26G. “Transferred fault”
Feedback & supportLast amended by an amending law of 2019.
This section applies to any offence under this Code or any other written law where a fault element of the offence is intention or knowledge, except where section 301(1) applies to that offence.
Where all the fault elements and physical elements of the offence have been proven in respect of an accused person, and assuming no defence or exception applies, the accused person shall be guilty of the offence despite the following circumstances:
the physical elements of the offence included the doing of an act or the causing of an effect concerning a person or thing;
at the time such act or effect was done or caused, the accused person believed or intended that the act or effect would concern a person or thing different from the person or thing mentioned in paragraph (a).
Subsection (2) applies only where the accused person did or caused the physical elements in subsection (2)(a) negligently in respect of the person or thing mentioned in that subsection.Illustrations (a) A throws a stone at B intending to hurt B (but not intending, knowing or having reason to believe that anyone else would be hurt), but the stone hurts C. A commits an offence of voluntarily causing hurt in respect of C if A threw the stone negligently in respect of C. (b) A throws a stone at a porcelain vase intending to cause loss to its owner, B (but not intending or knowing it likely that A would cause wrongful loss or damage in respect of any other property), but the stone damages a clay pot belonging to C. A commits mischief in respect of C if A threw the stone negligently in respect of C. (c) A threatens injury to B’s person by shouting at B the words, “B, I will kill you”, with intent to cause alarm to B. C hears these words and is alarmed. A does not commit the offence of criminal intimidation against C as A did not threaten C with any injury.
loss
“loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has. For the purposes of section 473B and subject to subsections (2) and (4), an act or omission intended to be induced is to a person’s prejudice if, and only if, it is one which, if it occurs, will —(a)result in his permanent or temporary loss of property;(b)result in his being deprived of an opportunity to earn remuneration or greater remuneration;(c)result in his being deprived of an opportunity to gain a financial advantage otherwise than by way of remuneration;(d)result in somebody being given an opportunity to earn remuneration or greater remuneration from him;(e)result in somebody being given an opportunity to gain a financial advantage from him otherwise than by way of remuneration; or(f)be the result of his having accepted a false instrument as genuine in connection with his performance of any duty. For the purpose of this section, an act which a person has an enforceable duty to do and an omission to do an act which a person is not entitled to do shall be disregarded. The reference in section 473B to inducing a person (B) to accept a false instrument as genuine includes a reference to inducing a machine to respond to an instrument as if it were a genuine instrument. Where subsection (3) applies, the act or omission intended to be induced by the machine responding to the instrument shall be treated as an act or omission to a person’s prejudice. In subsection (1)(a),
To avoid doubt, nothing in this section affects the requirement to prove all the fault elements of an offence in order for guilt to be established for that offence.Illustrations (a) A throws a stone at B intending to hurt B (but not intending or not knowing that A is likely to cause wrongful loss or damage in respect of any property), but the stone hits a porcelain vase. A does not commit mischief in respect of the vase. This is because A did not possess the fault element required to commit mischief. (b) A throws a stone at B intending to hurt B (but not intending, knowing or having reason to believe that anyone else would be hurt), but the stone hurts P, a police officer in discharge of his duty. A commits an offence of voluntarily causing hurt against P. A does not commit an offence of voluntarily causing hurt to P in the discharge of P’s duty as a public servant because A did not possess the fault element required to commit this offence. (c) A throws a stone at B intending to hurt B (but not intending or not knowing that A is likely to cause grievous hurt), but the stone causes grievous hurt to C. A commits an offence against C of voluntarily causing hurt where grievous hurt is caused under section 323A. A does not commit an offence of voluntarily causing grievous hurt against C because A did not possess the fault element required to commit this offence.
property
“property” means money and all other property, movable or immovable, including things in action, other intangible or incorporeal property and virtual currency;
Where the circumstances mentioned in subsection (2)(a) and (b) exist, the accused person may rely on any defence or exception in law as though the act or effect mentioned in subsection (2)(a) concerned the person or thing the accused person believed or intended that act or effect to concern.Illustration A throws a stone at B in exercise of A’s right of private defence against B, but the stone hurts C. A may rely on the defence of private defence against B if A is charged for voluntarily causing hurt to C.