PUBLIC PROSECUTOR v SUBIR GOLE [2015] MLJU 20

Court of Appeal (Putrajaya)

Culpable Homicide Not Amounting to Murder

2.   On 6 September 2012,  a cashier at the bakery house (SP2), heard a verbal argument and altercation between the Deceased and the Respondent.

3.  In the midst of the argument, the Deceased referred to the respondent using derogatory terms such as “mad, crazy, cow and bastard” and directed disrespectful language towards the Respondent’s mother by questioning which mother would give birth to a child like him.

4.  Subsequently, SP2 hurried to the store upon hearing the shouts and witnessed the Respondent stabbing a knife into the Deceased’s abdomen three times. Following this, the Respondent harmed himself by cutting his own wrist and neck.

5.   After the attack, the Deceased ran towards the front of the bakery shop, bleeding profusely. She lost consciousness and was transported to Johor Specialist Hospital, Johor Bharu, where she passed away due to her injuries on September 7, 2012.

6.  The police transported her body to Hospital Sultanah Aminah, Johor Bharu.

7.   A post-mortem examination was conducted on the Deceased by the doctor (SP3).  SP3 concluded that the cause of death was a ” stab wound to the chest “.

8. The chemist, (SP1), confirmed the existence of the Respondent’s DNA profiles on the knife used to stab the Deceased.  The Respondent also used the same knife to injure himself.

9.     The learned trial Judge reduced the charge of murder under Section 302 of Act 574 to the culpable homicide not amounting to murder under Section 304 (b) of Act 574, including sentencing him to ten (10) years imprisonment from the date of the arrest (6 November 2012).

10.  The Prosecution then appealed.

2.     Whether the sequence of provocations that had gradually built up lead to a grave and sudden provocation by the Respondent?

“Murder

300.  Except in the cases hereinafter excepted, culpable homicide is murder-

          …………….

“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 above exception is subject to the following provisos:

(a)  that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;

(b)  that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;

(c)   that the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact.”

2.   Based on the provision above, Exception 1 to Section 300 Act 574 serves as a mitigatory or partial defence to murder, aiming to reduce the offence of simple culpable homicide not amounting to murder.

3.   Although the provocation has not been defined in the Act 574,  there are three types of provocations which are as follows:

(a)  ordinary provocation (reasonable);

(b)  cumulative provocation; and

(c)  self-induced provocation

4.  In the appeal, the Court regarded a series of provocations that had accumulated and accordingly amounted to grave and sudden provocation by the Respondent as cumulative provocation.

5. Cumulative provocation refers to a sequence of gradual actions or expressions that unfold over time, leading to a sudden and momentary inability to control one’s emotions.    This provocation is not solely confined to the ultimate actions just before causing harm to the accused individual; it might encompass prior deeds or utterances that, when combined, resulted in the accused person losing self-control. However, the ultimate action alone might not be enough to trigger the provocation.

6.  In the case of Madhavan v State of Kerala AIR [1996] Ker 248 (260), the judge held that when assessing what qualifies as substantial and sudden provocation, the Court could consider the customs, behaviors, and sentiments of the group or community to which the accused belongs. However, this should not extend to the specific idiosyncrasies of the accused.

7. The concept of cumulative provocation was established in Rikky Purba v PP [2014] 3 CLJ 607. In this case, the Court examined the psychological context of the accused as relevant in determining substantial provocation. The Court followed the third principle from the Indian Supreme Court’s decision in Nanavati v State of Maharashtra AIR [1962] SC 605, 530, which reaffirmed that the victim’s prior conduct could be taken into account to ascertain whether subsequent actions led to significant and sudden provocation justifying the offence.

8.   In Poovammal v State represented by Inspector of Police v K Puram Police Station, Tirunelveli District 2012 (2) MLJ (Crl) 482, the Indian Court drew reference from the English Law concept of manslaughter, where the crime is committed amid a state of provocation. The Court noted that according to English Criminal Law, the provocation must be both serious and sudden.   However, drawing on the precedent of Nanavati v State of Maharashtra AIR [1962] SC 605, 530, the Court observed that the Indian Criminal Law had progressed to encompass the notion of sustained provocation, involving the duration of the provoking circumstances.

9.   The concept of sustained provocation deals with how long the provocation lasted.  As such, there might be incidents that do not immediately trigger an outburst from the offender due to their cautious nature.  However, these incidents could persistently trouble their mind over time, continuously tormenting them until they eventually reach a point where they lose self-control and their thoughts become disordered.  Their mind might no longer be under their own command, leading them to commit the offence.  The sustained provocation or frustration that has been building up in the mind of the accused reaches a breaking point.  At this point, the accused ends up causing the murder of the Deceased.

10. In the case of Vashram Narshibhai Rajpara v State of Gujarat [2009] 9 SCC 168, the accused acquired a house that his wife and daughter expressed dissatisfaction with, leading to their ongoing criticism. Over time, his inability to cope with this situation lead him taking their lives. The Supreme Court of India determined that despite their shared residence, the persistent emotional strain and continual reproach could have profoundly impacted his psychological state.  Therefore, the prolonged provocation might have ultimately driven him to a point where he committed unlawful acts.

11.  In the instant appeal, by applying the aforementioned principles of provocation, the Court agreed with the learned trial Judge that the Respondent had succeeded to establish on a balance of probabilities that he had been deprived of self-control due to cumulative provocation at the time of the commission of the offence, based on the evidence as follows:

(a)  The Respondent endured mistreatment and psychological anguish at Ming Ang Bakery House over a significant duration. He was denied leave and had to work long hours from 7 am to 9 pm. Moreover, he faced deductions from his pay due to spoiled biscuits he prepared.

(b)  The relationship between the Respondent and the Deceased was consistently marked by almost daily verbal abuses and mental torture.  The Deceased consistently used derogatory words like “mad,” “crazy,” “stupid,” “cow,” and “bastards.”   The Court was of the view that the Respondent was in a high-pressure environment where he was experiencing a range of intense emotions, including anger, frustration, and despair.

(c)  The remarks uttered by the Deceased that “Ibu yang manakah yang telah melahirkan anak seperti kamu” should be seen as the final trigger that caused the situation to reach a breaking point. This marked the culmination of an extended period of mistreatment and emotional torment that the Respondent could no longer endure, causing him to lose control of himself.

(d)  Notably, the statement, “Ibu yang mana satukah yang telah melahirkan anak seperti kamu,” not only directly referred to the Respondent but also derogatory to his family’s pride and honor.   It can be inferred that these words deeply wounded the Respondent, especially considering his sick mother and the Deceased’s denial of his request to visit her. Under these circumstances, a reasonable person would likely have been driven to intense anger against the Deceased.

12.  Importantly, the Respondent did not possess any weapon prior to the incident. The short period during which the Respondent sought a weapon held minimal significance in this particular case.  During the incident, the Respondent remained unable to control himself and stabbed the Deceased while in this state.

13.  The Court held that the Respondent’s response was proportionate to the provocation in this current case.  The presence of forty-three (43) injuries on the Deceased did not adversely impact the matter for the Respondent.  In such situations, a response to provocation typically involves an inability to exercise restraint or to assess a situation with clear judgment.

14.  The fact that the Respondent injured himself following the attack indicated his lack of self-control. In similar circumstances, any reasonable individual would likely have acted similarly to the Respondent, given the same situation and conditions.

15.  In conclusion, the Court held learned trial Judge had not made a mistake, either in fact or in law, by reducing the offence from murder as stated in Section 302 of Act 574 to culpable homicide not amounting to murder.

16.  By evaluating the evidence, the Court decided that there were cumulative provocations that had accumulated and then amounted to grave and sudden provocation by the Respondent.

Key Take Away

2.     Therefore, the Judge has the discretion to impose a lesser sentence than what might be prescribed for a particular offence based on the provision in that written law.