Exceptions (5) under Section 300 of PC

Exception 1: Culpable homicide is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the person who gave the provocation, or
causes the death of any other person by mistake or accident.
● The test to determine the grave provocation is laid down by Jeffrey Tan J in Public Prosecutor v Abdul
Razak bin Dalek, that is whether a reasonable man capable to lose control of himself as a result of the
provocation. Once the answer is a yes, the provocation is thus significant. The consideration of grave
provocation would be distinct from everyone. Therefore, the reasonable man test will rely on the
background, including the conditions which the provocation was presented.

● The principle of raising the defence of grave and sudden provocation is laid down in the case of
Nanavati v State of Maharashtra. According to Subba Rao J, the death wound should be specifically
related to the impact of anger resulting from the provocation but not after the anger had passed the
cooling off period, or else given space and scope for criminal intent and evaluation.

● In Chan Kwee Fong v Public Prosecutor, the defendant called the deceased and his ex-girlfriend, Choo,
who later became the deceased’s girlfriend to a coffee shop for a conversation. He was alleged to hit
Choo and stab the deceased twice. The accused seek for the defence of grave and sudden provocation. It
was found that the aforementioned provocation was occurred when he saw Choo and the deceased
having dinner. The incident occurred when the accused asked them to the coffee shop, the calming time
was enough for him to restore self-control and steadiness. So, the defence was unable.

● In Che Omar Mohd Akhir v Public Prosecutor, the claimant noticed the deceased with a man named
Awang Jamaluddin. He tried to get his wife’s clarification. The claimant, angry at the response, took a
knife and stabbed the deceased several times. The court ruled that, in the instant case, the defence of
grave and sudden provocation was barred on the basis that the words spoken by the deceased had not
provoked an ordinary man placed in a comparable circumstance, it appears as provocative as losing its
self-control and destroying it.

● In the case of Pendakwa Raya v Lau Poh Ann, the deceased 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
deceased deliberately irritated and the accused knowing he was a man with a violent disposition and
easily able to lose control of himself. Furthermore, he asked his wife to capture his meeting with the
accused on her mobile phone. It was obvious that the deceased's intention in puling the grill as the
accused was reversing his customer's car was to provoke the accused to react violently. 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 of murder is reduced to one of culpable homicide not amounting to murder and punishable under
Section 304(b) of the Penal Code.

● In the case of PP v Chian Swee Ong, 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. 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.

Exception 2—Culpable homicide is not murder if the offender, in the exercise in good faith of the
right of private defence of person or property, exceeds the power given to him by law, and causes the
death of the person against whom he is exercising such right of defence, without premeditation and
without any intention of doing more harm than is necessary for the purpose of such defence.
There are 3 elements need to be satisfied in this defence.
i. 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 Teoh Seng Lian v PP, the defendant was convicted of murder. He had a conflict with the
husband of the deceased over planning to sell a ship. The deceased wanted the boat to be disposed
of. The appellant requested the deceased for a loan. The wife resisted, though, and threw a knife at
him. He missed it, taking hold of the knife. He stabbed her later and threw her head with a stone.
The court held that if the offender performed the act in good faith and in the conditions of
Exception 2, it amounted only consider as culpable homicide not amounting murder.

ii. The act was not done in excessive harm than necessary.
● In Soosay v PP, the appellant and his partner sought to regain from the deceased a gold chain.
There was a dispute during which the deceased drew a knife and assaulted a friend of the
appellant. The deceased was kicked by the appellant and the knife dropped. He took the knife and
stabbed the deceased several times as the deceased threatened to charge him. The court ruled that
the right of private protection remains, but when the knife dropped and the deceased was stabbed,
it exceeded it.

iii. The act was done without intention or pre-meditation.

● This can be seen in the illustration of Exception 2, which provided that 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.

Exception 3 - Culpable homicide is not murder if the offender, being a public servant, or aiding a
public servant acting for the advancement of public justice, exceeds the powers given to him by law,
and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the
due discharge of his duty as such public servant, and without ill will towards the person whose death
is caused.
There are 4 elements need to be satisfied in this defence
i. The accused is a public servant to advance public justice.
ii. He exceeds the power given by law and has caused death.
iii. He acted in good faith, believing that it is lawful and necessary.
iv. 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 v. The State, the accused is a constable who chased after a thief escaped from a
running train, but when he launched a shot, he injured a fireman and killed him. The court held that the
exception protected him and that he was charged with culpable homicide. This is because although the
constable exceeded the power given to him by law and caused the death of the fireman, he was doing in
good faith that he believed to be lawful and to discharge his duty. This decision is however in contrast
to the judgement in …

● Subha Naik v. R. In this situation, the chief constable ordered his subordinates, for purposes of
national defence, to open fire on the crowd. The accused was found not to be acting in such a manner
that it was not performed in good faith and all of them were convicted of murder.

Exception 4—Culpable homicide is not murder if it is committed 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.
There are 3 elements need to be satisfied in this defence
i. Firstly, there must be a sudden fight.
● In Bhagwan Munjaji Pawade v State of Maharashtra, a sudden fight is described by the court as
a fight postulating a bilateral transaction in which blows are exchanged.

● In PP v Awang Riduan bin Awang Bol, the deceased claimed that money was taken by the
accused. The accused came back with a knife and an axe just an hour later. It was concluded that it
was not a sudden fight but there was a design or planning factor.

ii. There must be absence of premeditation. Premeditation is not defined in the penal code but it was
stated in case laws
● In Mohamed Kunjo v PP, premeditation is describing as to involves a pre- planning which is
established by previous grudges or prior threats.

● In Amrithalinga Nadar vs State of Tamil Nadu, a fight occurred between the accused and the
deceased. The deceased ran out with a knife immediately. The court held that there was no
premeditation.

iii. 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 began as the deceased punched the left eye of the accused. As
the deceased fought, the accused then used a piece of glass. The glass was meant to make the fatal
injury happen. Then, the court ruled that there was no undue advantage of using such a weapon or
behaving in an unusual way. The exception was applicable.

● In Mohamed Kunjo v PP, the accused and the deceased were having drink, they fought and fell
to the ground. The accused beat the deceased with a hosepipe. The accused have taken undue
advantages as the deceased was not armed. The exception raised failed as the accused had gone
off to take the weapon.

Exception 5—Culpable homicide is not murder when the person whose death is caused, being above
the age of eighteen years, suffers death, or takes the risk of death with his own consent.
There are 2 elements need to be satisfied in this defence
The consent must be a voluntary and genuine consent and not based on a misconception of fact.
● In Dasrath Paswan v State of Bihar, the accused tried to kill himself as he had failed his examination.
His mother, under the fear of injury of his son if he did kill himself, asked him to kill her first. The
accused in defence argued that his mother had consented to her own death. The court held that although
the mother was above 18 years old and clear with what she had consented to, the consent was invalid
because it was given under the fear of injury.

● In The Queen v. Poonal Fattemah, a snake charmer told his visitors he had the necessary antidote if he
was bitten. Thereupon, the deceased allowed himself to be bitten and died afterwards. It was held that
Exception 5 did not apply because the consent of the victim was based on the misunderstanding of facts.
Agreement must therefore be unambiguous and not just an act of willingness to die as one choice.

● If one of the Exceptions can be proven, the offence should be referred to Section 299 of the PC

Conclusion: As the elements are fulfilled, the accused is succeeded in raising the defence under Exception
(1/2/3/4/5) to reduce his punishment from Section 302 of the PC to Section 304 of the PC (culpable
homicide not amounting to murder)
Whether there is a coincidence of actus reus and mens rea.
● In Fowler v Padget, the court ruled that in order for a merchant to be charged under the act of
bankruptcy in departing from his residing-house, it is not necessary for a debtor to be postponed, but
there should be an intention of such depart. As such, Lord Kenyon CJ opined that the actus non facit
reum, nisi mens sit rea is a concept of natural justice. The intention and the conduct must exist at the
same time to result for a crime.

● In Mohd Isa bin Mohd Nor v Public Prosecutor, it required both the actus reus and the mens rea to be
available to constitute a crime. The accused claimed the deceased had died because of his first crime, but
in reality, the death was caused by the second act. Hence, there is no concurrent for the actus reus and
mens rea.

Application: In the current case, actus reus arised when… while mens rea arised in
In conclusion, the concurrent principle of both actus reus and mens rea is satisfied.

Section 304(a): imprisonment for a term which may extend to thirty years, and shall also be liable to fine, if
the act by which the death is caused is done with the intention of causing death, or of causing such bodily
injury as is likely to cause death.
Section 304(b): imprisonment for a term which may extend to ten years or with fine or with both, if the act
is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death.

Culpable Homicide:
● If the question directly refers to the charge under Section 304(a)(b) of the PC …

Section 299 of the PC: Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of culpable homicide.