This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks the difference between mistake of fact and mistake of law with illustrations and case laws. The provisions of IPC are also specified. 


General Defences are a set of defences, which are applied by the defendant in the Court to escape his liability in tort when the plaintiff brings an action against him. The defendant can claim the defence only if his actions fall under the specified set of conditions. If the defendant fails to prove the reason for the act, he cannot escape from his liability. There are some specific defences which are available for the wrongful acts:

  1. Volenti non-fit injuria, or the defence of ‘consent’
  2. Plaintiff, the wrongdoer
  3. Inevitable accident
  4. Act of God.
  5. Private Defence
  6. Mistake
  7. Necessity
  8. Statutory Authority.

Mistake, falling under the general defence of Torts, it can be classified into two sub-heads:

  1. Mistake of facts
  2. Mistake of Law

Mistake of Facts

Mistake of fact arises when any accused incorrectly interprets some fact that negates an element of the crime. This legal weapon can be used, where the accused succeeds to prove that he was mistaken to the existence of some facts or ignorant of the existence of such facts. It is a condition that such mistakes must concern to the fact, not law. Such a 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 the law is not an excuse. So it is a basic requirement to be secured under the sphere of this defence that mistake must be of fact.

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


A visited B’s house with two boxes of sweets, giving it to B, A specifically mentioned that blue box is for him, whereas the red one is for C, his elder son. Afterwards, B consumed both boxes of sweets, here B cannot take the defence of mistake of fact stating that as both boxes were handed over to him, he assumed it to be his only. As, at the time of delivering the sweets itself, the conditions were specifically mentioned.

Miss X, used to get her Pomeranian dog to walk every morning. On one fine morning, while talking on the phone with her friend Miss X lost hold of her dog. While looking for her dog, she found another dog of the same breed, assuming it to be her own dog, she took it home. While later she noticed that the mark her dog had was not there and she mistakenly took another’s dog. Here, Miss X will not be liable as it was a mistake of facts.

At the same time, the mistake of fact cannot be used as a defence when it has been done knowingly, despite knowledge

Case Laws

In the case of Ayekam Angahal Singh v. Union of India, an auction was held for the sale of fishery rights, where the plaintiff made the highest bid of Rs. 40,000. The rent was 40,000 per year and the plaintiff sought to avoid the contract on the ground that he under mistake thought of Rs. 40,000 being the rent for 3 years, in this case, it was held that since the mistake was unilateral, the contract was not affected thereby the same could not be avoided. 

In the case of Morrison V. Ritchie & Co., a statement was published by the defendant that the plaintiff had given birth to twins, even if the defendant had done it in good faith, he was held liable, on the ground that the plaintiff was married 2 months ago only and the defendant was held liable for the offence of defamation and element of good faith was held immaterial in this case.

Mistake of Law

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a Court. It is no defence that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. The burden is generally placed on individuals to be aware of the laws of their state or community, and thus this defence only applies in very limited circumstances. For instance, while a defendant will not be able to claim that he was not aware that murder was a crime, he may be able to argue that he was not aware of the uncertain traffic law. Specifically, the mistake of law can be used as a defence in four limited circumstances:

  • When the law has not been published;
  • When the defendant relied upon law or statute that was later overturned or deemed unconstitutional;
  • When the defendant relied upon a judicial decision that was later overruled; or
  • When the defendant relied upon an interpretation by an applicable official.

Additionally, the defendant’s persistence on any of these sources must have been reasonable, much like the mistake of fact. Thus, a defendant cannot claim that he was relying on a case from 200 years ago when it is recognized that there have been subsequent developments in the law.


Mr S at crossing did not stop his car at a red signal. Traffic police charged him for breaking the traffic rules, here Mr S cannot plead that he was not aware of the law.

Case Laws

In the case, Grant v. Borg (1982), the person was charged under the Immigration Act 1971, for staying beyond the time limit by the leave. Here, he cannot apply for the defence i.e. mistake of law.

Provisions under IPC

“Ignorance of the Law is no excuse” but where the motive is an important ingredient, it can be used as a defence. Section 76 and 79 of the IPC deals with the general exceptions under chapter IV. Section 76 (Act done by a person bound, or by mistake of fact believing himself bound, by law)and Section 79 (Act done by a person justified, or by mistake of fact believing himself justified, by law).


In general, the mistake of fact can be used as a defence to escape the liabilities, taking the absence of mens-rea as one of the important essentials; it must have to be honest, reasonable and authentic in nature. The mistake of law is no defence to a violation of the law. It is presumed that all people know and understand the law of the land, except minors, lunatics or insane. There are few other rare exceptions to this rule.

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