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General exceptions under ipc part -1 Mistake

Every rational man is presumed to intend the consequences of his act , this is the general rule. so if a man stabs another in the chest, it can be inferred that he intended to kill him. However , there certain sections under IPC from section 76-106 that will exempt a person for commission of an act which would otherwise be an offence under IPC. First is Mistake

Mistake is a slip made , not by design but by mischance. Even under English common law , an honest and reasonable belief in existence of circumstances which would have made it an innocent act is accepted as a valid defence. Russel on crime :- "When a person is ignorant of existence of relevant state of facts or mistaken as to them , his conduct may produce harmful result which he neither intended nor foresaw. Mistake is admitted as a defence provided :- 1) The state of things which he believed to exist would if true would have justified the act done

2)Mistake must be reasonable 3) it should be of fact not law. (ignoratia juris non excusat)

Ignorance includes mistake , but mistake does not generally include ignorance . Ignorance means lack of knowledge , a general inertia of human mind. Mistake of fact does not include , foolhardiness , lack of mental alertness or mere forgetfulness . Mistake of fact implies a mistake as to true identity or mistake in sensory perception of the circumstances , including their temporary distortion due to imagination or hallucination . It is an erroneous mental condition or conviction induced by ignorance , misapprehension or misunderstanding of the truth and resulting in some act/ omission done or suffered erroneously by one or both of the parties to a transaction but without its erroneous character being intended or known at the time. It must be recalled , that mistake of law would not be a defence. Mistake of law means mistake as to existence or otherwise of any law on particular subject as well as mistake as to what law is. Ignorance of law is not excused because if it is admitted as a ground of exception , the administration of justice will become impracticable .

R V. Prince (1683) 2 CHC 154 - laid down some rules to determine the question of justification of offence either due to mistake of fact or law :

1) when act by itself is plainly criminal , but is more severely punishable if certain circumstances exist , then ignorance of those circumstances is no answer to a charge for the aggravated offence. 2) If , however , an act is prima facie innocent , but is an offence if certain circumstances exist , then ignorance of those circumstances is a good defence to the charge. 3)If the act itself is wrong , and becomes criminal under certain circumstances , the person who commits such wrongful act cannot argue he was ignorance of facts which turned wrong into crime.

4)The state of the defendants mind must amount to absolute ignorance of the existence of the circumstances which alter the character of the act , or to belief in its non existence. Mistake of fact is no defence if fact itself is illegal. One cannot sell adulterated medicine and then plea ignorance of fact . Thus , a person cannot by mistake of fact , shoot X and plead in defence that he did not intend to kill X but intended to kill Y. Similarly , taking an unmarried girl under the age of 16 years out of the custody and against the will of her father was held not to be a good defence because accused intended to do a wrongful and immoral act.

However , where A sees a young girl about to jump into river , believing in good faith that girl in question is about to commit suicide , grapples her and drags her away is not guilty of offence of molestation. Rule of respondeat Superior (act done pursuant to the order of superior) has no application if orders are illegal , if a senior officer orders a junior officer to commit an illegal act , it would be no defence to say that act was done pursuant to order of senior. To take an illustration if a Superintendent of Police orders Inspectors to fire at a peaceful mob , resulting in death of innocent persons . It would be no defence for the inspectors to say that they acted pursuant to the orders of Superintended of Police and will be held guilty of culpable homicide. If commands are patently illegal , then no junior officer is bound to obey it. Per contra, if a situation is such that an unruly mob or a violent mob is there then a senior police officer orders his subordinate to fire , that will not amount to an offence and will be covered under section 76 . To substantiate this State Of West Bengal vs Shew Mangal Singh & Ors on 25 August, 1981 can be looked into , it held :-

"Section 76 of the Penal Code provides that 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. The illustration to that section says that if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law, he commits no offence. The question as to whether the accused believed in good faith on account of a mistake of fact that he was bound by law to do the act which is alleged to constitute an offence, would arise only if, to the extent relevant in this case, the order or command of the superior officer is not justified or is otherwise unlawful. Since the situation prevailing at the scene of the offence was such as to justify the order given by the Deputy Commissioner of Police to open fire, the respondents can seek the protection of that order and plead in defence that they acted in obedience to that order and therefore they cannot be held guilty of the offence of which they are charged. That is the purport of the illustration to section." In the 8th Edition of Cross and Jones " Introduction to Criminal Law" the learned authors at page 371 make the following comments:-

There is no clear English decision on the extent to which it is a defence for a person to show that he did the act with which he is charged under orders from his official superior. It is impossible to say much more on this matter than Willes, J did in the course of the argument in Keighley v. Bell. "The better opinion is that an officer or soldier acting under the orders of his superior not being necessarily or manifestly illegal would be justified by his orders". This view has been adopted in South Africa, although a stricter opinion appears to prevail in the United States of America. According to that opinion, it is not enough that the soldier should believe the order to be lawful, it must be lawful in fact".

In Glanville William's "Textbook of Criminal Law", 1978 Edition at p. 408, the following passage appears:-

"The authorities are sparse and in conflict. In the old case of Thomas a naval sentinel who, being ordered to keep off all boats, fired at a boat and killed a man in it, was convicted of murder, notwithstanding that the jury found that he fired under a mistaken impression that it was his duty. A contrary view was taken by the Supreme Court of the Cape of Good Hope in Smith, which is widely approved by commentators. The facts were that, during the South African War, a soldier was ordered by his officer to shoot a Boer civilian if he did not fetch a bridle, and obeyed the command by killing the Boer. He was acquitted of murder although the command was unlawful. Soleman J, said: If a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not manifestly illegal that he must or ought to have known that they are unlawful, the private soldier would be protected by the orders of his superior officer"

. As regards defence of superior orders, at page 209 of Smith & Hogan's Criminal Law, 1978 Edition, these are the observations:-

"Though there is little authority on this question, it is safe to assert that it is not a defence for D merely to show that the act was done by him in obedience to the orders of a superior, whether military or civil. Where a security officer caused an obstruction of the highway by checking all the vehicles entering his employer's premises,s it was no defence that he was obeying his employer's instructions. The fact that D was acting under orders may; nevertheless, be very relevant. It may negative mens rea by, for example, showing that D was acting under orders may, nevertheless be very relevant. It may negative mens rea by, for example, showing that D was acting under a mistake of fact or that he had a claim of right to do as he did, where that is a defence; or where the charge is one of negligence, it may show that he was acting reasonably.

The only question (which has been discussed mainly in connection with military orders) is whether are a defence where they do not negative mens rea or negligence, but give rise to a reasonable mistake of law.

The Manual of Military Law now asserts as "the better view" that they do not Dictate in some of the cases suggest that they might. In a South African case which has been much cited, Solomon J.said.

"I think it is a safe rule to lay down that if a soldier honestly believes he is doing his duty in obeying the commands of his superior and if the orders are not so manifestly illegal that he must or ought to have known they are unlawful, the private soldier would be protected by the orders of his superior officer....."

" The only English authority directly on the point holds that it is not a defence to a charge of murder for D to show that he fired under the mistaken impression that it was his duty to do so. D was no doubt making a mistake of law; but there is no finding as to its reasonableness . If mistake of law does not afford a defence where it is reasonable as arising from the orders of a superior. If the result is hard, it is because the rule (if it be the rule) that reasonable mistake of law is not a defence is a harsh general rule."

As regards the Australian law on this aspect there is a text book by Colin Howard on Criminal Law and in p.424 of the third Edition under the caption" Superior Order" the following comments appear:-

"The rule is stated in the Queensland and Western Australian Codes, S 31(2) that a person is not criminally responsible for an act or omission, if he does or omits to do the act...(in) obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful." It is added that whether an order is manifestly unlawful is a question of law. To this the gloss must also no doubt be added that the section does not exculpate D if he obeys an order which he knows to be unlawful merely because it is not manifestly so. The assumption must be made that D either does not know of the unlawfulness of the order or does know but obeys nevertheless. If this is correct the effect is that S.31(2) lays down a rule that D is excused for obeying an order which he reasonably believes to be lawful, the test of reasonableness being the comparatively lenient criterion that the order must not be manifestly unlawful; and this may be the law in Australia generally.

The problem of superior orders usually presents itself in a military context in time of war. In common with treason, although traditionally regarded as part of the general body of the criminal law it has affiliations with politics and international law which have little to do with domestic criminal law as an everyday instrument of social regulation. Its importance in domestic criminal law as an everyday instrument of social regulation. Its importance in domestic criminal law is therefore not great. Theoretically it has significance for the police but in practice policemen are almost never prosecuted." Following the dictim of Shew Mangal Singh (Supra) N.P.Prathap Kumar vs Ramadas on 23 September, 2009 held :- ACP ordered a lathicharge on student protestors who became an unruly mob , resulting in grievous hurt to them and an allegation was made against the police force that they tortured them in custody . It was held by the court that ACP was fully justified in use of force against the students for dispersing their unruly mob. Court also deprecated the conduct of students and observed ;-

"A very pernicious tendency has come to stay in our public life that if any policy of the Government or a department of the Government is not palatable to a group of persons believing a particular ideology or is distasteful to a particular political party (especially in the opposition) agitations, protests, processions (which very often turn violent) and even destruction of public property etc. are freely resorted to. No person can indulge in or justify such activities by a microscopic cross- section of the society to the extreme annoyance, discomfort and disadvantage of the majority. Very often, the normal life is crippled by the so called protestors and agitators unmindful of the hardships caused by them either to travelling public or to the society at large. A situation has reached that even when court verdicts which are unpalatable to a particular group are pronounced, the frontiers of fair comment are very often breached to make scathing attacks against such verdicts and even against the authors of such verdicts. Instead of resorting to the legal remedies against the offending policy decision, or court verdicts such sort of paralysing or vindictive reactions cannot be justified in any orderly society and they tend to shake the very foundation of the rule of law and the democratic processes.

It is sad to realize that the members of a students' organization owing allegiance to a political party had taken upon themselves the role of a supreme body to criticize the policies of the Government. It is for the policy makers to decide the fate of the millions of subjects. If there is any wrong decision taken, the remedy lies elsewhere. The decision can be challenged before the appropriate forum. The primary role of the students is to study and not to go to the streets and launch agitations against the Government or the Ministers. It is academic brilliance and not offensive militancy which counts in the assessment of a student. The Apex Court had occasion to observe as follows:-

"It is a malady in our country that political parties allure young students through their student wings. They do so because it is an easy method for enlisting support and participation of student population to their political programmes. Students, particularly in adolescent age, are easily swayable by political parties without much effort or cost as young and tender minds are susceptible to easy persuasiveness by party leaders. But the disturbing aspect is that most of the political leaders do not mind their student supporters developing hostility towards their fellow students belonging to rival political wings. ................" While at the top layer leaders belonging to different political parties dine together and socialise with each other without any personal acrimony as between themselves, it is a pity that they do not encourage that healthy attitude to percolate down to the grass root level. Tender minds gets galvanized on minor issues, frenzy flares up even on trivialities, young children and adolescents unaware of the disastrous consequences befalling their own future indulge in vandalism, mayhem and killing spree against their own fellow students. (See Harpal Singh v. Devinder Singh and Another ( AIR 1997 SC 2914) "

(Kerela High Court had deprecated and prohibited political activities among students within the Collage campus and has even gone to the extent of holding that there is no fundamental or other right for Students Unions to set up their units owing allegiance to political parties in the college campuses (See Kerala Students Union v. Sojan Francis - 2004 (2) KLT 378. SNM College V. S.I.of Police -2007(1)KLT 282 and Sojan Francis v. M.G.University - 2003(2) KLT 582)

(Obedience to an illegal order , may be used for mitigation of sentence but can never affect conviction)

Section 79 Distinction between 76 and 79 is , while former a person is assumed to be bound by law and in latter to be justified by law. Common thread between both however is that they both intend to advance the law , mens rea is absent . So if , A in good faith mistakes another's umbrella as his own due to inebriation , he can take the defence of section 79 if prosecution for theft is initiated against him.

If , A by mistake in the dead of the night mistakes B (his flat mate) for a burglar and in good faith shoots B under such circumstances where B can actually be mistaken for burglar (like coming through window rather than the main gate) he will be entitled to claim defence of section 79.

Section 79 of the Indian Penal Code provides that nothing is an offence which is done by any person who is justified by law, or who by reason of mistake of fact and not by reason of mistake of law, in good faith, believes himself to be justified by law, in doing it. Under this section, al- though an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by law it will not be an offence. Such cases are not uncommon where the Courts in the facts and circumstances of the particular case have exonerated the accused under s. 79 on the ground of his having acted in good faith under the belief, owing to a mistake of fact that he was justified in doing the act which constituted an offence. As laid down in s. 52 of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. 'Good faith' re- quires not logical infallibility but due care and attention. The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case. 'Mistake of fact.' as put succinctly in Ratanlal and Dhirajlal's Law of Crimes, 23rd edn, p. 199 means:

"'Mistake' is not mere forgetfulness. It is a slip 'made, not by design, but by mischance'. Mistake, as the term is used in jurisprudence, is an erroneous mental condition, conception or conviction induced by ignorance, misappre- hension or misunderstanding of the truth, and resulting in some act or omission done or suffered errone- ously by one or both of the parties to a transaction, but without its erroneous charac- ter being intended or known at that time."

It may be laid down/as a general rule that an alleged of- fender is deemed to have acted under that state of things which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence. In the classical work Russel on Crime, vol. 1, p. 76, the concept of mistake of fact is tersely stated thus:

"When a person is ignorant of the existence of relevant facts, or mistaken as to them, his conduct may produce harmful results which he neither intended nor foresaw."

At p. 79, the law is stated in these words:

"Mistake can be admitted as a defence provided (1) that the state of things believed to exist would, if true, have justified the act done, and (2) the mistake must be reasonable, and (3) that the mistake relates to fact and not to law."

Illustrative case :

Chirangi v. State 1952 CriLJ 1212 In short, all that happened was that the appellant in a moment of delusion had considered that his target (his son ) was a tiger and he accordingly assailed it with his axe. He thought that by reason of a mistake of fact he was justified in destroying the deceased (his own son) whom he did not regard to be a human being but who, as he thought, was a dangerous animal. He was in the circumstances protected by the provisions of Section 79 of the Indian Penal Code which lays it down that nothing is an offence which is done by any person 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.The medical evidence showed clearly enough that Chirangi's fall combined with his existing physical ailments could have produced a state of mind in which he in good faith thought that the object of his attack was a tiger and was not his son.

in Bonda Kui v. Emperor AIR 1943 Pat 64 a case in Which a woman, in the middle of the night, saw a form, apparently human, dancing in a state of complete nudity with a broomstick tied on one side and a torn mat around the waist. The woman, taking the form to be that of an evil spirit or a thing which consumes human beings, removed her own clothes and with repeated blows by a hatchet felled the thing to the ground. Examination showed, however, that she had killed a human being who was the wife of her husband's brother. The conviction and sentence of the accused woman under Section 304 of the Indian Penal Code were set aside, on the ground that she was fully protected by the provisions of Section 79 'ibid', inasmuch as the statements made by her from time to time, which constituted the only evidence in the case, demonstrated conclusively that she thought that she was, by a mistake of fact, justified In killing the deceased whom she did not consider to be a human being, but a thing which devoured human beings.

In Waryam Singh v. Emperor AIR 1926 Lah 554, a Division Bench, acting under Section 79 of the Indian Penal Code, held that an accused who killed a man with several blows from a stick was not liable under Section 302, Section 304 or Section 304A 'ibid' because he believed in good faith at the time of the attack that the object of his assault was not a living human being but a ghost or some object other than a living human being. The Division Bench made it clear that the ground for their opinion was that 'mens rea' or an intention to do wrong or to commit an offence did not exist in the case and that the object of culpable homicide could only be a living human being. (In this case appellant's wife along with her husband weretaking a bath on grave of her child believing that they would get her son back. It was a dark night and villagers mistook husband to be a ghost and killed him.)

Emporer v. Jagmohan Thukral (AIR 1947 ALL 99) - Accused while travelling from Saharanpur to Dehradun piacked up a loaded gun and shot at the spot where he thought he saw eyes of an animal. The bullet unfortunately hit two army personnel , there was nothing to show that accused knew that there was a military camp. Court Held that he was protected by section 79.

The benefit of Section 79 I.P.C. is available to a person who by reason of mistake of fact in good faith, believes himself to be justified by law in doing an act. If accused thought that he was attacking ghosts he would be entitled to the benefit of that section, unless from the facts and circumstances established in the case it can be reasonably held that he did not act in good faith. Good faith requires due care and attention --see Section 52 I.P.C., but there can be no general standard of care and attention applicable to all persons and under all circumstances. As pointed out in Emperor v. Abdeol Wadood Ahmed, ILR 31 Bom 293:

"The standard of care and caution must be judged according to the capacity and intelligence of the person whose conduct is in question. It is only to be expected that the honest conclusion of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to the habits of reasoning.'' "The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acts .... .. ....... The law does not expect the same standard of care and attention from all persons regardless, of the position they occupy -- See Bhawoo Jiwaji v. Mulji Dayal, ILK 12 Bom 377 "What is due care and attention depends on the position in which a man finds himself and vanes in different cases" -- see Po Mye v. The King, (AIR 1940 Rang 129 at p. 132).

State Of Orissa vs Ram Bahadur Thapa on 9 November, 1959

In this case the respondent was a Nepali servant, who was a now comer to the place. He was a firm believer in ghosts. The aerodrome had acquired a notoriety as being haunted by ghosts on Tuesday and Saturdays and this created in him almost a certainty that ghosts would be there at about midnight on that date. The party also left Rasgovindpur far the purpose of seeing the ghosts. Neither the respondent's master (P.W. 29) nor his landlord (P.W. 28) made any effort to remove this impression from his mind. On the other hand they confirmed that impression by themselves offering to go with him for the purpose of seeing the ghosts. When they noticed the flickering light at a distance of 400 cubits it looked like "will-O'- the wisp" with some apparitions moving round it and P.W. 26 shouted "Hark', here is the ghost." Thereupon, the respondent who was highly excited rushed at the light and attacked the figures surrounding it, immediately without pausing even for a moment. Considering the status and intellectual attainments of the respondent and the place and time and the circumstances, I do not think it can be said that he acted without due care and attention. When even persons with a higher standard of attainments like P.Ws. 26 and 29 thought that there were ghosts around the flickering light find when neither of them dissuaded the Nepali from going there and when on the other hand P.W. 26 cried out pointing out that it was a ghost it would not be proper to expect that the Nepali should have paused and examined carefully whether the persons moving round the figures were human beings or not.His immediate reaction to such a situation was to rush at what he believed to be ghosts. It was then urged that from the evidence of P.Ws. 22 and 23 it was clear that the respondent had a torch in his hand and if he had cared to flash the torch at the moving figures around the flickering light he would at once have realised that they were human beings. If there had been any lurking doubt in his mind he would certainly have flashed the torch. But there was no reason for him to entertain any doubt whatsoever about the existence of ghosts and his two companions also not only did not disabuse him of that wrong impression but by their conduct practically confirmed the same.n the evidence of the prosecution witnesses it is clear that the respondent is protected by Section 79 I.P.C. The mere fact that had he exercised extra care and attention the incident might have been averted is no ground for denying him the protection of that section.

In Dhara Singh v. Emperor, AIR 1947 Lahore 249 it was held that the accused was labouring under a mistake of fact with regard to the identity of the persons who had surrounded his house followed by an exchange of fire, thinking them to be his adversaries and by reason of that mistake of fact, Explana- tion I to s. 99 gave to him a right of private defence. This again was a case where the accused shot and killed another person under a mistaken belief, in good faith, that such person had intruded his house for the purpose of killing him and that he has a reasonable belief that he was entitled to open fire in exercise of his supposed right of private defence.

Where an accused shot an arrow , while guarding his maize field believing it was a bear and shot the arrow at the moving objecting in bonafide belief , that it was bear and caused death of a man who was hiding there has the protection of section 79. (Levett , (1839) Cro Car 538)

State of Orissa v. Khora Ghasi 1978 Cr. Lj 1305 (Ori)

Where an accused while helping police stopped a cart in good faith believing it to carry smuggled rice , but ultimately their suspicion proved to be incorrect would also be afforded benefit of section 79 , when they are prosecuted for wrongful restraint. It makes an offence a non offence.

Supreme Court of India

State Of Orissa vs Bhagaban Barik on 2 April, 1987

On the date of incident when the deceased was returning from the 'house of PW 2 after reciting Bhagbat, where some other villagers including the respondent were also present, and reached near the house of the respondent he was assaulted by the respondent. On hearing a hue and cry several villagers including PWs. 2, 3, 4 and 5 ran to the place and saw the deceased lying on the ground in a pool of blood with a head injury. The respondent along with his mother and wife were tending the deceased and wiping out blood. The deceased told the villagers that the respondent had assaulted him.The respondent stated that during the day time his bell-metal

utensils had been stolen and he was keeping a watch for the thief, he saw a person coming inside his premises and thinking him to be a thief he dealt a lathi blow but subsequently

discovered that it was the deceased. The deceased also told his wife that he had been assaulted by the respondent. On the basis of the evidence on record the trial court convicted and sentenced the respondent under s. 304 Part Il of theIPC.

On appeal the High Court accepted the defence plea and held that the respondent had not committed any offence and was protected under s. 79 of the IPC and acquitted him.

Supreme court held :-

There was complete absence of good faith on the part of the respondent. It cannot be doubted that the deceased and the respondent were having strained relations and the respondent knew full well that the deceased had come for the recital of Bhagbat at the house of PW 2 which he attended along with others. From the dying declaration as well as the extra- judicial confession it is apparent that the deceased after the recital of Bhagbat had gone near the pond to take the bell-metal utensil. Apparently, the respondent was waiting for an opportunity to settle the account when he struck the deceased with the lathi blow and there was no occasion for him in the circumstances proved to have believed that he was striking at a thief. This is not a case where a person being ignorant of the existence of the relevant facts or mistaken as to them is guilty of conduct which may produce harmful result which he never intended. Even if he was a thief, that fact by itself would not justify the respondent dealing a lathi blow on the head of the deceased. The deceased had not effected an entry into the house nor was he anywhere near it. He had gone to the pond to fetch his bellmetal utensil. It appears that the respondent stealthily followed him and took the opportunity to settle score by dealing him with a lathi with great force on a vulnerable part of the body like the head which resulted in his death. There is no suggestion that he wielded the lathi in the fight of self-defence. The respondent therefore must face the consequences. Although it cannot be said from the circumstances appearing that the respondent had any intention to kill the deceased, he must in the circumstances be attributed with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death. The respondent was therefore guilty of culpable homicide not amounting to murder under s. 304 Part II of the Indian Penal Code.

Pichai v. State (2004) 13 SCC 579

Deceased attempted to steal coconut from the garden of which accused was a watchman . Accused contended that while discharging his duties as a watchman a death blow was made on the deceased , and took the defence of section 79. Supreme court , found it the pleas untenable and held that in no circumstances the case falls under section 79 , nor warrants the serious injury imposed by the accused.

. General exceptions under ipc part -