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Defence of Mistake (Mistake of Fact and

Mistake of Law)

Galgotias University,

Submitted by
Atikant Dubey

Law of Crimes - I,
IIIrd Semester,

Submitted to
Ms. Navtika Singh


S No. Topic Page No. Remark

1. Acknowledgement 3

2. Chapter: 1 4

3. Chapter: 2 6
(Mistake of Fact and Mistake of
Law in I.P.C.)

4. Chapter: 3 8
(Judicial Development)

5. Chapter: 4 10

6. Chapter: 5 11


I would like to express my special thanks of gratitude to my teacher Mrs. Navtika Singh as well as our Dean
Dr. Rhishikesh Dave who gave me the golden opportunity to do this wonderful project on the topic Defence
of Mistake in living relationship in India which also helped me in doing a lot of Research and I came to
know about so many new things.

I am really thankful to them. Secondly i would also like to thank my parents and friends who helped me a
lot in finishing this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.


Chapter: 1 Introduction
Iqnorantia facti doth excusat; Ignorantia juris non excusat.
(Ignorance of fact is an excuse, but ignorance of law is not excused.)1
A misconception that occurs when a person with complete knowledge of the facts reaches an erroneous
conclusion as to their legal effect; an incorrect opinion or inference, arising from a flawed evaluation of
the facts. Also an error that is not caused by the neglect of a legal duty on the part of the person committing the
error but rather consists of an unconscious ignorance of a past or present material event or circumstance or a belief
in the present existence of a material event that does not exist or a belief in the past existence of a material event
that did not exist.
Generally, a mistaken belief about a law is no defense to a violation of that law. All persons are presumed
to know and understand the law, except minors, persons who lack mental capacity to contract with others,
and, in criminal cases, persons who are insane. There are, however, a few other rare exceptions to this
general rule.
A mistake of law may be helpful to criminal defendants facing prosecution for a specific-intent crime. A
specific-intent crime requires that a defendant act with a criminal intent beyond the general intent required
to commit the act. Murder, for example, is a specific-intent crime. The prosecution must show that the
defendant specifically intended to kill the victim without justification. Manslaughter, conversely, requires
only a showing that the defendant intended to do those actions that caused the death. If a defendant is
charged with a specific-intent crime, the defendant's reasonable mistaken belief about the law may reduce
the defendant's criminal liability.
Mistake of fact can be a factor in reducing or eliminating civil liability or criminal culpability. A mistake
of fact is of little consequence unless it is born of unconscious ignorance or forgetfulness. A person cannot
escape civil or criminal liability for intentional mistakes.
In contract law a mistake of fact may be raised as a defence by a party seeking to avoid liability under the
contract. Also, a mistake of fact can be used affirmatively to cancel, rescind, or reform a contract. A mistake
of fact can affect a contract only if the mistaken fact was material, or important, to the agreement.
The above Latin maxim was given by Justice Muldoon in case of Rollinson.2 In Defence of Mistake, a
criminal defendant may wish to argue that he or she never intended to commit a crime and that the criminal
act that occurred was a result of a mistake of facts regarding the situations of the crime or a
misunderstanding about the law at the time of criminal act. Such mistakes of fact can be applied to a variety
of criminal activities, but mistakes of law are only rarely allowed as full defenses to criminal act. Defence
of Mistake includes mistake of fact and mistake of law but mistake of law is not given as defence. Mistakes
of fact3 arise when a criminal defendant misunderstood some fact that negates an element of the crime. For
instance, if an individual is charged with larceny4 but believed that the property he took was rightfully his,
this misunderstanding negates any intent to deprive another of the property. Mistake of Fact may prevent
the accused from forming Mens Rea One important fact, however, is that this mistake of fact5 must be
honest and reasonable i.e., bona fide in nature. Thus, a defendant cannot later claim that he or she was
mistaken when he or she actually knew the situation. Likewise, the mistake must be one that would appear
reasonable to a judge or jury. If the same individual was repeatedly told that the property was not his, and
he could not take it, it would no longer be reasonable for him to mistakenly have believed that he could

Rollinson v. Canada, 1991 FCJ 25; and also partly at (1991) 3 FC 70
R v Tolson (1889) 23 QBD 168
It is a crime involving the unlawful taking of the personal property of another person. Offence under the common law of
State of Orrisa v. Ram Bahadur Thapa, AIR 1960 Ori 161

rightfully take the property. On other hand Mistake of Law means unawareness or ignorant of any law
which is relevant to the subject as well as a mistake as to what the law is. Mistake of Law could be perfectly
seen in the case of M.H. George6 in which he was found guilty as his defence of mistake of law was not
given. The problem here arises could be such that if A is the person who is an officer of court of justice,
under the order by the court to arrest Y, after due inquiry, believing Z to be Y, A arrested Z, who has not
committed any offence. So under this A could take grounds of good faith (Section 52)7 or a Bona fide
intention but on other hand A wanted to defame Z so A arrested Z. A also know that he is bound by law
and also the act is justified by Law. So by this the bona fide intentional act is the matter where the problem

State of Maharashtra v. Mayer Hans George, 1965 AIR 722, 1965 SCR (1) 123
The Indian Penal Code, Bare Act, Universal Law(45 of 1860)

Chapter: 2 Mistake of Fact and Mistake of Law in I.P.C.

Section 768 clearly describes about the mistake of fact as a defence in Indian Penal Code as it says
Act done 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.
(a) 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.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry,
believing Z to be Y, arrests Z. A has committed no offence.
Also in Section 799 talks about the mistake of fact about the justified by law part
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 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.
Illustration: 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 person of apprehending murderers
in the fact, 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-defense.

A mistake of fact can affect a contract only if the mistaken fact was material, or important, to the agreement.
For example, assume that a bookseller has agreed to sell a copy of a Virginia Woolf novel that was signed
by the late author. Assume further that the buyer is only interested in buying the book because it contains
Woolf's signature. The seller knows this, and with an authentic signature the book fetches a very high price.
If it is later discovered that the signature was actually forged decades earlier and neither the seller nor the
buyer knew of the forgery, this would be a mistake of fact material to the deal, and the buyer would have
the right to return the book and get her money back. This example illustrates a mutual mistake, or a material
fact that is mistaken by both parties. In such a case, the party who is adversely affected by the mistake has
the right to cancel or rescind the contract.
Mistake of law may be helpful to criminal defendants facing prosecution for a specific-intent crime. A
specific-intent crime requires that a defendant act with a criminal intent beyond the general intent required
to commit the act.
In the event of a unilateral mistake, only one party to the agreement is mistaken about a material fact. In
such a case, the party adversely affected by the mistake will not be able to void the contract unless the other
party knew or should have known of the mistake, or unless the other party had a duty to disclose the
mistaken fact. For example10, assume that a person owns an expensive sports car that is in perfect condition.
Assume further that a neighbor asks the owner if he will sell the car, and the owner responds, "I will sell
this car for thirty bills." If the neighbor returns with $30, no contract is formed because the neighbor
mistakenly thought that the owner meant $30 when actually the owner was using slang for $30,000. Further,
the neighbor should have known that an expensive sports car would not be sold for $30.
If a party to a contract assumes the risk that a material fact may be different than expected, that party will
not be able to recover any losses when the fact turns out to be different. For example, assume that a farmer

The Indian Penal Code, Bare Act, Universal Law(45 of 1860)
The Indian Penal Code, Bare Act, Universal Law(45 of 1860)

sells a horse to a buyer who wants to use the horse for polo games. Neither the farmer nor the buyer knows
whether the horse will be suitable for polo, and the farmer makes no guarantees. If the horse proves
unsuitable, the buyer will not be able to rescind the deal because the farmer made no warranties as to the
horse's suitability for polo. To avoid such a result, parties to a contract may agree, as part of the deal, to
cancel or rescind the contract if a certain fact related to the contract later proves unacceptable to one of the
If a contract can be reformed, a court may not allow a party to rescind a contract on account of mistake of
fact. The court reforms a contract to reflect the true intent of the parties. For example11, assume that a
footwear retailer offers to buy 100 mukluks from a mukluk manufacturer for $10 a pair. Assume further
that the retailer mistakenly orders 100 mukluks for $100 a pair. If the mukluk manufacturer delivers 100
mukluks and later demands $100 for each pair, the retailer can ask a court to reform the contract to reflect
a price of $10 a pair. This action generally occurs when the mistake makes the agreement Unconscionable.
If, for example, the retailer had offered to pay $101 a pair and the retailer later discovered that the standard
price was $100, the retailer would likely be stuck with the contract.
A mistake involving the use of force in the defense of property can give rise to civil liability. Generally, if
a person has a privilege to enter onto property, a landowner or tenant has no right to use force to keep the
intruder off the property. If, however, the intruder causes a reasonable, mistaken belief that the property
must be defended, a landowner or tenant may have the right to use force to repel the intruder. For example,
if an electricity meter reader arrives to read a meter at night wearing dark clothing and a ski mask, a resident
on the property may not be liable for a reasonable use of force necessary to expel the intruder. The meter
reader can be considered to have caused the mistaken belief on the part of the resident that the property was
being invaded by someone with no privilege to enter.
If a mistake of fact in a criminal case does not negate mens rea, it may reduce it. For example12, if a person
honestly and reasonably, but mistakenly, believes that Deadly Force is necessary to preserve her own life,
she may not be found guilty of murder if a death results from the deadly force. The mistake reduced the
mens rea necessary to be convicted of murder. That is, the person did not have the Specific Intent to kill
without justification or excuse. She may be found guilty of Manslaughter, a Homicide less serious than
murder, if her actions were unreasonable. She may even be found not guilty of any homicide if the judge
or jury finds that she was not reckless or negligent in the killing. This is a Question of Fact to be determined
by the judge or jury sitting on the case.


Chapter: 3 Judicial Development

Judicial development of the defences could be seen over time to time. Essentially these defences have been
recognized in various jurisdictions in the United States, although they have been modified over the years.
The Fifth Amendment to the US Constitution and corresponding provisions of the state constitution furnish
defendants to additional defences; immunity and double jeopardy. Legislature initiated the concept of
statute of limitation on the prosecution of most of the crimes. Though Judicial development13 entrapment
has become a recognized defence where improper governmental conduct has induced an otherwise innocent
person to commit a crime. In rare instances, defendant have successfully asserted the defence of selective
prosecution- i.e. being singled out of prosecution. The U.S. generally allows the defendant to put forth a
mistake of fact defense either under common law or through a statute, depending on the jurisdiction.
For specific intent offenses, a defendant can avoid criminal liability if his mistake of fact negates the
specific intent element of the crime, specifically if he lacks the intent designated by statute. The burden of
proof is on the defense to submit sufficient evidence to show that the mistake of fact negated the requisite
mens rea of the offense. For general intent crimes, which require only the intent to act in a certain way
regardless of criminal intent, the general rule is that a mistake of fact must be reasonable to excuse criminal
liability. Under the legal-wrong doctrine, however, the mistake of fact defense will not work if the
defendants conduct would still be illegal even if the facts were as the defendant thought them to be. Similar,
but less widely accepted, is the moral-wrong doctrine, which disallows a mistake of fact defense if the
defendants conduct was morally wrong even if the facts were as the defendant thought them to be.
Strict liability crimes, such as bans on toxic dumping or the sale of alcohol to minors, lack a mens rea
element. Thus, a mistake of fact defense cannot be asserted to avoid criminal liability for violation of a
strict liability crime.
The Model Penal Code 2.04(1) provides that a mistake is a defense if it negates the mental state required
to establish any element of the offense. However, the mistake of fact defense is not available to a defendant
who is still guilty of another offense had the circumstances been as he supposed.

Police Detention based on mistake of fact in U.S.14

Courts have traditionally held that detentions based on reasonable mistake of fact are valid. Mistake of
fact describes a situation where an officer sees you do something that appears to break the law, but doesnt.
The officer knows the relevant law, and perceives that youve violated it. If the officers mistaken
perception is reasonable, a court will probably consider the detention lawful.
An example of mistake of fact is an officer pulling over someone driving in the carpool lane who appears
to have no passengers. The officer stops the car because of the apparent violation. But, upon approaching
the car, he sees that two children are slumped over in the back seat, sleeping. The driver hasnt violated the
carpool law, meaning that any ticket the officer were to issue on that basis would be invalid. But the stop
itself is valid because the officer reasonably perceived that the driver had no passengers.

In India there is defence of mistake of fact under section 76 and 79 of Indian Penal Code
There are ingredients of mistake of facts that must be taken care are-

1. Mistake of fact and not by reason of a mistake of law:

This phrase in the Section means that a mistake of fact is excusable, but a mistake of law is not excusable.
It is the duty of every citizen of the land to know the law of the land, and to behave accordingly. If a person
says, I do not know the law and due to not knowing the law, I did the offence. It is not excusable.


However, if a person did a wrongful act by a mistake of fact with a good faith and honest belief that he was
bound to do, he may be excused. It is presumed that everyone knows the law of the land.
Hale writes:
Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, does
not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it;
because every person of the age of discretion-and compos mentis is bound to know the law and presumed
so to do.
2. Good faith:
The words good faith means the act done with due care and attention. They also include the genuine
belief of the person. The burden of proof lies upon the person who wants to take the shelter of good faith.
3. In good faith believes him to be bound by law:
This phrase means that the accused should be in good faith and he must be under confidence that he was
bound by law to do that act.
This Section is mainly intended to safeguard the subordinates, who are compelled to follow the superiors
orders, illustrations (a) and (b) appended to Section 76 also reveal the same. This Section does not give
protection to those people who act against the law, i.e., mistake of law.

Chapter: 4 Conclusion

Defence of Mistake is given on certain grounds and that also only in Mistake of Fact not in Mistake of Law
So, one cant be free to use the Defence of Mistake of Fact as it is not that thing that could be used anywhere
there must be a justified reason to believe about the situation Defence of Mistake of Fact could be better to
save also when there is justified reason. There are also various Judicial development done also to make
through the defence of mistake not only in India as well as U.S. Defence of Mistake is only given in Mistake
of fact not in Mistake of law. Mistake of law is not under defence of mistake given under Indian Penal Code
but mistake of law is given on certain grounds in U.S. so we can say there is bifurcations between the
defences from country to countries. So there must be proper justification to determine the defence of
mistake of mistake of fact.

Chapter: 6 Bibliography

1. Textbook on Indian Penal Code, K.D. Gaur, 5th Edition
2. General Principles of Criminal Law, K.N. Chandrasekharan Pillai, 2nd Edition
3. Indian Penal Code, Ratanlal and Dhirajlal, 2nd Edition
4. The Indian Penal Code, Justice M.L. Singhal and Sabiha, Premier Publishing Co.

1. Article on Criminal Defences of Mistakes of Fact and Mistakes of Law by Justia

1. Notes on Defence of Mistake of fact by Hanumant Deshmukh