Transferred Malice

The article searches for the provinces in which that doctrine should still be relevant to our legal system, given the diversity of views advocating the eradication of the transferred malice. It is often assumed that malice can’t be transferred between different crimes, leading many scholars to conclude that the doctrine is superfluous.

In the scholarly writings on ‘transferred malice’ the  two recurring themes of the doctrine designed by common law to allow full criminal responsibility where the defendant caused harm to an object other than the one he had in mind, either due to accident or error.


Have you ever heard any incidents or accounts in which someone tried to kill a person but unknowingly  killed someone else ? I assume you must have understood and even discovered that there was no intention of causing death or that he was unaware that such an act is likely to cause the person’s death.

Do you think the person with such an excuse should be convicted, or can the court declare  him innocent? The answer to that question is no, he’s going to be held guilty.

Now the concept of transferred malice comes into the picture here. It relates or applies where the mens rea may be passed from one offence to another.

Meaning of  malice

It refers to a person’s intent to cause harm to another person. Malice may be expressed or inferred. If any deliberate action or behavior toward the other person with intent to kill is initiated, it is known as expressed malice.When the intent is clearly visible from the behavior of the person then that implies malice.

‘Transfered Malice Doctrine’

The Indian Penal Code specifically refuses to describe the ‘Doctrine of Transferred Malice.’ Instead it is inferred from Indian Penal Code section 301.

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 that kind of  act where  a person wanted to kill someone else. He also had an intention and the knowledge that such an act  is likely to cause death or grievous injury but instead killed another man.   

The person who commits culpable homicide has full knowledge that his act can cause death or grievous injury to a person but unfortunately  killed another person whom he/she never indented.

Essentials conditions

  • Causes death
  • By doing an act with an intention or full 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 purpose of transferred malice Section 301

The purpose of transferred malice under Section 301 is to describe the nature of culpable homicide. We will address the situations in which a convicted party can’t take the defense that there was no presence of intention.

If a person who committed a culpable homicide had an intention to kill a person but instead killed another person. It could even be the case where he didn’t really want to kill, or where he didn’t know his act would cause death. In these cases he will be ruled as guilty and such ambiguous arguments as the absence of motive will not be entertained in any trial.

In a simple terms, a person may not be set free under section 301 on the grounds that he has no intention. Instead, the ‘Transferred Malice Doctrine’ will apply, and he will be held guilty.

Transferred Malice Applicability

The importance of Section 301 or its applicability is when a person who has been attacked by the perpetrator is not killed and the culpable act kills another person.

The ‘Doctrine of Transferred Malice‘ shall apply only in such cases.

Photography ‘T’ intends to kill ‘F’ but will kill ‘Y’ without intention to killing him. In this illustration the law will apply the “Transferred Malice Doctrine” and perceive that he intended to kill that person in the first instance himself. He will therefore be found guilty of killing ‘Y.’

‘S ‘entered’ D “house with the intent of committing robbery. ‘S’ asks for money from ‘D’. ‘D’ turned down giving. The ‘S ‘suddenly fired at him because of this. ‘D’s’ wife ‘R’ came in between to guard her husband and died as a result of being shot in the head. Here ‘S ‘is found guilty of transmitted malice

  1. Regina v Mitchell[1] 

In this case , the appellant was attempting to jump the queue to a post office. An elderly man objected to that conduct. In retaliation the appellant not only pushed the elderly man but also hit him.

The elderly man falls on the people who stood in the queue behind him. In the queue there was an elderly woman, who also fell down and broke her leg. She later died from that broken leg. The accused was found guilty of manslaughter.

In this case, while the appellant did have any intention of hitting the old lady, he was convicted by applying the transferred malice principle because of his intention to hit the man.

The defendant in this case was in an altercation with another in a restaurant. The disputes between the two quickly grew. The defendant takes off his belt with the intention of hitting the man but he missed. The person he was just trying to hit got injured a little bit. The smash with the belt was redirected in a particular direction, and it struck an innocent woman standing by the man’s side. She was struck in her chest, and was severely wounded.

The court held that the defendant will be liable for the injuries inflicted on the woman despite the fact that he had no intention of causing her injury.

Here, it applied the principle of malice move. He had the Mens Rea (the intent to hit the man)

  • Rex v. Saunders (1573[3]

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

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

  • Rajbir Singh v. State of U.P[4]

In this case , the appellant claimed that on the compound of his brother’s house the neighbor threw some bricks. Because of this, there was a verbal fight between his father and the accused but the local people somehow settled the matter. The next day he was accused of having come with guns with his two relatives. They were coming near the plaintiff’s shop where his father was standing. There, the accused persuade his relatives to kill him, or encourage him. The accused began firing at the complainant’s father, who then got injuries and fell.

A girl came to that shop to buy some items from that shop, and was injured and fell down. On the way to hospital both of the wounded people died.

In his argument, the accused said the girl had died by accident, and there was no intention on their part to kill her. From that place she passed by and suffered injuries as a result, and died.

The Supreme Court set aside the High Court’s decision, and convicted the accused. He has been indicted under Section 301.

  • Emperor v. Mushnooru Suryanarayana Murthy[5]

The accused, Mushnooru Suryanarayan Murthy, had an intent in this case to kill Appala Narasimhulu. It was because he was able to get the guaranteed amounts on her. He gave some sweet dish without Appala ‘s knowledge which contained a poison of arsenic and mercury. Narasimhulu consumed a small portion of Appala and threw away the rest. The accused niece was Rajalakshmi, aged 8. He ate a sweet plate, and gave some to the other little boy. This was done, without the accused’s knowledge. The boys died. But Appala’s recovered from its extreme effects.

Even if he did not wish to destroy them but would be held responsible for the penalty according to the doctrine of passing malice.

The court sentenced him to seven years of severe imprisonment for attempting to commit murder but, through his appeal, the penalty was increased to lifetime transportation (transported to the colonies to serve their prison sentences).


A brief review on the subject, i.e. the ‘Doctrine of Transfer Malice,’ tells us that transferring malice in the Indian Penal Code will attract punishments. Notwithstanding lack of intention, one can not save oneself from a crime committed and this falls under section 301.

Transfer of intent does not function or can not be used where the crime expected to be committed is different from the outcome. An example is one case I mentioned earlier, i.e.  Rex v. Pambelton.  The transferred malice principle can be seen in the Law of Torts as well. A individual is held liable for damages under the Law of Torts. Imprisonment under the Indian Penal Code can be granted.

The transferred malice principle can be seen in the Law of Torts as well. A individual is held liable for damages under the Law of Torts. Imprisonment under the Indian Penal Code can be granted.Many people often call it goal transition, motive transition or motive transmigration.

Section 301 simply notes that the accused had the intention or intent of killing the other person. That is up to the court whether an act is a murder or a culpable homicide.


[1] [1983] QB 741

[2] (1886) 17 QBD 359

[3] 2 Plowd 473

[4] LQ 1997 HC 6056

[5] Cr.A.No. 32 of 1912

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