Provocation, Not Self-Defence: Section 290 with Section 72 คำพิพากษาฎีกาที่ 1023/2531: โจทก์ฟ้องขอให้ลงโทษจำเลยตามมาตรา 288 ศาลชั้นต้นเห็นว่าการกระทำเป็นการป

SUPREME COURT DECISION No. 1023/2531
Year: 1988 (B.E. 2531)
Relevant Code Sections: Criminal, Section(s) 72, 288, 290

SUMMARY
The prosecutor charged murder under Section 288. The Court of First Instance found reasonable self defence and dismissed. The Court of Appeal held the defendant had acted under provocation rather than in self defence and, finding no intent to kill, convicted under Section 290 with Section 72. The Supreme Court dismissed the prosecutor's further petition as an appeal on the facts barred by Criminal Procedure Code Section 220.

FACTS OF THE CASE
The plaintiff sought punishment for murder under Section 288. The trial court found the defendant's actions constituted appropriate self-defense and dismissed the case.

COURT'S HOLDING
The Court of First Instance found that the defendant had acted in reasonable self defence under Section 68 and dismissed the charge. The Court of Appeal held that it was not self defence but an act done under provocation within Section 72, that the defendant had no intent to kill, and convicted him under Section 290 read with Section 72. Both lower courts had therefore rejected the murder charge under Section 288 on the facts. The prosecutor's contention that the defendant stabbed the deceased with a sharpened iron bar intending to kill was accordingly an appeal on a question of fact, which Section 220 of the Criminal Procedure Code forbids, and the Supreme Court declined to entertain it and dismissed the petition.

LEGAL ANALYSIS
Two things are commonly got wrong about this case.

The first is the label on what the Court of Appeal found. It was not recklessness or negligence. Section 72 is provocation, an act committed while under the sway of a wrong seriously done, and it operates as a ground for reducing punishment rather than as a justification. Self defence under Section 68 excludes liability altogether; provocation under Section 72 does not. Moving a case from one to the other converts an acquittal into a conviction with a reduced sentence, which is exactly what happened here.

The second is what the Supreme Court decided. It decided nothing about intent. Because both lower courts had rejected the Section 288 charge on the evidence, the prosecutor's petition raised fact and not law, and Section 220 closed the door. The petition was dismissed without the merits being reached, so this decision is authority on the reach of Section 220 and not on the boundary between Sections 288 and 290.

PRACTICAL IMPLICATIONS
Criminal intent is assessed from all surrounding circumstances including the weapon used and body parts targeted. Defendants should preserve all evidence showing lack of intent to kill.

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Note: This is an English-language summary of the Thai original judgment.
For the authoritative Thai text, please refer to the Thai version above
or visit deka.supremecourt.or.th.