This article is written by Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, we’ll discuss the ‘Doctrine of Transferred Malice’ under the Indian Penal Code.

Introduction

Have you ever heard any cases or stories where a person intended to kill someone instead killed someone else? I think you must have heard and also must have discovered people taking the defence in court that there was no intention to cause death or he was unaware of the fact that such an act is likely to cause the death of the person. 

Do you think the person with such an excuse can be acquitted or declare innocent by the court? The answer to this question is no, he will be held guilty. 

Now here comes into picture the concept of transferred malice. It relates or applies where the Mens Rea of one offence can be transferred to another. Before having knowledge about this concept, we must first understand what is malice.

Meaning of malice

It refers to the intention of a person causing injury to another person. Malice can be either expressed or implied. If any deliberate action or conduct is initiated towards the other person with an intention to kill, it is known as expressed malice.

When the intention is clearly visible from the person’s behaviour then that is implied malice.

What is the ‘Doctrine of Transferred Malice’

The ‘Doctrine of Transferred Malice’ is expressly not defined in the Indian Penal Code. Rather it is inferred from Section 301  of the Indian Penal Code.  

Section 301 states that if a person does any act which he knows or intends that is likely to cause death, commits culpable homicide and by causing the death of any person, whose death he neither intends to nor knows by himself that by his act will cause the death of that person.

The culpable homicide here is of that sort where he wanted to kill another person. He also had an intention and also the knowledge that such an act is likely to cause death but killed another person.

The person committing culpable homicide had a piece of knowledge or intention to cause the death of someone and in result kills someone else who he never intended to cause death or even knew that an act will cause his death.

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Essentials 

• Causes death,
• By doing an act with an intention or knowledge of causing the death of a person or,
• Causing such bodily injury as is likely to cause death,
• Causes the death of another person instead of the intended person.

The object of transferred malice Section 301

The object of transferred malice under Section 301 is to define the nature of culpable homicide. We shall discuss the circumstances where a guilty cannot take the defence that the presence of intention was not there. 

If a person committing culpable homicide had an intention to kill a person but killed another person. It may also be the case where he did not even have an intention to kill or where he did not have the knowledge that his act would cause death. In these cases he will be ruled as guilty and such vague excuses as the absence of intention will not be entertained in any court.

In simpler terms, a person under Section 301 cannot be set free on the grounds of not having any intention. Instead, the ‘Doctrine of Transferred Malice’ will apply and he will be held guilty.

Applicability of Transferred malice

The relevance of Section 301 or its applicability is when a person who was targetted by the offender is not killed and another person is killed by the guilty act.

Only in these cases, the ‘Doctrine of Transferred Malice’ will apply.

Illustration

• ‘T’ intends to kill ‘F’ but kills ‘Y’, without intending to kill him. In this illustration, the law will apply the ‘’Doctrine of Transferred Malice’’ and perceive that in the first instance itself, he intended to kill that person. Thus, he will be held guilty of killing ‘Y’.
• ‘S’ entered the house of ‘D’ with an intent to commit robbery. ‘S’ demand money from ‘D’. ‘D’ refused to give. Due to this, ‘S’ fired at him suddenly. ‘D’s’ wife ‘R’ came in between them to protect her husband and died due to being shot in the head. Here, ‘S’ will be held guilty for transferred malice.  

Case Laws

R v Mitchell 1983

In this case, the appellant tried to jump the queue at a post office. An elderly man objected to this behaviour. The appellant in retaliation, not only pushed the elderly man but hit him as well.

The elderly man falls on the people who were standing behind him in the queue. There was one old lady in the queue who also fell down and broke her leg. Later she died because of that broken leg. It was held that the appellant was guilty of manslaughter. 

In this case, even though the appellant did had any intention to hit the old lady, but due to his intention to hit the man, he was prosecuted by applying the principle of transferred malice.  

R v Latimer (1886) 17 QBD 359

In this case, the defendant was in an argument with another in a pub. The arguments between the two increased rapidly. The defendant took off his belt with an intention to hit the man but he missed. The person he was trying to hit only got a bit injured. The smash with the belt got diverted in another way and it hit an innocent woman who was standing by the side of the man. She got hit in her face and was severely injured.

It was held by the court that the defendant will be liable for the injuries inflicted upon the woman despite the fact that he did not intend to cause injury to her.

Here, the principle of transfer of malice was applied. The Mens Rea he had (the intention to hit the man) towards the man was transferred on the woman. 

R v. Saunders (1573) 2 Plowd 473

In this case, the defendant persuaded his wife to eat a poisoned apple laced with arsenic (a chemical). 

It was with an intention to kill her so that he can be free and marry another woman after her death. However, his wife gave the poisoned apple to their daughter. The daughter ate the apple and as a result, she died. After applying the ‘Doctrine of Transferred Malice’, the defendant was charged with murder. The intention to kill his wife got transferred to his daughter and due to that, she died.

Rajbir Singh vs State Of U.P. & Anr on 8 March 2006 

In this case, the appellant claimed that the neighbour threw some bricks on the compound of his brother’s house. On account of this, a verbal fight took place between his father and the accused but the matter was somehow settled by the local people. The next day accused with his two relatives came with guns. They came near the shop of the complainant where his father was standing. There, the accused persuade or encouraged his relatives to kill him. The accused started firing at the father of the complainant who then received injuries and fell down.

A girl came to that shop to purchase some articles from that shop and suffered injuries and fell down. Both the injured persons died on the way to the hospital.

The accused in his argument said that the girl died by accident and there was no intention on their part to kill her. She was passing by from that place and as a result, suffered injuries and died.

The Supreme Court set aside the order of the High Court and held the accused guilty. He was charged under Section 301.

R v Pembleton (1874) LR 2CCR 119

In this case, the defendant threw some stones into a crowd with an intention to hit someone with it. However, the stone somehow missed the crowd and instead hit the window. It was argued that by the ‘Doctrine of Transferred Malice’, his intention of hitting in the crowd was transferred and thus he was guilty of hitting the window.

The issue was raised that whether the defendant was guilty of the criminal damage and whether the ‘Doctrine of Transfer Malice’ can be used in these cases where the intention is different and the result is different. 

It was held that the defendant was not guilty of criminal damage and was also held that the ‘Doctrine of Transfer Malice’ cannot be applied here as the crime which actually happened did not have the same physical act (actus reus) as the crime which the defendant intended to do so.

Emperor vs Mushnooru Suryanarayana Murthy on 2 January 1912

In this case, the accused, Mushnooru Suryanarayan Murthy had an intention to kill Appala Narasimhulu. This was so that he could obtain the sums insured on her. Without the knowledge of Appala, he gave some sweet dish which contained a poison of arsenic and mercury. Appala Narasimhulu ate a small portion and threw the rest away. Rajalakshmi, aged 8 was the accused niece. He ate some sweet dish and also gave some to the other little child. This was done without the knowledge of the accused. The children died. But Appala recovered from the severe effects of it. 

It was held by the court that the accused will be held guilty under the attempt to commit the murder of Appala and also under Section 301 of the Indian Penal Code. this is for the death of the children.

Even though he did not intend to kill them but according to the doctrine of the transfer of malice, he will be held responsible for the punishment.

The court sentenced him seven years of rigorous imprisonment for attempt to commit murder but by his appeal, the punishment got enhanced to transportation for life (transported to the colonies to serve their prison sentences). 

Conclusion 

A brief analysis on the topic i.e. the ‘Doctrine of Transfer Malice’ tells us that transfer of malice can attract punishments in the Indian Penal Code. Despite lack of intention, one cannot save himself/herself from a crime committed and this falls under Section 301. 

Transfer of malice does not operate or it cannot be used where the crime intended to be done is different from the outcome. An example is a case I have mentioned above i.e. R v. Pambelton.

The principle of transferred malice can also be seen in the Law of Torts. Under the Law of Torts, a person is held liable for damages. Under the Indian Penal Code imprisonment maybe be given. 

Some persons also call it as the transfer of intent, transfer of motive or transmigration of motive.

Section 301 only states that the accused did have the knowledge or intention to kill the other person. Whether an act is a murder or culpable homicide, that is up to the court.

References

• http://legalopinio.blogspot.com/2016/06/transfer-of-malicesec-301-ipc-intention.html
• http://www.e-lawresources.co.uk/Transferred-malice.php
• https://www.jusprudentia.com/single-post/2017/06/23/Doctrine-Of-Transferred-Malice
• http://www.e-lawresources.co.uk/R-v-Latimer.php

To know more about Mens Rea & Actus Reus, please Click Here.

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