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In India Penal Code, 1860, the liability of the offence may be reduced or omitted wholly, under certain provisions of the code itself.

Section 6 of the code explicitly mentions all the sections of the code are subject to the general defences provided from Section 76 to 106 of the code. and Section 76 talks mentioned, offence committed due to the mistake of the fact is per se, not the offence, and no liability will be made. It is to note here that, Mistake of fact is not an offence but there is no exception from the mistake of Law.

Section 76

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.


(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.

Essentials of Section 76 of IPC.

1) What is fact?

Fact is mentioned under Section 3 of the Indian Evidence Act,1972. It means and includes anything, State of things, Relation of the Things, capable of being things perceived by the senses (through the Senses), and same can be explained and understood. Mental conditions of which the person is conscious will also come under the header of the Fact.

It may happen, the perception of the person about the fact may differ as, it may be the abstract thing, which may differ from person to person. and this the where the mistake of fact is considered to begin.

Illustration, There are certain objects arranged in a certain order in a certain place, which is a fact. but the same may be visible to person A, who is on the other end, and the same may be visible to person B in a different manner. and A’s percepts and B’s person, both of them are facts for the situation.

The man hearing/ opinion/ time concessions of the sensation/ man have a certain reputation, which means fact is always about the tangible/ and non-tangible stuff. Hallucination is also a fact, existed in the particular nature in the particular sense.

2) What is Mistake?

Misconception, knowledge and conclusion are perceived to be false, as it is called the misconception of the fact. When 1st conception is wrong/ premise is wrong, then the result has to be different.

Ignorance of fact, cannot be established, which at the same time has to be facts under the definition, which means, ignorance of fact may result in the mistake, but it has to be in sync with the fact. Mere forgetfulness is never a mistake, not of rashness, and negligence.

Mistake of Slip by chance,

MistakeFacts existed + perception is different (percept in the actual circumstances is different)

Emperor v Ram, a person facilitate the intention of the husband, and a person cannot plea the existence of the conjugal right. Ultimately, the errorless should be fitted as to the facts. And should be concurrent with the Fact.

Jaswant laa Manik Lal Akande v State, there was A bank, and B Bank, A give certain security to, and in the same transaction A sold of the same security. And later he pleaded, that the manager has done in the good faith on the goodwill of the bank, under the contractual obligation. Held that, such act was not in contractual obligation, and has to be liable for the same. Herein, he was not ignorant of the present fact. Knowingly he sold the securities. The Court will determine the guilt on the basis of the believed fact and not the real facts.

Mistake, State of the things believed, must relate to facts and not the Law. If the believed fact would be true, then fact must have to e established. And at the same time, mistakes must be reasonable and reference the facts believed.

State of Orissa v Bhawan 2004, in the village Bhagavat Katha was going on, and A is the accused and B is deceased, and they both have the field, and cattle used to gaze. They were having strange relation. And A was happen to be there and move to the place wherein the recital of Bhagwat was happening. A killed a person B, not directly, but indirectly evidence proving the same. held, there was a complete absence of good faith. Held that, a person gave the lathi blow, and force was such nature that anyone would have killed, and even if he was believing him to be thief, and in the same situation his self-defence was more than required.

Mistakes of the fact can also result in the death of the person. R v Rose believed that his father is going to kill his mother and that today he fired the gunshot, and he believed was genuine.

State of Andhra Pradesh v N. Venugopal, some artefacts were stolen, as police arrested 3 people, and two person’s testimony was neglected and the High Court and desecration were not allowed to commit the theft. And 348, IPC, extort confession to confinement. SC said that the conduct of the Policeman was extrajudicial. This judgment was a Mistake of law.  As the police officer believed that they were bound to do that thing and excising the power, but the element of Good Faith. Police officers have adjudicated their desecration and the same was the mistake of law, under IPC and CrPC.

3) Good Faith

Establishing the test of reasonability to the conduct of the person in good faith. Reference has to be made with Section 52 which defines good faith as a thing which shall be deemed to be done with honesty, instead, negligence has to be seen. Whereas, due care and attention, which is subject to the facts of the case given. Additionally, due care denotes the degree of Reasonability of the prudent case. The enquiry is to be made by the man to know the desire to know the truth, although depends on the facts and circumstances.

State of Orissa v Ram Bahudur Thapa,1960. Relation- Mistake of Facts, Courts interpretation of the Reasonable Man test. The man believed to be a ghost kills another, and Thapa was the servant to the official, in the case official and servant went to the forest and put a tent in the forest. As tribal people, move out for food at the night, and the person who was roaming with the lateen, and killed the man. Courts held good faith requires attention, but there is no general one. The capacity and intelligence of the person are very important, additionally, the Court accept the argument under the same section.        

Harbhajan Singh v State of Punjab, AIR 1966, In this case, some journalist commented on the CM office that, the son of CM was running the offence. And the case of defamation made against the journalist, and the journalist made that there was the element of good faith, as the information was presented to the public domain. 

Chaman Lal Case, Due care and attention was not observed and therefore showed defamation from the side of the accused. Accused was the leader of the municipal community.

Raj Kapoor v Laxman, attire was questioned, that Raj Kapoor in his film Satya Shivam sunder, as held that that since the certificate justify the village sense. Bonafede believes in a public execution.

Sushil Ansal v State, there was the fire in the cinema hall and the contention that since the certificate was given on the account that the cinema can run, and SC held that it was not justified on the account of the good faith. And therefore, capable of liability.

This article is written by Adish Jain, a 3rd-year law student at Symbiosis Law School, Noida.



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