Section 61 — Mistake as to the person
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.
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.