The document discusses the differences between murder and culpable homicide under Indian law. It examines the exceptions under Section 300 that may reduce a murder charge to culpable homicide not amounting to murder. These exceptions include provocation, exceeding the right of private defense, a public servant exceeding their powers, sudden fight, and consent. The document analyzes several court cases to illustrate how the exceptions have been applied in practice and the criteria courts consider in determining whether an exception applies.

1. An offence is either murder or culpable homicide depends on whether or not one of the
exceptions under Section 300 apply and if by reason of the absence of the necessary degree of
mens rea an offence does not fall within Section 300, it cannot be one of culpable homicide not
amounting to murder but would amount to causing grievous hurt. Culpable homicide may not
amount to murder where the evidence is sufficient to constitute murder but one or more of the
exceptions to Section 300 of Penal Code apply and where the necessary degree of mens rea
specified in Section 299 is present but not the special degree of mens rea required in Section
300. The exceptions under Section 300 are, (i) provocation, (ii) exceeding right of private
defence, (iii) public servant exceeding powers, (iv) sudden fight and (v) consent.
An offence will be that of culpable homicide not amounting to murder if the accused is
able to bring his act within 1 of the 5 exceptions provided under Section 300 of Penal Code.
The first exception is subject to 3 provisos, which are (i) the provocation is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to any person, (ii)
the provocation is not given by anything done in obedience to the law or by a public servant in
the lawful exercise of the powers of such public servant, and (iii) the provocation is not given
by anything done in the lawful exercise of the right of private defence. It is plain that exception
1 to Section 300 codifies the principle that if homicide is committed in the face of grave and
sudden provocation emanating from the victim, the charge of the murder by person for such
grave and sudden provocation from the victim reduces the charge of murder to culpable
homicide not amounting to murder. The test of sudden and grave provocation is whether a
reasonable man belonging to the same class of society as the accused, placed in the situation in
which the accused was placed would be so provoked as to lose his self- control. For what a
reasonable man will do in certain circumstances depends upon the customs, manners, way of
life, traditional value etc. In short, the cultural, social and emotional background of the society
to which an accused belongs. The court need to apply the objective test. There must be a link
between provocation and killing and no cooling period resulting in the loss of efficacy of the
provocation. Besides that, retaliation should not be disproportionate to the provocation.
In the case of Pendakwa Raya v Lau Poh Ann [2018] MLJU 173, it was the deceased
who came to the accused’s shop and harassed him to look for his car alarm which he claimed
went missing after the accused had repaired his car. The deceased continued the harassment
despite being invited to look for it himself inside the shop. The accused ignored him and did
not react. The deceased deliberately irritated and the accused knowing he was a man with a
violent disposition and easily liable to lose control of himself. Furthermore, he expected a flare
up of sorts because he asked his wife to capture his meeting with the accused on her mobile
phone. It was obvious that the deceased’s intention in pulling the grill as the accused was
reversing his customer’s car was to provoke the accused to react violently. The deceased
persisted in irritating the accused when it would have become apparent to him that the accused
was livid on seeing the damage to the car and grill door. The deceased mocked and challenged
the accused to hit him as he had no money, At this point, the provocation proved too strong for
the accused and he picked up the potted plant and hit the deceased. It was held that the charge

2. of murder is reduced to one of culpable homicide not amounting to murder and punishable
under Section 304(b) of the Penal Code.
On the other hand, in the case of PP v Chian Swee Ong [2006] 3 MLJ 612, the accused
was charged for the murder of a foreign prostitute whom he stabbed to death. He argued that
he had been deeply in love with the deceased and had proposed marriage. He had in front of
her consumed 19 pills of “Uphamol” and cutting his hand 4- 5 times with a dagger as a way of
showing his love and willingness to sacrifice his life for her. She had instead rejected him in a
cold, humiliating manner and mocked him that she had been good to him because the monetary
returns from the sale of sexual services to him. He then lost control of himself. The court held
that the relationship between the accused and the deceased was at all material times one of
prostitute and client. There was nothing else in a mutually and emotionally binding tie with a
view to matrimony. There was no reason for the accused to lose his self- control in an
environment of client and prostitute refused his hand in marriage and laughed mockingly at
him.
The proper exercise of self- defence by the accused in causing the death of an offender
does not amount to any criminal offence. The exception would not apply if at first instance
there was no right of private defence. The exception applies where the accused had the right of
private defence but was unable to satisfy the requirements for the right of private defence to
apply because death is caused by an offence not listed under Section 100 and Section 103 or
the right of private defence is continued to be exercised when reasonable apprehension of
danger ceased. Four conditions are to be satisfied before exception 2 could be successfully
applied as derived from the case of Balbir Singh v State [1951] Cr LJ 961, (i) the accused
must be free from fault in bringing about the encounter, (ii) there must be present some
impending danger to life or great bodily harm, either real or so apparent as to create honest
belief of an existing necessity, (iii) there must be no safe or reasonable mode of escape by
retreat and (iv) there must be necessity for taking life.
The act of killing must be done in good faith. Good faith is defined under Section 52 of
Penal Code as act done or believed with due care and attention. In the case of Teoh Seng Lian
v PP [1986] 1 MLJ 474, the accused was convicted with murder caused by a misunderstanding
with the deceased’s husband relating to intend to sell a boat. The deceased wanted to dispose
the boat and then appellant asked the deceased for a loan 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 the attacker exercised the act in good faith under the
circumstances of exception 2 amounts only to culpable homicide not amounting to murder.
The act was not done in excessive harm than necessary as in the case of Soosay v PP
[1993] 3 SLR 272, where a quarrel ensued, during which the deceased drew a knife and

3. threatened the accused’s friend. The accused kicked the deceased and the knife fell. The
accused grabbed hold of the knife and when the deceased charged at him, he stabbed the
deceased multiple times, resulting in his death. It was held that although the accused acted in
good faith in defending himself, the right of private defence ceased when the knife was
dislodged from the deceased’s hand. Where there was no longer any reasonable apprehension
of danger, the accused had far exceeded his right of private defence.
Lastly, the act must be done without intention or premeditation. This is explained in
illustration of Exception 2 when Z attempts to horsewhip 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 means prevent himself from being horsewhipped, shoots Z dead. A has not
committed murder, but only culpable homicide. It is shown that A did not plan or had the
intention to do so at the first place but he was in the circumstances which he believed that his
life was in danger, thus, shot Z to death.
Exception 3 is of the concern of a public servant exceeding their powers. In order to fall
under this exception, there are 4 conditions required to be fulfilled which are the offenders
must be a public servant or a person aiding a public servant acting for the advancement of
public justice. Furthermore, the public servant must have exceeded the powers given by the
law to him and in return had inflicted death. The public servant also must have acted I good
faith and there was without ill-will the person he killed. If the public servant managed to fulfil
all of the element as stated above, then this exception would be applicable.
Under the Criminal Procedural Code, section 15(2) and (3) is relevant to the application
of exception 3 as it relates to the issue of arrest. Under section 15(2) of the Criminal Procedural
Code, if such person were arrested and forcibly resisted from being arrested, the police may
use all means necessary to effect the arrest. Section 15(3) further reiterates the right to cause
the death of a person who is not accused of an offence punishable with death or life
imprisonment.
The case that successfully falls under this exception is the case of Dukhi Sing v State of
Allahabad, within this case a suspected thief who had been arrested escaped from a running
train. A constable pursued him to effect his arrest and when he was in a position to apprehend
him, he fired at him. In the process, he hit the fireman of the engine and killed him. It was held
that Exception 3 covered the case.
This is due to the fact that the constable has fulfilled all of the element required. The
constable exceeded the powers given to him by law and caused the death of the fireman by
doing an act which in good faith he believed to be lawful and necessary for due discharge of
his duty.

4. The fourth exception states that culpable homicide is not murder if the accused 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 accused may succeed this defense, we must first determine whether the
offender’s act falls under all three elements under exception 4. The first element is there must
be a sudden fight. In the case of Bhagwan Munjaji Pawade as the court stated that sudden
fight is 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. After 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 prior grudges or previous threat.
In the case of Amrithalingam Nadar, a fight broke out between the accused and the
deceased. The deceased immediately 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. In PP v Seow Khoon Kwee, a 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 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. Hence, in determining whether
exception 4 may be applied, three element must be fulfilled.
Next exception states that culpable homicide is not murder when the person whose death
is caused , being above the age of the eighteen years , suffer death or takes the risk of death
with his own consent. The consent must be a voluntary and genuine consent and not based on
a misconception of fact. It must be unequivocal and not merely an expression of a willingness
to die as one possible option.
In Poonai Fattemah (1869) 12 WR (Cr) 7 a snake charmer told his audience that if they
were bitten, he had necessary antidote. The deceased, thereupon, allowed himself to be bitten
and subsequently died. It was held Exception 5 did not apply because the victim's consent was
based on a misconception.
However in Dasrath Paswan AIR (1958) Patani 190 a student who had failed his
examination for three successive years, decided in depression to end his 19-years old wife of
his plans. In 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 held that the exception was satisfied and
rejected the tenuous submission of the prosecution that the consent was obtained by the accused
pressurizing the deceased with years of future widowhood.

5. In conclusion, if there is insufficient evidence of that special degree of mens rea
accompanying the act to establish murder, the offence that may be committed, depending on
the mens rea, may be offence of causing death by rash or negligent act. The offence of culpable
homicide not amounting to murder , punishable under section 304 , is committed when the
special degree of mens rea under section 300 sufficient to constitute murder is not established
, or there is sufficient evidence to establish murder under section 300 but one or more of the
exception to section 300 apply. There are five exceptions and they are provocation, exceeding
the right of private defense, public servant exceeding his powers, sudden fight and consent.