In this article, we are providing the Difference between section 76 and 79 of IPC (GENERAL EXCEPTIONS UNDER Indian penal code 1860)
Difference between section 76 and 79 of IPC
GENERAL EXCEPTIONS UNDER IPC – Section 76 and Section 79
1) Introduction-
As per general principles of law, man is supposed to understand the nature of which act he is doing and what are the consequences of such act. IPC provides punishments for the offences committed by a person. hence he is punishable under IPC and also such a person is held responsible for such act.
But all the time it’s not necessary to punish the person for the act or omission of what he has done. there are certain exceptions to this rule which is given under chapter 4 of the Indian Penal Code, 1860.
In certain cases, even if a person commits an offence, he may be excused from criminal responsibility. So to be held responsible for such offence there should be mens rea, which is a necessary factor for considering offence and punishments. If there is the absence of mens rea then such person may not be guilty of such act.
2) Scope
The exceptions given under chapter 4 of IPC is not only limited to the offences punishable under IPC but it has a wider scope and hence applicable to offences under special or local laws also.
Chapter 4 may be divided into 2 groups
Excusable exceptions
Justifiable exceptions
Excusable exceptions
This type of exceptions are given under S. 76, 79, 80,82,83,84,85,86 etc.
If a person commits a crime but there is a lack of mens rea then this exception comes under excusable exceptions.
Justifiable exceptions
The circumstances under which the offence was committed furnish legal justification for its commission comes under justifiable exceptions. These types of exceptions are given under sec. 77, 78,81,87-89,92,94,96-106,95. Etc
There are 31 sections enumerated in Ch.4
- mistake of fact and mistake of laws ( s. 76,79 )
- Judicial acts (s. 77, 78)
- accidental acts (s. 80)
- necessity (s. 81)
- Incapability to commit a crime (s. 82-86)
- Acts done with consent s. 87-90) and without consent (s.92)
- triviality (s.95)
- private defence (s. 96-106)
3) Burden of Proof
-On Prosecution
Generally, the burden of proof lies on the prosecution who substantially asserts the affirmative
and it does not lie upon a person who denies it.
‘ei qui affirmat non ei qui negat incumbit probatio’ this Roman maxim indicates that, if any
person seeks the aid or help of the court, then it’s his duty to prove the case in an affirmative
manner that he has a case and it’s more difficult to prove in a negative manner than an affirmative.
Example-
If a person is charged for the offence of theft under section 379 of IPC then as per the Definition of theft, it is the primary duty of the prosecution to prove the intention of the accused. And if the prosecution fails the accused is entitled to acquittal on that charge.
So it’s very important to prove beyond reasonable doubt the existence of all facts which is
necessary to constitute the offence charged.
On accused to prove an exception:
If any person commits any act which falls under the exceptions provided in Ch.4 or within any
the special exception contained in code, the burden of proof lies on such person and not on
prosecution.
The burden of proof on accused in case of offences against the state, Dowry death and Rape etc.
The burden of proof may be shifted by the action of parties and other statutory provisions. E.g. offences
against the state (sec. 121, 121A, 122,123), offences relating to the dowry death(S.304B), abetment
to suicide of newly married women(s.306) or rape(s.376), socio-economic offences etc Burden
of proof is on an accused.
Difference between section 76 and 79 of IPC
4) Mistake of fact: S. 76
An act is done by a person bound, or by mistake of fact believing himself bound by law-
A person believes that this is a real fact that is not real i.e. some error in knowing fact
is described as a mistake of fact. Ignorance of fact is different from the mistake of fact.
This section is based on the common principle of ‘ignorantia facit doth excusat,
ignorantia juris non excusat’ i.e. ignorance of fact excuses but ignorance of the law does
not excuse.
Thus, if a person does an act with bona fide belief, that the existence of a fact, then it
turns to make an act innocent. But ‘ignorantia juris non excusat’ has no defence.
Illustration-
If a police officer arrests Y presuming that He is Z, then he has committed no offence.
Case law
In the case of State V. Siddharth Ganguram, a person who was illiterate father having the right to vote but he fell ill and was unable to cast vote by his own presence. So he asked his son to cast vote on his behalf. So the son is an authorised person for the casting vote and he honestly believed in good faith that he is authorised to vote by his father and so applied for voting. The son was held not guilty for the offence under sec. 171D, 171F of the IPC.
5) Mistake of law:
A mistake or ignorance of any law is no defence in law. As a law-abiding citizen, every person should know the law and obey the laws. So if the mistake of the law were defence, then it would be very difficult to punish the wrongdoers as they can misuse this principle. And it results in the acquittal of accused persons in all cases. And the respect for law and administration of laws would be difficult and impossible too.
This maxim is applicable in the strict sense.
Illustrations:
- A being a police officer arrest a person B for commission of the cognizable offence, by mistake thinking that he has committed murder where in fact he killed a dacoit in self defence. So A is not liable for committing the offence of wrongful confinement.
2. If A being police officer believing that B has committed an assault and he wrongfully considers as cognizable offence and arrest B. whereas it is not cognizable offence. Then he has committed offence of wrongful confinement. A’s mistake of law has no excuse.
Section 79 deals with the act done by a person justified, or by mistake of fact believing himself justified, by law.
If a person does any act in good faith and which is justified by law then such person is exempted from criminal liability.
Illustration–
if A and B are fighting with each other and A tries to kill B. In defence B loaded gun towards A and if Z belives in good faith that there is apprehension of murder in the fact by B and hence Z being an authority arrests B. then Z has committed no offence.
Case law-
In the case of, State of Orrisa V Ram Bahadur Thapa, The accused, a Nepali servant who attacked the deceased and killed him believing that he was attacking ghosts and not human beings, was acquitted, giving him the benefit of mistake of fact.