Section 301-
Culpable homicide by causing death of person other than person whose death was
intended-
The doctrine requires following:
If
a person by doing anything which he intends/knows to be likely to cause death commits
culpable homicide by causing death of any person Whose death he neither
intends nor knows himself to be likely to cause Culpable homicide
committed by offender is of description of which it would have been If
he had caused the death of the person whose death he intended/knew himself to
be likely to cause
Thus offender must have intention/knowledge to cause
death of someone
+
He kills somebody else
whose death he had not intended/known
Such offender would still be convicted under same
degree of CH, he would have been if he would have succeeded in killing the
person he intended/knows to kill.
The provision is founded on a doctrine called by
Hale and Foster, a transfer of malice. Others describe it as a transmigration
of motive. Coke calls it coupling the event with the intention and the end with
the cause. 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 ought to be treated as
if the real intention of the killer had been actually carried out.
When any factual matrix wherein death has been
caused, the 1st step is to ascertain whether the act of the offender
has been the cause of death, thereafter inspection moves to determine whether
the act of accused falls under Sec 299 or Sec 300. If it is affirmed that the
act does fall in any one of these sections than further dissection has to be
done.
Sec 301 merely fixes the liability either
under Sec 299 or Sec 300. What is to be seen is the intention/knowledge of
accused in committing act which would have led to death of someone. The section underlines that the accused did have
the intention/knowledge to commit death,
it is only the intended person did not die. Therefore what is primarily to be
ascertained is whether the act of accused falls under Sec 299 or 300.
In case of transfer of motive the most crucial
aspect is highlighted by Supreme Court in
Shankarlal Kachrabhai & Ors vs
State Of Gujarat (AIR 1965 SC 1260)
“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 S. 301, A is deemed
to have hit C with the intention to kill him. What is to be noticed is that to
invoke s. 301 of the Indian Penal Code A shall not have any intention
to cause the death or the knowledge that he is likely to cause the death of C.”
Most recently in a case SC again invoked this
doctrine to nail the accused [St of
Rajasthan v Ram Kailash Decided on Jan 28, 2016]
Two men were going on a motorcycle. Suddenly the
pillion driver noticed that accused was firing on them while chasing on other
motorcycle. The pillion rider succumbed to injuries after identifying the
accused in DD.
The HC has noticed that the “ gunshot injury was of-course of such a
nature as opined by the doctor was likely to cause death and was fired with an
intention, but the offender was not knowing that as to whom he is causing harm
out of the two on the motorcycle.”
The HC convicted the accused under Sec 299 secondly
punishable under Sec 304 para 1 degrading from punishment inflicted by lower
court under Sec 302 IPC.
The SC reversed the conviction ordered by HC,
thereby upholding the 302 IPC charge awarded by trial court. The SC emphasized that
the accused was fully conscious of the fact that his act of firing would result
in death and hence was fully aware of ‘likelihood of death’.
Further the evidences fix culpability under sec 302.
There was eye-witness account by driver of motorcycle on which victim was
driving, than there was DD by victim himself, also empty bag of 12 bore cartoos
was recovered from accused. All these confirm that accused had complete predetermined
intention to kill and even though he may not be knowing as to whom he was
firing, still by effect of Sec 301 and his intention to kill evident by
circumstances lead to his conviction under sec 302
In all, Sec 301 in a rare asset which aims at fixing
the responsibility when death is caused.
Emperor vs Mushnooru Suryanarayana
Murthy[ Madras HC 1912]
The Murthy case is considered as leading authority
on Sec 301
The accused with intention of killing A gives him
some halva mixed with poison. A eats some of halva and throws the rest. The thrown
part is picked up and consumed by R aged 8 or 9. Due to its consumption R dies
but A though severely effected from poison, recovers.
The question before court was whether accused is
responsible for death of R.
The majority opinion convicted the accused for
causing death of R. and this was in terms of Sec 301 IPC as death was caused
and accused had intention to kill, though not R. An English case of Agnes Gore
is cited by Benson J
“
In that case Agnes Gore mixed poison in some medicine sent by an Apothecary,
Martin, to her husband, which he ate but which did not kill him, but afterwards
killed the Apothecary, who to vindicate his reputation, tasted it himself,
having first stirred it about. " It was resolved by all the Judges that
the said Agnes was guilty of the murder of the said Martin, for the law
conjoins the murderous intention of Agnes in putting the poison into the
electuary to kill her husband, with the event which thence ensued; i.e., the
death of the said Martin; for the putting of the poison into the electuary is
the occasion and cause ; and the poisoning and death of the said Martin is the
event, quia eventus est qui ex causa sequitur, et dicuntur eventus quia ex
causis eveniunt, and the stirring of the electuary by Martin with his knife
without the putting in of the poison by Agnes could not have been the cause of
his death." (King's Bench 77 English Reports, p.853 at page 854)”
Thus emphasis is laid on final ensuing of event, i.e.,
death. Bensen J further explained the operation of Sec 301
“
9. The section does not enact any rule not deducible from the two preceding
sections, but it declares in plain language an important rule deducible, as we
have seen, from those sections, just as an explanation to a section does. The
rule could not well be stated as an explanation to either Section 299 or
Section 300 as it relates to both. It was, therefore, most convenient to state
the rule by means of a fresh section., The rule makes it clear that culpable
homicide may be committed by causing the death of a person whom the offender
neither intended, nor knew himself to be likely, to kill, a rule which though
it does not lie on the surface of Section 299, yet is, as we have seen,
deducible from the generality of the words '' causes death" and from the
illustration to the section ; and the rule then goes on to state that the
quality of the homicide, that is, whether it amounts to murder or not, will depend
on the intention or knowledge which the offender had in regard to the person
intended or known to be likely to be killed or injured, and not with reference
to his intention or knowledge with reference to the person actually killed,
a rule deducible from the language of the Sections 299 and 300 though not,
perhaps, lying on their very surface. The conclusion, then, at which I arrive
is that the accused in this case is guilty of murder as defined in Sections 299
to 301, Indian Penal Code.”
Though in Murthy court also drew from Sec 299/300 where
the actus is ‘causing death’ and such ‘causing death’ is ‘with the intention of
causing death’.
Since in all facts discussed above death has been
caused and accused certainly possessed intention/ knowledge that death of victim
would be the natural consequence of his acts, he cannot escape liability but
since the person dead is not the one accused intended to kill his culpability
shifts to sec 301.
“It
is sufficient if death is actually, even though involuntarily, caused to one
person by an act intended to cause the death of another. It is the criminality
of the intention with regard to the latter that makes the act done and the
consequence which follows from it an offence.”
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