Doctrine of Transferred Malice

The Doctrine of Transferred Malice

The Doctrine of Transferred Malice is designed by Anglo-American law to allow full criminal responsibility where the defendant causes harm to a different object than the one he had in mind, due to an accident or mistake. This Doctrine is not directly mentioned in the Indian Penal Code but can be inferred in Section 301. The section states “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.”

This section explains that culpable homicide may be committed by causing the death of a person which was not intended and was by mistake. For example: A intends to kill B but kills C whose death he did not intend nor want to cause. The intention to kill C is, by law attributed to him. Such deaths are called death by mistake.

The main essentials are:

1. Cause death of a person

2. By doing an act with the intention or knowledge of causing the death of a person or

3. Causing bodily injury which could lead to death

4. Causing the death of another person instead of the person intended

The Penal Code embodies this principle as stated in the Supreme Court case State of Maharashtra v. Kashirao, if killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought of doing an act which intention of the killer had been carried out and he will be liable accordingly.

One of the earliest cases where this doctrine was applied in R v Latimer, the defendant got involved in an argument with another person at a pub. The arguments between the two increased rapidly. The defendant took off his belt with an intention to hit the man but he missed. The person he was trying to hit only got injured. The smash with the belt got diverted in another direction and it hit an innocent woman who was standing by the side of the man. She got hit in her face and was severely injured. It was held by the court that the defendant would be liable for injuries inflicted upon the woman although he did not intend to cause injury to her.Here, the principle of transfer of malice was applied. The mens rea he had (the intention to hit the man) towards the man was transferred on the woman.

The main issue embodying this doctrine is between the logic of transferred malice and its intuitive appeal and the requirement that mens rea concur with all the elements of the offence. Abolitionists hold that the doctrine of transferred malice is useless in cases in which the offence does not require a specific object harmed. Offences against the person and offences against the property do not typically have an intention, but in general intention towards harming a human being or causing damage to property does exist. While there is general intent there is specific intent which is usually the case of murder or culpable homicide, it is in the cases where you cannot define it as general intent neither as specific where this doctrine seeps through to help evade confusion. Thinkers, Heidi Hurd and Micheal Moore have argued that the doctrine of transferred malice was crafted at a time when offences were not complemented by lower grades of liability, and the choice then was between consummated liability by transfer of malice and no liability at all. Modern law does not use this argument to make their case, as the defendant, there is liability and there was general intent. Motive and intentions have always played a big role in deciding any case and even cases where this doctrine applies they are necessary to explored to make a just decision.

The doctrine of transferred malice applies to cases in which a person interfering in a dispute may be killed in the process. In the case of Gyanendra Kumar v. State of Uttar Pradesh, in a school committee meeting, B made remarks that the father and uncle of the accused were monopolizing all the seats of authority and that they were dishonest. The accused on hearing this went to his house and brought a gun, by that time the meeting had ended. The accused asked those who were near B to move away to fire a shot at B. B tried to escape and the deceased who was the maternal uncle of the accused rushed towards the accused to prevent him from his actions, the accused pushed him and fired at B, but the deceased came between the gun and B, and was shot in the back and died. It was held that the offence committed was murder under section 302 of the Indian Penal Code read with section 301.

In conclusion, the doctrine of transferred malice attracts punishment in the Indian Penal Code. Despite lack of intention, there is no excuse for a crime committed and falls under section 301. This principle can also be studied in the Law of Torts. Underthe law of torts, a person is held liable for damages and compensation, whereas under the Indian Penal code the punishment would involve Imprisonment.

Frequently Asked Questions

Does transferred malice work between different crimes?

The doctrine of transferred malice applies where the mens rea of one offence can be transferred to another. Transferred malice can operate so that the mens rea of A (intention to kill B) can be transferred to the killing of C

What is an example of Malice?

Malice is defined as bad will or the desire to do bad things to another person. An example of malice is when you hate someone and want to seek revenge. 

What is transferred intent in Torts?

Transferred intent is a doctrine that allows the defendant to be held liable for an intentional tort he intended to commit against A but, instead, accidentally committed against B.

How is transferred intent different from transferred Malice?

Transferred intent is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. It is called Transferred intent is in English law and transferred malice in Indian law.


The Indian Penal Code, K.D. Gaur, fourth Edition, Universal Law Publishing Co. p,195-210Cecil Turner.J. (2013), Kenny’s Outlines of Criminal Law, Cambridge: Cambridge University PressTextbook of Criminal Law, Glanville Williams, fourth Edition, Sweet & Maxwell South Asian Edition State of Maharashtra v. Kashirao (2003) 10 SCC 434R v Latimer (1886) 17 QBD 359Gyanendra Kumar v. State of Uttar Pradesh, AIR 1972 SC 502

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Srishti John
Srishti is a law student at CMR School of Legal Studies, Bangalore. In her time at law school, she has found herself lost in subjects like Jurisprudence and Criminology. She loves a good debate and people who challenge her to become better. She is a Political Science graduate from St. Xavier’s College, Mumbai. Her resolutions involve reading 30 books in 2020 and spreading a message of joy, kindness and love. She wants to pursue her LLM and aid the violated and vulnerable in their quest for equality & justice.