This articles has been written by Ms. Khyati Kanoje, a student studying B.A.LL.B (H.) from Narsee Monjee Institute of Management, NMIMS, Indore. The author is a 3rd year law student. 

Transferred mens rea is a legal concept that applies in situations where a defendant intends to commit a crime against one person but ends up causing harm to another person. In such cases, the defendant’s intent or mens rea is transferred from the intended victim to the actual victim.

For example, suppose a person intends to shoot and kill their neighbor but misses and accidentally kills a passerby. In this case, the defendant’s intent to kill their neighbor is transferred to the passerby, and the defendant can be charged with the crime of murder or manslaughter.

Transferred mens rea can also apply in situations where the defendant intends to commit a lesser crime but ends up committing a more serious offense. For example, if someone sets fire to a building intending to damage property but ends up causing harm to people, the defendant’s intent to damage property is transferred to the harm caused to the people, and they can be charged with a more serious crime.

In summary, transferred mens rea is a legal concept that applies when a defendant intends to commit a crime against one person but ends up causing harm to another person. It allows the defendant’s intent to be transferred from the intended victim to the actual victim, and the defendant can be held criminally liable for the harm caused to the actual victim.

Lord Mustill explains that transferred malice “has the effect of treating the intended victim and the actual victim as if they were one, so that what was intended to happen to the first person (but did not) is added to what actually did happen to the second person (but was not intended to), with the result that what was intended and what happened are married to make a notionally intended and actually consummated crime.” It’s a figment of the law’s imagination, created to smooth over the inevitable rough spots when the letter of the law doesn’t quite match up with the spirit of what society needs. Although transferred malice serves a purpose in this respect, it is based on a flimsy conceptual foundation that makes it susceptible to misapplication, and its ill-defined principals impede the natural development of new law. It’s also indicative of the broader problem with UK homicide law, which, per the Law Commission, fails to do either of two crucial things. First, we want to make sure that offenders are properly stigmatised and that society’s collective conscience is appeased, thus we want crime titles that accurately reflect the nature and severity of the offence. The second goal is related to the idea of legality, which holds that laws ought to have precise definitions to prevent arbitrariness.

Consideration of the fiction of transferred malice can be traced back to one of the first examples,

 Saunders v. R, 1 SCR 1020

an episode of Archer in which Saunders poisons his daughter instead of his wife. When “[a] man lays the poison with an intent to kill some 9 reasonable creature,” the court ruled, “such death shall not be unpunishable, but he who prepared the poison shall be punished for it, because his intent was evil.” That aligns with the findings of Report 10 from Chief Justice Fleming’s later 

 It was in the Agnes Gore Case (with very identical evidence) that he made the remark, “

If A puts poison into a pot of wine, etc. with the intention of poisoning B, and leaves it where he supposes B will come and drink of it, and C (to whom A has no hatred) comes, and of his own head takes the pot and drinks of the poison, of which he dies, it is murder in A.

Because the King has lost a subject because of the poison, and because the poison was put there with the aim to kill, the person responsible must face legal consequences. In each of these decisions, the court clearly regarded transferred malice as a subset of general malice; the desire to kill is so heinous that it overwhelms the significance of its purpose. Since the felony murder doctrine was abolished in Section 1 of the Constitution, the general malice justification is no longer adequate on its own.

Although the term “malice” is not defined in Indian criminal law or any other body of law, it is understood to signify the purposeful infliction of harm or the commission of an act with the specific intent to kill.

Similar to the lack of a definition for “above doctrine of transferred malice,” Section 301 of the Indian Penal Code provides the bare minimum for applying this doctrine.

A person is guilty of culpable homicide under Section 301 of the Indian Penal Code if he causes the death of another person whom he does not intend or know himself to be likely to cause.

The perpetrator’s actions are consistent with those that would have resulted in the death of the victim he intended or knew were likely to result from them. 

Therefore, the above suggests that the doctrine of transferred malice applies when a person commits an act with the intent to kill another individual, but does so in a way that results in the death of a third party whom he had no intention of killing but who he knew would die as a result of the act. This concept, known as the notion of malice, refers to the transmission of malicious intent.

Therefore, the foundational elements of the notion of malice are:

• There must be an intent to kill.
• Knowingly killing another person was the goal of the conduct.
• The perpetrator inflicted harm on someone else without intending to kill them, but with full knowledge that their actions could kill anyone.

INTENTIONAL PRESENCE

The current invention is a necessary component of an offence under section 301, as established by the Supreme Court’s precedent in the case of Rajbir Singh vs. the State of Uttar Pradesh. The High Court ruled in its dismissal of the quashing order that if a person is killed while committing an act that they intend or know is likely to cause death, such killing should be considered as if the killer’s true intention had been carried out.

According to the prosecution’s version of events, the accused intended to cause injuries by firearm to Hoti Lal and, in attempting to carry out the same, also caused injuries to Hoti Lal. The court noted that the fact that there was no intention to cause injury to the deceased and she was accidentally hit can make no difference. Therefore, the High Court’s justifications for dismissing the charges are legally untenable.

Conclusion

With the above provision and judgement in mind, as well as one of the landmark judgements laid down by the Hon’ble Apex court in the matter of State Of Maharashtra vs Kashirao & Ors, Appeal [(crl.)  124 of 2003], it becomes clear that the provision of 301, IPC is based on a doctrine called the “transfer of malice” popularized by Hale and Foster. Motive migration is how it is described by some. Coke calls this linking of cause and effect “coupling the event with the intention.” A killing committed in the course of an act that the killer intends or knows is likely to cause death should be treated as if the perpetrator’s true aim had been carried out.

REFERENCES

• https://www.academia.edu/12279821/Transferred_Malice
• https://restthecase.com/knowledge-bank/what-is-malice – :~:text=DOCTRINE OF TRANSFERRED MALICE%3A&text=Under Section 301 of the,to be likely to cause.
• Ashworth, A. 1978. “Transferred Malice and Punishment for Unforeseen Consequences.” Reshaping theCriminal Law.