• Legis Scriptor

Mistake as a General Exception

Authored by - Aman Porwal

Keywords - Mistake, General Defences, Mistake of Law, Mistake of Fact, Section 76 of Indian Penal Code 1860, Section 79 of Indian Penal Code 1860, Ignorance, Law, IPC.


Mistake by a person is generally accepted in the court of law. The Judiciary allows a relaxation in the provisions when there is a mistake of a fact. Mistakes that are generally accepted are called as a general exception or general defences that essentially work like an immunity. This article aims to cover the fundamental concepts of mistakes as a general exception under the Indian Penal Code.


Mistake is defined under Chapter IV; General Exceptions in the Indian Penal Code, 1860. General exceptions are also called as general defences, which a person uses to defend themselves or to escape from liability. In the cases of mistake, the burden of proof lies with the defendant who has to prove his intention as to why they performed that act. If the defendant fails to do so then that defendant has to face the consequences.

There are some general defences which are available to the defendant –

· Volentinon-fit injuria (a person willingly and knowingly puts himself in a situation so that person cannot sue for his injuries)

· Plaintiff – himself the Wrongdoer

· Act of God

· Inevitable accident

· Private Defence

· Mistake

· Necessity


There are two type of mistake which are specified under the Law of Torts

1. Mistake of Law–It is considered as an ignorance of law and cannot be used an excuse. Under general defences, mistake of law is not considered as a defence. It is presumed in every situation that all the citizens are aware about the law of the land, which refers to the laws governing the country. The minors, lunatics and insane person are an exception to this rule.

In Cooper v. Phibbs [1], The plaintiff took a lease of fishery rights from the defendant and the plaintiff was unaware of the fact that the defendant had a life interest in the fishery rights. The plaintiff, therefore, brought a suit for the cancellation of the lease and the defendant argued that this was a mistake of law. It was held that a mistake as to the general ownership or right stands on the same footing as a mistake of law and therefore was declared void.

2. Mistake of Fact – Under Law of Tort, Mistake of fact is not considered as ignorance of the law. The misunderstanding of a fact by a person is reasonable. Mistake of fact means when a person mistakenly does something, which is unknown to him. It is used as a general defence to prove whether the act is a mistake of fact or a deliberate act. Mistake of fact is circumstantial and is decided on a case to case basis.

In this case of State of Orissa v. Ghora Khasi[2], the deceased person entered into a maize field of the accused for the purpose of theft, the accused shot an arrow in good faith believing it to be a bear, but the deceased is wounded by that shot around the belly, after some time the person who was shot is dead by which the FIR filled against the accused but the accused is safe by proving that it was a mistake of fact.

Section 76 of Indian Penal Code,1860

“Act by a person bound, or by mistake of fact believing himself bound, by law – 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.” When a person does such an act in good faith, it shall not be considered as an offence.

Illustrations –

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

· A, an officer of a court of justice, being ordered by the court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

In State of West Bengal v. Shew Mangal Singh and others[3], the respondents were convicted under Section 302 of Indian Penal Code 1860, but the Supreme Court held that their act was justified and lawful as they took orders from their superior officers. In circumstances like these, the order of open fire could be acceptable.

Section 79 of Indian Penal Code, 1860

“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 who 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.”

Explanation –If a person who is justified by law to do such an act, or the person has a reason with mistake of fact and not by any mistake of law, with an intention of good faith, it shall not be regarded as an offence.


· A sees Z commit what appears to A to be a murder, A, in the exercise, to the best of his judgement exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offences, through it may turn out that Z was acting in self-defence.

In the case ofChirangi v. State of Madhya Pradesh[4]– A women with her son was going through the jungle to cut the woods. The women had an axe in her hand and she was found under a tree and the boy was dead. In the process of evidence, it was found that she visualized her son as a tiger and killed her son in the apprehension that the tiger was going to kill her son.The Bombay High Court acquitted her on the basis that the act was done in good faith.


Mistake is used as a general exception only when it is a mistake of fact and not a mistake of law. It is because the ignorance of law is not considered as a mistake while the ignorance of fact is considered as one. Both mistake of law and mistake of fact have the same means to get the exception of general defence but both have opposite ends.

[1] [1867] UKHL 1, (1867) LR 2 HL 149 [2] 1978 CriLJ 1305 [3] 1981 AIR 1917, 1982 SCR (1) 360

[4] 1952 CriLJ 1212




Indian Penal Code, 1860