Orissa High Court Alters Murder Conviction Of 72-Yr-Old To Culpable Homicide, Applies 'Transfer Of Malice' Rule

The Orissa High Court has recently modified a Sessions Court's order convicting a man for commission of murder of his sister-in-law in 2008 by altering the same to one for culpable homicide not amounting to murder. [2026 LiveLaw (Ori) 111]

For partially upholding the guilt of the appellant, the Bench of Justice Manash Ranjan Pathak (now transferred) and Justice Sashikanta Mishra applied the doctrine of “transfer of malice” provided under Section 301, IPC. The Court held–

“The fact that the deceased was not the intended target of the accused assault must be considered in light of Section-301 IPC, invoking the doctrine of Transfer of Malice. The doctrine implies that where a person, while doing an act which he intends or knows to be likely to cause death, causes the death of another person whose death he neither intends nor knows himself likely to be caused.”

As per prosecution allegations, on 18.08.2008, being enraged by demand of share in the land by the informant from the appellant (his elder paternal uncle), the wife of the appellant grabbed the informant by his shirt and dragged him towards their house, while the appellant arrived at the spot by holding a budia (axe).

As the appellant was about to assault the informant, the deceased (step-mother of the informant) intervened and stood in front of the informant to protect him. It is alleged that the wife of the appellant caught hold of the deceased and asked him to assault her, whereupon he dealt two blows with axe on her head. The deceased fell down and died at the spot.

An FIR was registered on 19.08.2008 and upon completion of investigation, the charge-sheet was submitted against both the accused. The trial Court convicted both of them under Sections 341 (wrongful restraint), 506 (criminal intimidation), 307 (attempt to murder) and 302 (murder) read with Section 34 (common intention) of IPC and sentenced them to undergo life imprisonment for offence under Section 302 IPC, apart from imposing other sentences. Though both the accused preferred this appeal, the appeal in respect of the wife was abated upon her death.

By way of this appeal, the appellant challenged the trial Court order for heavily relying upon the testimony of the informant, which was argued to be full of inconsistencies. Absence of chemical examination report linking the appellant to the seized weapon was also flagged. Moreover, it was vehemently argued that the appellant intended to assault the informant. However, as the deceased intervened, she suffered the blows. Therefore, the prosecution failed to establish intention of the appellant to cause her death.

Upon a thorough assessment of the evidence, the Court was of the view that the informant has consistently deposed against the appellant and his wife. It also rejected the argument that he is an “interested witness”. The version of the informant was also corroborated by two other witnesses who reached the spot immediately after the occurrence. Above all, the doctor also opined that the injuries sustained by the deceased are possible through the seized weapon.

Though a minor inconsistency regarding the date of registration of FIR was highlighted by the appellant, the Court nixed such contention by holding it to be a minor inconsistency which affects the prosecution case.

“The occurrence took place in a rural setting and the witnesses are persons from tribal background. The Court cannot expect a witness to reproduce every detail of an occurrence, including the precise time sequence, with mathematical accuracy. Minor variations, discrepancies and contradictions cannot militate against the veracity of the core of the testimony, provided there is a ring of truth in it and the same is inherently probable.”

So far as the argument regarding lack of intention to cause assault to the deceased was concerned, the Court invoked the doctrine of “transfer of malice” enshrined under Section 301, IPC. It observed –

“In other words, Section 301 transfers the mens rea, it does not elevate every homicide into murder. Therefore, the act of culpable homicide is to be determined with reference to the intention or knowledge of the accused. The provision does not create an independent offence but merely attributes the consequence of the act to the unintended victim while preserving the nature and degree of culpability accompanying the act. The appellant cannot, therefore, be held guilty of a graver offence in respect of the deceased than that which would have been attracted had P.W.1 been the person who sustained the blow.”

Therefore, the only question which remained to be adjudged was whether the appellant is guilty of committing murder or culpable homicide not amounting to murder. Since no evidence could establish the intention of the appellant to cause death of the informant or to inflict a bodily injury which is sufficient in the ordinary course of nature to cause death, coupled with the absence of evidence as to repeated blows and absence of premeditation, the Court held the appellant guilty for culpable homicide not amounting to murder under Section 304 Part II of the IPC.

The conviction for offences under Section 307, 341 and 506 IPC was annulled. But having regard for the advanced age of the appellant (72 years), he was sentenced to ten years of rigorous imprisonment under Section 304 Part II IPC. Since he has already undergone such period of imprisonment, he was ordered to be released immediately.

Case Title: Sambari Munda (Dead) & Anr. v. State of Orissa

Case No: JCRLA 31 of 2010

Date of Judgment: September 08, 2026

Counsel for the Appellant: Mr. C.R. Sahu, Advocate

Counsel for the State: Ms. Suvalaxmi Devi, Addl. Standing Counsel

Citation: 2026 LiveLaw (Ori) 111

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