Transferred malice and Offence of Culpable homicide


You must have heard the story where a person intended to kill someone but instead of him kill some other person. On taking their defence in the court, they state that there was no intention to cause death or he does not know about the fact that such an action is likely to cause the death of the other well being. The question here arises whether such an excuse can declare him guilty. This situation can be relate to the concept of transferred malice. Whereas in the act of culpable homicide then also the person may be punished if he does not have the intention to cause death but just to cause some hurt even though death has resulted. So in this article we are going to discuss the two concept and will point out the connection between them.

Offence of culpable homicide

The word homicide have been derived from two words: ‘homo’ and ‘caedere’. Homo refers to a man and caedere means to cut or kill. But all cases of homicide are not culpable. There are two types of culpable homicide, first is “culpable homicide amounting to murder” which means a simple murder and second is “culpable homicide not amounting to murder”. There is necessarily an intention and knowledge in both but the difference does not lies in the quality but in the quantity, or degree of criminality. In culpable homicide amounting to murder i.e. there is greater intention and knowledge than culpable homicide not amounting to murder. Culpable homicide has been defined in Section 299 of the Indian penal code, which states that—“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”. Let us explain with an example – George by shooting at a deer with an intention to kill and steal it, kills Peter who is behind a bush. George doesn’t that Peter was there. Although George was doing a wrongful act, he was not culprit of culpable homicide as he doesn’t intend to kill Peter.

Some of its ingredients are-

  1. The act by which the death have been caused.
  2. Intention to cause death.
  3. Intention to cause body injury likely to cause death.
  4. Knowledge of the act.

The punishment for culpable homicide not amounting to murder has been given in Section 304 of the Indian penal code

  • “If the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death – Imprisonment for life, or of either description for a term which may extend to ten years.
  • If the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death – With imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

Doctrine of Transferred malice

Before discussing the doctrine of transferred malice, first we will discuss the meaning of malice. Malice refers to the “intention of a person causing injury to another person. It can be expressed or implied. If it is a planned action initiated towards the other person with an intention to kill him then it is known as expressed malice. And if the intention is clearly visible from the person’s behavior then it is known as implied malice”.

The ‘Doctrine of Transferred Malice’ is not precisely defined in the Indian Penal Code. Rather it is Implied from section 301 of the 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 by causing the death of any person, whose death he neither intends to nor knows by himself that  his act will cause the death of that person”.

 Essentials of transferred malice:

  1. Causing death to any person.
  2. Causing death of the person with intention and knowledge of the act.
  3. Inflicting bodily injury that is likely to cause death of the person.
  4. Causing the death of another person other than the person intended.

The concept of transferred malice with reference to culpable homicide

The act of a person will be a culpable homicide where he intended to cause death of the other person and had an understanding and knowledge that his act can cause the death he intended but kills another person. The man executing the act of culpable homicide had some sort 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.

The nature of culpable homicide can be inferred from the “object of transferred malice”. In the study of transferred intention the person does not have the motive to kill the other person nor did he have any knowledge that his act is likely to cause the death of such person. Instead he only has planning, intention and knowledge to cause the death of the person he intended. So in this situation the person causing the death will be held guilty and cannot be leave free on the ground of excuse of non-motive. But instead the “doctrine of transferred malice” will apply according to section 301.

Some Case laws regarding transferred malice:

In the case of State of Rajasthan v. Ram Kailash, two men were going on a motorcycle, the man sitting behind the bike noticed that the accused were firing on them from the other motorcycle. Due to this, the man who was sitting behind the bike got some injuries from the act of the accused. The High court observed that, “gunshot injury was of course of such a nature as said by the doctor was likely to cause death and caused with the intention but the accused was unknown upon whom he was firing out of two on the motorcycle”. The HC held the accused guilty under section 299 IPC secondly and under section 304 IPC paragraph first. Further the order of the HC was reversed by the Supreme Court by upholding the charge under section 302 IPC awarded by the trial court.  The Supreme Court observed that the accused was fully aware of the facts that his act of firing could result into death. Further some evidence ensured that the accused pre planned the killing. Even if he doesn’t know as to whom he was firing, still by effect of section 301 IPC he was convicted under section 302 IPC.

In the case of R V. Saunders, “the wife was persuaded by the husband to eat an apple laced with a chemical of arsenic. It was an intended by the husband to kill her so that he can get free to marry another women after her death. Subsequently the wife gave the poisoned apple to his daughter, as a result her daughter died. The intention to kill the wife was transferred to the daughter and the husband was convicted under section 301 IPC”.


It has been studied that one can save himself from expressing that he/she doesn’t have an intention to kill the another person. But the doctrine of transferred malice has proved that one cannot save himself under section 301 IPC despite of lack of intention. As we have studied the relation between transferred malice and culpable homicide it has been concluded that every act of killing any person with even minimum sort of knowledge will amount to the offence of culpable homicide.

Author: Raman Saxena,
Delhi metropolitan education affiliated to GGSIPU

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