(2) exceptions to section 300
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(2) exceptions to section 300

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disclaimer - this is just an attempt to answer the question for tutorial/assignment, pls double check with ur own notes for confirmation

disclaimer - this is just an attempt to answer the question for tutorial/assignment, pls double check with ur own notes for confirmation

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    (2) exceptions to section 300 (2) exceptions to section 300 Document Transcript

    • EXCEPTIONS TO SECTION 300EXCEPTION 1 - PROVOCATION The parties involve are A, the accused and B, the victim. The issue in this case is whether Amay raise the defence of provocation defined under Exception 1 of Section 300 of the Penal Code forcausing 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 thesituation 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 A’sact 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 PPinterprets the severity of grave as harsh gravity and sudden as unexpected and to have occurredwithin a short period of time before the killing. In the case of PP v Abdul Razak Dalek, it was allegedthat the accused was provoked to lose his self-control by the remarks made by the deceased thatthey were no longer husband and wife. It was held that the good test to identify grave provocation iswhether a reasonable man would likely to lose his self-control. As for sudden, it must be unexpectedand 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 theaccused 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 byimmersing her in a pail of water because she was crying incessantly. The court held there was no linkto 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 betweenthe provocation and killing. In Chong Teng v PP, the accused had gone to the market to fight withthe deceased who had allegedly taken away the accused’s wife. Thomson J agreed that the defenceof provocation was not open to the accused as whatever happened in the way of taking away of theappellant’s wife had happened a long time ago. Fourthly, there must be proportionality of retaliation. This means that the retaliation mustbe balanced by provocation. In the case of AG for Ceylon v Don John Perera, The accused shot awoman and all her family members. The woman and her family had uttered threats and threwstones at the accused. It was held that the test is objective and must be decided by comparing thenature of provocation and the act of retaliation. Therefore, the acts of victims which only utteredthreats 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 Tukanv PP, the test is identified by whether a reasonable man belonging in a same class of society if placedin 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 herhead 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 herto death. He was alternatively charged with culpable homicide not amounting to murder. It wascontended that his wife had confessed to adultery and made an insulting reference to the size of hispenis. It was held that an ordinary person of the accused’s race, class and background would havebeen provoked in similar circumstances.APPLICATIONCONCLUSION In conclusion, as all the elements to the defence of provocation as required by Exception 1of section 300 are satisfied. Therefore, A may succeed this defence and reduced the punishment tosection 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 Acan raise the defence of exceeding the right of private defence as defined under Exception 2 toSection 300 of the Penal Code for causing the death of B and reduce the punishment to Section 304of the same code.LAW PRINCIPLE Exception 2 states that culpable homicide is not murder if the offender kills another personeven if he, in good faith, exceeds the right of private defence. This exception provides for a situationwhere the accused had exceeded the right of private defence accorded to him the defence ofproperty or life of person. In determining whether A may succeed this defence, we must first determine whether A’sact falls within the ambit of the exception 2. There are 3 elements need to be satisfied in thisdefence. 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 orbodily harm. Thirdly, there is no safe or reasonable way of escaping. Lastly, there must be anecessity for taking life. For the first element, the act of killing was exercised in good faith. Good faith is definedunder Section 52 of the Code as act done or believed with due care and attention. In the case ofTeoh Seng Lian v PP, the accused was convicted with murder. He had a misunderstanding with thedeceased’s husband relating to intend to sell a boat. The deceased wanted to dispose the boat. Theappellant asked for a loan from the deceased. But the wife refused and threw a knife at him. Itmissed him and he gained possession of the knife. He later slashed her and threw a stone at herhead. It was held that if the attacker exercised the act in good faith and under the circumstances ofException 2 amounts only to culpable homicide not amounting murder. Secondly, the act was not done in excessive harm than necessary. This element wasillustrated in the case of Soosay v PP. In this case, the appellant and his friend had tried to retrieve agold chain from the deceased. A quarrel ensued during which the deceased drew a knife andthreatened the appellant’s friend. The appellant kicked the deceased and the knife fell. He grabbedhold of the knife and when the deceased tried to charge him, he stabbed the deceased severaltimes. It was held that the right to private defence exists but he exceeds it when the knife fell and hestabbed the deceased. Lastly, the act was done without intention or pre-meditation. This element was explained inIllustration to Exception 2 when Z attempts to horse-whip A, not in such a manner to cause grievoushurt to A. A draws out a pistol. Z persists the assault. A, believing in good faith that he can by noother means prevent himself from being horse-whipped, shoots Z dead. A has not committedmurder, but only culpable homicide.APPLICATIONCONCLUSION In conclusion, having fulfills all the elements in this defence. Thus, A may succeed in raisingthis 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 Acan raise the defence of a public servant exceeding powers as defined under Exception 3 to Section300 of the Penal Code for causing the death of B and reduce the punishment to Section 304 of thesame code.LAW PRINCIPLE Exception 3 states that culpable homicide is not murder if the offender kills when he is apublic servant or person aiding him exceeds hi power by law, in good faith believing it wasnecessary.In determining whether A may succeed this defence, we must first determine whether A’s act fallswithin 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 thepower given by law and has caused death. Thirdly, he acted in good faith, believing that it is lawfuland necessary. Fourthly, there is no malice or will. It is to be noted that Section 15 of the CriminalProcedure Code provides that in the mode of arrest, police are allowed to use reasonable force toapprehend an offender and such force may extend to cause death is the offence is punishable withdeath. In Dukhi Singh AIR, the accused a constable chased a man but when he fired a shot, it hit afireman and killed him. The court decided that he was covered within the exception and wascharged with culpable homicide. This decision is however in contrast to the decision decided in Sabha Naik. In this case, thechief constable ordered his subordinates to open fire against a mob on reasons of public security. Itwas held that the accused should not act in such ways as it is not done in good faith and all of themwere guilty of murder.APPLICATION In applying the law, A is a public servant and his duty is to advance public justice. He had nodoubt exceeds the powers given to him by law and caused the death of B by firing a shot, in goodfaith, believed to be lawful and necessary for due discharge of his duty, However, he is not coveredby section 15 of CPC as the offence of rape is not punishable with death. Therefore, the onlyprotection available for him is Exception 3 to section 300CONCLUSION In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defenceunder 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 Amay raise the defence of sudden fight as defined under Exception 4 to Section 300 of the Penal Codefor 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 withoutpremeditation in a sudden fight in the heat of passion upon a sudden quarrel and without theoffender 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 A’sact 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 caseof Bhagwan Munjaji Pawade as the court stated that a fight postulates a bilateral transaction inwhich blows are exchange. However, in the case of PP v Awang Riduan bin Awang Bol, thedeceased claimed that the accused took money. Only an hour later, the accused came back with aknife and an axe. It was held that it was not a sudden fight as there was element of design orplanning. Secondly, there must be absence of premeditation. Premeditation is not defined in thepenal 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 AmrithalingamNadar, 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 beconsidered whether undue advantage had been taken or the accused had acted in an unusualmanner. As in PP v Seow Khoon Kwee, a fight started when the deceased punch the accused’s lefteye. The accused then used a piece of glass while the deceased fought. The glass was used to inflictthe fatal injury. Then, the court held, in using such weapon, there were no undue advantage noracting in an unusual manner. The exception was applicable. By contrast, in Mohamed Kunjo, theaccused hit the deceased with a pipe several times. The court rejected the appeal because theaccused had gone off to take the weapon.APPLICATIONCONCLUSION In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defenceunder 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 Acan raise the defence of consent as defined under Exception 5 to Section 300 of the Penal Code forcausing 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 iscaused, 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 A’sact 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 amisconception of fact. In the case of Poonai Fattemah, a snake charmer told his audience that ifthey were bitten, he had the necessary antidote. The deceased, thereupon, allowed himself to bebitten and subsequently died. It was held that Exception 5 did not apply because the victim’sconsent was based on misconception of fact. Secondly, the consent also must be unequivocal and not merely an expression of willingnessto die as one possible option.CIRCUMSTANTIAL CASES BASED ON THE QUESTIONFAILED In the case of Ambalathil Assainar, the accused had a quarrel with his wife. He was trying toget the wife to go back to her mother’s 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 notunequivocally consent to be killed.SUCCEEDED In the case of Dasrath Paswan, a student who had failed his examination for threesuccessive 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 beforehe could kill himself. The court then held that the exception was available and rejected theprosecution’s contention that the consent was obtained by the accused pressurizing the deceasedwith years of future widowhood which was miserable in those days.APPLICATIONCONCLUSION In conclusion, as all the elements are/not fulfilled, A may/not succeed in raising defenceunder Exception 5 to section 300 to reduce his punishment as under section 304.