What is the Doctrine of Transferred Malice?

The word malice is expressly not defined neither under criminal law nor any other Indian Law, but as per understanding laid down by various statutes, malice means the intention of the person to cause injury to the other person or any deliberate action with an intention to kill the other person.

DOCTRINE OF TRANSFERRED MALICE:

Likewise, the aforesaid doctrine of transferred malice is not defined anywhere in the Indian Penal Code, but essentials are conferred in Section 301 of the Indian Penal Code.

Under Section 301 of the Indian Penal Code, any person 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 act committed by the person 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. 

Hence, from the above it can be inferred about the doctrine of transferred malice, i.e., a person commits the act in order to kill the other person but his act has been done in such a manner that it caused death to another person of whom he never intended to kill, but he knew that such act can kill any person upon whom such act is inflicted. Such transfer of intention is called the doctrine of Malice.

Therefore, the essentials for the doctrine of malice is:

• The intention to kill shall be present
• The act has been committed with the knowledge of causing death
• The act has been inflicted on another person, whom the offender never intend to kill, but knew that such an action can cause death to any person.

PRESENCE OF INTENTION

The Hon’ble Apex Court in the matter of Rajbir Singh vs the State Of U.P. has laid down the settled principle of law that to constitute an offense under section 301 the present invention is the utmost essentials. The court while dismissing the quashing order the High Court that if the killing took 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.

The court observed the fact that there was no intention to cause injury to the deceased and she was accidentally hit can make no difference as according to the version of the prosecution, the accused intended to cause injuries by firearm to Hoti Lal and in attempting to carry out the same, also caused injuries to her. The reasons given by the High Court for quashing the charges are, therefore, wholly erroneous in law and cannot be sustained.

CONCLUSION

With the reference to the aforesaid provision and judgment, and also with reference to one of the landmark judgment laid down by the Hon’ble Apex court in the matter of State Of Maharashtra vs Kashirao & Ors that the provision of 301, IPC 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.

About The Author:

Adv.Dr. Ashok Yende is the Founder & Managing Partner at the Yende Legal Associates. He has been empanelled as the Mediator by the Bombay High Court, Maharashtra State Consumer Commission, Presolv360. He had served as Professor & Head, of the Department of Law, at the University of Mumbai. He is the Founder and Director of the University of Mumbai Law Academy. He is the President of Global Vision India Foundation and has headed leading law institutions in the country. He has significantly contributed to the cause of legal education and profession. Besides, D.Lit., Ph.D., and LL.M. degrees, he has passed programs at Harward Kennedy School, USA, and London Business School, London. With an extensive experience of over 35 years, he has authored seven books, and has been honoured with prestigious awards.