Skip navigation

Doctrine of Transferred Malice

Jan. 16, 2022   •   PRATEEK MUDGAL

Ashwin Pandey is a third-year student pursuing his BA. LLB from the West Bengal National University of Juridical Sciences, Kolkata.

Introduction

Malice is a term that we come across fairly frequently, be it in the news or in books. It is used to refer to the intention of a person to cause harm to another. This can be expressly made out or inferred. So, for example, if I shoot a person, Bikramjit, with the intention of killing or gravely injuring him then my intention in such a case can be clearly made out.

But what happens if there arises a hypothetical situation where I had set out to kill Bikramjit but ended up killing Surja without intending to do so? Can I simply use the defense that it had never been my intention to kill Surja? In order to prevent me from doing so, the courts apply a doctrine known as the doctrine of transferred malice.

This doctrine transfers the mens rea of the defendant from their intended victim to their actual victim.[i] As per the example given above, the mens rea to kill Bikramjit can be transferred on to Surja.

One of the earliest real-time illustrations of the transferred malice doctrine can be found in the case of R v. Saunders.[ii] In this case the defendant laced an apple with arsenic so as to poison his wife. However, the wife ended up feeding the apple to their daughter who passed away due to the poison. In this case, the husband had only intended to kill his wife and not their daughter, however, the courts applied the doctrine of the transfer of malice and said that the husbands’ intention to kill his wife had gotten transferred to their daughter and he could hence be held guilty for her murder.

In the case of R v. Latimer,[iii] a man had intended to hit another man with who he had been arguing, with his belt. However, he missed his intended target and ended up hitting an innocent woman who had been standing there. The court once again held in this case that his mens rea to cause harm to the man had been transferred on to the woman and he could be held liable for having injured her.

It is, however, important to remember that the doctrine of transferred malice can only be applied in a case where the crime committed is the same. This was illustrated in the case of R v. Pembleton.[iv] In this case, the accused had thrown stones into a crowd of people with the intention of injuring them. However, he missed the crowd altogether and hit a window instead. It was argued that the doctrine of transferred malice could be used in this case since his intention to hit a member of the crowd had been transferred to the window. The main question before the court was whether the accused could be held guilty of criminal damage and if the doctrine could be used in cases where the intention and the result were not the same. It was finally held by the court that the doctrine could not be applied in such cases where the end result of the crime had not been what the accused had intended. Thus malice cannot be transferred to different crimes.

Looking at the Doctrine of Transferred Malice in the Indian Context

While the IPC does not provide a direct definition for transferred malice, the same can be interpreted from Section 301 of the Act which states that:

Culpable homicide by causing the death of person other than the 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 the person whose death he intended or knew himself to be likely to cause.”[v]

Culpable homicide, as referred to in the section, is of the sort where the accused wanted to kill his intended victim, and he had the requisite intention as well as knowledge of the fact that his act will lead to the death of his intended victim although he ended up killing someone else.[vi]

Thus, the essential ingredients that need to be fulfilled when looking at cases of transferred malice are:

- The accused has caused the death of another person.

- The death was caused due to an act that was done with the intention of causing the same.

- The accused caused such bodily injury which was likely to result in death.

- The accused caused the death of some other person than the one he had intended to kill.[vii]

The main objective behind Section 301 is to ensure that an accused is not set free by the court simply on the grounds that they had not had the requisite intention to cause the crime, and their malice will be transferred in order to hold them guilty.[viii]

This principle was further upheld in the Supreme Court judgment in the case of State of Maharashtra v. Kashirao[ix] where the court while discussing Section 301 stated that “The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. 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.”

Furthermore, the doctrine has also been applied to cases where a person who was interfering in a dispute was killed. This could be seen in the case of Gyanendra Kumar v. State of Uttar Pradesh[x] when the accused aimed his gun at the intended victim (who had made statements against his family) after asking all those near him to move away. However, as the accused fired at his intended victim, his uncle came in the way of the shot and was killed due to the injury. It was held by the court in this case that the offense had been that of murder under Section 302 of the Indian Penal Code read with Section 301.[xi]

Conclusion

As we have seen in this article, the transfer of malice can lead to punishments under the Indian Penal Code under Section 301. The doctrine prevents an accused from taking a defense of lacking the requisite intention of causing the crime. However, this cannot be applied in cases where the intended crime and the final crime are different.[xii]

REFERENCES


[i] Law, L., 2022. Transferred malice - Lucid Law. [online] Lucid Law. Available at: <https://lucidlaw.co.uk/criminal-law/legal-doctrines/transferred-malice/> [Accessed 30 December 2021].

[ii] R v Saunders (1573) 2 Plowd 473.

[iii] R v Latimer (1886) 17 QBD 359

[iv] R v Pembleton (1874) LR 2CCR 119

[v] The Indian Penal Code, No. 45 of 1860, §301.

[vi] Tiwari, S., 2022. Transferred Malice - Indian Law Portal. [online] Indian Law Portal. Available at: <https://indianlawportal.co.in/transferred-malice/> [Accessed 30 December 2021].

[vii] Kundlani, K., 2022. Doctrine of Transferred Malice under Indian Penal Code. [online] iPleaders. Available at: <https://blog.ipleaders.in/transferred-malice/> [Accessed 31 December 2021].

[viii] Ibid.

[ix] State of Maharashtra Vs. Kashi Rao & Ors., (2003) 10 SCC 434.

[x] Gyanendra Kumar v. State of Uttar Pradesh AIR 1972 SC 502.

[xi] John, S., 2022. Doctrine of Transferred Malice - Law Times Journal. [online] Law Times Journal. Available at:<https://lawtimesjournal.in/doctrine-of-transferred malice/#:~:text=The%20Doctrine%20of%20Transferred%20Malice,to%20an%20accident%20or%20mistake.&text=Such%20deaths%20are%20called%20death%20by%20mistake.> [Accessed 2 January 2022].

[xii] Supra, note iv.


Disclaimer

This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.


Liked the article ?
Share this: