(2) Exceptions to Section 300

(1)

EXCEPTIONS TO SECTION 300

EXCEPTION 1 -

EXCEPTION 1 - PROVOCATIONPROVOCATION

The parties involve are A, the accus

The parties involve are A, the accused and B, the victim. The issue in thised and B, the victim. The issue in this case is whether A may raise the defence of provocation defined under Exception case is whether A may raise the defence of provocation defined under Exception 1 of Section 300 of the Penal Code for causing the death of B and reduce the 1 of Section 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of the same code.

punishment to Section 304 of the same code. LAW PRINCIPLE

LAW PRINCIPLE

Exception 1 states that culpable homicide is not murder if the killing takes Exception 1 states that culpable homicide is not murder if the killing takes place in

place in the situation involvthe situation involving provocatioing provocation. n. ProvoProvocatiocation n is the is the deprivdeprivation of ation of self-control by virtue of words, gestures or action.

self-control by virtue of words, gestures or action.

In determining whether A may succeed in this defence, we must first In determining whether A may succeed in this defence, we must first determi

determine whether A’s act ne whether A’s act falls within the ambit of falls within the ambit of the exceptiothe exception 1. n 1. There areThere are 55 elements

elements to prove this defence.to prove this defence. Firstly

Firstly,, provocation provocation must must be be grave grave and and suddensudden. The court in the case of . The court in the case of Chong Teng v PP

Chong Teng v PP interprets the severity of grave as harsh gravity and suddeninterprets the severity of grave as harsh gravity and sudden as unexpected and to have occurred within a short period of time before the as unexpected and to have occurred within a short period of time before the killing. In the case of

killing. In the case of PP v Abdul Razak Dalek PP v Abdul Razak Dalek , it was alleged that the accused, it was alleged that the accused was provoked to lose his self-control by the remarks made by the deceased that was provoked to lose his self-control by the remarks made by the deceased that they were no longer husband and wife

they were no longer husband and wife. It was held that the good. It was held that the good test to identify test to identify grave

grave provocationprovocation is whetheis whether r a a reareasonsonable man able man wouwould likely to ld likely to loslose e his self-his self-control. As for

control. As for suddensudden,, it it musmust t be unexpebe unexpectected d and to and to havhave e occoccurrurred ed witwithin ahin a short period of time before the killing that is instantaneous

short period of time before the killing that is instantaneous.. Secondly

Secondly, there, there must be a link between provocation and killingmust be a link between provocation and killing. A link. A link sha

shall ll exiexist st whewhen n the the accaccuseused d kilkilled led whiwhile le beinbeing g depdeprivrived ed of of his his selself-cf-contontrolrol resulting from the provocation. In

resulting from the provocation. In Mohd Ali b. Johari v PPMohd Ali b. Johari v PP, the accused was, the accused was charged with murder for causing the death of a 2 year old child by immersing her charged with murder for causing the death of a 2 year old child by immersing her in a pail of water because she was crying incessantly. The court held there was in a pail of water because she was crying incessantly. The court held there was no link to the provocation and his act as his act was beyond proportionality.

no link to the provocation and his act as his act was beyond proportionality. Thirdly

Thirdly,, thethere re musmust t be be no no coocooling perioling periodd. Cooling period refers to the. Cooling period refers to the lapse of time between the provocation and killing. In

lapse of time between the provocation and killing. In Chong Teng v PPChong Teng v PP, the, the accused had gone to the market to fight with the deceased who had allegedly accused had gone to the market to fight with the deceased who had allegedly ta

taken ken awaway ay ththe e acaccucusesed’d’s s wiwife.fe. ThoThomsmson on JJ agagrereed ed ththat at ththe e dedefefencnce e of of provocation was not open to the accused as whatever happened in the way of provocation was not open to the accused as whatever happened in the way of taking away of the appellant’s wife had happened a long time ago.

taking away of the appellant’s wife had happened a long time ago. Fourthly

Fourthly, there, there must be proportionality of retaliationmust be proportionality of retaliation. This means that the. This means that the retaliation must be balanced by provocation. In the case of

retaliation must be balanced by provocation. In the case of AG for Ceylon vAG for Ceylon v Don John Perera

Don John Perera, The accused shot a woman and all her family members. The, The accused shot a woman and all her family members. The woman and her family had uttered threats and threw stones at the accused. It woman and her family had uttered threats and threw stones at the accused. It was held that the test is objective and must be decided by comparing the nature was held that the test is objective and must be decided by comparing the nature of provocation and the act of retaliation. Therefore, the acts of victims which only of provocation and the act of retaliation. Therefore, the acts of victims which only uttered threats and threw stones at the accused did not proportionate with his uttered threats and threw stones at the accused did not proportionate with his act of killing them.

(2)

The last element

The last element is theis the application of reasonable man test application of reasonable man test . As in the. As in the case of

case of Lorentus Tukan v PPLorentus Tukan v PP, the test is identified by whether a reasonable, the test is identified by whether a reasonable man belonging in a same class of society if placed in the same situation of the man belonging in a same class of society if placed in the same situation of the ac

accucusesed d wowoululd d be be prprovovokoked ed to to lolose se hihis s seselflf-c-conontrtrolol. . In In NaNananavavati ti v v StStatate e of of Maharashtra, what a reasonable man will do in certain circumstances depends Maharashtra, what a reasonable man will do in certain circumstances depends on to the cultural, social and emotional background of the society which the on to the cultural, social and emotional background of the society which the accused belongs.

accused belongs.

CIRCUMSTANCES CASES IN THE QUESTION CIRCUMSTANCES CASES IN THE QUESTION

In

In PP v ThiruyanamPP v Thiruyanam, the accused killed a 12 year-old girl with 2 blows, the accused killed a 12 year-old girl with 2 blows with a stick to her head

with a stick to her head for uttering vulgar wordsfor uttering vulgar words at him. It was held then noat him. It was held then no reasonable man would react as such.

reasonable man would react as such.

OR OR In

In PP v Lim Eng KiatPP v Lim Eng Kiat, the accused was charged with the murder of his, the accused was charged with the murder of his wif

wife e by by ststranranglingling g her her to to deadeath. th. He He was was altalternaernativtively ely chacharged with rged with cuculpablpablele homicide not amounting to murder. It was contended that his wife had

homicide not amounting to murder. It was contended that his wife had confessedconfessed to adultery

to adultery and made anand made an insultinsulting reference to ing reference to the size of the size of his penis.his penis. It was heldIt was held that an ordinary person of the accused’s race, class and background would have that an ordinary person of the accused’s race, class and background would have been provoked in similar circumstances.

been provoked in similar circumstances. APPLICATION

APPLICATION

CONCLUSION CONCLUSION

In conclusion, as all the elements to the defence of provocation as In conclusion, as all the elements to the defence of provocation as

required by Exception 1 of section 300 are satisfied. Therefore, A may succeed required by Exception 1 of section 300 are satisfied. Therefore, A may succeed this defence and reduced the punishment to section 304.

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EXCEPTION 2 – EXCEEDING THE RIGHT OF

EXCEPTION 2 – EXCEEDING THE RIGHT OF PRIVATE DEFENCEPRIVATE DEFENCE The partie

The parties involve s involve are are A, the A, the accused and accused and B, the B, the victim. The victim. The issue in issue in thisthis case is whether A can raise the defence of exceeding the right of private defence case is whether A can raise the defence of exceeding the right of private defence as defined under Exception 2 to Section 300 of the Penal Code for causing the as defined under Exception 2 to Section 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of the same code.

death of B and reduce the punishment to Section 304 of the same code. LAW PRINCIPLE

LAW PRINCIPLE

Exception 2 states that culpable homicide is not murder if the offender Exception 2 states that culpable homicide is not murder if the offender ki

kills lls ananotother her pepersrson on eveven en if if hehe, , in in gogood od fafaithith, , exexceceededs s ththe e ririghght t of of prprivivatatee de

defefencnce. e. ThThis is exexceceptptioion n prprovovidides es fofor r a a sisitutuatatioion n whwherere e ththe e acaccucusesed d hahadd exceeded the right of private defence accorded to him the defence of property or exceeded the right of private defence accorded to him the defence of property or life of person.

life of person. In

In detdetermermininining g whwhetether her A A mamay y susucccceed eed ththis is dedefenfencece, , we we mumust st fifirsrstt determi

elements need to be satisfied in this defence. However, there are 4 limitationsneed to be satisfied in this defence. However, there are 4 limitations which derived from the case of

which derived from the case of Balbir Singh v StateBalbir Singh v State. Firstly, the accused must. Firstly, the accused must be free from fault. Secondly, there is some impending danger to life or bodily be free from fault. Secondly, there is some impending danger to life or bodily harm. Thirdly, there is no safe or reasonable way of escaping. Lastly, there must harm. Thirdly, there is no safe or reasonable way of escaping. Lastly, there must be a necessity for taking life.

be a necessity for taking life. For the

For the first elementfirst element, the act of killing was exercised in good faith. Good, the act of killing was exercised in good faith. Good faith is defined under

faith is defined under Section 52Section 52 of the Code asof the Code as act done or believed with dueact done or believed with due care and attention

care and attention. In the case of . In the case of Teoh Seng Lian v PPTeoh Seng Lian v PP, the accused was, the accused was convicted with murder. He had a misunderstanding with the deceased’s husband convicted with murder. He had a misunderstanding with the deceased’s husband relating to intend to sell a boat. The deceased wanted to dispose the boat. The relating to intend to sell a boat. The deceased wanted to dispose the boat. The appellant asked for a loan from the deceased. But the wife refused and threw a appellant asked for a loan from the deceased. But the wife refused and threw a knife at him. It missed him and he gained possession of the knife. He later knife at him. It missed him and he gained possession of the knife. He later slashed her and threw a stone at her head. It was held that if the attacker slashed her and threw a stone at her head. It was held that if the attacker exercised the act in good faith and under the circumstances of Exception 2 exercised the act in good faith and under the circumstances of Exception 2 amounts only to culpable homicide not amounting murder.

amounts only to culpable homicide not amounting murder. Secondly,

Secondly, the act was not done in excessive harm than necessary. Thisthe act was not done in excessive harm than necessary. This element was illustrated in the case of

element was illustrated in the case of Soosay v PPSoosay v PP. In this case, the appellant. In this case, the appellant and his friend had tried to retrieve a gold chain from the deceased. A quarrel and his friend had tried to retrieve a gold chain from the deceased. A quarrel ensued during which the deceased drew a knife and threatened the appellant’s ensued during which the deceased drew a knife and threatened the appellant’s friend. The appellan

friend. The appellant kicked the t kicked the deceasdeceased and ed and the knife fell. He the knife fell. He grabbegrabbed hold d hold of of the knife and when the deceased tried to charge him, he stabbed the deceased the knife and when the deceased tried to charge him, he stabbed the deceased several times. It was held that the

several times. It was held that the right to private defence exists but he exceedsright to private defence exists but he exceeds it

it when the knife fell and he stabbed the deceased.when the knife fell and he stabbed the deceased. Lastly

Lastly, the act was done without intention or pre, the act was done without intention or pre-meditation. This element-meditation. This element was explained in

was explained in Illustration to Exception 2Illustration to Exception 2 when Z attempts to horse-whip A,when Z attempts to horse-whip A, not in such a manner to cause grievous hurt to A. A draws out a pistol. Z persists not in such a manner to cause grievous hurt to A. A draws out a pistol. Z persists the assault. A, believing in good faith that he can by no other means prevent the assault. A, believing in good faith that he can by no other means prevent himself from being horse-whipped, shoots Z dead. A has not committed murder, himself from being horse-whipped, shoots Z dead. A has not committed murder, but only culpable homicide.

but only culpable homicide. APPLICATION

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In conclusion, having fulfills all the elements in this defence. Thus, A may In conclusion, having fulfills all the elements in this defence. Thus, A may succeed in raising this defence of exceeding right of private defence under succeed in raising this defence of exceeding right of private defence under Exception 2 to section 300.

(5)

EXCEPTION 3 – PUBLIC SERVANT EXCEEDING HIS POWERS EXCEPTION 3 – PUBLIC SERVANT EXCEEDING HIS POWERS

The parties involve are A, the accus

The parties involve are A, the accused and B, the victim. The issue in thised and B, the victim. The issue in this case is whether A can raise the defence of a public servant exceeding powers as case is whether A can raise the defence of a public servant exceeding powers as defined under Exception 3 to Section 300 of the Penal Code for causing the

defined under Exception 3 to Section 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of the same code. death of B and reduce the punishment to Section 304 of the same code. LAW PRINCIPLE

LAW PRINCIPLE

Exception 3 states that culpable homicide is not murder if the offender Exception 3 states that culpable homicide is not murder if the offender kills when he is a public servant or person aiding him exceeds hi power by law, in kills when he is a public servant or person aiding him exceeds hi power by law, in good faith believing it was necessary.

good faith believing it was necessary.

In determining whether A may succeed this defence, we must first determine In determining whether A may succeed this defence, we must first determine whether A’s act falls within the ambit of the exception 3. There 4 elements to whether A’s act falls within the ambit of the exception 3. There 4 elements to this defence.

this defence. Firstly

Firstly, the accused is a public servant to advance public justice., the accused is a public servant to advance public justice. Secondly

Secondly, he exceeds the power given by law and has caused death., he exceeds the power given by law and has caused death. ThirdlyThirdly,, he acted in good faith, believing that it is lawful and necessary.

he acted in good faith, believing that it is lawful and necessary. FourthlyFourthly, there, there is no malice or will. It is to be noted that

is no malice or will. It is to be noted that Section 15 of the CriminalSection 15 of the Criminal Procedure Code

Procedure Code provides that in the mode of arrest, police are allowed to useprovides that in the mode of arrest, police are allowed to use reasonable force to apprehend an offender and such force may extend to cause reasonable force to apprehend an offender and such force may extend to cause death is the offence is punishable with death. In

death is the offence is punishable with death. In Dukhi Singh AIRDukhi Singh AIR, the accused, the accused a constable chased a man but when he fired a shot, it hit a fireman and killed a constable chased a man but when he fired a shot, it hit a fireman and killed him. The court decided that he was covered within the exception and was him. The court decided that he was covered within the exception and was charged with culpable homicide.

charged with culpable homicide.

This decision is however in contrast to

This decision is however in contrast to the decision decided inthe decision decided in SabhaSabha Naik

Naik . In this case, the chief constable ordered his subordinates to open fire. In this case, the chief constable ordered his subordinates to open fire against a mob on reasons of public security. It was held that the accused should against a mob on reasons of public security. It was held that the accused should not act in such ways as it is not done in good faith and all of them were guilty of not act in such ways as it is not done in good faith and all of them were guilty of murder.

murder.

APPLICATION APPLICATION

In applying the law, A is a public servant and his duty is to advance public In applying the law, A is a public servant and his duty is to advance public justice. He had no doubt exceeds t

justice. He had no doubt exceeds the powers given to him by law and caused the powers given to him by law and caused thehe death of B by firing a shot, in good faith, believed to be lawful and necessary for death of B by firing a shot, in good faith, believed to be lawful and necessary for due discharge of his duty, However, he is not covered by section 15 of CPC as due discharge of his duty, However, he is not covered by section 15 of CPC as the offence of rape is not punishable with death. Therefore, the only protection the offence of rape is not punishable with death. Therefore, the only protection available for him is Exception 3 to section 300

available for him is Exception 3 to section 300 CONCLUSION

CONCLUSION

In conclusion, as all the elements are/not fulfilled, A may/not succeed in In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defence under Exception 3 to section 300 to reduce his punishment as raising defence under Exception 3 to section 300 to reduce his punishment as under section 304.

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EXCEPTION 4 – SUDDEN FIGHT EXCEPTION 4 – SUDDEN FIGHT

The partie

The parties involve s involve are are A, the A, the accused and accused and B, the B, the victim. The victim. The issue in issue in thisthis ca

case se is is whewhethther er A A mamay y raraisise e ththe e dedefefencnce e of of susudddden en fifighght t as as dedefinfined ed unundederr Exception 4 to Section 300 of the Penal Code for causing the death of B and Exception 4 to Section 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of the same code.

reduce the punishment to Section 304 of the same code. LAW PRINCIPLE

LAW PRINCIPLE

Exception 4 states that culpable homicide is not murder if the offender Exception 4 states that culpable homicide is not murder if the offender ki

kills lls witwithohout ut preprememeditditatation ion in in a a susudddden en fifighght t in in ththe e heaheat t of of papassssioion n upupon on aa sudden quarrel and without the offender having taken undue advantage or acted sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

in a cruel or unusual manner. In

elements to this defence.to this defence. Firstly

Firstly, there must be a sudden fight. The definition of sudden fight was, there must be a sudden fight. The definition of sudden fight was provided in the case of

provided in the case of Bhagwan Munjaji PawadeBhagwan Munjaji Pawade as the court statedas the court stated that athat a fight postulates a bilateral transaction in which blows are exchange fight postulates a bilateral transaction in which blows are exchange.. However, in the case of

However, in the case of PP v Awang Riduan bin Awang Bol,PP v Awang Riduan bin Awang Bol, the deceasedthe deceased claimed that the accused took money. Only an hour later, the accused came claimed that the accused took money. Only an hour later, the accused came back with a knife and

back with a knife and an axe. It was held that it an axe. It was held that it waswas not a sudden fight as therenot a sudden fight as there was element of design or planning.

was element of design or planning. Secondly

Secondly, there must be absence of premeditation. Premeditation is not, there must be absence of premeditation. Premeditation is not defined in the penal code but it was stated in the case

defined in the penal code but it was stated in the case Mohamed Kunjo v PPMohamed Kunjo v PP that premeditation involves a pre-planning which is furnished by former grudges that premeditation involves a pre-planning which is furnished by former grudges or previous threat. The, in the case of

or previous threat. The, in the case of AmrithalingaAmrithalingam m NadarNadar, a fight broke out, a fight broke out between the accus

between the accused and ed and the deceasedthe deceased. The deceased ran out with . The deceased ran out with a knife. Thea knife. The court held that there was no premeditation.

court held that there was no premeditation. Lastly

Lastly, , it it wawas s dodone ne wiwiththouout t unundudue e adadvavantntagage. e. If If weaweapopon n is is ouout t of of alalll proportion, it must be considered whether undue advantage had been taken or proportion, it must be considered whether undue advantage had been taken or the accused had acted in an unusual manner. As in

the accused had acted in an unusual manner. As in PP v Seow Khoon KweePP v Seow Khoon Kwee, a, a fight started when the deceased punch the accused’s left eye. The accused then fight started when the deceased punch the accused’s left eye. The accused then used a piece of glass while the deceased fought. The glass was used to inflict the used a piece of glass while the deceased fought. The glass was used to inflict the fatal injury. Then, the court held, in using such weapon, there were no undue fatal injury. Then, the court held, in using such weapon, there were no undue advantage nor acting in an unusual manner. The exception was applicable. By advantage nor acting in an unusual manner. The exception was applicable. By contrast, in

contrast, in Mohamed KunjoMohamed Kunjo, the accused hit the deceased with a pipe several, the accused hit the deceased with a pipe several times. The court rejected the appeal because the accused had gone off to take times. The court rejected the appeal because the accused had gone off to take the weapon. the weapon. APPLICATION APPLICATION CONCLUSION CONCLUSION

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EXCEPTION 5 – CONSENT EXCEPTION 5 – CONSENT

The

The parties parties involve involve are are A A the the accused accused and and B B the the victim. victim. The The issue issue in in thisthis case is whether A can raise the defence of consent as defined under Exception 5 case is whether A can raise the defence of consent as defined under Exception 5 to Section 300 of the Penal Code for causing the death of B and reduce the to Section 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of the same code.

punishment to Section 304 of the same code. LAW PRINCIPLE

LAW PRINCIPLE Excep

Exception 4 tion 4 statstates that es that culpabculpable homicide is le homicide is not murder when not murder when the personthe person whose death is caused, being above 18 years old, suffers death or takes the risk whose death is caused, being above 18 years old, suffers death or takes the risk of death with his own consent.

of death with his own consent. In

elements to this defence.to this defence.

Firstly, the consent must be a voluntary and genuine consent and not Firstly, the consent must be a voluntary and genuine consent and not based on a misconception of fact. In the case of

based on a misconception of fact. In the case of Poonai FattemahPoonai Fattemah, a snake, a snake ch

chararmer mer totold ld hihis s auaudidiencence e ththat at if if ththey ey wewere re bibittttenen, , he he hahad d ththe e necnecesessasaryry an

anttididotote. e. ThThe e ddececeaeasesed, d, ttheherereupuponon, , alallolowewed d hhimimsselelf f to to be be bibitttten en anandd su

subsbsequequentently ly didied. ed. It It wawas s heheld ld ththat at ExExceceptptioion n 5 5 didid d nonot t apapplply y bebecacaususe e ththee victim’s consent was based on misconception of fact.

victim’s consent was based on misconception of fact. Se

Secocondndlyly, , ththe e coconsnsenent t alalso so mumust st be be ununeqequivuivococal al anand d nonot t memerelrely y anan expression of willingness to die as one possible option.

expression of willingness to die as one possible option. CIRCUMSTANTIAL CASES BASED ON THE QUESTION CIRCUMSTANTIAL CASES BASED ON THE QUESTION FAILED

FAILED

In the case of

In the case of Ambalathil AssainarAmbalathil Assainar, the accused had a quarrel with his, the accused had a quarrel with his wife. He was trying to get the wife to go back to her mother’s house. She refused wife. He was trying to get the wife to go back to her mother’s house. She refused and stated that she would rather die. Then, he killed his

and stated that she would rather die. Then, he killed his wife and the court heldwife and the court held that exception 5 did not apply as the wife did not unequivocally consent to be that exception 5 did not apply as the wife did not unequivocally consent to be killed.

killed.

SUCCEEDED SUCCEEDED

In the case of

In the case of Dasrath PaswanDasrath Paswan, a student who had failed his examination, a student who had failed his examination for three successive years, decided in depression to end his wife and informed for three successive years, decided in depression to end his wife and informed his wife of his plans. Distraught, she asked him to kill her first and then kill his wife of his plans. Distraught, she asked him to kill her first and then kill himself. He killed her but was arrested before he could kill himself. The court himself. He killed her but was arrested before he could kill himself. The court th

then en heheld ld ththat at ththe e exexceceptption ion wawas s avavaiailalablble e anand d rejrejecected ted ththe e prprososececututioion’n’ss con

contententiotion n thathat t the the conconsensent t was was obtobtainained ed by by the the accaccuseused d prepressussurizrizing ing ththee deceased with years of future widowhood which was miserable in those days. deceased with years of future widowhood which was miserable in those days. APPLICATION

APPLICATION

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