“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