EXCEPTIONS TO SECTION 300

EXCEPTION 1 - PROVOCATION The parties involve are A, the accused and B, the victim. The issue in this 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 punishment to Section 304 of the same code. LAW PRINCIPLE Exception 1 states that culpable homicide is not murder if the killing takes place in the situation involving provocation. Provocation is the deprivation of self-control by virtue of words, gestures or action. In determining whether A may succeed in this defence, we must first determine whether As act falls within the ambit of the exception 1. There are 5 elements to prove this defence. Firstly, provocation must be grave and sudden. The court in the case of Chong Teng v PP interprets the severity of grave as harsh gravity and sudden as unexpected and to have occurred within a short period of time before the killing. In the case of PP v Abdul Razak Dalek, it was alleged that the accused was provoked to lose his self-control by the remarks made by the deceased that they were no longer husband and wife. It was held that the good test to identify grave provocation is whether a reasonable man would likely to lose his selfcontrol. As for sudden, it must be unexpected and to have occurred within a short period of time before the killing that is instantaneous. Secondly, there must be a link between provocation and killing. A link shall exist when the accused killed while being deprived of his self-control resulting from the provocation. In Mohd Ali b. Johari v PP, the accused was 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 no link to the provocation and his act as his act was beyond proportionality. Thirdly, there must be no cooling period. Cooling period refers to the lapse of time between the provocation and killing. In Chong Teng v PP, the accused had gone to the market to fight with the deceased who had allegedly taken away the accuseds wife. Thomson J agreed that the defence of provocation was not open to the accused as whatever happened in the way of taking away of the appellants wife had happened a long time ago. Fourthly, there must be proportionality of retaliation. This means that the retaliation must be balanced by provocation. In the case of AG for Ceylon v Don John Perera, 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 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 uttered threats and threw stones at the accused did not proportionate with his act of killing them.

The last element is the application of reasonable man test. As in the case of Lorentus Tukan v PP, the test is identified by whether a reasonable man belonging in a same class of society if placed in the same situation of the accused would be provoked to lose his self-control. In Nanavati v State of Maharashtra, what a reasonable man will do in certain circumstances depends on to the cultural, social and emotional background of the society which the accused belongs. CIRCUMSTANCES CASES IN THE QUESTION In PP v Thiruyanam, the accused killed a 12 year-old girl with 2 blows with a stick to her head for uttering vulgar words at him. It was held then no reasonable man would react as such. OR In PP v Lim Eng Kiat, the accused was charged with the murder of his wife by strangling her to death. He was alternatively charged with culpable homicide not amounting to murder. It was contended that his wife had confessed to adultery and made an insulting reference to the size of his penis. It was held that an ordinary person of the accuseds race, class and background would have been provoked in similar circumstances. APPLICATION

CONCLUSION 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 this defence and reduced the punishment to section 304.

EXCEPTION 2 EXCEEDING THE RIGHT OF PRIVATE DEFENCE The parties involve are A, the accused and B, the victim. The issue in this 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 death of B and reduce the punishment to Section 304 of the same code. LAW PRINCIPLE Exception 2 states that culpable homicide is not murder if the offender kills another person even if he, in good faith, exceeds the right of private defence. This exception provides for a situation where the accused had exceeded the right of private defence accorded to him the defence of property or life of person. In determining whether A may succeed this defence, we must first determine whether As act falls within the ambit of the exception 2. There are 3 elements need to be satisfied in this defence. However, there are 4 limitations which derived from the case of Balbir Singh v State. Firstly, the accused must 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 be a necessity for taking life. For the first element, the act of killing was exercised in good faith. Good faith is defined under Section 52 of the Code as act done or believed with due care and attention. In the case of Teoh Seng Lian v PP, the accused was convicted with murder. He had a misunderstanding with the deceaseds husband 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 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 exercised the act in good faith and under the circumstances of Exception 2 amounts only to culpable homicide not amounting murder. Secondly, the act was not done in excessive harm than necessary. This element was illustrated in the case of Soosay v PP. In this case, the appellant 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 appellants friend. The appellant kicked the deceased and the knife fell. He grabbed hold of the knife and when the deceased tried to charge him, he stabbed the deceased several times. It was held that the right to private defence exists but he exceeds it when the knife fell and he stabbed the deceased. Lastly, the act was done without intention or pre-meditation. This element was explained in Illustration to Exception 2 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 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, but only culpable homicide. APPLICATION

CONCLUSION 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 Exception 2 to section 300.

EXCEPTION 3 PUBLIC SERVANT EXCEEDING HIS POWERS The parties involve are A, the accused and B, the victim. The issue in this 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 death of B and reduce the punishment to Section 304 of the same code. LAW PRINCIPLE 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 good faith believing it was necessary. In determining whether A may succeed this defence, we must first determine whether As act falls within the ambit of the exception 3. There 4 elements to this defence. Firstly, the accused is a public servant to advance public justice. Secondly, he exceeds the power given by law and has caused death. Thirdly, he acted in good faith, believing that it is lawful and necessary. Fourthly, there is no malice or will. It is to be noted that Section 15 of the Criminal Procedure Code provides that in the mode of arrest, police are allowed to use reasonable force to apprehend an offender and such force may extend to cause death is the offence is punishable with death. In Dukhi Singh AIR, the accused 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 charged with culpable homicide. This decision is however in contrast to the decision decided in Sabha Naik. 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 not act in such ways as it is not done in good faith and all of them were guilty of murder. APPLICATION In applying the law, A is a public servant and his duty is to advance public justice. He had no doubt exceeds the powers given to him by law and caused the 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 the offence of rape is not punishable with death. Therefore, the only protection available for him is Exception 3 to section 300 CONCLUSION 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 under section 304.

EXCEPTION 4 SUDDEN FIGHT The parties involve are A, the accused and B, the victim. The issue in this case is whether A may raise the defence of sudden fight as defined under 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. LAW PRINCIPLE Exception 4 states that culpable homicide is not murder if the offender kills without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In determining whether A may succeed this defence, we must first determine whether As act falls within the ambit of the exception 4. There are 3 elements to this defence. Firstly, there must be a sudden fight. The definition of sudden fight was provided in the case of Bhagwan Munjaji Pawade as the court stated that a fight postulates a bilateral transaction in which blows are exchange. However, in the case of PP v Awang Riduan bin Awang Bol, the deceased claimed that the accused took money. Only an hour later, the accused came back with a knife and an axe. It was held that it was not a sudden fight as there was element of design or planning. Secondly, there must be absence of premeditation. Premeditation is not defined in the penal code but it was stated in the case Mohamed Kunjo v PP that premeditation involves a pre-planning which is furnished by former grudges or previous threat. The, in the case of Amrithalingam Nadar, a fight broke out between the accused and the deceased. The deceased ran out with a knife. The court held that there was no premeditation. Lastly, it was done without undue advantage. If weapon is out of all proportion, it must be considered whether undue advantage had been taken or the accused had acted in an unusual manner. As in PP v Seow Khoon Kwee, a fight started when the deceased punch the accuseds left eye. The accused then 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 advantage nor acting in an unusual manner. The exception was applicable. By contrast, in Mohamed Kunjo, the accused hit the deceased with a pipe several times. The court rejected the appeal because the accused had gone off to take the weapon. APPLICATION

CONCLUSION In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defence under Exception 4 to section 300 to reduce his punishment as under section 304.

EXCEPTION 5 CONSENT The parties involve are A the accused and B the victim. The issue in this 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 punishment to Section 304 of the same code. LAW PRINCIPLE Exception 4 states that culpable homicide is not murder when the person whose death is caused, being above 18 years old, suffers death or takes the risk of death with his own consent. In determining whether A may succeed this defence, we must first determine whether As act falls within the ambit of the exception 5. There are 2 elements to this defence. Firstly, the consent must be a voluntary and genuine consent and not based on a misconception of fact. In the case of Poonai Fattemah, a snake charmer told his audience that if they were bitten, he had the necessary antidote. The deceased, thereupon, allowed himself to be bitten and subsequently died. It was held that Exception 5 did not apply because the victims consent was based on misconception of fact. Secondly, the consent also must be unequivocal and not merely an expression of willingness to die as one possible option. CIRCUMSTANTIAL CASES BASED ON THE QUESTION FAILED In the case of Ambalathil Assainar, the accused had a quarrel with his wife. He was trying to get the wife to go back to her mothers house. She refused and stated that she would rather die. Then, he killed his wife and the court held that exception 5 did not apply as the wife did not unequivocally consent to be killed. SUCCEEDED In the case of Dasrath Paswan, a student who had failed his examination 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 himself. He killed her but was arrested before he could kill himself. The court then held that the exception was available and rejected the prosecutions contention that the consent was obtained by the accused pressurizing the deceased with years of future widowhood which was miserable in those days. APPLICATION

CONCLUSION In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defence under Exception 5 to section 300 to reduce his punishment as under section 304.