A plain reading of sections 76[1] and 79[2] in the Indian Penal Code, 1860, with special attention to the words 'who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes' appearing therein, shows us that the protection of the sections applies only to mistake of fact and not to mistake of law.

For example, if a man is caught by a ticket conductor for travelling on a train without a ticket. He cannot claim that he was not aware that a ticket is required while travelling on the train and shall be punished under Section 138 of The Indian Railways Act, 1989. Before studying Section 76 and 79 of the Code[3], we have to study the concept of mistake as a general defense.

There are two types of defenses based on mistake:

1. Mistake of law and
2. Mistake of fact.

Chapter IV of the IPC, entitled 'General Exceptions,' which includes sections 76 to 106[4], exempts certain individuals from criminal liability. An accused's act or omission, even if prima facie falls within the terms of a section defining an offense or prescribing punishment for it, is not an offense if it is covered by any of the exceptions listed in chapter IV. These provisions can be used as general defences. General defences are the excuses that help a person to escape his liability if his action qualified under the given provision of defences. If the defendant fails to prove why he has to do that act, he cannot escape from his liability.

A person can take the defence only when he acts in good faith and with good intention and believes that his act is justified by law. According to Black's law dictionary, the word "justified" means "the act done on adequate reason sufficiently supported by credible evidence, when weighed by the unprejudiced mind, guided by common sense and by correct rule of law".

One of the essential ingredients that an offender requires to get Sections 76 and 79 defence is that his conduct must be taken in 'good faith'. The term 'good faith' has been defined in section 52 IPC as "Nothing is said to be done or believed without due care and attention".

Mistake Of Fact
A mistake of fact is a type of legal criminal defense that can sometimes demonstrate that the defendant lacked a certain mindset required to be part of the crime. This means that if someone commits a crime without realizing it-for example, taking another person's bag because it looks similar to their own-then that person did not intend to commit theft.

Section 76: 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.

Mistake of fact is different from mistake of law, which refers to a person committing a crime without understanding that they were in violation of the law. All people are expected to be aware of the laws in their community, and not being aware of the law is almost never a solid criminal defense. Mistake of law only applies if the law being broken was not published at the time the crime was committed, if the defendant was relying on a previous law or statute that had been recently overturned or changed, or if the defendant was relying on another official interpretation of the law. In most other circumstances, people are expected to be aware of the laws in their country or state.

Mistakes of fact must, in general, be reasonable mistakes. They must always be proven unintentional and can allow a person to escape liability in some circumstances. Even still, mistake of fact is rarely allowed as a full criminal defense. Because a mistake of fact is a material error concerning the circumstances around a crime and not errors about the legality of an action, an important distinction must be made.

Ignorance or mistake of fact is very often an excuse for what would otherwise be a crime. Mistake of fact takes place when one of the party or both the parties misunderstand each other leaving them at a crossroads. It arises when accused misunderstood some fact that negates an element of crime. Such a mistake can be because of an error in understanding, or ignorance or omission etc. But a mistake is never intentional, it is an innocent overlooking. A mistake of fact is only a defence if it negates a material element of the crime and where offence is so defined that proof of intention or foresight is unnecessary.

Essentials of Mistake of Fact:

• It must be honest, done in good faith;
• It must be reasonable;
• It is not mere forgetfulness;
• It is not made by design but by mischance; and
• It must not be the mistake of law.

The maxims "Ignorantia facti doth excusat" and "ignorantia juris non excusat" mean ignorance of fact is an excuse, but ignorance of the law is no excuse. Thus the mistake of fact can be used as a defence during the trial. In many situations, 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 circumstances of the crime or a misunderstanding concerning the law at the time. 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 conduct.

Illustration 1: Jacklyn went for dinner with her friend in a restaurant. She and her friends enjoyed dinner and made a lot of fun. She had to leave early, she hurriedly lifted a Samsung Mobile on the table and left the venue. When she reached home, she noticed that her own Samsung mobile was in her bag and in a hurry, she had lifted someone else's mobile thinking it to be of her. She had mistaken because both mobiles were of the same brand and same model with the same colour. She had no intention to steal the mobile. Here Jacklyn made a reasonable mistake of fact. Hence Jacklyn is not guilty of the offence of theft.

Illustration 2: Jacklyn went for dinner with her friend in a restaurant. She and her friends enjoyed dinner and made a lot of fun. She had to leave early, she hurriedly lifted the Samsung Mobile on the table and left the venue. When she reached home, she noticed that her own Motorola mobile was in her bag and in a hurry, she had lifted someone else's Samsung mobile thinking it to be of her. Actually, the two models were totally different from each other. She had no intention to steal the mobile. Here Jacklyn made a reasonable mistake of fact. Hence Jacklyn is not guilty of the offence of theft. She can defend herself that she had no intention to permanently deprive the owner of the property, which is the main ingredient of theft.

Illustration 3: In India hunting of a Wild Buffalo is an offence as per section 9 of the Wildlife Protection Act 1972. If a person, who is ignorant of section 9 of the Wildlife Protection Act, shoots a wild Buffalo thinking that it is a domestic buffalo he is said to be acting in ignorance of the law as well as of a fact.

State Of Orissa Vs Ram Bahadur Thapa[5]

Facts:

• The state of Orissa made an appeal against the order passed by the sessions judge of Mayurbhanj for acquitting the respondent in a case for murder under section 302, 324, and 326 of IPC.
• In Rasgovindpur village, there is an abandoned aerodrome where a large quantity of aero scrap was collected. The Garrison engineer of the defence department kept the aero scrap in charge of two chaukidars. From the firm of Chatterjee brothers, Jagat Bandhu Chatterjee came to the village to purchase the aero scrap with his Nepali servant, Ram Bahadur Thapa (respondent). There was a fear of ghosts in the village, and the Adivasis would not ordinarily venture out at night.
• Jagat Bandhu Chatterjee and Ram Bahadur Thapa were eager to see the ghosts, so they convinced Krishna Chandra Patro and Chandra Majhi to accompany them. Chandra Majhi guided them to his village, and at about midnight, they went to see the ghosts and then began returning to the village through a footpath across the aerodrome.
• While returning, they noticed a flickering light at a distance and also saw some apparitions moving around the flickering light. Ram Bahadur Thapa was the first to reach the place and, without hesitation, attacked the apparitions with his khurki. When he hit Krishna Chandra Patro, the latter shouted that the respondent had attacked him. The victims cried out for help, and the respondent stopped attacking.
• The persons whom the respondent attacked were female Majhis of the locality who were collecting mohua flowers under a tree using a hurricane lantern. One girl, Gelhi Majhiani, was killed, and two other women were grievously injured. Ram Bahadur Thapa was charged with murder under section 302 and with hurt and grievous hurt under sections 324 and 326 of IPC.

Issues:

• Whether the order passed by the secession court is correct?
• Can the respondent be protected under section 79 of IPC?

Contentions of Parties:

Appellant:

• The appellant's counsel argued that under section 52 of IPC: Nothing is said to be done or believed in good faith which is done or believed without due care and attention. Given the facts and circumstances of this case, the respondent cannot be said to have acted in good faith. To prove an act was done in good faith under section 52 of IPC, it must have been performed with due care and attention.
• If the respondent had acted with due care and attention, the life of the woman could have been saved, and she would still be alive. By not exercising due care, the respondent can be held guilty under section 304A of IPC for causing the death of Gelhi Majhiani and under section 336 of IPC for causing hurt to the other individuals.

Respondent:
The counsel for the respondent, Ram Bahadur Thapa contented that the respondent had either the necessary criminal intention or knowledge for his act and when he attacked the victims, he believed that he was attacking ghosts and not human beings. The benefit of section 79 of IPC is provided to a person who by reason of mistake of fact in good faith and believes himself to be justified by law in doing an act. With the circumstance in this case, it is clear that the respondent believes himself that he was attacking ghosts and hence he would be entitled to get protection from section 79 of IPC.

Judgement:
It was held by the hon'ble high court that the respondent was protected under section 79 of IPC, because it would be fairly inferred that the respondent believed himself and acted in good faith while attacking the females that he was attacking the ghosts.

The court further held that the mere fact that the if the respondent had acted with extra care and attention the incident might have been averted is not a valid ground for denying him from the protection of the section 79 of IPC. The hon'ble high court held the judgment of the learned sessions judge was right and the order of acquittal was confirmed and the appeal was dismissed.

Conclusion:
The defence of mistake of facts used in the cases may vary to certain extent depending on the facts of that case. The duty of the law is to ensure that the defence of mistake of facts is not misused or justice is not denied to the victims. This can be done by ensuring certain standards or principles which can apply to all cases universally.

The court is in a place where it has to observe that the accused did act in good faith which is defined under section 52 of IPC and also ascertain the fact that he did not had any injurious intention while he was attacking the person, in addition to it the accused must also acted with due care and attention. Understanding the term good faith is not only used to determine the mental state of the accused but also for the reasonableness of the offence and it has to be a relevant consideration in allowing the defence.

Chirangi V. State Of M.P.[7]

Facts:

• Chirangi Lohar visited a hillock together with his son. When he returned home and slept, his nephew found that the son was not with him and he had an axe which was stained with blood.
• On being enquired, he said that he became insane and that he killed his son under the fallacy that a tiger was approaching him.
• His statement of being insane was proven by his psychiatrist.
• Moreover, both father and son had a very good relationship, which further proves that Chirangi had no reason to kill his own son.

Issue:

• Whether Chirangi Lohar will get the defence of mistake of fact?

Obiter dicta:

A mistake of fact arises when an individual does any act but misunderstands some incontrovertible fact that negates a component of the crime. A mistake of fact as a defence applies to various crimes. If the criminal defendant can prove that he committed the act thinking it to be an error of fact or misunderstood some incontrovertible fact that negates a component of the crime. Judgement: The defence of mistake of fact was applied, and therefore the accused, Chirangi Lohar, wasn't held responsible for the offence of killing his own son, as he believed that a tiger was approaching him.

Dukhi Singh V. The State[8]

Facts of the Case:

• The case involves an appeal by Dukhi Singh, who was convicted under Section 302, I.P.C. and sentenced to death by the Temporary Civil and Sessions Judge of Allahabad.
• The incident occurred on the night of July 28th and 29th, 1953, when a mixed train stopped at Handia Khas railway station.
• Dukhi Singh, along with other Railway Protection Police personnel, arrested a person suspected of theft near a goods wagon.
• The arrested person managed to escape from the moving train, leading to a pursuit by Dukhi Singh.
• During the pursuit, Dukhi Singh fired his rifle, hitting a fireman named Ram Manohar, who later died from his injuries.

Issue of the Case:

• Whether Dukhi Singh can get the defense of mistake of fact?

Judgment:

• The court found Dukhi Singh guilty of the offense under Section 302, I.P.C. (murder) for shooting and killing the fireman.
• The court rejected the argument that Dukhi Singh's actions were justified, as the person he was pursuing was suspected of theft but not accused of a capital offense.
• Dukhi Singh's claim that he had been given orders to shoot by a superior officer was also not accepted as a valid defense.
• The court concluded that Dukhi Singh had unlawfully caused the death of the fireman during the pursuit of the escaped person and upheld his conviction and death sentence.

End Notes:

1. Indian Penal Code, 1860, §76.
2. Indian Penal Code, 1860, §79.
3. Id.
4. Indian Penal Code, 1860, §106.
5. State Of Orissa vs Ram Bahadur Thapa, AIR 1960 ORISSA 161.
6. Indian Penal Code, 1860, §52.
7. Chirangi v. State of M.P, 1952 CRILJ1212.
8. Dukhi Singh v. The State, AIR 1955 ALL 379.
9. Indian Penal Code, 1860, §302.