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LAW 505

CRIMINAL LAW TUTORIAL

FARAH IZLYANA
NURUL NABIHAH
FARAH SUHAILA
QUESTION 19
Kaka and Kiki went into a jungle near their home to set a trap
for any small wild animals they could get such as mousedeers
and porcupines. Kaka brought along his fathers riffle for
protection while they are in the jungle. Kakas father does not
have a permit for the rifle and the rifle does not come with a
valid permit(as required by the law). Whilst they were in the
jungle, Kiki wandered off from Kaka. Around this time, Kaka
heard some noises in a nearby bush. He saw what he thought
was a tiger and fired a shot at it. It was later discovered that
he had actually shot Kiki who was relieving himself in the
bush. Kiki was grievously hurt and Kaka was subsequently
arrested.
Suggest a suitable defence for Kaka if he is charged with
causing grievous hurt to Kiki.
Mistake
There are two exceptions relating to mistake:
-section 76 states 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 mistake of law in good faith believes himself to be,
bound by law to do it;
-Section 79 provides that nothing is an offence which is done by
a 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 to do it.

Both provisions deal with mistake of fact and not mistake of law.
Justified by law
Justified by law in section 79 : refers to something which requires
vindication as being in accordance with the law or where the acts
are done in obeying the law or an act done in conformity with the
law.
Case : Abdullah v R
-The accused was charged with statutory rape of the complainant who
was under 14 years of age The appellant contended that he thought
she was over 16.
-At the trial, the judge ruled that the belief, if it existed was immaterial
and he was convicted.
Murray Aynsley CJ; It is clear that if the appellant believed in good
faith that the complainant was over 16, it would be a case of mistake
of fact. In this case, what he did would not be an offence had the facts
been as he supposed them to be, would he be justified by law?
In my opinion this is so. According to modern ideas, as embodied in
the Penal Code, an act only acquires its criminal character by being
forbidden by law. What the law does not forbid it allows, and what the
law allows is I think justified by law.
Elements of defence of mistake
There are three essential elements of defence of mistake;
1. Mistake of fact
2. Done in good faith
3. Not a mistake of law
Mistake of Fact
Consists of unconsciousness, ignorance or forgetfulness of a
fact past or present material to the transaction, or in the belief
of the present existence of a thing material to the transaction
which does not exist or in the past existence of a thing which
does not exist.
Case: Chirangi v State of Nagpur
Fact: Appellant killed his son by mistake thinking he was a
tiger. The defendant was suffering from bilateral cataract and
theres also evidence he had an abscess in his leg which might
cause a temporary delirium. This might also create a
secondary delusion affecting his vision.
Held: The court stated that the evidence found show that 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. It was also manifested that he had no intention of
doing wrong or of committing any offence.
The defendant thought that by reason of a mistake of fact he
was justified in destroying the deceased whom he did not
regard to be a human being, but who, he thought was a
dangerous animal. He was, in the circumstances, protected by
the provisions of section 79 of the Indian Penal Code.
Application:
Based on the question, it can be said that Kakas act is
protected under section 79 of Penal Code as he thought that
his act is justified by law. Referring to the case of Abdullah v R,
the judge stated that if the appellant believed in good faith
that the complainant was over 16 it will be a case of mistake
of fact. So according to the problem above, Kaka has a good
faith that the noises in a bush was caused by a tiger. Besides,
in the case of Chirangi v State of Nagpur, it was manifested
that the defendant had no intention of killing his own son and
also he was in a moment of delusion at that time. Similar with
Kakas situation, he was delusional when he killed Kiki and it
was clear that he had no intention of doing so. Hence, Kaka
can use mistake of fact as a defence.