The Common Law in India - College of Social Sciences and ...

148 The Common Law in Indiaas to matters of fact would be available as a defenceto a crime. But ignorance of law cannot be adefence. 75 In substance mistake as a defence tocriminal liability at common law must amount eitherto the absence of mens rea in the accused or, wherethe act so warrants, the accused is treated as thoughhis harmful deed had not been an actus reus. Thelatter may be illustrated by the case of a personseizing another whom he reasonably though mistakenlysupposes to be committing a murder in orderto bring him before the proper authorities, though itmay in fact turn out that the person seized was actingin self defence. This indeed is the illustration whichis to be found in the provisions of the Indian Coderelating to the general exception of mistake. 78 As arule, however, mistake negatives mens rea rather thanactus feus. In some cases ignorantia facti is a gooddefence for such ignorance many a time makes theact itself morally involuntary." Mistake, however,must be of such a nature that had the circumstancessupposed to have existed by the person acting beenreal they would have prevented liability attaching tothe person doing the act. It would be no defenceif the supposed act would itself be unlawful. Themistake must also be a reasonable one. Finally themistake however reasonable must relate to matters offact and not to matters of law. Mistake as an exceptionto criminal liability has under the Indian Codein substance the same requirements. 78 The law Ibid., p. 284, para. 525. " s. 79." 1 Hale P.O. 42; Kenny, op. cit., p. 47, note 2.« ss. 76, 79.