"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 must be treated as if the real intention of the killer had been actually carried out," a bench of Justices J B Pardiwala and R Mahadevan.

 

Court was dealing with a criminal appeal filed by one Ashok Saxena challenging the Uttarakhand High Court's judgment dated January 20, 2015 by which the appeal filed by the State of Uttar Pradesh came to be allowed and the appellant's acquittal as ordered by the trial court had been set aside. 

 

Before the apex court, the appellant's counsel contended that the offence is not one of murder or even culpable homicide not amounting to murder as the appellant herein had no intention worth the name to cause any harm to the deceased.

 

It was alleged appellant Ashok Saxena along with a co-accused Yashpal on June 25, 1992 at 7:45 pm trespassed to the house of Joginder Singh at Nainital with knife and hockey stick with an intention to assault him. Sensing trouble, Joginder's mother intervened into the matter. In the process the appellant herein is alleged to have inflicted a knife blow in the abdomen of the deceased, resulting into her death.

 

The incident was a fall out of an altercation with Joginder at a typing institute. The trial court acquitted both the accused. The High Court allowed the state's appeal and held the appellant guilty of murder. Co-accused Yashpal died during the pendency of the appeal before the High Court.

 

The appellant's counsel contended he had no intention to cause any harm to the deceased. The appellant had nothing to do with the deceased. Unfortunately, the deceased all of a sudden came in between and got severely injured who later succumbed.

 

The court said, "From the perusal of the provision of Section 301 of the IPC, it becomes manifest that Section 301 embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive."

 

It explained under the Section, if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under Section 301, A is deemed to have hit C with the intention to kill him.

 

"What is to be noticed is that to invoke Section 301 of the IPC, A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C. This Section lays down that culpable homicide may be committed by causing death of a person whom the offender neither intended nor knew himself to be likely to kill. 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 must be treated as if the real intention of the killer had been actually carried out," the bench said.

 

The court also pointed out in Gyanendra Kumar Vs State of UP, (1972), the accused was deliberately trying to shoot at a fleeing man who had criticised his father in a School Committee Meeting, but unfortunately, his own maternal uncle came in between him and the intended victim and thus got killed. This court has held that the act of the accused was nothing but murder under Section 302 read with Section 301 of the IPC, the bench pointed out.

 

In Hari Shankar Sharma Vs State of Mysore (1979), the intention of the accused was to kill prosecution witness No. 15 by firing a shot at him, but the accused shot the fire and killed the deceased. A plea was raised before this court that the appellant would be guilty of offence under Section 304-A or 307 of the IPC. This court rejected the said plea, the bench said.

 

In Jagpal Singh Vs State of Punjab (1991), appellant Jagpal had shot at Surjit Kaur even though he aimed at only Kapur Singh.

 

After applying doctrine of transfer of malice as contemplated under Section 301 of the IPC, this court has held that Jagpal had made himself punishable under Section 302 of the IPC, the bench pointed out.

 

In view of the principles laid down by this court, the bench said, "It is evident that even if it is held for the sake of argument that the appellant had no intention to cause death of the deceased, it will have to be held that doctrine of transfer of malice, as contemplated under Section 301, is applicable to the facts of the present case and that the appellant would be guilty under Section 302 of the IPC."

 

However, in the facts of the matter, the court, after relying upon two eye witnesses in the case, and having regard to the genesis of the occurrence, held the case falls within Exception 4 to Section 300 of the IPC.

 

It partly allowed the appeal and convicted the appellant of culpable homicide not amounting to murder under Section 304 Part I of the IPC.

 

"Having altered the conviction from Section 302 to section 304 Part-I, we reduce the sentence to the period already undergone keeping two things in mind the year of the incident i.e. 1992 and the age of the appellant as on date, 74 years," the bench said.