Judgment :- 1. The accused in Sessions Case No. 85 of 1984 on the file of the Court of Session, Trivandrum, is the appellant. He was charged for offence punishable under S.302 IPC. The lower court found him guilty of the said offence and sentenced him to undergo imprisonment for life Aggrieved by the conviction and sentence passed by the lower court, the accused has filed this appeal. 2. The prosecution case may be summarised as follows: The Appellant is the owner and driver of lorry No. KLO 6855. The deceased Sivadasan was its cleaner. The occurrence took place on 28-8-1983 at 2.30 p.m. at the premises of the petrol bunk of Radhakrishnan and Company situated on the western side of the road near Kilimanur junction. PW1 went to Kilimanur market to borrow Rs. 15/- from one Kamalan. He borrowed the money from him and purchased some medicines from a drugs shop and was returning home. On the way be found Sivadasan sitting on a verandah of shop of Anandan Muthali situated near the market. The appellant was also with him. Thereupon PW1 asked the appellant to lend him Rs. 1.50. The appellant gave him Rs. 1.25. Sivadasan asked the appellant to give 25 paise more to him and accordingly the appellant gave 25 paise more. In the course of conversation PW1 disclosed to them that be was coming after borrowing Rs. 15/- from Kamalan. Thereupon the appellant asked PW1 to lend him Rs. 9/- promising to return the same within two hours. PW1 acceded to the request. The appellant and Sivadasan went towards Kilimanur Junction. PW1 waited in a panshop near the market till 1.30p.m. but the appellant did not turn up. Thereupon PW1 went towards Kilimanur Junction and found lorry Sheeja which belonged to the appellant lying at the petrol-bunk of Radhakrishnan and Company. The appellant was seen near the lorry. PW1 asked him to return the money but the appellant replied that he had no money at the moment. This led to a wordy quarrel in the course of which PW1 gave a push to the appellant. The appellant fell down. Ore Sucheendran came there and persuaded PW1 not to quarrel and undertook that he would pay Rs. 9/-. Sucheendran took PW1 towards the shop of Raveendran situated on the southern side of the petrol bunk. This led to a wordy quarrel in the course of which PW1 gave a push to the appellant. The appellant fell down. Ore Sucheendran came there and persuaded PW1 not to quarrel and undertook that he would pay Rs. 9/-. Sucheendran took PW1 towards the shop of Raveendran situated on the southern side of the petrol bunk. Then the appellant shouted out that nobody should take PW1 and if Rs. 30/- was in his possession he would be killed by running the lorry. Vijayan the owner of the bunk told them not to quarrel in the premises of the bunk and to remove the lorry. At that time the deceased Sivadasan was standing near the pillar on the eastern extremity of the southern wall of the petrol bunk. He tried to pacify PW1 saying that be would pay to PW1 Rs 18/- instead of Rs.9/-. PW1 replied that Sucheendran would get the amount. At that time the accused got into the lorry and started the lorry and reversed the lorry to some distance and then applied the forward gear and drove with high speed aiming at PW1. Apprehending danger PW1 stepped aside from the path of the lorry and got into the compound of the petrol bunk. The lorry hit against the deceased Sivadasan and Sivadasan fell down. The appellant again reversed the lorry. At that time PW1 moved towards Sivadasan, who was found lying on the ground. The appellant applied the forward gear and made a second attempt to run the lorry over PW1. PW1 however moved away. The lorry hit against the eastern portion of the southern compound wall and the pillar and a portion of wall collapsed and the stones fell on the head and other parts of the body of the deceased Sivadasan. The appellant took the lorry in reverse gear again and made a third attempt against PW1. While he was trying to run the lorry over PW1, PW1 mustered courage and got into the cabin of the lorry. Subhash and ethers also got into the lorry from the other side and all of them overpowered the appellant and effectively prevented him from driving the lorry and the lorry was stopped. They brought out the appellant from the lorry and he disappeared. PW1 and others ran to Sivadasan and removed the stones and debris from the body of Sivadasan and found him dead. They brought out the appellant from the lorry and he disappeared. PW1 and others ran to Sivadasan and removed the stones and debris from the body of Sivadasan and found him dead. Thereupon PW1 proceeded to Kilimanur Station at about 2.30 p. m. and gave Ext. P1 statement before PW8 the S.I. of Police, Kilimanur on the basis of which FIR was registered as Crime No. 131 of 1983. PW9 the C.I. of Police Venjarammood held inquest over the dead body at the scene of occurrence and prepared Ext. P6 inquest report. He took also the lorry KLO-6855 into custody. The appellant was arrested on 5-9-1983 at 10 a. m. PW1 had sustained some minor injuries and he was sent to the Public Health Centre where P. W. 3 the Asst. Surgeon examined him and issued Ext.P2 wound certificate. Postmortem was conducted by P. W. 5 who issued Ext. P3 postmortem certificate. PW10 the successor of PW9 verified the investigation and laid final report before the Judicial Magistrate of II Class, Attingal on 3-5-1984 who committed the appellant to stand trial before the lower court. 3. On the accused pleading not guilty to the charge, the prosecution examined P. Ws.1 to 10 and marked Exts. P1 to P9 and MOs.1 to 4. Ext. D1 a portion of the case diary statement of P. W. 2 was marked on behalf of the defence. 4. That Sivadasan died of the injuries mentioned in the postmortem certificate Ext. P3 admits of no doubt. P. W. 5 is the doctor who conducted the postmortem examination on the body of Sivadasan. The postmortem findings as disclosed in Ext. P3 are as follows: 'Body was that of a moderately nourished adult male of height 170 cm. and weight 51 kg. Dried blood stains present on the face, neck and chest. Sand particles present at places. External body orifices normal. Finger nails blue. Corneae hazy. Rigor mortis fully established and retained all over. Postmortem staining at the back fixed. Abdomen distended. No other sign of decomposition. Injuries (Antemortem) 1. Lacerated wound 6x4 cm. skin deep reflecting a skin flap backwards vertically placed on the left side of head, the lover end being 5 cm. in front of the ear. 2. Abraded contusion 7.5 x 2.5 cm. in front of injury No.1 Irregular fracture of the floor of the middle oranial fossae of the skull on both sides. Lacerated wound 6x4 cm. skin deep reflecting a skin flap backwards vertically placed on the left side of head, the lover end being 5 cm. in front of the ear. 2. Abraded contusion 7.5 x 2.5 cm. in front of injury No.1 Irregular fracture of the floor of the middle oranial fossae of the skull on both sides. a thin film of subural and subarachnoid bleeding present on both sides. Two small bleeding points into the basal ganglia on the right side and brainstem. 3. Multiple small abrasions over an area 5 x 1 cm. on the outer aspect of left foot over and at the root of little toe. 4. Abrasion 6 x 1 cm. on the back of left elbow. 5. Multiple small abrasions over an area 10.5 x 4 cm: on the right side of front of chest 0.5 cm. outer to midline and 6 cm. below the nipple. Fracture of 3rd to 5th ribs on the anterior aspect on the right side. 6. Abrasion 2 x 1 cm. on the middle of back of chest 4 cm. below the root of neck. 7. Abrasion 1 x 1 cm. on the small of back 3 cm. below hip bone and to the right of midline. Air passages normal, Lungs normal. Stomach weighed 950 gms. and contained partly digested rice, meat and vegetable particles without any unusual smel. Mucosa normal. Other internal organs normal." Ext. P3 certificate mentions that Sivadasan died as a result of injuries to the head and chest described in Ext. P3. In his evidence also PW. 5, deposed that the deceased died due to injuries on the head and chest. He also opined that injuries 4,6 and 7 could be caused when the victim falls on his back and injury No. 5 could be caused if the victim is hit by a running lorry, and injuries 1 and 2 could be caused if a pillar or the debris of a pillar falls on a lying person with face upwards. He further stated that injury Nos. 5 also may be caused like injury Nos.1 and 2. He stated that injury Nos.1 and 2 correspond to the skull fracture noted by him and the injury Nos.1 and 2 together with its corresponding internal skull fracture would be sufficient in the ordinary course of nature to cause death. He further stated that injury Nos. 5 also may be caused like injury Nos.1 and 2. He stated that injury Nos.1 and 2 correspond to the skull fracture noted by him and the injury Nos.1 and 2 together with its corresponding internal skull fracture would be sufficient in the ordinary course of nature to cause death. He also stated that injury No. 5 is likely to cause death. His opinion is that the death could have occurred instantaneously. 5. The next question to be considered is who is responsible for causing the injuries and what is the offence that is committed. x x (Paragraphs 6 to 9 omitted being appreciation of evidence) The evidence of PW.1, PW2 and PW.4 clearly established the intention of the appellant to kill PW.1, and his attempts to run the lorry over him. They also narrated how PW.1 moved away from the path of lorry and how the lorry hit Sivadasan and he fell down. They also spoke as to how lorry hit the pillar and wall which resulted in its collapse and the consequent fall of stone and debris on the body of Sivadasan. As indicated above, their evidence appears to be quite truthful and probable and it can very well be acted upon. 10. The learned counsel for the appellant strenuously argued that there was no sufficient space in the pump premises to enable the appellant to take the lorry in the manner suggested by the prosecution and that therefore the evidence of the prosecution is highly improbable. We considered the contention raised by the learned counsel with reference to Ext. P5 sketch, but we are unable to agree with the submission made by him on this aspect. According to us, there is sufficient space in the premises of the bunk to enable the appellant to take the lorry in the manner stated by the prosecution witness. 11. Another contention raised by the counsel for the appellant is that it was not as a result of the lorry hitting against Sivadasan that Sivadasan died and that the medical evidence would indicate that the death was due to the fall of the pillar on the easern extremity of the southern wall. 11. Another contention raised by the counsel for the appellant is that it was not as a result of the lorry hitting against Sivadasan that Sivadasan died and that the medical evidence would indicate that the death was due to the fall of the pillar on the easern extremity of the southern wall. The learned counsel argued that it is very clear from the evidence of the prosecution witnesses that the appellant had no enmity towards Sivadasan and he had no intention to cause death or any bodily harm to Sivadasan and in these circumstances the conviction under S.302 IPC is clearly illegal. In this context the learned counsel also brought to our notice the evidence of PW. 5. the Doctor, who conducted the post-mortem examination over the body of Sivadasan that injury Nos.1 and 2 could be caused if a pillar or the debris of a pillar falls on a lying person with face upwards, that injury No.5 also could be caused like that and that injury Nos.1 and 2 together with its corresponding internal skull fracture would be sufficient in the ordinary course of nature to cause death. On the basis of this evidence, the learned counsel for the appellant argued that injury Nos.1 and 2 could directly be attributed to the fall of the pillar or the debris of a pillar on Sivadasan. The appellant had no intention to hit against the wall or Sivadasan and that it was quite accidentally the lorry hit against the pillar resulting the collapse of pillar and portion of the wall. In our view the overt act committed by the appellant in taking the lorry in the manner he did would definitely fall under "fourthly" of S.309 IPC as it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death. Though the appellant did not intend to kill Sivadasan he had intention to kilt PW.1 and his action was directed against PW.1 with a view to killing him. Though the appellant did not intend to kill Sivadasan he had intention to kilt PW.1 and his action was directed against PW.1 with a view to killing him. Therefore in our view the offence will fall under S.301 IPC which lays down if a person, by doing anything which he intends or known to be likely to cause death, commits culpable homicide by causing death of any person, whose death he neither inlands a or knows himself to be likely to cause and the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. True, in this case intention of the appellant was to cause the death of PW.1; but his act of taking lorry at a high speed with the intention of hitting against PW.1 and killing him really resulted in causing the death of Sivadasan. The fact that Sivadasan sustained the fatal injuries not as a result of the direct hitting of the lorry but due to the fall of pillar and its debris on the body of Sivadasan will not also change the position, since his intention in taking the lorry was to kill PW.1 and his act in furtherance of the intention was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. 12. S.301 IPC embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive. The principle enunciated in this Section has been explained by Lord Coleridge, C.J in The Queen v. Latimer (17 QBD 359 at page 361 thus: "It is common knowledge that a man who has an unlawful and malicious intent against another and, In attempting to carry it on injuries a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough." In Subramaniam v. The State (1980 MLJ (Crl.) 633) the Madras High Court had occasion to consider a similar situation where the accused intending to injure one person injured the deceased and the injury was such as would be sufficient in the ordinary course of nature to cause death. The Sessions Judge held that the offence of murder punishable under S.302 IPC had not been made out and found the accused guilty of the offence punishable under S.325. On appeal the High Court held thus: "If the injury bad been caused to the person for whom it was intended, the offence would amount to murder under thirdly of S.300. in view of S.301, the accused would till be guilty of murder even though he did not intend to cause the injury to the deceased but had intended to cause it only to the other person, and had actually caused the injury on the deceased in the mistaken belief that the deceased was the other person." The High Court observed that the finding of the Sessions Judge holding that the accused bad committed only an offence under S.325 IPC is clearly erroneous in law, but since the State did not file any appeal against the acquittal of the accused of the offence of murder, the matter bad to be left where it stood. 13. A Division Bench of the Allahabad High Court considered a similar question in Ganga Singh v. State (1980 Crl. LJ 235). The Court observed at follows: "S.301, IPC does not as already pointed out, enact any rule not deducible from S.299 and S.300 IPC but it declares in plain language an Important rule deducible from those sections just as an explanation to a section does. The rule could not well be stated as an explanation to either S.299 or S.300, Indian Penal Code as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section. The rule could not well be stated as an explanation to either S.299 or S.300, Indian Penal Code 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 S.299 yet is deducible from the generality of the words "causes death" and from the illustration In 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 know 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 S.299 and 300 though not, perhaps, lying on their very surface." 14. The Supreme Court considered the scope of S.301 IPC in Shankarlal v. State of Gujarat (AIR 1965 SC 1260). It was a case where four accused with common intention to kill Madha shoot at Rama Bhupta bona fide taking him to be Madha. Dealing with S.301 IPC, Subba Rao, J., as His Lordship then was, who spoke for the Bench stated thus: "It embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive. Under the Section if A intends to kill B but kills C whose death be 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 shoot 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 of out of sight, under S.301, A is deemed to have hit C with the intention to kill him. If A aims his shoot 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 of 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." In Hari Shankar v. State of Mysore (1980 SCC (Crl.) 107) the Supreme Court held that in a case accused intending to kill 'A' killed 'B' who came in the way conviction under S.301 for murder was proper. 15. In the light of the principles enunciated in the above decisions, it has to be held that the offence committed by the appellant would squarely fall under S.301 IPC and would amount to murder and the appellant would be liable to be convicted for an offence punishable under S.302 IPC. Though the lower court has put the offence committed by the appellant as one coming under S.302 IPC, it is really one under S.302 read with S.301 IPC but that does not call for any change in the matter of conviction and sentence. In the circumstances we hold that the appellant is guilty of an offence under S.302 IPC read with S.301 IPC. Accordingly we dismiss the appeal and confirm the conviction and sentence passed by the court below.