Non-fatal Offences
 Non-fatal offences are offences affecting human bodies
 Non-fatal was use because it will not cause death to the
victim.
 Prosecutor will look at what actually the accused had
caused to the victim?
- Intended to cause, eg: murder or attempted murder
- The result, eg: hurt or grievous hurt
 4 types of non-fatal offences:
i. S.351 - Assault
ii. S.350 - Criminal force
iii. S.321 - Voluntarily causing hurt
iv. S.322 - Voluntarily causing grievous hurt
Assault
 S.351 PC - Whoever makes any gesture or any
preparation, intending or knowing it to be likely that
such gesture or preparation will cause any person
present to apprehend that he who makes that gesture or
preparation is about to use criminal force to that person,
is said to commit an assault.
Explanation—Mere words do not amount to an
assault. But the words which a person uses may give to
his gestures or preparation such a meaning as may
make those gestures or preparations amount to an
assault.
ILLUSTRATIONS
 A shakes his fist at Z, intending or knowing it to be
likely that he may thereby cause Z to believe that A is
about to strike Z. A has committed an assault.
 A begins to unloose the muzzle of a ferocious dog,
intending or knowing it to be likely that he may
thereby cause Z to believe that he is about to cause
the dog to attack Z. A has committed an assault upon
Z.
Law 2311 Criminal Law II
 A takes up a stick, saying to Z, “I will give you a
beating”. Here, though the words used by A could
in no case amount to an assault, and though the
mere gesture, unaccompanied by any other
circumstances might not amount to an assault,
the gesture explained by the words may amount
to an assault.
Criminal force
 S.350 PC - Whoever intentionally uses force to any
person, without that person’s consent, in order to
cause the committing of any offence, or intending by
the use of such force illegally to cause, or knowing it to
be likely that by the use of such force he will illegally
cause injury, fear, or annoyance to the person to whom
the force is used, is said to use criminal force to that
other.
Punishment for using criminal force otherwise than
on grave provocation
 S.352 PC - Whoever assaults or uses criminal force to
any person otherwise than on grave and sudden
provocation given by that person, shall be punished
with imprisonment for a term which may extend to
three months or with fine which may extend to one
thousand ringgit or with both.
Explanation—Grave and sudden provocation will not
mitigate the punishment for an offence under this
section, if the provocation is sought or voluntarily
provoked by the offender as an excuse for the offence;
- if the provocation is 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;
or
- if the provocation is given by anything done in the
lawful exercise of the right of private defence.
- Whether the provocation was grave and sudden
enough to mitigate the offence, is a question of fact.
 Force – cross refer
 S.349 PC - A person is said to use force to another if
he causes motion, change of motion, or cessation of
motion to that other, or if he causes to any substance
such motion, or change of motion, or cessation of
motion as brings that substance into contact with any
part of that other’s body, or with anything which that
other is wearing or carrying, or with anything so
situated that such contact affects that other’s sense of
feeling:
 Provided that the person causing the motion, or
change of motion, or cessation of motion, causes that
motion, change of motion, or cessation of motion in
one of the three ways hereinafter described—
a. by his own bodily power;
b. by disposing any substance in such a manner that
the motion, or change or cessation of motion, takes
place without any further act on his part, or on the
part of any other person;
c. by inducing any animal to move, to change its
motion, or to cease to move.
 S.351 PC – Assault is conduct crime
 AR  Gesture to cause victim apprehend
that criminal force is about to use
against the victim
 Preparation to cause victim
apprehend that criminal force is
about to use against the victim
 MR  intention to cause victim
apprehend that criminal force is
about to use against the victim
 knowledge to cause victim
apprehend that criminal force is
about to use against the victim
 cross refer s.349 – 350
 In theory result is not necessary, however, in practice if
there is a result will strengthen the prosecution case.
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on-fatal Offences
 S.349 PC – criminal force is a result crime
 The accused must does any act to cause the
prohibited result.
 AR  uses criminal force to the victim
will illegally cause injury, fear, or
annoyance to the victim.
 MR  intention to use of such force
illegally to cause injury, fear, or
annoyance to the victim or
 knowing it to be likely that by the
use of such force he will illegally
cause injury, fear, or annoyance to
the victim
 Force cross refer s.349
 Injury cross refer s.44
 S.321 PC – voluntarily causing hurt is a result crime
 S.321 PC - Whoever does any act with the intention of
thereby causing hurt to any person, or with the
knowledge that he is likely thereby to cause hurt to any
person, and does thereby cause hurt to any person, is
said “voluntarily to cause hurt”.
 The accused must does any act to cause the prohibited
result.
 The accused act must cause hurt to victim
 AR  Does any act to cause hurt to the
victim.
 MR  intention to cause hurt to the
victim or
 knowledge to cause hurt to the
victim
 Hurt cross refer to s.319 PC - Whoever causes bodily
pain, disease or infirmity to any person is said to cause
hurt.
 By virtue of s.95 Act causing slight harm as defence,
theoretically a person is easily liable for causing harm.
 For example: disease like chicken pox, flu.
Non-fatal Offences
Law 2311 Criminal Law II
 S.322 PC – voluntarily causing grievous hurt is a
result crime
 S.322 PC - Whoever voluntarily causes hurt, if the hurt
which he intends to cause or knows himself to be
likely to cause is grievous hurt, and if the hurt which
he causes is grievous hurt, is said “voluntarily to cause
grievous hurt”.
Explanation—A person is not said voluntarily to
cause grievous hurt except when he both causes
grievous hurt and intends or knows himself to be
likely to cause grievous hurt. But he is said voluntarily
to cause grievous hurt if, intending or knowing himself
to be likely to cause grievous hurt of one kind, he
actually causes grievous hurt of another kind. The
accused must does any act to cause the prohibited
result.
ILLUSTRATION
A, intending or knowing himself to be likely
permanently to disfigure Z’s face, gives Z a blow which
does not permanently disfigure Z’s face, but which
causes Z to suffer severe bodily pain for the space of
twenty days. A has voluntarily caused grievous hurt.
 The accused act must cause grievous hurt to victim
 AR  Does any act to cause grievous hurt
to the victim.
 MR  intention to cause grievous hurt
to the victim or
 knowledge to cause grievous hurt
to the victim
 Grievous Hurt cross refer to s.320 PC
 Hurt must serious and permanent
 For hurt, must produce medical examination report
(MER) because without MER there is no case.
Law 2311 Criminal Law II
 Stages for assault, criminal force , hurt or grievous hurt
 1st stage  Gesture or preparation (with
knife) to cause the victim
apprehend that criminal force is
about to use against the victim -
assault
 2nd stage  The moment of the movement
with criminal force
 3rd stage  If the knife hit the victim and cause
hurt (non-vital part)
 4th stage  If the knife stab at the vital part of
the body – grievous hurt.
Assault
 Assault is not a substantive offence
 Is a conduct crime, no result is required
 It must accompany with guilt or evil motive
 Motive is not mens rea
 For example: s.354
- AR – gesture or preparation to modesty the victim
- MR - intention to modesty the victim
- To modesty the victim is the evil motive
 Whether the apprehension needs to be proved?
 Theoretically is no need.
 However, practically is better for the element of
apprehension to be exist
 Apprehension synonymous with assume or feeling
 Gesture as in Explanation to s.351 which exclude
verbal assault, must have physical assault
 If gesture by a child, do you think there is preparation
for assault?
 The answer is No.
 Normally, must into consideration the parties involve
i.e. children, elderly or old people
 Taking into consideration the act of the accused person
whether can constitute a threat. The threat must be an
immediate threat.
2

Tuberville v Savage (1669) 1 Mod Rep 3
 The defendant put his hand on his sword and
said, 'if it were not assize-time, I would not take such
language from you'.
 Assize-time is when the judges were in the town
for court sessions.
Held:
 His act did not amount to an assault as the
words indicated that no violence would ensue.
 The words did not have the intention to break
the law.
 Even though to certain extent of apprehension, but the
words he had used indicate that he would not use
criminal force.
Faulkner case
 Held: in assault is an intentional touching of another
person without that person consent and lawful excuse.
i. Touching or physical contact
ii. Without consent
iii. Without lawful excuse
 However, it is not necessary for the touching to be
hostile, rude or aggressive.
 By virtue of s.351, that principle is not applicable in
Malaysia.
R v Brown [1993]
 To constitute assault it must be proven that the mens
rea of the accused person must have intention to cause
apprehension of immediate unlawful violence.
Criminal Force
Jairam case
 The accused raise a stick and move towards the
complainant and about to hit the complainant, the
complainant ran away.
 Held: to constitute criminal force the act must cause the
result as in s.349.
Non-fatal Offences
Chandrika Sao v The State of Bihar
 The accused snatch few books from the complainant’s
hand and cause the complainant’s hand jerking.
 Held: causing jerking of complainant’s hand may
amount to criminal force.
Voluntarily causing hurt
 S.321 PC – voluntarily causing hurt is a result
crime
 The accused must does any act to cause the prohibited
result.
 The accused act must cause hurt to victim
 cross refer to s.319 PC - Whoever causes bodily pain,
disease or infirmity to any person is said to cause hurt.
 Voluntarily cross refer s.39
 Defence
- s.88 consent
- s.95 Act causing slight harm
 What type of bodily pain?
- Mild or severe pain
 If the pain more than 20 days, it become grievous hurt
under s.322
 What type of disease?
- Dangerous or non-dangerous
- If non-dangerous, usually people will not lodge
police report
- HIV fall under which limb of s.322
 Medical examination report is very important to
establish hurt which suffered by the victim
 The medical personnel have to testify court to explain
the report and finding of that examination.
 Psychiatric report normally do not have standard
format.
 MR – intention or knowledge
 Mental stage at the time of committing the offence
 “Reasonable man test” can foresee the probable
consequence result.
Law 2311 Criminal Law II
 Infirmity if the failure of any part of the body to
function properly, including the mind.
Jashanmal Jhamatmal v Brahmanand Sarupanand
AIR (1944) Sind 19
 The accused try to make the complainant to leave and
move out from the building. The accused waited at the
floor stair with a gun, suddenly appear and shouted to
complainant causing the complainant in shock.
 The accused argue that there were no physical contact
between him and the complainant and he has no
intention to cause hurt.
 Trial court accepted the accused arguments.
 On appeal:
- Held: Physical contact between the accused and the
complainant is not a requirement. Under s.321 as
long the act of the accused cause the prohibited
result is sufficient.
- The court recognised nervous shock amount to
infirmity.
Anis Beg v Emperor (1923)
 Held: Infirmity defines as inability of an organ to
perform its normal function which may either be
temporary or permanent.
Manzu Ahmad v State of Allahabad
 The accused put sodium sulphate into complainant
drinks and caused the complainant suffered from
stomach pain and vomit.
 Investigation found that there element of animosity or
dispute between the accused person and complainant
before the incident.
 The accused claim his has no intention to cause injury.
 Held: To determine whether voluntarily causing hurt
that the accused act must have cause the prohibited
result. Even though he might not have intention but he
can foresee the probable consequence result.
3
Sultan Mohamed v R [1952] MLJ 186
 The appellant was charged under section 324 of the
Penal Code with voluntarily causing hurt by means of a
stick which used as a weapon of offence is likely to cause
death.
 The evidence was that the stick was about 36′ in length
and 1½′ in width.
 No doubt this instument, if used in a certain way, could
cause death. So could many other lesser instruments.
But the object of the section is to punish more severely
an offender who uses a weapon such as a knife or a hot
iron, for he is a much more dangerous member of
society than a man who only uses a stick.
 The question, 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 a certain way, might
cause death.
 Held: the charge should have been under section 323,
and I substituted a conviction under that section.
Mat Alias bin Jusoh v PP [2000] MLJU 119
 The appellant struck the complainant with that golf club
causing injury on the right side of his ear and his right
arm.
 Held: The golf club was an instrument that came within
the ambit of section 324, and when wrongly used was
likely to cause death and found guilty.
 The appellant who did not play golf should carry a golf
club around unless he had a purpose in mind for it.
 To hit somebody with it, in particular the complainant
was all that is the primary purpose.
 Apart from not being alone at that material time,
physically the appellant appeared bulky and fit. The
voices carried by the appellant when they invaded the
complainant's premises were loud and harsh.
 In the circumstances of the case there was absolutely no
justification for the appellant to strike the complainant
forcefully on the head.
Grievous hurt
 S.320 PC - The following kinds of hurt only are
designated as “grievous”:
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation 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;
(g) fracture or dislocation of a bone;
(h) any hurt which endangers life, or which causes
the sufferer to be, during the space of twenty
days, in severe bodily pain, or unable to follow
his ordinary pursuits.
 Must permanent privation or permanent impairing or
permanent disfiguration (permanent change the look
of the victim, i.e. scar on the face)
 The liability of the accused person may be varieties
 Can combine the offences of the same nature as a
aggravated factor.
 For example:
- Extortion and hurt can be combine because from
the same family
- Extortion and murder cannot be combine together
because different in nature
 Some jurists’ view that the limb (g) can no longer
treated as grievous hurt because taking into
consideration the advance of the medical treatment.
For example: fracture or dislocated bone can be
treated as hurt or grievous hurt.
 Must the hurt is permanent
 Limb (h) to s.320 is the most controversial part
 It covers every general and vague interpretation:
i. Hurt endangers life
ii. Within the space of 20 days in severe bodily pain
iii. 20 days unable to follow his ordinary pursuits
 Endangers life
- Has the potential causing the victim die
- MR – intention or knowledge and cross refer to s.39
voluntarily
- Is a question of facts
- Hurt might be mere injury to normal person, but not
to the victim, for example, age factor (old person or
baby)
- The act of shaking the baby may be endanger the
life of the baby.
- Principle of “eggshell skull”
Ramla v State of Rajasthan (1963) 1 Cri LJ 387
 To determine act endangering to the life is a question
of facts:
i. Look at the means used
ii. In addition, the part of the body injured, is it vital
organ or not ( normally the body’s upper part is
considered as vital organ)
iii. Nature of the injury, is it single injury or multiple
injuries
iv. Nature of the act, is it a violent act or not
Vasu Dev (1982) 21 Delhi Law Times 312
 Issue: Whether abdomen is vital organ or not
 The court only take into consideration to one part

4
Non-fatal Offences
 20 days is easy to interpret, but how to determine
severe bodily pain?
 Number of days – 20 days
 Severe bodily pain, but sometime the severe pain only
for ten days and pain become lessor and lessor
 Need to observe carefully
 What about patient in coma?
 In rest position
 Not in pain
 Therefore, it is very important to have the medical
examination report to determine is it hurt or grievous
hurt.
 20 days unable to follow ordinary pursuits
 How to determine “ordinary pursuits”?
 Different people have different ordinary pursuits
Sahat v Hj Berahim (1888) 4 Kyshe 337
 Held: being hospitalised or confine in a hospital for
treatment will give rise to the presumption or inference
or assumption that the victim cannot follow his ordinary
pursuits.
R.Yoganathan v PP [1999] 4 SLR 264 (***)
 The appellant was charged under s 326 of the PC for
voluntarily causing grievous hurt to the victim by means
of an instrument which, used as a weapon of offence,
was likely to cause death.
 Held: The victim could not carry out his money-
lending duties for the first six weeks following the
injury to his finger, but could continue with his other
ordinary daily activities apart from his work.
 Since The victim’s work was part of his ordinary
pursuits, the fact that his finger injury prevented him
from working as a money-lender for the space of 20
days was sufficient for that injury to amount to
'grievous hurt' under s 320(h) of the Penal Code.
Law 2311 Criminal Law II
 Empress vs Sahae Rae (1878) ILR 3 Cal 623
Muniandi v PP [1963] MLJ 153
 The appellant was convicted for causing grievous hurt
with a knife in contravention of section 326 of the
Penal Code and sentenced to 2 years' imprisonment.
 Held: as the knife used in this case fell within the first
three descriptions, i.e. for shooting, stabbing or cutting
it was not necessary to specify in the charge that the
instrument used was one which when used as a
weapon of offence was likely to cause death.
 Per Curiam: "In our view the meaning of that (i.e.
section 326 of the Penal Code) is crystal clear.
- There is an offence if the instrument used is one for
shooting;
- There is an offence if the instrument used is one for
stabbing;
- There is an offence if the instrument used is one for
cutting; and
- Finally there is an offence if the instrument used
which does not come within either of the first three
descriptions, that is for shooting, stabbing or
cutting, is one which if used as a weapon of offence
is likely to cause death.
- In other words the words 'likely to cause death'
qualify the word 'instrument' the second time it
occurs and not the first time.