Section 61: Mistake as to the person
Statutory text (Thai original)
ผู้ใดเจตนาจะกระทำต่อบุคคลหนึ่ง แต่ได้กระทำต่ออีกบุคคลหนึ่งโดยสำคัญผิด ผู้นั้นจะยกเอาความสำคัญผิดเป็นข้อแก้ตัวว่ามิได้กระทำโดยเจตนาหาได้ไม่
English translation
Whoever intends to commit an act against one person but commits it against another by mistake cannot invoke the mistake as an excuse that the act was not committed intentionally.
This English translation is provided for reference only and has not yet been firm-verified. Always rely on the Thai original.
Firm annotation
Section 61 addresses error in persona, mistake as to the identity of the victim, and must be distinguished from Section 60, which governs aberratio ictus (a miss of aim). Here the doer strikes exactly the person aimed at but is mistaken about who that person is; the intention formed against the intended target is treated as intention toward the actual victim, and the mistake cannot be pleaded to deny intent. Because it rests on the general intention rule in Section 59, the offence and its grade follow the doer's original intent. Any aggravating circumstance that depends on knowing a fact (for example that the victim is an ascendant) is instead governed by Section 62 paragraph three, which requires knowledge of that fact before the heavier penalty can apply.
Why this matters in practice
For a defendant who attacked the wrong person believing it was an enemy, Section 61 forecloses the defence that there was no intent to harm the person actually injured. The offence charged tracks the base offence intended (for example attempted murder), and the mistake goes to identity, not to fault. Where the prosecution seeks a status-based enhancement, the defence should test whether the doer actually knew the aggravating fact, because Section 62 paragraph three requires that knowledge. Given the stakes in these violent-offence cases, focused criminal defence advice on intent and aggravation is important.
Supreme Court decisions interpreting this section
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Supreme Court Judgment No. 6876/2568 (2025)
A defendant who shoots at a person mistaking that person for someone else acts against another by mistake under Section 61 and cannot invoke the mistake to deny intent to kill.
The defendant fired believing the approaching person was his brother. The Court held this was an act against another by mistake of identity under Section 61, so the mistake could not be raised to deny intent to kill; it was not a case of ignorance of fact.
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Supreme Court Judgment No. 487/2536 (1993)
Where the doer wounds a person mistaking him for a rival with whom he had a quarrel, the intent directed at the intended target makes the doer liable for the harm to the actual victim under Section 61.
The defendant struck the victim with a knife because he mistook the victim for a person with whom he had earlier quarrelled. The Court held he could not invoke the mistake as an excuse: his intention toward the intended target made him liable for the resulting harm to the actual victim under Section 61.
Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.
Cited in 10 Supreme Court decisions (1958 to 2025)
Selected citing decisions
- Decision 8731/2561 (2018)
- Decision 353-354/2550 (2007)
- Decision 487/2536 (1993)
- Decision 872/2510 (1967)
- Decision 1094/2501 (1958)
- Decision 6876/2568 (2025)
- Decision 3131/2562 (2019)
- Decision 1564/2548 (2005)
This list is selected automatically, weighted towards judgments that turn on this section rather than ones that merely recite it when passing sentence. It has not yet been reviewed by the firm.
Most often cited alongside
- Section 288 8
- Section 78 8
- Section 91 6
- Section 289 5
- Section 32 5
- Section 33 5
Sections that appear in the same judgments as this one most often. The figure is the number of decisions.
Counted across the firm's corpus of 83,652 Supreme Court decisions, 1921 to 2026. The count is complete; the stated year range trims rare outliers so it describes where the citations actually sit. These figures are computed by us and are not official court statistics. How we count these, and what we measured
Frequently asked questions
Is mistaking the victim's identity a defence to intent?
No. Under Section 61, a person who intends to act against one person but acts against another by mistake cannot use that mistake to claim the act was not intentional.
What is the difference between Section 60 and Section 61?
Section 60 covers aberration, where the aim misses and harm falls on another. Section 61 covers mistake of identity, where the doer strikes the person aimed at but is mistaken about who it is. In both, intent transfers to the actual victim.
Related guides on ThaiLawOnline
Cite this section
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Plain citation
Penal Code, s. 61 (Thailand) -
Academic citation
Penal Code (Thailand), s. 61. ThaiLawOnline, https://www.thailawonline.com/thai-penal-code/section-61/ (accessed 17 August 2026). -
Thai citation
ป.อ. มาตรา 61 -
Permalink
https://www.thailawonline.com/thai-penal-code/section-61/ -
Embed on your site
<blockquote cite="https://www.thailawonline.com/thai-penal-code/section-61/"><p>Whoever intends to commit an act against one person but commits it against another by mistake cannot invoke the mistake as an excuse that the act was not committed intentionally.</p><footer>Penal Code, s. 61 (Thailand) — <a href="https://www.thailawonline.com/thai-penal-code/section-61/">ThaiLawOnline</a></footer></blockquote>
The Thai text is authoritative. The English is an unofficial translation by ThaiLawOnline, free to reuse with attribution.