(a) Discuss the doctrine of 'Transferred Malice' as applied to law relating to culpable homicide under the Indian Penal Code…

(a) Under the doctrine of transferred malice (transmigration of motive), a person's guilty intention towards one person attaches to the harm actually caused to another. The common law example is R v Saunders and Archer (1573): a poisoned apple meant for the wife was eaten by the daughter, and the offence was murder. See also R v Latimer (1886).

Statutory basis

• Provision: IPC s.301, now BNS s.102, provides that 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 a person whose death he neither intends nor knows himself to be likely to cause, the offence is of the same description as if he had caused the death of the person he intended or knew he was likely to kill.
• Effect: the accused's mens rea is measured against the intended victim. Whether the offence is murder (IPC s.300 / BNS s.101) or culpable homicide not amounting to murder (s.299 / BNS s.100) depends on that intended act. So if A shoots at B with intent to kill but kills C, A is guilty of murdering C. If A would have had a mitigating exception against B, such as grave and sudden provocation by B, the same exception applies to C's death.

Judicial application

• ***Jagpal Singh v State of Punjab* (1991):** shots fired at one person killed another. Section 301 made the killers liable as if the intended victim had died.
• ***Abdul Ise Suleman v State of Gujarat* (1995):** the accused fired at one person and killed a boy. The conviction for murder was upheld by applying s.301.

Limits

• Only culpable homicide: s.301 applies only to culpable homicide, where the intent or knowledge concerns death. For hurt and other offences, courts use the general principle.
• Same kind of harm: the malice transfers only between harms of the same kind. In R v Pembliton (1874), an intent to hit a person with a stone did not make the accused guilty of maliciously breaking a window.
• Additional liability: the accused may also be liable for attempt towards the intended victim.

(b) Private defence is a right to protect, not to punish or retaliate. For property it is governed by IPC ss.96–106, now BNS ss.34–44.

Nature and scope

• Not an offence (s.96 / BNS s.34): nothing is an offence which is done in the exercise of the right of private defence.
• Scope (s.97 / BNS s.35): every person may defend his own or any other person's property, movable or immovable, against theft, robbery, mischief or criminal trespass, or attempts to commit them.
• Unsound or mistaken attacker (s.98 / BNS s.36): the right exists even against a person of unsound mind or one acting under a misconception.
• Settled possession:
• a trespasser in settled possession may defend it even against the true owner (Puran Singh v State of Punjab (1975));
• a true owner may resist a trespasser whose possession is not yet settled (Ram Rattan v State of UP (1977)).

Extent: causing death (s.103 / BNS s.41) The right extends to causing death only against:

• robbery;
• house-breaking by night;
• mischief by fire to a building, tent or vessel used as a dwelling or for custody of property;
• theft, mischief or house-trespass in circumstances causing reasonable apprehension of death or grievous hurt.

In all other cases the right extends only to causing harm short of death (s.104 / BNS s.42).

Duration (s.105 / BNS s.43)

• Theft: until the offender has retreated with the property, the help of public authorities is obtained, or the property is recovered.
• Robbery: as long as the offender causes or attempts to cause death, hurt or wrongful restraint, or the fear of these continues.
• Criminal trespass or mischief: as long as the offender continues the act.
• House-breaking by night: as long as the house-trespass continues.

Limitations (s.99 / BNS s.37)

• Public servants: there is no right against acts of a public servant, or of a person acting under a public servant's direction, done in good faith under colour of office, unless the act reasonably causes apprehension of death or grievous hurt.
• Time to seek help: there is no right where there is time to have recourse to the public authorities.
• Proportionality: no more harm may be inflicted than is necessary for defence.

Judicial approach

• No arithmetical nicety: the harm is not weighed in "golden scales" (Darshan Singh v State of Punjab (2010), which laid down guidelines).
• Burden of proof: the accused must establish the plea only on a preponderance of probabilities (IEA s.105 / BSA s.108).
• Exceeding the right: under Exception 2 to s.300 (BNS s.101), a person who exceeds the right in good faith commits culpable homicide, not murder.

(c) Constructive criminality means liability imposed on a person for an offence they did not personally commit, or did not specifically intend, because of their association with the person who committed it. The law of abetment (IPC ss.107–120, now BNS ss.45–60) contains several such rules.

Abetment itself

• Forms (s.107 / BNS s.45): abetment by instigation, by conspiracy (with an act or illegal omission in pursuance of it), or by intentional aid.
• Complete without the offence (s.108, Expln 2 / BNS s.46): abetment is complete even if the act abetted is not committed.
• Punishment when the act is done (s.109 / BNS s.49): where the act abetted is committed in consequence, the abettor receives the punishment for the offence itself.

Constructive extensions

• Different intention (s.110 / BNS s.50): if the person abetted acts with a different intention or knowledge, the abettor is still punished for the offence abetted.
• Different act (s.111 / BNS s.51): when one act is abetted and a different act is done, the abettor is liable for the act done, as if he had abetted it directly. This applies if it was a probable consequence of the abetment and was committed under its influence, or in pursuance of the conspiracy.
• Illustration: A instigates B and C to rob an inhabited house at night and gives them arms. They murder Z, who resists. If murder was a probable consequence, A is liable for murder.
• Contrast: A instigates B to burn Z's house. B also steals property. A is not liable for the theft, which is a distinct act and not a probable consequence.
• Cumulative punishment (s.112 / BNS s.52): where the act done is an additional offence, the abettor is punishable for both offences.
• Different effect (s.113 / BNS s.53): where an act is abetted to cause one effect and causes another, the abettor is liable for the effect caused if he knew the act was likely to cause it.
• Illustration: A instigates B to cause grievous hurt to Z. Z dies. If A knew death was likely, A is liable for culpable homicide.
• Abettor present (s.114 / BNS s.54): an abettor who is present when the offence is committed is deemed to have committed it.

Related doctrines

• Common intention and common object: IPC s.34 (BNS s.3(5)) and s.149 (BNS s.190) impose similar constructive liability.
• Criminal conspiracy: s.120B (BNS s.61) is a separate, substantive offence, distinct from abetment by conspiracy.

Limit: Constructive liability requires a nexus. The act must be a probable consequence of the abetment, as a matter of foreseeability, so that no one is punished for a wholly independent act of the principal offender.

(d) The maxim qui facit per alium facit per se, "he who acts through another does the act himself", is the basis of vicarious liability. A person is liable for a tort committed by another because of their relationship, although he did not commit it himself. The justification is that the person who benefits from and controls the activity, and who can best bear or insure the loss (respondeat superior), should answer for it.

Relationships giving rise to liability

• Master and servant (employer and employee):
• the employer is liable for torts committed by the employee in the course of employment, including authorised acts done in an unauthorised or prohibited manner;
• Limpus v London General Omnibus Co (1862): a driver racing against orders caused a collision, and the company was liable;
• Century Insurance v Northern Ireland Road Transport Board (1942): a driver lit a cigarette while unloading petrol, and this was within the course of employment;
• there is no liability for a "frolic of his own" (Joel v Morison (1834)), or for a conductor who drove the bus contrary to his duties (Beard v London General Omnibus (1900));
• the modern "close connection" test asks whether the tort is so closely connected with the employment that liability is fair and just (Lister v Hesley Hall (2001); limited in WM Morrison Supermarkets v Various Claimants (2020)).
• Principal and agent:
• the principal is liable for torts, including fraud, committed by an agent acting within actual or ostensible authority, even for the agent's own benefit (Lloyd v Grace, Smith & Co (1912));
• under the Indian Contract Act, 1872, s.238, a principal is bound by an agent's misrepresentation or fraud in the course of the business.
• Partners: a firm is liable for wrongs done by a partner in the ordinary course of the firm's business (Partnership Act, 1932, s.26).
• Ratification: a person who ratifies a tort done on his behalf becomes liable as if he had authorised it.

Independent contractors

• The employer is generally not liable for an independent contractor's torts.
• Exceptions are non-delegable duties, ultra-hazardous work (Honeywill & Stein v Larkin (1934)), and cases where the tort was authorised.

State liability in India (Art 300)

• ***State of Rajasthan v Vidyawati* (1962):** the State was liable for a government jeep driver's negligence.
• ***Kasturi Lal v State of UP* (1965):** sovereign functions were held immune. This has since been confined by N. Nagendra Rao v State of AP (1994) and by constitutional tort compensation for violations of fundamental rights (Nilabati Behera (1993)).

Conclusion: The maxim extends liability beyond the actual wrongdoer to the person in whose interest, and under whose control, the wrong was done. The actual wrongdoer remains jointly liable.

(e) Damages are monetary compensation for a tort. They aim at restitutio in integrum, putting the plaintiff, as far as money can, in the position he would have been in had the tort not occurred. They are subject to remoteness (The Wagon Mound (No 1) (1961)) and to the plaintiff's duty to mitigate.

Kinds of damages

• Nominal damages:
• a small sum awarded where a legal right is infringed but no actual loss is proved;
• available for torts actionable per se, such as trespass and libel (Ashby v White (1703); Constantine v Imperial Hotels (1944));
• they vindicate the right.
• Contemptuous damages:
• the smallest coin, awarded where the plaintiff technically wins but the court disapproves of the claim (Dering v Uris (1964): one halfpenny);
• they may also cost the plaintiff his costs.
• Compensatory damages, divided into:
• general damages, which the law presumes to flow from the tort and which are assessed by the court, such as pain and suffering, loss of amenities (H. West & Son v Shephard (1964): awarded even to an unconscious plaintiff), loss of expectation of life, and injury to reputation;
• special damages, which are specific pecuniary losses that must be pleaded and proved, such as medical bills, lost earnings and repair costs;
• these are also classified as pecuniary and non-pecuniary. In India, future loss of income in personal injury and fatal accident cases is computed by the multiplier method (Sarla Verma v DTC (2009); National Insurance Co v Pranay Sethi (2017)).
• Aggravated damages: these are still compensatory, for injury to the plaintiff's feelings caused by the defendant's malicious, insulting or high-handed conduct (Thompson v Commissioner of Police of the Metropolis (1998)).
• Exemplary (punitive) damages:
• awarded to punish and deter rather than compensate;
• Rookes v Barnard (1964) limited them to three cases: oppressive, arbitrary or unconstitutional action by government servants; conduct calculated to make a profit exceeding the compensation payable; and cases where statute authorises them;
• Indian courts have awarded compensation for violations of fundamental rights with a deterrent element (Rudul Sah v State of Bihar (1983); Bhim Singh v State of J&K (1985));
• in M.C. Mehta v Union of India (1987, Oleum gas), the Court held that compensation should be correlated to the magnitude and capacity of the enterprise so as to have a deterrent effect.
• Prospective damages: awarded once and for all for losses expected in the future, for example future medical costs.

The choice among these depends on the tort, the proof of loss, and the defendant's conduct. Together they serve compensation, vindication and deterrence.