General Criminal Defences: Mistake of Fact, Accident and Necessity- Part II

General Criminal Defences: Mistake of Fact, Accident and Necessity- Part II

“Ignorantia facti doth excusat; ignorantia juris non excusat”

The Indian Penal Code provides some general defences under chapter four that exonerate criminal liability which based on the premise that though the person committed the offence, he cannot be held liable. This is because at the time of commission of offence, person was justified of his/her acts, or there was absence of mens rea. However, it is not all acts that are to be punished. There are certain defences provided under the ambit of Indian Penal Code (IPC), 1860 from Sections 76 to 106. Some exceptions such as mistake of fact, accident and necessity are available when person was mistaken to existence of some facts and act done without criminal intention. However, as per Section 105 of Indian Evidence Act, 1872, the burden of proof regarding existence of a situation of general defences lies on the accused.

Mistake of Fact:

Mistake of fact arises when accused misunderstood some fact that negates an element of crime. This legal weapon can be used, where accused succeeds to prove that he/she was mistaken to the existence of some facts or ignorant of the existence of such facts. It is a condition that such mistake must pertain to fact not law. Section 76 and 79 of IPC contains the provision of mistake of fact. Such mistake must be reasonable and must be of fact and not of law. The legal maxim, “ignorantia facti excusati ignorantia juris non excusat” which means ignorance of fact is an excuse, but ignorance of law is no excuse. So it is a basic requirement to be get protected under the sphere of this defence that mistake must be of fact.

Section 76: 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.

Section 79: 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.

Thus it is cleared that an act will not be an offence, if it is committed in a bonafide manner by a person who by mistake of fact believes himself to be bound by law or who bound by law. Such belief must be a mistake of fact not law and that should be exercised in good faith.

In Chirangi v. State (1952) Cri LJ 1212, the accused in a moment of delusion believed his son to be an animal, he assailed him with an axe. It was held that he was justified as he mistook a human being to be a dangerous animal and was not held liable for his mistake.

Mistake of fact will not be a valid defence if the act is committed is illegal itself.

In R v. Princes (1875) LR 2 CCR 154, in this case, the accused was charged of unlawfully taking an unmarried girl of 16 years against the will of her father, it was found that the accused had bona fide and reasonable belief that the girl was older than 16 years. It was held that the defence was not valid on the ground that act of abduction is a wrongful and immoral act.

A person’s act which constitutes an offence comes under the ambit of this defence only when he acts in good faith and with good intention and believes that his act is justified by law.

In Keso Sahu v. Saligram Shah (1977) Cri LJ 1725, in this case, the court held that the accused showed that he in good faith and believing that the offence of smuggling rice was going on in the plaintiff’s house and thus he brings the cart and cartman to the police station. The said suspicion was proved to be wrong. The accused can take the defence of mistake of fact as he is doing the act in good faith and believing it to be justified by law.

In Dhaki Singh v. State AIR 1955 All 379, the accused shot an innocent person mistaking him to be thief, although he believes that he is bound to nab the thief. According to the officer’s finding, he was not in the position to apprehend him, fired at him. Here, he cannot take the defence of mistake of fact as the act done by him was not justified.


With this defence a person can escape criminal liability where such act of person occurs as a result of accident. Such act must be devoid of intention. Law does not intend to punish a man of the things over which he could possibly have no control. Section 80 of IPC talks about accident as a general defence.

Section 80: Accident in doing a lawful act.__ Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

An accident must be unintentional and unexpected. It implies to happening which cannot be predicted by prudent man. According to Section 80, any act done without criminal intent or with knowledge with proper care and precaution while doing a lawful act in a lawful manner with lawful means, will constitute as an accident. However, if there is no connection between the harm and the act, then there may be no liability for the harm caused.

In State of Orissa v. Khora Ghasi (1978) Cri LJ 1305, in this case, the accused killed the victim by shooting an arrow with the bona fide belief that he was shooting a bear that entered into the fields to destroy his crops, the death was said to be accident.

If the accident occurs while doing an unlawful act, the act would not attract the provision of Section 80 of IPC. In Jogeshwar V. Emperor (24 Cri LJ 789), the accused was giving the fist blow to the victim but accidently hit his wife who was holding her 2 month old child, the blow hit the head of the child which resulted in his death. It was held that even though the child was hit by accident, the act was not lawful, not done by lawful means or in a lawful manner.


Defence of necessity applied, when a person in order to prevent a greater harm from taking place, commits a crime or a criminal act during an emergency situation, wherein accused can escape criminal liability because his/her act was justified as he/she had the intention to prevent a situation which would cause a greater harm as compared to the criminal act committed by him or her.

Section 81: Act likely to cause harm, but done without criminal intent, and to prevent other harm.__Nothing is an offence merely by reason of its being done with the knowledge that is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

An act of accused in order to prevent greater harm without any criminal intention falls under the ambit of necessity. Such act must be done in good faith in order to prevent the happening of great harm. The question of motive is of no importance, where positive evidence does exist in the favor of accused.

In Gopal Naidu v. Emperor (1923) ILR 46 Bom 605, the police officials were guilty of the offence of wrongful confinement for disarming and restraining a drunken man carrying a revolver in his hand. Though the offence of public nuisance was a non- cognizable offence without a warrant, it was held that they can plead justification under this defence. In this case the Madras High Court held that the person or property to be protected may be person or property of the accused himself or of others. The word harm in this section means ‘physical injury.’

In R v. Dudley and Stephens (1884) 14 QBD 273 DC, in this case three adults and one minor were cast adrift in a ship following a shipwreck without food and water. Their food ran out 7 days before the storm and they had no water for 5 days. Dudley suggested to sacrifice the minor boy as he was too weak to which Brook refused. On the 20th day Dudley and Stephens without the consent of Brooks killed the boy as he was close to death and had no family. All three fed on the boy and were rescued four days later. In this case defence of necessity was not held valid and they were convicted for murder.


The general defences enshrined under IPC are of paramount importance in establishing the parameters of criminal offences. Criminal liability makes a person liable for the acts which are prohibited by law. Indian Penal Code took cognizance of fact that all acts are not to be punished. The acts devoid of mens rea are exempted from criminal liability.

-Kiranpreet Kaur

Associate at Aggarwals & Associates S.A.S. Nagar, Mohali

Corporate Criminal Liability

Corporate Criminal Liability

“Corporate crime is the conduct of a corporation or of its employees acting on behalf of the corporation, which is prescribed and punished by law.”- J. Braithwaite

Corporations have a separate legal entity and they are treated as a separate personality in law. And therefore, separate liability can be imposed on corporations from any criminal liability which may be imposed on the individual members for any wrongdoing. The legal maxim upon which the basic rule of criminal liability stands is ‘actus non facit reum nisi mens sit rea means’ which basically means that act is not wrongful unless it is done with a wrongful state of mind. The companies are criminally liable only for the offences that happens during the course of business operation and for which the company bears responsibility. A company can be involved in offences such as failure to ensure safety mechanism and any other offence of omission. An intention does not play a role in deciding cases against corporation therefore, it can be held liable for an offence which does not involve any intention.

Doctrines established in Corporate Criminal Liability:

Doctrine of Vicarious liability:

In Vicarious liability, the accused is blamed for the offence of another. This doctrine is based on the principle of Respondeat Superior which means let the master answer. This doctrine is applicable in criminal as well wherein corporate may be held liable and punishment can be fine and seizure of property. Similarly, in the case of Ranger vs. The great western railway company [1859] 4 De G & J 74, it was held that the company is held vicariously liable for the acts committed by its employee if it is done in the course of its employment. For vicarious liability, the act and intent of the employee must be imputed to the company and the employee should act within the course of employment.

 Doctrine of Identification:

It requires that corporations should take responsibility for the persons having decision making authority for the policy of the corporation rather than the persons implementing such policies. The doctrine focuses on the fact that the intention and action of the company are the results of the employees of the company. The underlying principle of this doctrine is the detection of the guilty mind.

Doctrine of Collective Blindness:

Under the doctrine of Collective Blindness, courts have held that corporations will be held liable even if single individual was not at fault and considered sum total knowledge of all employees in order to make a corporation liable.

Doctrine of Willful Blindness:

Under such doctrine if any illegal or criminal act is committed and the corporate agent does not take action or measures to prevent happening of such activities then doctrine of willful blindness is applicable.

Doctrine of Attribution:

Under the doctrine of Attribution, as in case of sentencing or imprisonment in event of act or omission leading to violation of criminal law, the mens rea i.e. the guilty mind is attributed towards the directing mind and will of the corporations. This doctrine is being used in India however this doctrine was developed in United Kingdom.

Doctrine of Alter Ego:

Under this doctrine of Alter Ego, it is described as someone’s personality which is not seen by others. The owners and persons who manage the company are considered as the Alter Ego of the company. The directors and other persons who manage the affairs of the company can be held liable for the acts committed by or on the behalf of the company under this doctrine since the corporation has no mind, body or soul so the people are the directing mind and will.

Legal Position in India:

There are offences in the Indian Penal Code which describe the offences of serious nature where under a corporate body also may be found guilty, and the punishment prescribed is a mandatory custodial sentence. In the case of Standard Chartered Bank vs. Directorate of Enforcement, AIR 2005 SC 2622, it was held that the company is liable to be prosecuted and punished for criminal offences. The Supreme Court rejected the notion that the company could avoid criminal prosecution in cases where a custodial sentence is mandatory. As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine are prescribed as punishment the court can impose the punishment of fine which could be enforces against the company. In Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd, [2012 5 (SCC 661)], in this case, the dispute was related to deciding the liability of corporate in dishonor of cheque. The Supreme Court discussed the extent of vicarious liability in case of corporate. The company being a juristic person is liable for the acts of others. In the other case of Iridium India Telecom Ltd vs. Motorola Inc.,[(2011) 1 SCC 74], the Supreme Court held that in all jurisdictions across the world which are governed by the rule of law companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are not capable of possessing mens rea.


It is a well settled law principle in criminal law jurisprudence regarding criminal liability on the corporations. A corporation may commit a crime and held liable for criminal offence. However, the statutes in India are not in pace with these developments and they don’t make corporations criminally liable. Even if they do so the statutes and judicial interpretations impose no other punishment except fine. Even the Supreme Court said that there is a need for separate law making provision for infliction of criminal liability on the corporations.

-Kiranpreet Kaur

Associate at Aggarwals & Associates S.A.S. Nagar, Mohali