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Assault
Section 352:
Punishment section
Section 351:
AR:
1. Gesture or preparation
Eg:
Rolling up one sleeve, prima facie = innocent action. But if accompanied by
words indicating this was being done in preparation to punch someone, it
would be sufficient preparation or gesture to satisfy s351
Pointing a sharp knife at one person, prima facie = indicative of an assault,
accompanying words, eg: describing the style or design of the knife, would
prevent the gesture coming within section 351
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The accused must intend or know that his gesture or preparation will cause
apprehension that he is ABOUT to use physical force.
Conditional threat/assault does not amount to an assault
a) As long as condition is fulfilled, no criminal force will be about to be inflicted
(the victim has a choice not to be inflicted with criminal force)
b) If there is negotiation, (eg: condition is – PAY NOW, victim beg the accused/
accused knows that victim has no capability to pay on the spot, there is
then assault.)
MR:
1. Intend that the victim apprehend immediate physical
2. Know that it is likely that his victim will apprehend immediate physical force.
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Held:
1. The accused “put out his hand towards the woman in a menacing manner so
as to cause her to apprehend that he was about to use criminal force”. It was
therefore an assault.
2. It was unnecessary to prove whether there was any particular
implement/instrument in his hand.
Tutorial:
3. No direct interaction between accused and the victim. (can charged under
section 352 and hurt section)
4. Accused’s only action was to shout.
5. Victim was in fear of criminal force.
6. Gesture:
Pointing a gun at victim.
Reasonable fear of infliction of criminal force:
Dark, bottom of staircase, gun
Held:
1. Whether a particular act amounts to an assault depends upon the
circumstances of each particular case.
2. When the petitioner interposed between Mr Rizvi and the cattle he was
removed under the order of Mr Rizvi.
3. He then indulged in the use of abusive language and thereafter went away
threatening that he would return and teach them a lessons.
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4. Soon afterwards he came back with a lathi with his companions who were not
armed.
5. However, when the accused ‘came sufficiently close to the officers to raise in
their minds a reasonable apprehension that actual force was likely to be
used’, it constituted an assault.
Held:
1. The allegation ‘cuba memukul saya’ is difficult to prove. It could also be a
conclusion or an opinion of the complainant.
2. It was important to find out if ‘cuba memukul saya’ occurred before or after he
was restrained.
3. The use of ‘cuba’ implies that the accused was under restraint.
Tutorial
4. No reasonable apprehension of force: there were a lot of media (deterrent
enough to stop him to do so.)
5. Mere words are insufficient
6. The accused advanced but stopped by the others.
7. It may be the victim’s opinion as it involved politician who is aggressive and
many people.
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2. However, it does not impose obligation on the surveille to give the thumb
impression.
3. When the police paid a domiciliary visit on the surveille, je refused to allow his
thumb impression to be taken.
4. On the police officer attempting to take it, he produced a lathi saying that he
would not allow the impression to be taken and if anyone asked for it, he
would break his head.
Held:
1. Before an act can amount to an assault under section 351, it is necessary that a
gesture or preparation should be made by a person which would cause
another to apprehend that the person was about to use criminal force.
2. A preparation taken with words which would cause him to apprehend that
criminal force would be used to him, if he persisted in a particular course of
conduct, does not amount to an assault.
3. The act of the surveille did not amount to an assault and that his conduct
under s353 could be set aside.
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Criminal Force
Section 352:
Punishment (besides on grave and sudden provocation by victim.)
Section 350:
Criminal Force
AR:
1. Use of force
2. to any person
MR:
1. Intention to use the force to a person: [usage of force]
Knowledge that the force is likely to be inflicted is INSUFFICIENT. (MUST
be intention)
2. The force is intended to commit any offence or to cause injury, fear, and
annoyance. [aftermath of force]
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S43: ‘illegally’
S44: ‘injury’
Harm (kesan):
Menyentuh mangsa: kesalahan berlaku, bencana tubuh menyebabkan ketakutan
atau kegusaran
Section 349:
Definition of Using Force:
1. Cause motion. Change motion, or cessation of motion; or cause such motion
to any ‘substance’ as to bring it into contact with the other’s body (or anything
they are wearing or carrying or that is so situated that such contact affects
their sense of feeling)
AND
2. The motion caused by either one of the methods:
a. By own bodily power [illustration (d)]
b. By disposing substance to cause motion without any further act on either
party.[illustration (a)]
c. By inducing any animal to move [illustration (h)]
P.S.:
1. Illustration (f) suggests that any form of unlawful touching is sufficient.
2. However, in cases were the person touched does not move at all, it is going to
be difficult for the prosecution to prove beyond reasonable doubt that there
was no consent.
3. Most person who are touched in a manner to which they object will push the
toucher away. Such motion would bring the case within section 349.
4. Furthermore, s95 plays a role: no criminal liability is the force used amounts
only to slight harm.
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Held:
1. One person can said to have used force against another if he causes motion,
change of motion or cessation of motion to that other.
2. By snatching away the books which Mr Singh was holding, the appellant
necessarily caused a jerk to the hand or hands of Mr Singh in which he was
holding the books.
3. His act therefore may be said to have caused motion to Mr. Singh’s hand or
hands.
4. Furthermore, the natural effect of snatching the books from the hand or hands
of Mr Singh would be to affect the sense of feeling (def of Force s349) of the
hand or hands of Mr Singh.
5. Hence the action of the appellant amounts to use of force as contemplated by
section 349.
6. However, mere use of force is not enough to bring an act within the terms of
section 353. It has to be shown further that force was used intentionally to any
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Tutorial:
12. Done by accused, felt by victim (force)
Held:
1. ‘Force’ as defined under section 349 contemplates the presence of the person
using the force and of the person to whom the force is used.
2. When the force was applied to break into the house, trustees were not there.
(there is no show of force)
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Section 323:
Punishment (except provided by section 334)
Section 334:
Causes hurt on provocation
Section 336, 337: cause hurt by an act rashly or negligently as to endanger human
life.
Section 321:
**this specific provision takes priority over provision of general application (which
includes reason to believe) i.e. definition of ‘voluntarily’ in section39 (applicable for
grievous hurt too)
AR:
1. Causes hurt
2. To any person
MR:
Voluntarily cause hurt=
1. Intention of causing hurt (intend the end result), or
2. Knowledge that hurt to any person is likely (know the end result [such
damage])
Section 319:
Cause hurt = cause bodily pain, disease, or infirmity to any person.
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***section 95 can hardly be a defence when the cases involve higher level of harm or
where there are fewer mitigating factors in the surrounding circumstances.
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Held:
1. Voluntary act causing serious mental derangement can be equated to
voluntary act causing hurt. [serious mental derangement = hurt]
2. Nothing in s319 suggests that hurt should be caused by direct physical contact
between the accused and the victim
3. Infirmity denotes an unsound or unhealthy state of the body or mind. A state
of temporary mental impairment or hysteria or terror would constitute
infirmity, which falls within the meaning of s319 expression.
4. It was necessary to prove that the accused did the act complained of with the
intention of causing hurt or with the knowledge that he was likely to cause
hurt.
5. In order to induce the woman to vacate the premises, sufficient reaction upon
her nervous system was necessary and the intention must have been to induce
in her a sufficient state of fright or hysteria to serve the accused’s purpose
(induce to vacate).
6. More than mere intention to annoy has to be inferred.
7. Accused had shown intention/knowledge to cause sufficient state of fright to
serve his object (the intention must be executed thoroughly to frighten the
victim):
a. Present himself in the dark before the woman
b. In a sudden and horrifying manner
c. He was appeared to the victim with such the mentality, education and
standing that the apparition she saw was supernatural.
d. Cause inevitable consequence which would be a sharp shock to the nervous
system.
8. Question whether Hurt is simple or grievous hurt would be dependent in
medical report.
9. Duration of state of infirmity would be immaterial.
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consciousness. She realized later that they were under a bridge and they were trying
to take off her mangal sutra. A rickshaw puller passed by and both of them ran away.
Held: both accused had caused hurt to the victim. Refer to s.324 where they have used
dangerous drugs to make her unconscious (form of infirmity i.e-hurt under s.319). They
were later convicted under hurt.
Held:
1. Copper sulphate is a dangerous poison and everybody knows that it is
dangerous to life.
2. A person of the age of the accused must be presumed to know that such drug
is poisonous.
3. Under these circumstances, he must be presumed at least to know that it is
likely that he will thereby cause hurt to the complainant.
4. ‘Hurt’ is defined to mean either bodily pain or disease or infirmity.
5. The bodily pain or infirmity can be either permanent or temporary.
6. Infirmity = inability of an organ to perform its normal function which may
either be temporary or permanent.
7. By the administration of copper sulphate via a glass of milk, a 15-year-old boy
is thrown into unconsciousness, vomiting with the possible risk of his life by
becoming unconscious for the time being, both bodily pain and infirmity are
caused. Section 95 is not applicable.
8. If the harm is so light that no person of ordinary sense and temper would
complain of it, it is excluded by section 95. However, this is not such a case
which can be ignored under section 95. [distinguished Veeda Menezes v Tusuf
Khan]
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5) Mat Alias bin Mat Jusoh v PP (Dangerous Weapon s324/326)(the principle can
also be used for s 326)
1. The appellant hit the victim with a golf club, in the course of which the head of
the club broke.
2. The appellant parted company with the prosecution’s stance when he
ventilated that the matter at hand fell under s323 rather than s324 on the
premise that the offending instrument which was a golf club did not qualify as
an instrument for shooting, stabbing or cutting,
Held:
1. A golf club is not one of the instruments that could be used for shooting,
stabbing or cutting, but it does not necessarily mean that if used wrongly, the
offender could invoke the restrictive description s and escape prosecution.
2. A golf club could certainly qualify as an instrument that falls under the
purviews of section 324; if when used as a weapon of offence, is likely to
cause death.
3. With the insertion of those qualifying words, a wider berth (role) is given to
this provision, with particular reference to the type of instrument used.
4. Any non-golfer let alone a regular player will not hesitate to opine as to its
obvious effect, where by in a scenario which a metal golf stick were to be
swung in such a violent and dramatic manner, death would be more than likely
to follow,
5. It must be stressed that under section 324, it is not necessary that the manner
of use of the instrument must be as such as is likely to cause death, it is merely
the nature of the weapon that should be taken into consideration. [Means
the manner of use will be a merit for the prosecution?][When the nature of the
weapon is not dangerous, the manner of use comes into play?][Does it mean
golf club is made by metal so its nature is dangerous?][Or the nature of the
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weapon is such that when the weapon is wrongly used it is likely to cause
death?] [Nature + likely to cause death?]
6. Shaik Meera v Regina: There are some implements about which one can say
simply by looking at them or handling them that, used as weapons of offence,
they are likely to cause death.
7. Appeal was dismissed.
Held:
1. There is no doubt that this instrument, if used in a certain way, could cause
death, so could many other lesser instruments
2. In determining whether the charge is properly laid under this section is
whether the instrument is intrinsically likely to cause death, not whether the
instrument, if used in certain way, might cause death.
3. This charge should have been under section 323.
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Held:
1. Acquitted of voluntarily causing hurt on basis of s95.
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Grievous Hurt
Section 325:
Punishment
Section 335:
Causing grievous hurt on provocation
Section 336, 338: Cause grievous hurt by doing an act rashly or negligently
Section 322:
AR:
1. Act which causes grievous hurt
2. Hurt must be grievous hurt
MR:
1. Voluntarily causing grievous hurt (not following s39) =
a. intends to cause the grievous hurt, or
b. knowledge that it is likely to cause grievous hurt
***But if (intends or knows himself to be likely to cause grievous hurt of one kind) +
(actually causes grievous hurt of another kind), still = voluntarily to cause grievous
hurt.
**** if intend to cause hurt, not intend to cause grievous hurt or know that grievous
hurt was likely, the case will only be one of voluntarily causing hurt.
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Section 320:
Definition of grievous hurt:
1. permanent:
a. emasculation
b. permanent privation of sight of either eye
c. permanent privation of the hearing of either ear
d. privation (act of depriving) of any member or joint
e. destruction or permanent impairing of the powers of any member or joint
f. permanent disfiguration of the head or face
2. non-permanent:
g. fracture or dislocation of bones
h. any hurt which:
i. endanger life; or
ii. cause the sufferer to be in severe bodily pain for 20 days, or
iii. Cause the sufferer to be unable to follow ordinary pursuits for 20
days.
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Held:
1. There can be no doubt that the deceased received some serious injuries
including injuries on the head and chest and the spleen which actually brought
about his death.
2. Apart from the grievous hurt, there must be on the part of the accused either
intention to cause grievous hurt or likely knowledge to cause it.
3. S321 of indian penal code provides that whoever does any act with the
intention of thereby causing hurt to any person, or with the knowledge that he
is likely to cause hurt, and does thereby cause hurt, is said ‘voluntarily to cause
hurt, which will in law amount to voluntarily causing grievous hurt.
4. S322: voluntarily causing grievous hurt. Read together**.
5. In other words, the causation of grievous hurt was either in contemplation or
was the likely result of the act done.
6. It is manifest that in the nature of the things it is difficult to obtain direct proof
of what the offender thought was likely to happen. It is a question of inference
from the nature of the act committed by the offender, his conduct and the
surrounding circumstances.
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7. When the act he did in the process of causing hurt of such that as any person
of ordinary prudence knows it likely to cause grievous hurt, he may safely be
taken to have intended grievous hurt, or at least to have contemplated
grievous hurt as likely to occur.
8. The means by which the hurt is caused is immaterial. The manner in which the
grievous hurt was caused was manifest.
9. In this case, the victim had been dashed to the ground. He was wholly
undefended when the accused sat on his stomach and administered him fists
and slaps.
10.The accused had sustained no injuries, which indicating the victim is totally in
the grip of the accused and unable to strike him in self defence. Furthermore, it
appears that the blows must have been given with more than usual force as 3 of
his ribs were fractured and the spleen was ruptured.
11.There could have been no intention on the part of the appellant to cause
grievous hurt to his elder brother but viewing from the way in which he
assaulted his brother, he should have known that he was likely to cause grievous
hurt to him.
12.The offence of causing grievous hurt was rightly convicted.
13.3 criteria:
1) Grievous hurt,
2) Intention/knowledge
3) Voluntarily to cause the grievous hurt.
14.Broken ribs = grievous hurt.
- Weapon is not necessary. The manner is relevant. In this case, sat on the
stomach and punch. (It needs excessive force to break a rib as rib is usually
very strong in order to protect the heart.)
- The accused was charged under causing grievous hurt but not culpable
homicide. This is because the accused tried to revive the victim which negates
his intention to cause death of the victim.
Held:
1. The offence had brought about a permanent disfigurement to the victim’s
face.
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Held:
1. Whether the conviction of the appellants under s326 for grievous hurt is
justified depend on the nature of the injuries have been found on Jeet
Bahadur.
2. Injuries on the victim must satisfy the requirements of clause 7 or clause 8 of
section 320 otherwise they will be treated as simple injuries. i.e. fracture or
dislocation of bone or tooth, any hurt which endangers life or which causes the
sufferer to be during the space of 20 days in severe bodily pain, or unable to
follow his ordinary pursuits
3. It is not necessary that a bone should be cut through and through or that the
crack must extend from the outer to the inner surface or that there should be
displacement of any fragment of the bone.
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** The fracture is more than superficial crack but less than ‘broken’
** ‘fracture’ is not defined in the Penal Code.
** Medical Report is very crucial and important to convey the particular information
needed in a particular proceeding.
Held:
1. The witness seemed to have given his opinion merely on the ground that if the
injuries had damaged the carotid artery, they would have proved dangerous to
the life of the victim. The other 2 grounds were omitted.
2. An injury may be called grievous only if it ‘endangers life’
3. Injury which is actually found itself be such that it may put the life of the
injured in danger.
4. A simple injury cannot be called as grievous simply because it happens to be
caused on the vital part of the body unless the nature and dimension of the
injury or its effect are such that in the opinion of the doctor it actually
endangers the life of the victim.
5. The witness did not depose that the injuries received by victim were as such
dangerous to his life. If the carotid were cut, it would have been a different
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matter, but the witness did not say that the artery was even touched. The
injuries received by the victim were not grievous then.
6. Crucial question = degree of risk. Question is whether such injury may
endanger life.
** However, the court was easily able to hold that the particular injury,’ having
regard to the delicate nature of the parts which were injured, was one that
endangered life.
Eg: injuries to head
6) Sahat v Hajee Brahim (1888) (20days, Ordinary pursuits)
Held:
1. Paragraph (h) is satisfied where the victim had been rendered ‘insensible’ for 6
days and was ten treated in hospital for more than 14 days.
2. This was ‘proof presumptive at least that he was unable to follow his ordinary
pursuit.
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Held:
1. Section 320(h) does not require an injured person to be totally incapacitated
from pursuing all of his ordinary activities during the relevant 20-day period
before the hurt which he has sustained is deemed to be grievous.
2. Section 320(h) provides that hurt is deemed to be grievous, when, inter alia, it
causes the sufferer to be, during the space of 20days, unable to follow his
ordinary pursuits. [HIS ordinary pursuits][vary with people]
3. As long as his injury during the 20-day period of time, prevents him from
continuing with any of his ordinary activities with the same degree of ease as
he did before he was injured, the injury would constitute ‘grievous hurt’
4. Since working is part of the victim’s ordinary pursuits, the fact that his finger
injury prevented him from working as a money lender (there was evidence
showing that he would find it ‘very clumsy’ to count money with one hand)for
the space of 20 days after the injury was sufficient for injury to amount to
grievous hurt under s320(h)
5. Section 320(h) does not impose on the court the nebulous task of assessing the
degree to which the injured person’s ability to follow his ordinary pursuits is
impaired.
Held:
1. The wound on the leg was itself not dangerous to life.
2. The magistrate held that, the injury was grievous hurt because Sarwan Singh
would not, if he had lived, have been able to walk about for the space of 20
days.
3. However, the designation of section 320 of a hurt as grievous to be, during the
space of 20 days, in severe bodily pain or unable to follow his ordinary pursuits
applies only when such effect actually lasts for a period of 20 days, and not
when the sufferer dies before the period has expired.
4. The offence should be one falling under section 324 (hurt, not grievous hurt).
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Golf club seems like cannot fall under ‘dangerous weapon’ section 324/326,
that’s why it was discussed and concluded in the case of Mat Alisa that the
nature of the weapon is the element to be discussed.
Under this case, the gandasa apparently fulfilled the ‘dangerous weapon’ for
cutting. So there was no issue regarding that. However, the issue is whether
tetanus which eventually took away the life of the victim would be considered
as grievous hurt (AR).
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Abduction/ Kidnapping
A) Kidnapping
Section 363:
Punishment for kidnapping
MR:
1. With intention
2. Without the consent of the person/ some person legally authorized to consent
on behalf of the person
AR:
1. Takes; or
2. Entice the minor/ person of unsound mind
3. Out of the keeping of the lawful guardian
Positive act
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MR:
1. With intention
2. Without consent of the guardian (includes custodian)
Section 362
Definition of abduction:
AR:
1. By force compel, or
2. By deceitful means induces
3. Go from any place (movement of victim)
MR:
1. Intentions:
Section 374A:
Hostage Taking.
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Held:
1. The women was induced to go by such misrepresentation.
2. They were therefore, taken without their consent within the meaning of the
Penal Code.
3. There is no evidence to show that the intention of the accused was to subject
the women to slavery.
4. Conviction under section 367 will be altered to a conviction under section 363.
MH: Chathu’s case is all about the positive act to be taken. If a minor suggests the
accused to go away with her and the accused only takes the passive part of yielding
to the suggestion, it is not taking.
3) Dalchand v State (rape on 5 year old girl) (Kidnap from lawful guardianship)
(when is ‘taking’ established) (consent of child) (no ‘enticing’, more on ‘taking’)
1. Accused taking and enticing 5 years old girl out of keeping of lawful guardian
without consent of mother in the absence of the father and subsequently
committing a rape on the girl. No proof of any intention of rape at the time of
kidnaping, conviction under s366 is improper while under s363 and 376 is
valid.
2. The appellant, Dalchand, went to the house and was informed by the mother
of Kumari that the father was out to bazaar.
3. Kumari was playing outside the house.
4. The appellant then remained sitting near the wall of the house and talked to
the girl for 5 to seven minutes.
5. He then took the girl away to the bazar close-by in his lap. He told the mother
that he would be back within few minutes when the mother called the
appellant.
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6. Few people went to the appellant’s house in search of the girl but was
informed by the appellant’s wife that she had asked him to bring the girl back
home.
7. They then went to a field and found the appellant was committing rape on the
girl.
8. The medical report shows that: the hymen of the girl was lacerated and
bleeding on touch.
9. In the opinion of the doctor, the girl had been raped.
Held:
1. (Rape) The doctor was of the view that there could be no injury caused to the
appellant at the hands of the raped girl because she was only 5 years old.
2. The appellant had been righty convicted if the offence under s376.
3. (kidnap + rape)As for the offence under s366 Indian Penal Code, if he had
intended to commit rape from the very beginning, he would not have taken
the girl to his wife. It is likely that the intention to commit rape arose in his
mind some time later on while he was taking back the girl from his house.
4. (kidnap) However, there is no doubt the appellant had taken or enticed the girl
out of the keeping of the lawful guardian without the consent of the mother in
the absence of the father.
5. S361: take/entice
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12. An offence under s366 cannot be said to have been made out. There is no
question of any knowledge that it was likely that she would be forced or
seduced to illicit intercourse, for it was later on he himself who committed the
rape. ?
13.The appeal is partly allowed. His appeal against the conviction under s376 is
dismissed. The appellant is convicted instead under s363.
Tutorial:
1. Section 361: either taking(positive act) or enticing(no positive act)
2. AR:
Was talking to the child, took her away, told the mother-take the child to
sweet shop, will come bk in a short while
More of ‘taking’ i.e. carrying the child (positive act)
3. MR:
In the absence of father, mother can give consent.
Consent can be expressed or implied.
It is arguable that when accused informed the mother, there was
consent. However, the consent was present up until the sweetshop (no
MR). When taking the child to his house & field after sweetshop, there
was no consent. (there was MR, done with intention without consent of
guardian)
Held:
1. There was no satisfactory proof of the taking or enticing of the girl by the
appellant from her guardian’s custody.
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Tutorial:
1. There is special relationship between victim and the appellant
2. AR: enticement – money, sexual intercourse.
3. There is no physical carrying as to constitute ‘taking’
4. Previously had sexual intercourse does not equal to consent from family
Held:
1. The Kathi said that: ‘according to a hanafi school a girl who has attained the
age of puberty attains the age of majority and is at liberty to contract her own
marriage according to her own wish. Her father’s consent is utterly immaterial
to her marriage then after puberty, for a Mohammedan girl. A girl who has
attained puberty is major in all matters and has no guardian.
2. Puberty is presumed on the completion of the 15th year.
3. Sidgreaves CJ: Minors are those who have not arrived at the age of puberty or
reached the age of 15 years. On their arriving at the age of puberty or at the
age of 15 years, whichever shall happen first, such persons cease to be minors.
4. The girl having attained her puberty, she had no guardian, therefore she was
not taken out of the keeping of the lawful guardian and that on this ground the
appeal was allowed.
Tutorial
1. AR: enticement: marry her + special relationship
2. MR: without consent of the guardian = intention
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3. The right should be exercised by her to he extent that she may reject the
potential husband selected by the family.
Held:
1. For the offence of kidnapping a girl in order to force her to marry anyone as
against her will under s366, it must be proven that:
a. The taking away of a female
b. The act must be done with intention so that the girl will be forced
(compelled) or made known the probability to be forced to marry the
appellant as against her will.
2. It is immaterial whether the appellant has achieved the meaning as laid down
under s366 or whether the girl eventually agreed to marry him.
3. Intention can be inferred from the fact of the case, the conduct of the
accused and the surrounding circumstances after the act of ‘kidnapping’ has
occurred.
4. The accused invited the girl to get marry on the day itself at Thailand. It shows
that the accused was overwhelmed with the thought to marry her. However,
the intention of the accused was done forcefully and against the will of the
girl. (despite the fact that no preparation of the marriage was done.)
5. The violence towards the girl portrayed the malicious intention of the
accused.
Tutorial:
1. Victim was pulled in before the message was conveyed to her. (abduction)
2. He asked the girl but was declined.
3. S366: must prove the intention to marry first before abducting her.
4. Not necessary to prove there is marriage as long as there is intention.
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Held:
1. Offence was committed if the taking was without the consent of the lawful
guardian
2. The consent of the child was immaterial.
Held:
1. The victim was over the age of 16. The charge could not be kidnapping, it
should be abduction.
2. Prosecution has to prove that the accused took away the victim by
force/compulsion where the charge is for abduction. It is not required for a
case of kidnapping.
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Miscarriage
Section 312:
AR:
1. Cause woman to miscarry
A. Woman with child
B. Woman quick with child (motion of foetus can be felt and perceived by
mother) [heavier punishment]
MR:
1. Voluntarily cause a woman to miscarry (s39?)
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1) PP v Dr Nadason Kanagalingam
1. The accused was charged under section312 for voluntarily causing a woman
with child to miscarry and such miscarriage was not done in good faith for the
purpose of saving her life.
2. With her consent.
3. The accused defended that the woman was suffering from bad/enlarged
varicose veins and she might die of pulmonary embolism.
Held:
1. The ingredient required to be proved by prosecution:
a. The woman who was caused to miscarry was pregnant
b. The accused voluntarily caused her to miscarry
c. Such miscarriage was not caused by the accused in good faith for the
purpose of saving the life of the woman.
2. The prosecution had proved all the ingredients beyond reasonable doubt.
‘miscarriage was not caused in good faith’ cannot be proved by positive act of
the accused, prosecution have to depend on the negative fact or non-existence
of facts to infer or indicate that it was done in good faith/without good faith.
3. The accused failed to give consideration - had not come to a reasonable
conclusion that he had to cause miscarriage to the woman In order to save her
life. No indication that the woman’s life will be in danger if the pregnancy is
not terminated.
4. It was testified that bad varicose veins can cause blood clots and result in
pulmonary embolism, pulmonary embolism however can be caused by various
other diseases.
5. Procuring an abortion is a serious matter and t should only be done as a last
resort to save the life of a woman or to save a woman from becoming a
mental wreck.
6. Accused had not given reasonable thought and had not taken enough steps to
examine the woman further. His finding that the woman had enlarged or bad
varicose veins is no other than the result of his mere clinical examination.
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Infanticide
Section 309B:
Punishment
Section 309A:
1. Accused: Woman
(Notwithstanding had not fully recovered from the effect of giving birth, and by
reason thereof he balance of her mind was then disturbed)
2. Victim: newly born child
AR:
1. Wilful act; or
2. Omission
MR:
1. Wilful (with intention)
PP v Zamihiyah
1. The prisoner threw her 2-month-old baby out of a moving car and the baby
dies.
2. She had puerperal psychosis, a disease associated with childbirth and which
persists for 2 months after childbirth.
Held:
1. That act would have been murder which attracts the death sentence but the
law of our country recognize the illness and the murder charge has been
amended to one under section 309Apunishable under section 309B.
2. The court takes into consideration the fact that the prisoner waited 8 years
long for the birth of her only child, a baby girl and she has now lost the child.
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Death by negligence
1) Penal Code
Section 304A:
Punishment (mandatory, imprisonment < than 2 years, or/and fine)
Section 304A:
AR:
1. The act causes death of human being
** This act must be the proximate and efficient cause of the death’, wholly or
mainly responsible for the death or that it was directly attributable to his
conduct.
** Death must be resulted without the intervention another’s negligence.
Section 41(1):
Punishment (mandatory, imprisonment > 2 years, < 10 years, AND fine)
MR:
1. Reckless (melulu); or
2. At a speed (with intention/ knowledge)(exceed speed limit); or
3. Drive at a manner which is dangerous to the public having regard to the
circumstances:
a. Nature of the road (eg: highway or residential area)
b. Condition of the road (malam/siang/hujan/cerah/ etc etc)
c. Size of the road
d. Amount of traffic which is or might be expected to be on the road
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** The meaning of ‘reckless’ and ‘rash’ might be similar but the subject matter
required by the provisions are different.
Reckless: 41(1)
- lack of care/attention, doing something dangerous and not worrying about the
risk and the possible result
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Rash: 340A
- does not do what a responsible driver should do, act resulting from
characteristic of thoughtless, impetuous behavior
Rash: Foresee particular kind of harm might be done, yet still go on to take the risk of
it. Recognition of a risk that death may ensue. (Lack awareness)
Knowledge: know it will cause the final outcome. A degree of awareness is
contemplated, namely, knowledge that death is a likely consequence.
Rashness/reckless:
Known as conscious negligence. Even though the accused realises the risk of
committing, he does it anyway
Negligent:
Failure to exercise proper care which a reasonable man in the circumstances would
exercise so as not to harm others. The accused does something without knowing the
consequence.
It is not the difference of the meaning of rash and reckless which makes the provision
different.
It is the subject matter required by each provision + the strictness is different.
PS(tutorial): As the driving in a dangerous manner is illegal, any consent given to the
driver to drive in such a manner is invalid too.
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Held:
1. Same as the overloading of a lorry cannot be regarded as a rash and negligent
act within the meaning of section 304A Penal Code, the overcrowding of a boar
which is capsized owing to strong wind has to be no offence under this section.
2. With regard to the defects: If the mechanical defect in the vehicle was such
that it could not be detected without meticulous examination of the
machinery, it cannot be laid down that criminal liability could be fastened on
the accused on that ground.
3. There was evidence showing that the ship is still covered by the survey made in
august 1974 and the next survey was not due until august 1975, which is in
about 5 months’ time after the tragedy.
Emperor v Akbar Ali: Where there was no rashness and negligence (MH:
manner of driving, use of road = rash/negligence) on the part of a lorry
driver charged under section 304A for having run over and killed a woman,
so far as his use of the road and the manner of driving was concerned, the
fact that the accused's lorry had no horn or had inefficient brakes cannot
be taken into consideration in convicting the accused under section 304A
though they can be made the subject of a prosecution under the Motor
Vehicles Act, when it is clear that the absence of the horn or the
inefficiency of the brakes was not in any way responsible for the accident."
4. , it was in evidence that the ship sailed normally for about half an hour. In
another 15 minutes the ship would have arrived at Sebatik Island. There was
evidence of heavy waves which hit against the ship and which broke the
window glasses. There can be no doubt in my view that those found drowned
met with their deaths through drowning caused by the waves, the winds and
swell at the rough patch referred to by the witnesses. There was also evidence
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that the waves resulted in creating confusion and panic seized the passengers
on board the ship.
5. Overloading if there be, can only be a very remote fact in causing this tragedy.
Tutorial:
S304A: the act must be the direct cause of the accident
The ship was not sea worthy.
It would not be detected unless it is detected via the survey.
Then coupled with the wind, the overloading, the ship eventually sank.
It was not fair to put the blame on the accused himself.
As it was not the accused’s act which causes the accident directly.
Held:
1. Direct violence, willfully inflicted, cannot be regarded as either rash or
negligent act.
2. There may be in the act an absence of intention to kill/to cause such bodily
injury as is likely to cause death, or knowledge that death will be the most
probable result, or even of intention to cause grievous hurt, or of knowledge
that grievous hurt is likely to be caused,
3. But ‘hurt’ at very least must be presumed to have been intended or to have
been known to be likely to be caused.
4. Since such intention/knowledge is present, it cannot be said that the act
amounts no more than rashness or negligence.
5. Since the evidence shows that the blow was given willfully and consciously, the
consequence resulted from it could not change a wilful and conscious act into
a rash or negligent act.
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11. It can be accepted that the accused may not have realized in the initial
stage while reversing his car that the deceased had chased after him after he
had signaled her to stop.
12. It cannot be accepted that he was not aware or conscious that his wife had
held on the right wing mirror, as she had just run out of the house and was
just inches away from him when she was holding on to the wing mirror.
13. He was expected under the circumstances to have taken proper
precautions to avoid causing the injuries to the deceased which he had failed
to do so.
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14. The evidence showing that he car was well sprung and insulated from
outside noise was rejected as the body of a human being is an object of
substantial bulk that no reasonable driver who had run over it would be
unaware of.
15. Furthermore, the deceased held on to the wing mirror, the resistance
caused by her action had to be considerable to have led to its detachment
that no reasonable man similarly circumstanced would have failed to notice
or been unaware of her presence.
Held: (HC)
1. English position: It is perfectly possible that a man may drive at a speed or in
a manner dangerous to the public and cause death yet not be guilty of
manslaughter. It has a double standard of negligence in criminal law.
2. s304A does not give any basis for the suggestion that such a double standard
should be applied in Malaysia.
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3. As long as the facts of the case disclose a substantial and serious degree of
negligence, whether or not it would be sufficient for a conviction for
manslaughter, it is sufficient for a conviction under 304A.
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excessive speed and close to the right hand side of the road. Hence he
committed an offence punishable under s304A
Held:
1. Interpretation of s304A in Woo Sing was correct.
2. Degree of negligence was same in all offences (eg: negligence udner s304A and
negligent driving).
3. The test to determine whether an act is rash or negligent for the purposes of
section 304A is the objective test rather than the subjective one.
4. To determine negligence and rashness, the test is whether a reasonable man
in the same circumstances would have realized the prospect of harm and
would have stopped or changed his course so as to avoid it. (criminal
Intention/wicked mind is immaterial)
5. High degree of negligence required in English law for the felony of
manslaughter is more akin to the mens rea in section 299. That is ‘knowledge
that he is likely by such act to cause death’.
6. S32: ‘act’ includes omission.
7. S43: ‘illegal’ is applicable to everything which is an offence or which furnishes
ground for a civil action.
Example:
8. If a person drives a motor car at a high speed in a crowded street, it is possible
to infer that the offender acted with such knowledge (inferred from
surrounding circumstance) and if death results, the proper charge would be
culpable homicide not amounting to murder; If death does not occur or only
hurt is caused, offender could be charged under section 308; In the case of a
cyclist who rides a bicycle in a crowded street, such knowledge would not be
inferred and if death results it would be a case of an offence under 304A.
9. If a doctor causes the death of a person by omitting to do something which the
proper skill of his profession required him to do and that omission was such as
to furnish ground for a civil action, then the inference is irresistible that there
is negligence within 304A
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Held:
1. It was judicially accepted that ‘reckless’ means, in respect of action conduct or
things characterized or distinguished by heedless rashness.
2. To bring home a charge under s26 in respect of driving recklessly, it must be
shown that the driving is such as to amount to rash driving and the driver of
the vehicle in question must be heedless of the state of affairs on the road at
the time in question.
3. The conviction was altered to one under s304A. (evidence not sufficient to
found a conviction for reckless driving under s26)
Held:
1. The accused and the victim are travelling in opposite direction.
2. The road is fairly wide.
3. The evidence shows that the accident could only happen if the accused was
travelling on wrong side of the road, then only he would be dazzled and
blinded by the lights of the deceased car, leading to a head-on collision.
4. There was no evidence showing that the victim had moved away from his path
of travel and encroached on to the accused’s path.
5. The inference is that the accused was driving on the wrong side of the road, on
a fairly wide highway, and showed complete disregard for the safety of other
traffic travelling from the opposite direction at a dangerous bend. It is
impossible for the driver travelling from opposite direction, to take any evasive
action to avoid the accident.
6. The accused would have completed the bent and travelled on his wrong side
of the road, directly in the path of the oncoming vehicle.
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7. The accused created a dangerous situation and his reckless driving has caused
deaths and injuries.
** Supposedly this apply ‘reckless’. Different from limb 3, there is no need to prove
particular element. However, all the elements can be discussed as the merit of the
case.
3. There was no evidence whether the only witness was capable of estimating
speed in terms of miles per hour. Even if his estimate of the speed was correct,
the speed 40-50 miles/hr was not considered as dangerous.
4. The accident occurred at a road with one way traffic, there was no other traffic
on the road, the accident occurred at 12 noon in broad day light. There is no
wrong in a bus travelling at 40m.p.h in broad day light, on an empty road, and
the amount of traffic which was actually at the time or which might reasonably
be expected to be on the road.
5. For 2nd element, the dangerous driving manner, there was no evidence to
show that the appellant lost control of the bus or of not being able to exercise
proper control of his bus.
6. The bus hitting the lorry does not mean the bus driver have lost control or not
exercised proper control.
7. ‘Driving in a manner which is dangerous to the public’, indicates some
dangerous act or manoeuvre on the part of the driver of a vehicle, eg:
overtaking a vehicle on the wrong side of it, or overtaking in the face of
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Held:
1. R v Guilfoyle: there are two broad categories of ‘causing death by dangerous or
reckless driving’: [tan than seng approved]
A) Accident has arisen through momentary inattention or misjudgement.
B) Accident in which the accused has driven in a manner which has shown a
selfish disregard for the safety of other road users or of his passengers, or with
a degree of recklessness.
2. A driver should not be severely sentenced unless the court is satisfied that the
accused had shown in the manner of his driving, a high degree of culpability
amounting to a willful and callous disregard for the safety of other road users
or accords with the 2nd definition.
Held:
1. It is not the law under s34A that merely because an accident had happened
and a person had been killed, danger had arisen and therefore the appellant
was driving in a dangerous manner.
2. 2 things must be established:
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Held:
1. Driving recklessly is not equal to driving dangerously.
2. One can only be rendered driving recklessly if it is made sure that:
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Murder/Culpable Homicide
Culpable Homicide
Section 304:
Punishment
Section 299, limb:
1. (equals to limb 1 of murder)
AR: Act directly + purposely to cause death
MR: Intention to cause death
Harm: Death (likely)
Murder
Section 302:
Punishment
Culpable homicide = murder if
Section 300, limb:
1. AR: act
MR: intention
Harm: certain death
2. (3 elements to prove)
AR: act which cause bodily injury
MR: intention to cause bodily injury
+ know to be likely to cause death of the person to whom the harm is
caused.
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3. (3 elements to prove)
AR: act which causes bodily injury
MR: intention to cause bodily injury
+ knows the bodily injury inflicted, in the ordinary course of nature
sufficient to cause death
[objective test]
Harm: certain death
4. (3 elements to prove)
AR: dangerous act
MR: knows that the act is so imminently dangerous [objective test for
imminently dangerous] that it must probably cause death or bodily injury as
likely to cause death.
+ commits it without any excuse for incurring the risk of causing
death/such injury
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Intention is the purpose which the act was done. The accused must have known the
consequences and must have wanted that consequence or result to happen.
Held:
1. Intention is something the existence and the nature of which are to be
deduced from the evidence [surrounding circumstances].
2. There were 5 appalling wounds on the body, and inflicted by a violent, heavy
and sharp weapon – an axe. In the absence of anything else, the person who
does that must have intended to kill the victim.
Held:
1. Firing a shot from close range constitutes intention.
2. Intention, although formed suddenly, was an intention to kill.
Held:
1. There is intention on the part of accused under s300(a).
2. Severe injury inflicted on/sustained by the deceased was on his head which is
the most important part on human body.
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3. Brick is a hard object, apparently the accused had asserted great force to hit
him with the brick given the fact that the brick broke into pieces and the
deceased totally collapsed after the hit.
4. Apart from that, in view of the long standing feud/dispute between the
deceased and the accused in which the deceased had deliberately injured the
accused, it clearly showed that the accused’s true intent was to kill him.
5. The case is proven as well under s300(c) and (d).
6. The accused caused bodily injury onto the deceased which the bodily injury is
so severe that the deceased cannot be revived.
7. The accused who hit the deceased with the brick on his head must have known
that his act was so dangerous that will lead to injury which will cause death to
the deceased.
8. The accused hit the deceased without any excuse.
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R v Govinda
1. The prisoner, kicked his wife, 15 years old, and struck her several times with
his fist on the back. These blows seemed to have caused her no serious injury
2. She feel on the ground, the prisoner put one knee on her chest and struck her
2 or 3 times on the face.
3. One or 2 blows effect on the girl’s left eye, producing contusion and
discoloration.
Held:
1. For s300(a), the offence is murder, if the offender knows that the particular
person injured is likely, wither from peculiarity of constitution, or immature
age, or other special circumstances, to be killed by an injury which would not
ordinarily cause death.
2. A violent blow in the eye from a man’s fist, while the person struck is lying with
his or head on the ground, is certainly likely to cause death.
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Held:
1. To prove a case under s300(c), must
i. Establish a bodily injury is present, objectively
ii. Nature of the injury must be proved, objectively (什么样的伤)
iii. Intention to inflict the particular type of injury, this is to say that it was not
accident or unintentional, or that some other kind of injury was intended.
(Under which topic no need particular injury?><)
iv. Prove the injury of the type just described made up of the 3 elements
above is sufficient to cause death in ordinary course of nature. [purely
objective and inferential, has nothing to do with the intention of the
offender]
2. If does not matter there is no intention to cause death/injury of a kind that is
sufficient in ordinary course of nature; no knowledge that act of that kind will
be likely to cause death.
3. As long as there is intention (subjective) to cause the bodily injury, the rest is
purely objective.
4. It is not whether he intended to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question.
5. No one can run around inflicting injuries that are sufficient to cause death in
the ordinary course of nature and claim they are not guilty of murder, unless
they show the injury was accidental/unintentional
Tutorial:
1. Bodily injury is present
2. Lacks of nature of injury (post mortem)
3. There was ‘such force’ inflicted to cause the injury. Medical Evidence: the
injury must be caused by a big force
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Held:
1. The trial judge failed in giving effect to s299 and s300. In cases where the
accused did not deliberately to kill, between the act by which death is caused
and the bodily injury resulting from that act.
2. The prosecution must prove:
i. Act of appellant which caused the death. (He sat forcibly on the chest of the
victim voluntarily and intentionally)
ii. Accused intended, by doing the act, to cause some bodily injury to the
victim of a kind which is sufficient in the ordinary course of nature to cause
death.
3. It must be shown that when the accused forcibly sat on the victim’ chest to
subdue her struggles, he intended to inflict upon her the kind of bodily injury
which, as a matter of scientific fact, was sufficiently grave to cause the death of
a normal human being of the victim’s age (58yrs old) EVEN THOUGH he himself
may not have sufficient medical knowledge to be aware that its gravity was
such as to make it likely to prove fatal.
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Tutorial:
1. Should charge under s304A not 300(c).
2. The internal injury would be known by the accused only if he has medical
knowledge.
PP v Visuvanathan
Held:
1. Applied Virsa Singh
2. There is clear distinction between the intention to cause the bodily injury
found to be present and the intention to cause ‘some bodily injury of a kind
which is sufficient in the ordinary course of nature to cause death” The latter
intention needs not to be proved. The latter would take clause (c) otiose in
view of clause (a)
3. Lord Diplock in Yassin’s case did not mean that ‘sufficiency to cause death’ was
also subjective. His judgement has to be read in whole.
4. The act of the accused in stabbing the deceased in the chest (a very vulnerable
part of his body) was an act fell squarely within s300(c). The fatal injury was
intended injury and was not caused unintentionally (he used so much force
that the wound was 8cm deep and the blade of knife had cut through the third
and 4th ribs. The anterior surface of the heart was cut too). It was sufficient in
the ordinary course of nature to cause death.
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5. The doctor who performed autopsy stated that the direction of the wound was
such that the blow with the knife must have been a violent one to produce
such a stab wound.
Held:
1. The appellants were charged with murder under section 302, read with section
34.
2. The pathologists testified that in his opinion the probable cause of death was
multiple injuries leading to shock and haemorrhage.
3. On the question whether the appellants intended to cause such bodily injuries
as they knew to be likely to cause death, the medical witness should have been
asked to give his opinion on the nature of the injuries and its likely natural
effect, but his evidence was silent
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(d) S300(d)
Held:
1. The prosecution must prove that the appellant ‘KNEW’ the consequence of his
act.
2. It is insufficient that the act is imminently dangerous. The act becomes murder
only when the person who commits the act and death results, knew, when
committing the act, it was imminently dangerous.
3. The accused was overtaking the other car in a dangerous manner but there
was no other traffic at the material time. (He did not assume the presence of
the motorcyclist.)
4. The most adverse inference was that he intended to cause harm to the
passengers in the Morris car.
5. There was not sufficient evidence to show that the appellant was guilty of
murder under s300(d).
Held:
1. The degree of knowledge which any particular person can be assumed to
possess must vary.
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Held:
1. In an appropriate case, a finding on intoxication may be made at the close of
the case for prosecution, especially where s86(2) is relevant.
2. This was not such a case.
3. The court relied on s300(d) of the code (the ‘knowledge’ limb) for the MR of
murder.
4. S86(2) only affects offences which require intention. It excludes other types of
Mens Rea.
5. Since 300(d) involves merely knowledge and not intention, it is not within the
ambit of s86(2).
6. Intoxication is thus irrelevant in securing a conviction for murder if knowledge
as per 300(d) is proved beyond reasonable doubt by prosecution.
[MH dumb dumb: Hence even though there is defence of intoxication raised
(was rebutted anyway), they can choose not to consider it in deciding the
case.]
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Culpable homicide is not murder if it falls under any of the 5 exceptions stated in
section 300.
2. Grave provocation
- Reasonable man test
- Either: one incident/ series of action(special relationship, family)
- Either: provocation via action/ words
4. Loss of self-control
- Losing of self-control causes the death of the victim
- Objective + subjective test
- [Subjective test]: group of people the accused belongs to. Whether a
reasonable man from the group will lose self-control.
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- The time difference between the provocation and death must be short.
- There must be no ‘cooling period’ in between the provocation and killing, to
render the sanity is lost.
- If there is ‘cooling period’ it will be pre-planned and sanity is deemed to be re-
obtained.
5. Proportionality
- The retaliation should not be out of proportion to the degree of provocation.
Explanation:
Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder, is a question of fact.
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Held:
1. ‘Sudden’ means unexpected.
2. Appellant on his own admission had gone to the market with the intention of
fighting with the deceased. Any violence offered to him by the deceased
cannot be described as unexpected.
Held:
1. In order to set up the defence of grave and sudden provocation, it has to be
shown that the provocation was grave, sudden and would cause a reasonable
man to lose self- control.
2. The fact that ‘the deceased is responsible for the wife’s unfaithfulness which
he suspected’ is not provocation.
3. Provocation: the deceased whom he regarded as partly responsible for his
domestic trouble came towards him scolding him at a time when he was in
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pain and his wife’s coldness in dealing with his pain had revived all his long
standing suspicion.
Held:
1. Series of grave provocation = provoking him regarding his wife(verbal insult) +
sudden strike(physical provocation)
2. He was deprived of the power of self-control.
** Mental background created by the deceased’s previous act has to be taken into
account to determine the strength of the provocation.
Chan Tong v R
1. The appellant had occasion to chastise his daughter for having stolen part of
his day’s takings from his occupation as an ice seller.
2. The deceased and her family took side of the appellant’s daughter. According
to the appellant, it was an interference in his internal affair.
3. Words were exchanged and resentment remained after the parties had
separated.
4. The next evening, while he was eating his evening meal, the deceased and
several members of her family congregated outside his door and scolded him
in respect of the of the previous evening’s episode.
5. The deceased, challenged him to come outside to meet her husband, he was
physically assaulted too.
6. Trial judge: There is no provocation at all. Mere words cannot amount to
provocation. The accused’s case is that he was set about and beaten up and in
order to save himself from the position he was in he lashed out with his hand.
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Held:
1. Mere words cannot in law ever amount to provocation.
2. However, when there is element of abuse or scolding, it must be taken into
account to amount to provocation.
Held:
1. Appellant admitted that he was not angry at the wife when she called him
swine and said when her husband (deceased) comes back he would teach the
appellant.
2. And there was a long lapse of time between bathroom incident and start of
deceased’s incident with the appellant.
3. Our Penal Law is codified. Hence the provocation must be limited to the acts of
the deceased only.
Held:
1. When determining whether the kind of provocation actually given was the kind
of provocation which they are reasonable men would regard as sufficiently
grave and sudden to mitigate the actual killing of the woman.
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Held:
1. ‘Reasonable man’ is the normal man of the same class or community as that to
which the accused belongs.
2. It was not intended that the law should take into account the peculiar
idiosyncracies of the offending individual, but it should be taken into account
the habits, manners, and feelings of the class or community to which the
accused belonged.
3. The mere fact that booja excites Baluchis is insufficient. It must be shown that
a booja is to Baluchis so grave and sudden a provocation as would deprive
normal Baluchis of power of self-control.
Held:
1. The test of ‘grave and sudden’ provocation is whether a reasonable man,
belonging to the same class of society (upon the custom, manners, way of life,
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traditional values) as the accused, placed in the situation the accused was
placed would be so provoked as to lose his self-control.
2. The mental background created by the previous act of the victim may be taken
into consideration in ascertaining whether the subsequent act caused grave
and sudden provocation for committing the offence.
3. The fatal blow should be traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time or
otherwise giving room and scope for premeditation and calculation.
Held:
1. Whether an act which caused death was done in the heat of passion caused by
grave and sudden provocation depends on whether the provocative act was
such as likely to cause a reasonable man to lose his self-control and to do the
act in question.
2. If the act of retaliation is out of proportion to the provocation offered, the plea
of grave and sudden provocation fails.
N Govindasamay v PP (retaliation)
Held:
1. There are 7 fatal wounds found on the head of the deceased which shows that
the appellant acted with gross and savage violence on an unarmed man.
2. Retaliation on his part was not commensurate with the degree of provocation
given by the deceased.
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4. Without intention to causing more harm than it is necessary for the purpose of
such defence.
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Held:
1. The victim was not armed and he had no intention of causing any hurt to the
appellant.
2. The appellant far exceeded his right by using deadly weapon and causing 2
injuries which cut the heart and lung.
3. It is very likely the appellant caused the injuries when the deceased trespassed
into the shop.
4. However, there could have been no apprehension that death or grievous hurt
was likely to be caused to the accused.
5. The conclusion is the appellant exceeded his right of private defence of
property.
Held:
1. No evidence that the respondent intended to murder anyone. His sole
intention was to avoid detection and capture.
2. The accused did not intend merely to give a warning shot in the air because he
uttered: ‘siapa rapat saya tembak’
3. He intended to shoot anyone who approached him. In fact he did fired those
two men.
4. Defence of private defence cannot be accepted, and even if it is self defence,
he has exceeded his right of self defence.
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2. The appellant alleged that the deceased wielded a knife that led him to shoot
the deceased out of fear for his own life.
Held:
1. One of the cardinal principles governing the right of private defence is that the
exercise of that defence should not exceed what is reasonably necessary to
avert the assailant’s attack.
2. The appellant failed to prove that the deceased attacked him with a knife. Thus
the fence was not available to the appellant.
3. It constitutes culpable homicide not amounting to murder.
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2. Good faith
Section 52: due care and attention
3. Lawful and necessary for the discharge of the duty as public servant
Held:
1. There was no ill will between the appellant and the deceased.
2. The appellant was a public servant and his object was the advancement of
public justice.
3. He exceeded the power given to him by law, and he caused the death of the
foreman by doing an act which he in good faith, believed to be lawful and
necessary for the due discharge of his duty.
4. Sentence reduced to culpable homicide.
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1. Quarrel which has evolved into fight (physically fighting) in the heat of
passion
- Immaterial whether who started the fight
**Comparison:
2 – Can be used by person who defended and waited
4 – Can be used by both initiator and defender
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Held:
1. There are 4 elements to be considered:
1. The fight must be sudden
2. There must be an absence of premeditation. It will not do if the man has
time to think over what he should do and then kill the person with whom
he has been fighting. (no cooling period)
3. No undue advantage must be taken by the accused
4. The accused must not have acted in a cruel or unusual manner.
Held:
1. There is an absence of any element of design or planning.
2. The appellant ran to get a weapon and returned to attack the defenceless
deceased with a truly murderous weapon.
3. The evidence of the assault shows that the deceased was taken by surprise and
attacked with a very unusual and unexpected weapon, a heavy blow on the
head from which could reasonably be expected to be lethal.
4. Appellant could not prove that he had not taken undue advantage or acted in a
cruel or unusual manner.
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Held:
1. 4 elements under Soh Cheow Hor is applied.
2. It was a sudden fight with no premeditation.
3. The evidence revels that the acts of the appellant in the course of melee
(confused fight or scuffle) were done within very short intervals with no
opportunity for cooling off.
4. As usual in the fight, the blood already heated up was armed at every
subsequent stroke and the voice of reasons was not heard on either side in the
heat of passion.
5. It is settled law that when an accused person endeavours to bring himself
within one of the exceptions, it is sufficient for his purpose if a reasonable
doubt is raised in the mind of the trial judge as to whether or not the necessary
factors exist.
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Combination of all
PP v Mahfar Sairan
1. The facts are discussed under Death by Negligence
Held:
Harm:
1. The injuries had been proven to be caused by being run over by the car driven
by the accused when he accelerated away after having reversed out of his
porch. [harm + AR]
Murder:
2. The offence of murder under s302 is defined in the 2 complementary sections
of penal code – s299 and s300
3. Offence of murder is clear, required the intention to cause death or to cause
such bodily injury as the accused knew is likely or sufficient to cause death.
4. Given the fact that the deceased had chased after the accused’s ca and held to
its right wing when he was reversing it out of porch, common sense dictates
that the intention to cause death could not have been formed in the mind of
the accused at the time the deceased ran out of the house or when she held
on to the wing mirror within that split second in time.
5. Furthermore, once the accused stepped on the accelerator he would not be in
a position to control the seriousness of the injuries that would befall her. The
injuries were a manifestation of the consequence of his act rather than a
manifestation of his intent.
6. S300(a),(b),(c) cannot be proved as there is no intention formed.
7. To apply s300(d), the accused must know that the act he is committing was so
imminently dangerous and committed in utter disregard that death would
result from such an act. This provision contemplates the doing of an
imminently dangerous act to people in general and not the doing of any act to
any particular individual.
8. However, the accused would not reasonably be expected to know that driving
the car off in the manner he did was so imminently dangerous that it must in
all probability cause death, or such bodily injury as is likely to cause death.
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presumable intention from the mere fact that injuries caused did in fact result
in death. What has to be seen is what degree of injury the accused actually
intended and what he knew as to the consequences of such injury.
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