be summarized as below:

1. Mistake of fact:

(a) Act done by a person bound, or by mistake of fact believ­ing himself bound, by law (S. 76) and (b) act done by a person justi­fied, or by mistake of fact believing himself justified, by law. (S. 79).

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2. Judicial acts:

(c) Act of a judge when acting judicially (S. 77) and (b) act done by officers pursuant to the judgment or order of the court. (S. 78).

3. Accident:

(d) Act accused by accident. (S. 80).

4. Absence of criminal:

(a) act done with the known- intent: edge that it is likely to cause harm, but done without criminal intent and to pre­vent other harm. (S. 81).

(b) Act done in good faith for the benefit of a person with­out consent. (S. 92).

(c) Communication made in good faith. (S. 93).

(d) Act done under threat of death. (S. 94).

5. Incapacity to commit:

(a) act of a child under seven crime: years. (S. 82).

(b) act of a child above 7 and under 10 years, but of im­mature understanding. (S. 83).

(c) Act of a person of unsound mind. (S. 84).

(d) Act of an intoxicated person when the thing which in­toxicated him was admini­stered to him without his knowledge or against his will. (S. 85).

6. Consent:

(a) Act not known to be likely to cause death or grievous hurt, done by consent of the sufferer. (S. 87).

(b) Act not intended to cause death done by consent of the sufferer. (S. 88).

(c) Act done in good faith for the benefit of a child under 12 years or an insane person with the consent of the guardian. (S. 89).

7. Trifling acts:

Act causing slight harm. (S. 95).

8. Private Defence:

(a) Of body (Ss. 96-102, 104 and 106).

(b) Of property (Ss. 96-99 and 103-105).

A. ML takes of Fact and Mistake of Law:

The above proposi­tion is based on the maxim “ignorantia facit excusat; ignorantia juris none excused”; that is, ignorance of the fact excuses; ignorance of law does not excuse. Everybody is presumed to know the law of the land and it would be extremely difficult to administer the law if it were open for an accused to set up the plea that he was ignorant of the fact that the act was prohibited and punishable. In criminal law, therefore, mistake of fact is a good excuse unless that mistake or slip be due to design, pre-arrangement or preconcert or be the result of carelessness and negligence.

Sections 76 and 79 of the Indian Penal Code embody the above proposition of law. The former section provides that nothing is an offence which is done by a person who is, 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 bound by law to do it.

Thus, if A, a soldier, fires on a mob, by the order of his superior officer, in conformity with the commands of the law, he has committed no offence.

The act should, however, not be done in obedience to an unlawful order of one’s superior. In the same way if 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, he has committed no offence.

The latter section viz., S. 79 provides that 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 by reason of a mistake of law, in good faith, believes himself to be justified by law, in doing it. A sees Z commit what appears to A to be a murder.

A, in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending murders in the act, seizes Z, in order to bring Z before the proper authorities.

A has committed no offence, though it may turn out that Z was acting in self-defence. Again, where the chowkidar in good faith took a person to be a thief and arrest him, the benefit of Sections 76 and 79 of the Indian Penal Code was allowed. Under both the sections the party accused must allege that he believed in good faith that he was bound by law to do as he did or that being empowered by law to act in the matter, he acted to the best of his judgment in good faith.

The word “law” in the above proposition means the general law of the land and not the foreign law. The rule, however, applies equally to bye-laws, rules and regulations having the force of law as well. Every person of the age of discretion and compos mentis is presumed to know the law.

Thus, if an accused accompanying the bailiff for point­ing out property of the judgment-debtor gave the door a push with the result that the wife of the judgment-debtor fell down unconscious, it has been held that an offence under Section 352 (assault or criminal force) was committed for the bailiff and the accused was not entitled to push the door. (Kaluram v. Nenuram, (1933)34 Cr. L.J. 963].

There is also an English case where two Frenchmen were charged willful murder because they had acted as seconds in a duel in which one man had met his death.

They alleged that they did not know that killing an adversary in a fair duel amounted to murder in England. Their plea was, however, negative. [Barronet (1852) Dearsly, 51]. This case es­tablishes that even the ignorance of law by a foreigner is not excus­able.

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