(i) Nothing is an offence which is done by any person who is justified by law in doing it.
(ii) Nothing is an offence which is done by any person who by reason of a mistake of fact and not by reason of mistake of law in good faith believes himself to be justified by law in doing it.
As is apparent from the above division of the section into two parts, the whole section does not deal with the defence of mistake of fact but only the second part does.
The first part of the section does not use the word ‘mistake’ at all. Therefore, the statement that section 79 of the Code, along with section 76, deals with the defence of mistake of fact is true only to this extent that each of the sections deals with this defence only under one part while the other part of each of these sections are devoted to matters other than mistake of fact.
The first part states that when any person is justified by law to do something, the doing of that thing is not an offence. A person is justified by law to do something when the law provides him a right to do that thing. According to this part of the section, therefore, doing what is justified is not an offence under law. Matters relating to mistake of fact, mistake of law or good faith do not come up for consideration under this part at all.
The second part of the section, like the second part of section 76 of the Code, deals with the defence of mistake of fact. Under this part a thing is not an offence if it is done by a person who because of mistake of fact and not of mistake of law in good faith believes that he is justified by law to do it.
When a person is in fact not justified by law to do something but he still does that by reason of a mistake of fact and not of mistake of law in good faith believing that he is justified by law to do it, it is not an offence. Under this part of the section mistake of fact and good faith must be proved to be present whereas mistake of law must be proved to be absent.
As indicated under section 76 already, here also it may be mentioned that both the principles ‘ignorantia facti excusat’ (ignorance of fact is excusable) and ‘ignorantia juris non excusat’ (ignorance of law is not excusable) have been incorporated under this part of the section.
Firing at a suspected thief but killing another in the process
In Dakhi Singh v. State a suspected thief who had been arrested by the police constables escaped from a running train. One of the constables pursued him with a view to effect his rearrest. When he was not in a position to apprehend him, he fired at him but in the process he hit the fireman of the railway engine who was killed. The defence of mistake of fact under sections 76 and 79 of the Code was rejected.
The Court held that there was no right to shoot under section 46 of the Code of Criminal Procedure, 1898 (corresponding to section 46 of the Code of Criminal Procedure, 1973). However, exception 3 to section 300 of the Indian Penal Code was held to be applicable and the accused was held liable under section 304, Part II of the Indian Penal Code.
Firing at a supposed ghost or evil spirit
In Bonda Kui v. Emp., the appellant aged about 50 years, and her niece were the sole occupants of a house at the time of the incident, the male members being away at Khalihans. In the middle of night the appellant saw a form apparently a human being dancing naked with a broom-stick tied on one side and a tom mat around her waist. Believing it an evil spirit or a thing which eats up human beings, the appellant with repeated blow with a hatchet felled the thing on the ground. She told her niece to come and see the spirit.
At the suggestion of the niece the Maunda was informed. The deceased was recognised later as the wife of a brother of the appellant’s husband and was about 55 years old. Reversing the judgment of conviction and sentence of six years’ imprisonment, the Patna High Court allowed the defence of mistake of fact under section 79 of the Code and observed that the state of society to which the appellant belonged and the fact that she was a superstitious woman were important considerations to decide as to whether she had acted in good faith.
On the other hand, in Hayat v. Emp., the accused in the early gloaming saw a stooping child in a place which was believed by him and other villagers to be haunted. Believing the child to be a spirit or demon he attacked it and gave blows which resulted in its death before he realised his mistake. He was convicted under section 304-A of the Code and his defence under section 79 of the Code was rejected on the ground that he had not acted in good faith.
Interrogating a person carrying allegedly stolen property
The accused, a police constable interrogated a person, moving in the early morning with three pieces of cloth under his arm, on the suspicion that he was carrying stolen property. Not getting a satisfactory reply from him and on being refused inspection, he arrested him. The Inspector, however, released him. The High Court set aside the conviction on the ground that the accused had acted in good faith under mistake of fact under section 79 of the Code. His good faith was apparent when he started questioning the person with a view to know about the truth of the matter.
Alleged wrongful restraint
Certain persons went to execute a warrant of arrest against a judgment-debtor. When they reached near the house, they saw a closed palanquin coming out of the male apartments of the house. Suspecting that the judgment debtor was escaping, they stopped and examined it even though the person accompanying it protested and said that a pardanashin lady was in it. In fact there was a pardanashin lady of rank in the palanquin. It was held that the accused were protected under this section as they had acted under a mistake of fact in good faith.
Where the accused helped the police to stop a cart which they believed in good faith was carrying smuggled rice but ultimately their suspicion proved unfounded, it was held that there was no liability for wrongful restraint and the accused were entitled to the benefit of this section.
In Raj Kapoor v. Laxman, the Board of Censors had given a certificate to the petitioner under the Cinematograph Act, 1952 permitting public exhibition of a film. On being charged under section 292 of the Code, the petitioner contended that once the certificate permitting public exhibition was given by a competent authority under the Act of 1952 they could not be held liable even if the film be obscene, lascivious or tending to deprave or corrupt public morals.
The Supreme Court, agreeing with the contention, held that once the competent authority in good faith issued the necessary certificate, the petitioner producer and other agencies were protected under this section read with section 5-A of the Act of 1952 at least because of their bona fide belief that the certificate is justificatory.
Believing a human being to be an animal
In a moment of delusion the accused thought his only son to be a tiger. He attacked him with an axe under a mistake of fact in good faith under the impression that he was justified by law to do so against a dangerous animal. This section was held to be applicable.
Transfer of securities
The securities of a pledger bank, the Cooperative Bank, were transferred by the Managing Director of the exchange bank. On being prosecuted for committing the offence of criminal breach of trust, the accused Managing Director pleaded that he had acted under the mistake of fact that the pledger bank was indebted and also that the exchange bank had a right to transfer. The Supreme Court rejected the defence on the ground of absence of good faith in his belief that the pledger bank was indebted to his bank.
Believing a moving object to be a bear
The accused who was guarding his maize-field at night saw a moving object in the field. Believing it to be a bear he shot an arrow on the object. It was discovered later the arrow had killed the deceased who had entered into the field with the object of stealing maize. It was held that the arrow was shot under a bona fide belief in good faith that the moving object was bear and consequently the accused was protected under this section or section 80 of the Code.
Forcible removal of a woman
Some persons were helping the husband of a woman in the forcible removal of his wife with a view to compel her to go against her wishes with the husband. It was held that forcible removal being an offence, the persons who joined the husband in the process are not protected under this section.
Cutting of overhanging branches of a tree
Cutting of overhanging branches of a tree from the neighbour’s land on to one’s own land does not amount to mischief as one is justified by law to cut such branches.
Mistake of law
The section specifically says that there should be a mistake of fact and not mistake of law. For an Indian law to operate it is not necessary that the same must be published or be made known outside India. Mistake of law does not save one from liability but it may be relevant for determining the sentence to be imposed.
The two English cases which have assumed importance with respect to the defence of mistake of fact are R. v. Prince, and R. v. Tolson. In the former the accused was charged with the offence of kidnapping a minor girl. He pleaded mistake of fact as he believed that the girl was not a minor. The defence was rejected because kidnapping was a wrong in itself and, therefore, made a crime.
In such cases there could not be a good faith. In the latter case the accused was charged with the offence of bigamy having married a second time within a period of seven years after she had been deserted by her first husband. The Court allowed the defence of mistake of fact as it was satisfied that at the time of her second marriage she in good faith believed her first husband to be dead.