Doctrine of Transfer Malice

 DOCTRINE OF TRANSFERRED MALICE

By: Robin Pandey                                                                        Date: 14/03/2022

The law affords protection equally to the lives of all persons, and once the criminal intention, i.e., an intention to destroy human life, is found, it does not make any difference whether the act, done with such intention, causes the death of the person aimed at, or of someone else. It is a common law principle that a man who has an unlawful and malicious intent against another and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough. Section 301 embodies a well-established principle of criminal jurisprudence based on the doctrine of transferred malice or transmigration of motive. Coke calls this method as coupling the event with the intention and end with the cause so that if killing takes place it ought to be treated as if the real intention of the killer had been carried out.

Section 301 reads as follows: 

"Culpable homicide by causing death of person other than person whose death was intended: if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of person, whose death he intended or knew himself to be likely to cause.

A Rule deducible from Sections 299 and 300: Section 301 does not enact any rule not deducible from Sections 299 and 300; it merely declares, in plain language an important rule deducible from the said Sections just as an explanation to Section does. The rule cannot well be stated as an explanation to either Section 299 or 300 as it relates to both. It was, therefore, found most convenient to state the rule by means of a fresh Section.

Illustration (a) to Section 299 explains that even if the act of a person is not intended or aimed at any particular person, it would still amount to culpable homicide. This illustration makes it quite clear that the legislature deliberately employed general and unqualified language in order to cover cases where the person, whose death is caused by the act of the accused, was not the person intended to be killed by him, but some other person. Illustration (d) to clause (4) of Section 300 also gives examples of a person randomly shooting into a crowd and killing one of them. He is said to be guilty of murder. Both these illustrations are examples where the offender did not have intention against any particular person.

 Object of Section 301: This Section lays down that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill. For instance, A intends to kill B but kills C whose death he neither intends nor knows himself to be likely to cause, intention to kill C is, by law attributed to him. One may call such killing as causing another's death by mistake.

Applicability of Section 301: This Section applies where the death of the person, whose death is intended, or known to be likely to occur, by the person doing the act does not, as a fact, occur, but the death of someone else occurs as a result of the act done by him. In Suryanarayana Murthy's Case (1912), the accused, with the intention of killing A, in whose name he had effected insurance gave some sweets mixed with poison to him. A ate a portion of it and then threw it away which was picked up and eaten by two children who died due to poisoning A eventually recovered. The accused was held guilty of murder of the two children.

If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C whether within sight or out of sight, A is deemed to have hit C with the intention to kill him because of Section 301. What is to be noticed is that to invoke Section 301, A need not to have any intention to cause the death or the knowledge that he is likely to cause the death of C. Here A is guilty of culpable homicide under Section 301. This is because what is important is the result and not the point with reference to whom the result was to be produced. A therefore cannot say that he is not guilty because he did not intend to kill C.

 In Gyanendra Kunmar v. State of UP, 1972, B made remarks in a meeting that the father and uncle of the accused were dishonest. Thereupon the accused rushed to his house some distance away and brought a loaded gun. By that time the meeting had ended. The accused asked those who were near B to move away so as to fire a shot at B. As soon as B started running to save himself, the deceased who was the maternal uncle of the accused rushed towards the accused in order to prevent him from using the gun. The accused, however, pushed him back and fired at B. But the deceased came between the gun and B, and was shot in the back and died. The act of the accused cannot be attributed to any grave and sudden provocation and the offence committed by him does not come under Section 304, Part I but under Section 302 read with Section 301, IPC.

If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out and he will be liable accordingly. If A counsels B to poison his wife, B accordingly obtains poison from A and gives it to his wife in a roasted apple, the wife gives it to a child of B not knowing it contained poison, who eats it and dies, this is murder in B though he intended nothing to the child. That is to say, a wilful doing of a prohibited act will render a person liable and it would be no defence for him to say that he never intended to cause death of the person killed and that the said person was killed by mistake. Similarly, there will OE no difference when the injury intended for one falls on another by accident.

In Shankarlal v. State of Gujarat, 1965, the Supreme Court held that if the accused shoots at a particular person with the intention of killing him, though under a misapprehension of his identity, the ingredients of Sections 299 and 300 IPC are satisfied. A person killing by mistake a man other than he intended to kill is, as regards his criminality, in the same position as if he had killed the person he intended to kill. In Jagpal Singh v. State of Punjab, 1991, the accused went to the house of the person whom he wanted to kill but when he shot at him, his wife fell a prey and was shot dead. The accused was convicted under Section 302/307, IPC and sentenced to life imprisonment. His defence that he never intended to kill the innocent wife of the person whom he actually wanted to kill was of no avail applying the doctrine of transfer of malice. The same principle is applicable where, through accident or the mistake of a party not privy to the criminal design, the mischief falls either on a person not intended, or on the party intended but in a different manner from that intended.