SPECIAL EXCEPTIONS: CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
PRINCIPLE CASE/AUTHORITY NOTES
FIRST EXCEPTION: PROVOCATION
Definition Provocation is defined as a situation when an accused person loses control of his
mind due to the act or some acts done by the deceased where it caused the accused
a sudden and temporary loss of self control rendering the accused to be no longer
the master of his mind.
Elements Various conditions need to be satisfied under the wording of the Penal Code
regarding the elements of provocation as an exception to s 300.
1. The first element is that the provocation must be grave and sudden.
2. Secondly, the accused is deprived of self-control.
3. Thirdly, he must have killed the deceased and in some cases when the
accused killed other than the person who provoked him, he had killed by
mistake or accident (This is an optional requirement).
Provocation ● A provocation must be “grave and sudden”. This depends much to the facts
must be Grave of the case.
and Sudden
● The word “sudden” may be equated with the word “unexpected or serious”.
It also suggests that the provocation must be done in recent time.
● There must be a necessary link between the provocation & the loss of
self-control. The killing will not be justified where there has been “cooling
off period” between the provocation and the killing.
● This general principle of immediacy reflects the law’s concern to differentiate
between deliberate killing and anger infused impulsive killings, because the
latter should be mitigated in terms of its punishment.
Based on the illustrations to the Exception, it is clear that provocation cannot be
caused by a child and an act of a public servant in the course of exercising his
duty may not amount to provocation.
In determining whether the provocation is grave and sudden, several factors must be
taken into account inter alia, educational background, gender, religion and etc.
Verbal Provocation:
● Originally verbal provocation cannot be regarded as provocation under
English law. Hard words create no bones.
● The court is quiet reluctant to accept verbal insult as grave and sudden
provocation.
Cases Mat Sawi Bahodin v PP
1. The appellant and his wife had a long history of domestic unhappiness which had been
aggravated by the attitude of the deceased women in siding with her daughter.
Court Held:
● In this case, the judge decided that there was evidence that the provocation was that the
deceased whom the accused regarded as partly responsible for the domestic trouble came
towards him scolding him at a time when he was in pain and his wife’s coldness in dealing
with his pain had revived all his longstanding suspicions.
● The appeal in this case was allowed.
● The court held that there was cumulative provocation and the word ‘BABI’ is the final
straw that breaks the camel back.
Nanavathi v State of Maharashta
1. The accused, a naval officer was frequently away from his wife Sylvia who remained in
Bombay when he was on board ship.
2. Illicit intimacy developed between Sylvia and a family friend, Ahuja.
3. Sylvia confessed to Nanavathi. He went to the ship and brought out a semi-automatic
revolver, went to Ahuja’s bedroom in a flat and shot him dead.
4. The accused rendered himself to the police thereafter.
Court Held:
● The question that the court has to consider is whether a reasonable person placed in the
same position as the accused was, would have reacted to the confession of adultery by his
wife in the manner in which the accused did.
● The court agreed that it was grave however was he deprived of self-control?
● The accused had time to regain self-control though he might had lost it initially since
there was a gap between the act of provocation and killing.
● Appeal was dismissed.
Bedder v DPP
1. An impotent 18-year-old killed a prostitute who jeered at his efforts to prove his virility
and she kicked him in the groin.
Court Held:
● The House of Lords held that the trial judge correctly directed the jury that the accused
should be judged by the standard of the reasonable man and that they should therefore
ignore his youth and impotence.
R v Dafi
1. The accused attacked her abusive husband with a hammer and hatchet while he was
sleeping using the reason that the husband abusiveness is the grave and sudden
provocation.
Court Held:
● The court laid down the principle that, provocation means an act or cumulative
provocation done by the deceased that can cause any reasonable man to loose his
self-control rendering him to be at that particular time not the master of his mind.
● Provocation can be a single act and series of act under the law.
● Words or verbal provocation cannot be considered as grave and sudden provocation
however it is a question of fact.
Holmes v DPP
● It was established that mere words do not amount to grave and sudden provocation.
● However, words coupled with action may amount to grave and sudden provocation.
● Provocation is not a license to kill. Man sometimes may loose self-control because the
deceased himself contribute thus the liability of the accused will be reduced.
DPP v Camplin
1. The accused was a 15 year-old young man.
2. He was raped by the deceased (Although rape is gender specific offence in Malaysia, but
not in other countries).
3. After raping him, the deceased laughed at him.
4. The accused lost his self control. He hit the deceased using a pan made of steel at the head
causing death to the deceased.
Court Held:
● It was held that the act of the deceased amounts to grave and sudden provocation and the
accused was deprived of self-control at that time.
Krishna Chandra
1. Evidence showed that the wife has not been on good terms with the husband for many
years.
2. One day the husband asked for a betel leaf from the wife. The wife splashed him with
dirty rice water.
3. Angered by her act, he took a stone and hit the wife on the head.
4. He was charged for murder and relied on exception 1.
Court Held:
● The court viewed that the act of the wife can be considered as grave and sudden
provocation thus warrant him of CHNATM.
● The faster was the reaction by the husband, the higher possibility that it is grave and
sudden provocation.
PP v Juminem
1. A day before the accused killed the deceased (accused was a maid), she was abused by her
master using a television remote control.
2. The next day she killed the master.
3. Does the act amount to grave and sudden provocation?
Court Held:
● Definitely not.
● The longer one waits, it means she has already gained her self-control.
● The moment she gained, it showed that the mind is working.
● The accused is capable of having relevant mens rea in committing murder.
Chan Swee Ong
1. The deceased was the accused’s ex-lover.
2. She rejected the his confession of love.
3. The accused had been gravely and suddenly provoked by the rejection thereby killed her.
Q: Whether rejection of love amounts to grave and sudden provocation?
● It is not suitable to be considered as grave and sudden provocation to the extend of killing
her.
Mohd Ali b Johari
1. The accused killed a toddler because the child could not stop crying.
2. He claimed that the child’s continuous crying amounts to grave and sudden provocation.
Court Held:
● The court viewed that child’s crying cannot be considered as grave and sudden
provocation.
SECOND EXCEPTION: PRIVATE DEFENCE
Definition ● Exception 2 to s300 in the Penal Code is to provide a formal mitigation in
those cases where the accused was originally exercising the right of private
defence that went beyond the powers contained in the general exceptions (s
96 to s 106).
● The general right of private defence is justificatory, which enables the accused
to escape liability.
● However, the notion of excessive private defence appears to be a partial
excuse.
● It applies where the accused had gone beyond what was objectively necessary
for the purposes of defence but was unable in the heat of the moment to judge
that he had done more than enough by way of defence.
● Defence under this exception only applies if the right of private defence of a
person or property has arisen.
● It is to determine whether the accused has met the criteria applicable in the
case of general defences.
Elements 1. The accused must be proved exercising his right of private defence.
2. Exception 2 will not be applicable unless the accused acted in good faith as
stated in s 52 of the Penal Code, without premeditation and without the
intention of doing more harm than was necessary for the purpose of
private defence.
Cases Bhagwan Munjaji Pawade v State of Maharashtra
1. The deceased’s mother became involved in an argument when her she-buffalo
browsed her neighbours’ vegetable creepers.
2. When the deceased returned home, he asked why the accused was arguing
with his mother.
3. The appellant was armed with an axe, and suddenly gave three blows to the
deceased.
Court Held:
● The High Court has decided that the appellant has far exceeded the limits of
his right of private defence.
● On the basis of this, the court said that the case of the appellant was covered
by Exception 2 of s 300.
Latchumi Koeri v State of Bihar
1. The appellant was held to have the right of private defence against a havildar
since the havildar was not in a uniform and there was nothing to show that the
appellant knew he was a public servant.
2. However, since the appellant could not have feared grievous hurt or death
from the havildar, he was not entitled to full defence.
3. It was also held that he could not rely on the Exception 2 of the offence.
EXCEPTION 3: PUBLIC SERVANT EXCEEDING THE POWER GIVEN
Definition The third exception of murder under s 300 is for the purpose of allowing bigger
autonomy to those involved in law enforcement other than what is allowed under
the normal prescribed law.
This is however, subject to restrictions which are:
● The defendant must in good faith believe that his acts were lawful and
necessary for the discharge of his duties as a public servant, whereby he must
believe that he was acting within the powers allowed by the law.
● The next restriction is, the act must not be motivated by ill will, which is in
the same context of the first restriction.
It must also be noted that this exception should not be confused with Section 76 and
79 of the Penal Code.
Although this exception is not directly related with the defence of mistake under both
sections, particularly because of the difference between justification and excuses, it
should be noted that to certain extend, it may be seen as an extension of the defence
of mistake.
Elements 1. The accused must be a public servant or acting under the direction of public
servant.
2. It is done for public justice.
3. It is done in good faith and he has exceeded his power.
Cases Dukhi Singh v State of Allahabad
1. The appellant was a constable with the Railway Protection Police who was
traveling on a train and noticed a man in suspicious circumstances.
2. This is due to the fact that there had been many thefts from trains in the past.
He then took the suspect back for some questioning but unfortunately he
managed to run off.
3. The Appellant chase him and got into an argument with a fireman whom was
thought to be protecting the suspect. He then shot the firemen dead.
4. This case was brought to the court and he was convicted of murder and
sentenced to death.
5. On appeal, the appellant argued that he should be allowed to escape liability
because of mistake under ss 76 of the Penal Code.
Court Held:
● The court allowed him to be included in Exception 3 of the offence of murder.
Roy J. commented:
“We are of the opinion that the case would be covered by Exception 3. In the present
case there was no ill-will between the appellant and the deceased. The appellant
was a public servant and his objective was the advancement of public justice”.
EXCEPTION 4: SUDDEN FIGHT
Definition ● This is the most difficult defence to be raised.
● Through the explanation part of this Exception, it was stated that it is
immaterial in such cases which party offers the provocation or commits the
first assault.
● The exception may arise on the same facts as some cases of provocation and
exceeding private defence, which is in the nature of partial excuse.
● It is not justifiable to fight but the accused’s conduct is less blameworthy as
he was acting in partial excuse.
Elements 1. There must be a sudden fight starting from a verbal quarrel.
2. The killing happen in the heat of passion.
3. There is no pre-meditation plan.
4. The accused had not taken undue advantage.
● The requirements are closely related, and although any of the elements may
be missing, the most difficult element to satisfy has in practice proved to be
that of a fight.
● The word “sudden” means something unexpected and “fight” on the other
hand means that it must be physical and not merely emotional one, which
does not avail the defence.
● There must also be a change of blows and injury caused because of the
fight.
Cases Mohd Yassin b Jaafar v PP
1. The accused and the deceased were inmates at drug rehabilitation centre.
2. One day, the accused had a fight over ping pong match with the deceased.
Nothing happened out of that.
3. But the accused had a vendetta. The next morning, the accused attack with a
sharpened toothbrush at the neck of the deceased.
4. He was charged for murder and raised the defence of sudden fight.
Court Held:
● Even though there was an attack, but the killing was not in the heat of
passion.
● Plus, there was a pre-meditated plan when he sharpened the tooth brush as
well as no exchange of blows.
Mohamed Kunju v PP
1. From a verbal quarrel it became a physical fight between the accused and the
deceased.
2. The accused took an exhaust pipe made of steel to hit the deceased causing
his death.
Court Held:
● Even though he killed in a sudden fight in the heat of passion, he had taken
undue advantage as he was armed and acted cruelly towards the deceased.
● Thus, he is liable for murder.
Tan Chee Wee,
1. The accused entered the deceased’s house with intent to rob. He was armed
with a hammer.
2. The deceased put a fight using a knife. (Hammer vs knife).
Court Held:
● There was an undue advantage as the accused was equipped with a weapon
and hit the deceased at the head with the hammer causing the latter to fall
down on the floor. He further hit couple of times.
● He had acted cruelly.
By right this case should fall under private defence.
EXCEPTION 5: CONSENT
Definition A person could not consent to his own killing. Even though a person has intentionally
killed another person whom voluntary and genuinely consented to it, that acts will
still amount to murder. However, this does fall under the fifth exception of murder.
Elements Under this exception, there are two elements that need to be fulfilled.
1. Firstly, the death must be caused with the consent of the deceased. It is up
to the defence counsel to prove that the deceased had in actual fact consented
to his own death.
2. As a consequence, the next requirement must be that the particular consent is
made by a person whom had a capacity to make such consent, whereby the
deceased must be of 18 years of age.
Any consent given by a person under 18 years old is not a valid consent. Cross refer
to s.90 for requirements of a valid consent.
S.90 enumerates three requirements of a valid consent, namely:
1. Consent must be given voluntarily (not under fear of injury or misconception
of fact).
2. The consented person is of sound mind.
3. Age limit is 12, UNLESS otherwise stated.
If the act is unlawful, the consent given would be invalid. For example, consent to
allow miscarriage, prostitution, taking drugs etc. In other words, consent is not
extendable to an unlawful act.
Cases Poonai Fatemah:
1. A snake charmer told his audience that if they were bitten, he has the
necessary medication.
2. The deceased there upon allowed himself to be bitten by the snake with
keeping in mind that the snake charmer has the antidote.
3. He was bitten by the snake and subsequently died. The snake charmer was
charged with murder.
Court Held:
● In this case, Exception 5 did not apply to this case because the victim’s
consent was based on a misconception of fact.
● It is held that the willingness to die must have a consent that is unequivocal
and expressed.
Dasrath Paswan v State of Bihar
1. The accused did not do well in his studies for three consecutive years. He told
his intention to commit suicide.
2. His 19 year-old wife offered to die with him. He killed his wife but failed to
kill himself.
3. He was charged for murder of his wife and attempted murder.
4. He relied on the defence of consent given by the deceased.
Court Held:
● The court accepted and held that the consent given by the wife was a valid
consent.
Ambalathil Assainar
1. The wife had an argument with her husband because he wanted to send her to
her mother’s house, but she said that she would rather die.
2. Therefore, by taking that words literally, the husband really actually, killed his
wife.
Court Held:
● He was convicted of murder and was not allowed to be included under
Exception 5 of section 300, because the wife did not unequivocally consented
to be killed.
