in the court of appeal malaysia holden in kuching, …lb)-232-09-2015.pdf · 1 in the court of...
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IN THE COURT OF APPEAL MALAYSIA HOLDEN IN KUCHING,
SARAWAK
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: Q-05(LB)-232-09/2015
BETWEEN
PUBLIC PROSECUTOR … APPELLANT
AND
WILLEY ANAK SALLEH … RESPONDENT
(In the Matter of High Court of Sri Aman, Sarawak
Criminal Trial No: SRA 45-302-1/7-2013
Between
Public Prosecutor
And
Willey Anak Salleh)
CORAM:
MOHD ZAWAWI SALLEH, JCA
VERNON ONG LAM KIAT, JCA
ABDUL KARIM ABDUL JALIL, JCA
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JUDGMENT
Introduction
[1] The respondent was charged with an offence punishable under
section 302 of the Penal Code for causing the death of Langgang Anak
Kaju (L). The charge read as follows:
“Bahawa kamu, pada 16 haribulan Disember 2012 pada jam lebih kurang
02.00 pagi, bertempat di kawasan beranda Rumah Panjang Tuai Rumah
Ulak, Tanjung Bijat, Sri Aman, di dalam Negeri Sarawak, telah
membunuh Langgang Anak Kaju (L) (KPT: 901224-13-6205) dan dengan
itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah
seksyen 302 Kanun Keseksaan.”
[2] At the end of the trial, the learned trial judge acquitted and
discharged the respondent. Dissatisfied, the Public Prosecutor (the
prosecution) appealed to this court. Upon hearing both parties, we
dismissed the appeal. Our reasons now follows.
The Prosecution’s Case
[3] The case of the prosecution was well laid down by the learned
trial judge in his grounds of judgment which we reproduce below:
“It was a fact that on the 15.12.2012 around 7.00 p.m. there was a
wedding reception at Rumah Panjang Ulak (Rumah Ulak) and that
many guests were in attendance. Amongst the guest were the Accused,
Rhemhandy Elsa ak Ricky Balang (PW7), Christy ak Joseph Agan
(PW12), Romio ak Tamin (Romio), Delly ak James Belusan (Delly),
Qazlinas Elsa ak Ricky Balang (Qazlinas) (hereinafter referred to as
PW7 & his friends). The deceased and his two friends Jhia Iqbal (Jhia)
and Soekri Putit (Soekri) were also there (hereinafter referred to as the
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deceased & his friends). The Accused’s parents, Biah anak Charlie
(DW2), Salleh anak Malin (DW4), the Accused’s younger sister
(Jennifer anak Salleh) and his uncle (Bryan anak Charlie (DW3)) were
also present. Since this was a traditional wedding reception there was
eating, drinking beer and langkau a local brew, karaoke music, singing
and dancing.
On the 16.12.2012 the facts were as follows. Around 2.00a.m, there
was a fight (the fight) at Rumah Ulak involving PW7 & his friends and
the deceased & his friends. The fight was at the five foot way of ruai
No.2.
Around 4.15 a.m. Karen John (PW5) was manning the Pusat Kawalan
Gerakan IPD Sri Aman. She received a telephone call from Kpl Bayang
anak Jaya informing her that there was an unconscious person found
lying on a road side at Jalan Stumbin Tanjung Bijat. PW5 then informed
the Assistant Investigation Officer, Sjn Joseph Bikari anak Takor (PW8).
PW5 lodged a police report namely Sri Aman/001889/12 (Ex.P34). PW8
then informed Insp Amir Wahid bin Santoh (PW5) who was the 24
Hours Investigation Officer on duty. PW5 also informed ASP Sazali bin
Abdul Latip (PW14) who was the Investigation Officer (IO) of this case.
Around 4.50 a.m. PW15 received a call from Sjh Joseph Bikari anak
Takor (PW8) about the murder at Tanjung Bijat. PW15 and his police
team consisting of Kpl Tajjul Faizal bin Tahir (PW1), Sjh Joseph Bikari
anak Takor (PW8), Sjn Jackson Sujang anak Mut (PW10), Kpl/D
Mardeka (Kpl Mardeka) then went to Tanjung Bijat, arriving at the scene
around 6.10a.m where they saw the deceased lying on the road side.
PW15 checked the deceased and noticed injuries in the left of his chest
and also at the back of his head. He instructed Kpl Tajjul (PW1) to take
photographs of the crime scene and the deceased. He then instructed
PW1 and Kpl Mardeka to put the deceased’s body inside a plastic bag
and sent the same to the Sri Aman Hospital.
PW15 and his team went to Rumah Ulak the actual crime scene where
it was alleged the deceased was initially found on the ground. He
directed PW1 to take photographs of exhibits recovered there. One of
the exhibits seized was a knife (Ex P20C) which looked like a spur (taji
ayam) with bloodstains on it (See Q1A2 p 386 NOP). He said the knife
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was a metal blade without handle (Q1A2 p386 NOP). PW15 had also
taken photo of P20C (See Q20A21 p385 NOP). PW15 then lodged a
police report of the seizure of P20C (P55).
Around 5.30 p.m. a Forensic team from Kuching led by Inspector
Sumarno bin Lamunsi (PW13) arrived at the crime scene at Rumah
Ulak. He was with PW15, Kpl Martinus anak Muka (PW2), SM Wahid
bin Hj Apit, Kpl Alif Putera Kudie and Kpl Jemayah. PW13 took several
exhibits at the crime scene. He then prepared the 2 Laporan
Pemeriksaan Tempat Kejadian which are exhibits Ex P47 & P48.
PW7 gave evidence of his involvement in the fight with the deceased &
his friends. In summary this was his evidence. He said the deceased
was already drunk and was following him and his friends from ruai to ruai
and wanted to pick a fight with Delly. When he asked the deceased
“what is the matter”, the deceased instead punched him. According to
PW7 the fight then started. The deceased’s friends joined in. Delly, the
Accused, Christy and Romio also joined the fight to help PW7. Romio
dragged him from the five foot way where the fight was. Delly, the
Accused and Christy continued to fight with the deceased & his friends.
PW7 saw the Accused fought with the deceased with his hands (See
Q6A7 p159 NOP) punching the front part of the deceased’s body (See
Q9A10 p 159 NOP). Around 2.00 a.m. PW7 saw the deceased fell face
down to the ground from the five foot way (See Q10A11 p113 NOP). He
was then about six feet from where the deceased had fallen. PW7 also
said there were a lot of people dancing at the ‘ruai’ as well as at the five
foot way but some of those people at the five foot way were just
watching the fight. After the deceased fell down to the ground PW7 and
his friends went to the ‘ruai’ of bilik No.2 to continue drinking and
dancing. They were there between 2.00 to 4.00 a.m (See Q15A17 p165
NOP). PW7 said the Accused had joined them at ruai No. 3 around 2.00
a.m. (See Q25A28 p117 NOP). PW7 said he did not know what
happened to the deceased after he fell down to the ground. He also said
the deceased’s friends had run away.
PW7 said he and his friends only discovered the deceased under the
five foot way of Room No. 2 around 4.00 a.m when Christy (PW12) had
gone down to the ground to urinate. According to PW7 when they saw
the deceased he was lying on his back (See Q26A27 p118 NOP) and
seemed unconscious (See Q5A6 p120 NOP).
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They then sent the deceased to his kampong but on the way they fell off
their motorbike on the road side. PW7, Delly and Romio then went on to
Sungai Semilang leaving the deceased at the road side to look for the
deceased’s mother. Howeverthey coincidentally met her while she was
waiting for transport at the road side. The deceased’s mother had
checked the deceased and informed PW7 & his friends that the
deceased had died.
PW11 is the Tuai Rumah of Rumah Ulak Tawang. He confirmed that on
the 15.12.2012 there was a wedding ceremony at Rumah Ulak. He said
there were 300 guests in attendance that night (See Q28A29 p243
NOP). He said around midnight he heard a commotion but because of
the loud karaoke he could not really hear what the commotion was all
about and where it was coming from. He said he was the Accused in
between “ruai” Bilik No.2 and “ruai” Bilik No. 3. He was about 8 feet from
the Accused when he walked past him (See Q21A23 p246 NOP). He
noticed the Accused was wearing a white and yellow colour short sleeve
shirt. He was the Accused’s shirt splattered with blood (See Q25A27
p240 NOP). PW11 then went back to sleep (See Q9A10 p241NOP).
Around 5.00 a.m on the 16.12.2012, PW11 was woken up and was
informed of a person lying by the road side. PW11 was informed that the
deceased was Langgang whom he knew as the deceased used to visit
him when the deceased was still alive.
PW12 related more or less the same scenario as told by PW7 about the
fight. PW12 said Delly went forward and punched the deceased. Both
had exchanged punches (See Q12A13 p255 NOP). PW12 said he
dragged Delly away while Romio dragged PW7 away from the fight (See
Q24A25 p254 NOP). PW12 said he was about 6 feet away from the
deceased when he saw the Accused went towards the deceased
(SeeQ1A2 & Q9A10 p255 NOP). He also said before going towards the
deceased he was the Accused pulled out some sort of white cloth from
his sling bag but he did not know what it was (See Q18A19 p255 &
Q13A14 p256 NOP). PW12 then saw the deceased fell down to the
ground face down (See 13A14 and Q24A25 p256 NOP). PW12 said
during the fight there were also other people watching but he did not
recognize them (See Q21A22 p256 NOP). PW12 said the fight stopped
after the deceased fell down (See Q21A23 p289 NOP). He and Delly
then went in and sat at ruai bilik No.3 (See Q1A3 p257 NOP). PW7 and
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Romio joined them a few minutes later (See Q5A6 p257 NOP) and after
that the Accused also joined them (See Q14 A15 p257 NOP). PW12
said he discovered the deceased on the ground when he went down to
urinate around 4.00 a.m. (See Q4A5 p258 NOP). PW12 also said the
deceased was unconscious and was drunk (See Q28A29 p258 NOP).
He then informed PW7 and together with his friends they sent the
deceased on a motorbike to his long house but on the way they fell
oftheir motorbike. They left the deceased on the road side. When the
deceased’s mother came, PW12 and the rest of his friends went home.”
Prima Facie Case
[4] At the end of the prosecution’s case, the learned trial judge found
that the prosecution had proved that:
(a) Langgang Anak Kaju (the deceased) had died;
(b) The deceased died as a result of injuries sustained by him;
and
(c) The injuries of the deceased which resulted in the
deceased’s death were caused by the act of the accused.
As to the injuries suffered by the deceased and the cause of death, the
learned trial Judge accepted the evidence of PW4, Dr. Norliza binti
Ibrahim (Pathologist), and said (page 14 AR):
“[34] PW4 said she had stated in paragraph 2 under sub-heading
“Kesimpulan”: “Si mati mengalami lebih kurang 11 tanda kecederaan,
sepuluh dari luka tersebut merupakan luka yang selaras diakibatkan
trauma benda tumpul. Satu lagi merupakan luka tikaman”. PW4 said the
injury that is fatal is the stabbing injury and at page 5 paragraph 2 of Ex.
P31 she had stated that this injury was sufficient in the ordinary
course of nature to cause the death of the deceased. She had also
explained that the deceased did not have any other disease or injuries
that might cause or contributed to his death nor were there any injuries
consistent with defensive injuries.” (Emphasis added)
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[5] The learned trial judge then found the prosecution had
established a prima facie case against the respondent based on
testimonies of the PW4, PW7, PW12, and PW14. The respondent was
called to enter his defence.
Defence
[6] The accused had decided to give unsworn statement from the
dock. In his written unsworn statement in the Iban language (exhibit
D6), which he read from the dock, he said, as interpreted by the court
interpreter, as follows:
“(i) The things that happened that I could recall, by me. Willey anak
Salleh, things that happened on 15th December 2012, 16th December
2012 and 17th December 2012.
(ii) On the 15th December 2012 I followed my father and mother visited
the wedding ceremony at Rumah Panjang Ulak Tawang Hilir. On that
day, I was working with my father to build house of Barayan anak
Charlie. Barayan is my mother’s brother.
(iii) My father and my mother went to Rumah Ulak by walking from Rumah
Gerunjong taking about 10 minutes.
(iv) I followed my father and my mother because they have been invited to
the wedding ceremony.
(v) On the night of wedding ceremony I have met Rhemhandy, Romio
anak Tamin, Christy anak Joseph Agan, Delly anak James Belusan
and Qalzalinas. They know my uncle by the name of Brayan anak
Charlie. Whenever they visited my uncle, I have met them. So on that
night I hang out with them, together we went to Bilik No 8 of Rumah
Ulak. There we eat and drink. We have been served and drink beer at
Bilik No 8.
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(vi) At about past 8.00 pm, we went out to Ruai No 8 because we wanted
to see the wedding ceremony. After the wedding ceremony end, we sit
at Ruai No. 9. There we have been served and drink beer again and
also liquor. We have been serve by the owner of Ruai No 9.
(vii) After that we moved to Ruai No 8. There we were served with drinks
and eat biscuit that have been served by the owner of Ruai No 8.
(viii) Then me, Rhemhandy, Christy anak Joseph Agan, Delly anak James
Belusan, Romio anak Tamin and Qalzalinas moved to Ruai No 3. We
sit and we drink beer and liquor. When we moved to Ruai No 3, I drink
so much and I was dizzy or headhache necause I was drunk. At that
time I saw Rhemhandy, Christy anak Joseph Agan, Delly anak James
Belusan, Romio anak Tamin and Qalzalinas also drunk.
(ix) Even though I was drunk, I still can dance at Ruai No 2 because band
boy have played karaoke at Ruai No 1. A lot of people dancing at Ruai
No 2. As what I can see at that time Rhemhandy, Christy anak Joseph
Agan, Delly anak James Belusan, Romio anak Tamin and Qalzalinas
have drunk but they also can dance and mingle with other people at
Ruai No 2.
(x) On 15th & 16th December 2012 I brought my sling bag. My sling bag
was always with me when I sit at Ruai No 8, Ruai No 9 and Tuai No 3.
Inside my bag there is a handphone that cannot be used and broken
and also inside my sling bag I have crooked knife resembling a tin can
opener. The said knife was sharp but do not have a handle
(xi) At the time when we dance at Ruai No 2 together with all the guests
then Qalzalinas asked permission to borrow my sling bag because he
said he wants to put his wallet. I then gave my sling bag to him. I do
not know how long he borrowed my bag but he has returned my sling
bag to me. After Qalzalinas returned my sling bag to me, I did not
open and check what is inside my sling bag because I was drunk plus
still keep on dancing.
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(xii) I still remember when I sit at Ruai No 3 together with Rhemhandy,
Christy anak Joseph Agan, Delly anak James Belusan, Romio anak
Tamin and Qalzalinas my face was facing toward pintu bilik Ruai No 3.
My back facing towards five foot way. I was drunk. I do not know what
happen surround me either on my side, on my front or my back.at that
time there were a lot of people and boy band was playing the music. It
was loud that is why I cannot hear what the thing happen.
(xiii) The night of 15th December 2012 I don’t know there is a fight occurred
at Rumah Panjang because I was drunk and the music was loud but I
know my sling bag was never away from my side. On that night I didn’t
open my bag. I did not take the handphone, did not show the braclet
as well as I did not show the knife without the handle. All these things
were inside my bag.
(xiv) At about past midnight Christy anak Joseph Agan talking with us when
we sit together. He is talking more with Rhemhandy. After Christy
anak Joseph Agan talking with Rhemhandy, Rhemhandy then asked
me, Delly anak James Belusan, Christy anak Joseph Agan and Romio
anak Tamin went down to five foot way of Ruai No 3.
(xv) Underneath the five foot way of BilikNo 3 there is no light. Christy
anak Joseph Agan said to Rhemhandy there is someone lay
underneath the five foot way of Bilik No 3. Underneath the five foot
way of Ruai No 3 is dark because there is no light even though I still
can see that someone lay down underneath the five foot way. I do not
know who that person is. Rhemhandy told Laggang was drunk and
have to send him back to his own Rumah Panjang.
(xvi) I did not hang around with Langgang and I do not know who he is, I
trust Rhemhandy because he says that person is Langgang and
Langgang was drunk.
(xvii) Rhemhandy asked me, Christy anak Joseph Agan and Delly anak
James Belusan to send Langgang to his rumah panjang using Romio
anak Tamin;s motorcycle. I did help carry Langgang to motorcycle.
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Langgang was placed and seated on the motorcycle. He was seated
between Christy anak Joseph Agan and Delly anak James Belusan on
the motorcycle. Christy anak Joseph Agan was seated at the back
holiding Langgang and Delly anak James Belusan riding the said
motorcycle.
(xviii) I followed the motorcycle by walking toward the main road of Tanjung
Bijat and Romio anak Tamin and Rhemhandy followed using their own
motorcycle.
(xix) I walked to main road not far from the Rumah Panjang where the
wedding ceremony held. I saw the motorcycle that been ride by
Christy anak Joseph Agan, Langgang and Delly anak James Belusan
fell off to the side of the road. At that time it was dark but from the
motorcycle main light that was fell off. I saw Langgang was lay down
at the side of the road. From the main light of the motorcycle then I
saw blood on Langgang’s body.
(xx) When I reached the place where the motorcycle fell off, Rhemhandy,
Romio anak Tamin, Christy anak Joseph Agan and Delly anak James
Belusan were already there.
(xxi) Soon after Rhemhandy and Romio anak Tamin picked up the fallen
motorcycle and Langgang still lay down at the side of the road. Romio
anak Tamin took his own motorcycle that been used to carry
Langgang. He used the motorcycle to the other place together with
Rhemhandy.
(xxii) I do not know where Rhemghandy Romio anak Tamin, Delly anak
James Belusan and Christy anak Joseph Agan went with their
motorcycles but they all left me alone at the side of the road to take
care of Langgang who was lay down there.
(xxiii) I do not know how long I waited there. Then people from rumah
panjang came there. After that Langgang mother also came. She in
tears, hug Langgang and said Langgang had died. At that time I was
shocked upon hearing Langgang was dead. At the time when I helped
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Langgang seated at the motorcycle at rumah panjang I do not know
whether he had died or drunk because I just believe what Rhemhandy
had said. He said Langgang is drunk.
(xxiv) At that time, a lot of people from rumah panjang came to the said
place. I went back to my mother’s rumah panjang at Tawang
Gerunjong by walking. If I know Langgang was dead, I would not dare
to take care of Langgang alone at the said road.
(xxv) On the 17th December 2012 at the time I was working with my father
at the rumah panjang, the police came and wanted to take my
statement on the matter that happened on the night of 15th December
2012 and also on the morning of 16th December 2012.
(xxvi) I did not kill Langgang with the knife that does not have the handle. If I
use that knife that been accused on me, I would injured myself
because the said knife don’t have any handle. The knife does not
have any handle from the day I found it.
(xxvii) I pray the court release me from the charge of killing Langgang.”
[7] The respondent called three witnesses to support his defence. In
brief, Biah anak Charlie (his mother) (DW2), Brayan anak Charlie
(DW3), and Salleh anak Malin (DW4) testified that the respondent had
gone with them to the wedding reception and they had not heard of any
incidence of quarrel or fight that night. DW2 and DW4 also said that the
respondent was a good son to the family, was always helping his family
and not capable of killing as he had been brought up properly. DW4
further said the respondent was with him when the police came to arrest
the respondent.
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Findings of The Learned Trial Judge At The End of The Defence
Case
[8] At the end of the trial, the learned trial Judge found that there was
insufficient evidence to connect the respondent with the killing of the
deceased. The findings of the learned trial judge can be summarized as
follows:
(a) No direct or circumstantial evidence to prove that the
respondent had used exhibit P20C to stab the deceased;
(b) PW12 had given two versions on the object that came out of
the respondent’s sling bag. In court, PW12 testified it was a
white cloth while in his statements to the police, it was a knife
that look like ‘taji ayam’;
(c) PW7 testified that he had seen the respondent fighting the
deceased with his hands. He did not see any weapon used or
the respondent taking out P20C from his sling bag. Reliance
on this evidence was not sufficient to establish the guilt of the
respondent because PW7 did not testify having seen the
respondent using exhibit P20C to stab the deceased;
(d) PW14 (investigation officer) testified that based on his reading
and summation of the statements he had recorded from the
respondent, PW7, PW12, Delly, Romio, Qazalinas, Jhia,
Soekri, PW4 (pathologist), PW3, and PW7 revealed that
PW14, Romio, Delly, Qazalinas, Jhia and Soekri were at the
scene and witnessed the fight. However, the prosecution had
failed to call them as witnesses. Jhia and Soekri were not even
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offered to the defence. As a result, the prosecution had left the
court with two versions and a doubt was created as to the guilt
of the respondent;
(e) No explanation was proffered by the learned DPP pertaining to
‘mixed profiles’ in the PW9’s report (exhibit P44) about the
DNA profiles in (item iii) and about the swab from nail clipping
(item iv). The report was of no help to the prosecution as there
was no evidence to implicate the respondent; and
(f) No proof that the respondent had handled exhibit P20C which
had the deceased’s blood on it or that the respondent’s finger
print uplifted from exhibit P20C.
[9] Based on the above findings, the learned trial judge held that the
prosecution had not proven their case against the respondent beyond
reasonable doubt. Instead, the respondent had raised a reasonable
doubt as to his guilt. In the result, the learned trial judge had acquitted
and discharged the respondent of the charge preferred against him.
The Appeal
[10] Before us, the decision of the learned trial judge was challenged
on the following main grounds:
(a) there is strong circumstantial evidence that conclusively
point to the respondent as the person responsible for the
murder;
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(b) the learned judge erred in rejecting the evidence of PW12 in
its entirety when he should have accepted parts that were
not impeached or contradicted; and
(c) the learned judge erred in not taking into consideration the
evidence of PW14, the investigating officer, who testified
that it was the respondent who took and showed him the
place where he threw the handle of the weapon ‘taji’ which
was used to stab and thereby caused the death of the
deceased.
[11] Learned counsel in response fully supported the decision of the
trial judge and submitted that there was no nexus or connection to link
the respondent with the crime as charged, especially on the facts that
there was no blood trace on the weapon recovered and on the shirt
alleged to be worn by the respondent. In short, the decision of the
learned trial judge should be upheld.
Our Decision
[12] We have heard arguments by learned counsel and Deputy Public
Prosecutor (DPP) and perused the entire record. After giving our
anxious consideration, we are not with the DPP on all points raised in
challenging the learned trial judge’s decision.
[13] As to circumstantial evidence, the DPP had vehemently
contended that there was strong circumstantial evidence to conclusively
point to the respondent as the person responsible to cause the death of
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the deceased. It was pointed out that despite the cross examination of
PW12 by the prosecution, who was declared hostile by the learned trial
judge, there was evidence to show that the respondent had led PW14
to the place where he had thrown the handle of the spur (taji ayam). It is
to be noted that the spur, exhibit P20C, was earlier found at the scene
of incident without a handle. It was stressed upon us that the spur must
belong to respondent and was used by him to stab the deceased. It was
further argued that the respondent later threw the handle of the spur
somewhere after stabbing the deceased. Taking those evidence
together with the fact that the respondent was last seen together and in
close proximity with the deceased before he fell and later was found
dead, and the nature of the injuries as found by PW 4 (the pathologist),
the only inference to be drawn is that it was the respondent who
stabbed the deceased. It was submitted that the learned judge has
failed to consider the aforesaid strong circumstantial evidence and,
hence has erred in his decision.
[14] We do not find any merit in this contention. At the outset, we
noticed that the prosecution’s case was based on direct and
circumstantial evidence. On circumstantial evidence, it is trite law that
the circumstances from which the conclusion of guilt is to be drawn
should be fully proved and those circumstances must be conclusive in
nature to connect the respondent with the crime. This must be proved
beyond reasonable doubt by the prosecution and the circumstances
should be consistent only with the hypothesis of the guilt of the
respondent and totally inconsistent with his innocence. On a
consideration of the entire evidence on record, we find that the learned
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trial judge had correctly applied the law when he referred to cases on
this subject viz: Sunny Ang v PP (1996) 2 MLJ 195; Chan Chwen
Kong v PP (1962) 1 MLJ 307; Karam Singh v PP (1967) 2 MLJ 2;
Chang Kim Siong v PP (1968) 1 MLJ 68; Jayaraman Velayuthan &
Ors v PP (1982) CLJ 464; Dato Mohktar bin Hashim & Anor v PP
(1983) 2 MLJ 232; and, PP v Magendran Mohan (2005) 3 CLJ 92.
Based on those laws, he found that the circumstantial evidence referred
to by the DPP did not conclusively point to the guilt of the accused but
instead created a reasonable doubt as to who actually stabbed the
accused. We entirely in agreement with the learned judge’s analysis of
the evidence as follows:
“[76] Can the prosecution rely on circumstantial evidence that would
irresistibly point to the Accused to the murder of the deceased? What are
the circumstantial evidence here? I am concern (sic) the prosecution had
not specifically identified to me what are those circumstantial evidence
they are relying on.
(The learned trial judge stated the law as garnered from the above
cases, and continues as follows)
Circumstantial Evidence
[84] I think in this instant case, the following could be considered as
circumstantial evidence. I should therefore discuss them for purpose of
completion. They are these:
a) The Accused was the last person with the deceased before he
fell to the ground.
PW7 testified the Accused was exchanging punches with the deceased.
PW12 testified the Accused went towards the deceased before the
deceased fell down. PW7 and PW12 were the only two witnesses that
were called to testify seeing the deceased falling down. But was the
Accused the last person seen with the deceased. PW7 said before the
deceased fell Delly, Willey and Christy were with the Accused (See
Q1A3 p172 NOP). Could it be that the Accused had stabbed the
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deceased before the fell down to the ground. Only PW12 had allegedly
seen the Accused which he had given statements to the police. But then
PW12 had given two versions on the object that came out of the
Accused’s sling bag. One was a white cloth and the other was Ex P20C.
I have already given my reason why I could not rely on PW12’s evidence
because of this two versions.
b) Who inflicted the 11 injuries on the body of the deceased.
The injuries could have been inflicted during the fight and possibly when
the deceased fell of the motorbike. But who was the one that had
stabbed the deceased that caused his death. My answer to this is as in
my discussion in (a) above. But I would also add that I cannot rely on the
evidence PW12 and PW14 on Ex P20C being used by the Accused for
reasons which I have also discussed above. The report of the Scientific
Officer (PW9) was of no help as there were no evidence to implicate the
Accused such as DNA of the deceased found on Ex P20C or the
Accused’s finger print found on it. PW9 said she could not detect any
bloodstains on Ex P20C (See Q12A14 p228 NOP) and could not do any
DNA analysis.
I need to comment on the poor handling of this particular exhibit (Ex
P20C). PW15 said Ex P20C had bloodstains when he first seized it at the
crime scene. What caused the bloodstains on Ex P20C to be wiped out,
removed or disappeared could only be due to poor handling of exhibits
by the police forensic team. The bloodstains found on Ex P20C would
have really helped the Court. PW9 said no DNA was done on Ex P20C
as she could not detect any bloodstains (See Q12A14 p228 NOP).
c) Accused’s shirt spotted/splattered with blood.
PW11 said he was 8 feet away from where the Accused was when he
was his shirt splattered with blood. In one of his statement referred to by
learned DPP in her cross-examination under section 154, PW12 had
purportedly stated that the Accused came back looking worried with
spots of blood on his shirt. Again I cannot rely on the evidence of PW12
for similar reason as above. As far as PW11’s evidence the report of the
Scientific Officer (PW9) did not indicate DNA was done on the Accused’s
shirt as it had no blood specimen to enable her to do DNA analysis (See
Q15 A16 p192 NOP).
18
d) The can opener shape like knife with handle.
In his unsworn statement the Accused had in his sling bag a can opener
shape like knife without handle and looking at Ex P20C the Accused’s
description of the can opener shape like knife without handle would
appear to look similar to Ex P20C. The Learned DPP submitted only the
Accused knew of this can opener shape like knife which he kept in his
sling bag and which was with him during the incidence on the
15.12.2012. The assertion is that this can opener shape like knife which
looks similar to Ex P20C was the weapon used by the Accused to stab
the deceased. But there is no proof that the Accused had handled Ex
P20C which had the deceased’s blood on it or that it had the Accused’s
finger print uplifted from Ex P250C.
I should add here the police should have uplifted finger print on Ex P20C.
Since the Accused had stated in his unsworn statement that the knife
looked like a can opener which he had kept in his sling bag, his finger
print would have been present on Ex P20C to confirm it if this was the
knife that was used to stab the deceased.”
[15] The learned DPP further contended that the learned trial judge
had erred by not taking into account the fact that the respondent was
last seen and in close proximity with the accused. This is one of the
strong circumstantial evidence to implicate the respondent with the
murder. On this issue of last seen together, it is apposite for us to refer
to the case of Ashok v State of Maharashtra [2015] 4 Supreme Court
393 where it was said:
"The "last seen together" theory has been elucidated by this Court in
Trimukh Marotiu Kirkan v. State of Maharashtra, [2006] 10 SCC 106, in
the following words:
"Where an accused is alleged to have committed the murder of his
wife and the prosecution succeeds in leading evidence to show that
shortly before the commission of crime they were seen together or
the offence takes place in the dwelling home where the husband
also normally resided, it has been consistently held that if the
accused does not offer any explanation how the wife received
19
injuries or offers an explanation which is found to be false, it is a
strong circumstance which indicates that he is responsible for
commission of the crime. Thus, the doctrine of last seen together
shifts the burden of proof on the accused, requiring him to explain
how the incident had occurred. Failure on the part of the accused to
furnish any explanation in this regard, would give rise to a very
strong presumption against him."
In Ram Gulab Chaudhary v. State of Bihar, [2001] 8 SCC 311, the
accused after brutally assaulting a boy carried him away and thereafter
the boy was not seen alive nor his body was found. The accused,
however, offered no explanation as to what they did after they took away
the boy. It was held that for absence of any explanation from the side of
the accused about the boy, there was every justification for drawing an
inference that they had murdered the boy.
In Nika Ram v. State of H.P., [1972] 2 SCC 80, it was observed that the
fact that the accused alone was with his wife in the house when she was
murdered with a "Khukhri" and the fact that the relations of the accused
with her were strained would, in the absence of any cogent explanation
by him, point to his guilt.
The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan,
[2014] 4 SCC 715. In this case this Court has held that the circumstance
of last seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime. There must
be something more establishing the connectivity between the accused
and the crime. Mere non-explanation on the part of the accused by itself
cannot lead to the proof of guilt against the accused.
From the study of above stated judgments and many others delivered by
this Court over a period of years, the rule can be summarized as that the
initial burden of proof is on the prosecution to bring sufficient evidence
pointing towards guilt of accused. However, in case of last seen together,
the prosecution is exempted to prove exact happening of the incident as
the accused himself would have special knowledge of the incident and
thus, would have burden of proof as per Section 106 of Indian Evidence
Act. Therefore, last seen together itself is not a conclusive proof but
along with other circumstances surrounding the incident, like relations
between the accused and the deceased, enmity between them, previous
history of hostility, recovery of weapon from the accused etc., non-
20
explanation of death of the deceased, may lead to a presumption of
guilt."
[16] In the factual matrix of the present case as found by the learned
trial judge, we are of the opinion that the concept of last seen together
as stressed by the DPP, with respect, does not apply here. There was
no enmity shown between them; there was no previous history of
hostility; no recovery of weapon from the respondent (as was found to
be in doubt), and there was clear evidence to explain the cause of
death of the deceased. All the more reason, the fight involved many
persons and the respondent was not the last to be seen with the
deceased, albeit last in the brawl. We would say that this concept
should not be intermingled with the facts of the respondent seen to be
last brawling with the deceased. The mere fact of been in close
proximity, without more, is begging the question. On this aspect alone,
the reliance on this concept is clearly misconceived and the DPP’s
contention is rejected in limine.
[17] Learned DPP next contended that the learned trial judge had
seriously erred in law and in fact when he rejected the evidence of
PW12, the prosecution’s only eye witness (i.e direct evidence), in its
entirety when he should have accepted parts that were not impeached
or contradicted. Again, we do not find merit in this contention. It is to be
noted that the prosecution had been allowed, upon application, to
subject PW12’s credibility to a section 154 procedure of the Evidence
Act 1950. It transpired that while giving evidence during examination in
chief, PW12 testified that during the concerned fight he saw the
21
respondent pulled out some sort of a white cloth from his sling bag. He
did not know what it was. He further confirmed this in his cross
examination. Those statements seem to run counter to his numerous
police statements where he was alleged to have said that the
respondent took out a knife from his sling bag, went towards the
deceased and stabbed the deceased with it. PW12 was also alleged to
have said that the respondent admitted that the knife belonged to him
and that he had stabbed the deceased with that knife. Realizing the
above contradictions between PW12 oral statements in court with his
previous written statements made to the police under section 112, of
the Criminal Procedure Code, the prosecution, at the end of the cross
examination, applied to the court for permission to ask leading
questions to PW12, commonly dubbed as declaring him as a hostile
witness, pursuant to section 154 of the Evidence Act 1950. As alluded
to earlier, the learned trial judge allowed the application, and at the end
of the trial found that PW12 had rendered two versions of the incident
relating to the knife and who actually used the weapon (P 20C) to stab
the deceased. In such event, the trial judge found PW12 to be a hostile
witness and disregarded his evidence. We do not see any flaw in the
judge’s decision on this issue.
[18] Upon a thorough consideration of the learned trial judge’s above
findings on this issue of challenge, we find that the learned trial judge
has in deciding as he did acted within the scope of the section 154,
Evidence Act 1950. Section 154 provides as follows:
22
“154 Question by party to his own witness
The court may, in its discretion, permit the person who calls a
witness to put any questions to him which might be put in cross-
examination by the adverse party.”
[19] It is trite that the scope of this provision, in brief, is to allow a
party, with the permission of the court, to put any questions to his own
witness which might be put in cross-examination by the adverse party.
Commonly dubbed as cross-examination of a party own witness, or
declaring one’s own witness as hostile, such cross-examination means
that the witness can be asked (a) leading questions under section 143,
(b) questions relating to his previous statement in writing under section
145, and (c) questions under section 146, of the Evidence Act 1950.
The discretion is the sole discretion of the trial judge and it can be
initiated at any stages of the proceeding. (See further: Sarkar Law of
Evidence, 17 Edn 2010, pages 2803 et seq on the principle and scope
of the provision; and, PP v Ramli bin Shafie (2002) 6 MLJ 153, inter
alia). In PP v Tan Chye Joo (1989) 2 MLJ 253, it was said that: “The
object of the cross examination under section 154 of the EA is only to
test the veracity of the witness.” As to procedure, the case of Re Wee
Swee Hoon, deceased; Lim Ah Moy & Anor v Ong Eng Say (1953)
MLJ 123; and the subsequent cases of S Lourdenadin v M Ratnavele
(1986) 1 CLJ 228 (HC), Muniandy & Anor v PP (1973) 1 MLJ 179
(FC); and also Yuen Chun Yii v PP (1997) 2 SLR 57, have laid the
procedure with such clarity needing no further elaboration from us.
Based on the above authorities, we find that the trial judge had acted
within the principle and scope of section 154 as elucidated above in
23
allowing the prosecution’s application to cross-examine PW12, the
prosecution witness. We noted that the prosecution did not challenge
this aspect of the procedure. What had been seriously challenged is the
effect of such procedure to the PW12’s credibility and evidence.
[20] The learned DPP contended that the court still have the discretion
to accept part and reject part of the evidence and not to reject PW12’s
evidence in its entirety. Upon consideration of the authorities, we cannot
agree totally with such proposition. Depending on the results of the
cross examination, the discretion lies with the trial judge whether to
reject in whole or in part the evidence of the witness. It is to be recalled
that in PP v Tan Chye Joo (1989) 2 MLJ 253, Wan Adnan J (as he then
was) said that:
“The object of the cross examination under section 154 of the EA is
only to test the veracity of the witness. The grant of the permission to
cross examine is not an adjudication by the court adverse to the
veracity of the witness. Whether the testimony of the witness should
be rejected in whole or in part depends on the result of the cross-
examination.” (Emphasis added)
In PP v Ramli bin Shafie (2002) 6 MLJ 153, Augustine Paul J (as he
then was) has this to say:
“It must be observed that even in the case of a witness who has been
declared hostile as much of his evidence which is corroborated by
other evidence can be accepted” (Emphasis added).
And, in Lee Kwan Woh v PP [2009] 5 CLJ 631; [2009] 5 MLJ 301, his
Lordship Gopal Sri Ram FCJ lucidly says as follows:
“The fact remains that PW8 had made a previous statement to PW3
which was inconsistent with his evidence in court. This, at the very least,
24
had the effect of rendering his evidence suspect. It most certainly required the trier of fact to approach that evidence with caution. As Ali J (later Ag LP) said in Mohamed bin Kasdi v. Public Prosecutor [1968] 1 LNS 78.
No hard and fast rule can be laid down for determining the credibility or otherwise of a witness, but when a witness gives or makes two statements which differ in material particulars there must necessarily be ground for believing that he is not a truthful witness.”
[21] We, however, are of the opinion that once a witness has been
successfully declared hostile by the court, his evidence cannot, as a
matter of law, be treated as washed off the record altogether. It is to be
noted that the prosecution did not at any stage apply to court to
impeach its own witness under section 155 (c) read with section 145 of
the Evidence Act 1950, which as the laws stand in praesenti, will have
that drastic effect of washed off the record altogether (see: Dato
Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232
(FC); and DSAI v PP & Another Appeal (2004) 3 MLJ 405 (FC).
Hence, we are of the considered view that such drastic effect should not
be equally applied to a successful invocation of the section 154
procedure per se. Apart from the underlying rationale of section 154, we
agree with the following decision of the Supreme Court of India in
Krishnan Chander v State of Delhi (2016) INSC 8 (SC) which says:
“The fallacy underlying this view stems from the assumption that the only purpose of cross examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admission of facts which would help build the case of the cross-examiner. When a party with leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that a witness might revert to what he had stated previously… 51. From the above conspectus, it emerges clear that even in criminal prosecution when a witness is cross-examined and contradicted with the
25
leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony”.
[22] Bearing the above principles in mind, we have no hesitation to
hold that the learned judge was right in the way he treated the evidence
of PW12’s evidence. It is within his discretion, upon the result of cross-
examination of PW12, to reject or wash off PW12’s evidence altogether.
We, therefore, have no hesitation in agreeing with the learned judge’s
decision as follows:
“68. It has been argued that where a witness was not a truthful
witness, the Court could not accept part of his evidence and reject the
rest, since the principle was that where a witness for the Prosecution
led two sets of evidence which were contradictory with each other on a
fundamental matter, the inevitable conclusion was the Court would be
left with no trustworthy evidence upon which a conviction could be
based (Public Prosecutor v Rajandran Kadirveil (2002) 1 LNS 234;
(2002) MLJ 77). In such a situation, the Accused would be entitled to
the benefit of a reasonable doubt in his favour (Yusoff Kassim v. Public
Prosecutor (1992) 3 CLJ 1533……Public Prosecutor v. Lee Eng Kooi
(1993) 2 CLJ 534….)
69. My reading of those cases above have persuaded me not to rely
on PW12’s evidence or at all.”
[23] For completeness, we must say that we also agree with the
further findings of the learned judge especially on the evidence of PW 7
and PW14 in his quest to find any further link to the guilt of the
respondent. We agree with the following learned trial judge’s findings:
“[70] What then of the evidence of PW7. Is he of any help? He was
certainly in the thick of the fight. PW14 said during interrogation when Ex
P20C was shown to PW7, he agreed it belonged to the Accused (See
26
Q30 p362 and A3-4 p368 NOP). PW7’s evidence in Court however
showed he did not testify seeing the Accused taking out this Ex P20C
from his sling bag. In fact all that PW7 said, was that he saw the Accused
fighting the deceased with his hands (See Q1A4, Q6A7 & Q9A10 p159
and Q19A21 p161 NOP). I would have thought PW7 would have seen
the Accused taking out his Ex P20C from his sling bag he being merely 6
feet away from where the Accused, Delly, Christy and the deceased
were fighting (See Q27A29 p 112 NOP). But in Court he said he did not
see the Accused taking out Ex P20C from his sling bag. PW7’s evidence
is of no help to the Court.
[71] What about the evidence of PW14. He was the IO of this case.
PW14 testified from his investigation this Ex P20C was the weapon that
was used by the Accused to kill the deceased (See Q4A5 & Q7A8 p366
NOP). PW14 also said the Ex P20C had a handle but it fell down to the
floor during the fight. The Accused then picked it up and had thrown it
somewhere. PW14 in his evidence said he and together with his police
team had gone to search at the place where the Accused had allegedly
thrown the handle but could not find the same (Q1 A26 p365 NOP). The
prosecution however did not call any witnesses from the so called police
team to corroborate PW14’s evidence of such search for the handle. Mr.
Peli submitted that without the handle it would be difficult for the Accused
to exert a grip on it and carried out the stabbing on the deceased without
his fingers or hand being expose to injury. There was no evidence that
the Accused had injuries to his fingers or hand. I also agree that looking
at Ex P20C without its handle it could not be gripped by the fingers or the
hand so as to have the kind of force to stab.
[72] But PW14 said their (the Police) investigation led to Willey (the
Accused) (See Q23A24 p373 NOP). He obviously had relied on the
statements he recorded from PW7, PW12, delly, Romio, Qarizalinas, the
Accused, Jhia and Sokeri (See Q16A17 p347 NOP & Q26A27 p364
NOP). The learned DPP had urged the Court to accept PW14’s evidence
as the police had no motive to frame the Accused.
[73] This is how I consider PW14’s evidence. In giving his evidence in
Court PW14 is merely relating the result of his investigation of the case
against the Accused based on his reading and summation of those
statements he had recorded from the Accused, PW7, PW12, Delly,
Romo, Qazalinas, Jhia and Soekri. Of course his investigation would also
include looking at the reports of PW4 (the patalogist), PW3 and PW7
(scientific officers). But what PW14 had said in Court may even be
27
hearsay based on what others had told him though recorded but not
tendered in Court. Further it is my view that merely relying on the
evidence of the Investigation Officer without more would be saying that
all that is needed is for the Investigation Officer to give evidence to the
Court and that would secure the conviction of the Accused. This however
would not be proving the prosecution’s case beyond reasonable doubt.
[74] The prosecution therefore needs to call those witnesses who had
given their statements to the police to testify in Court. The prosecution
reliance on PW7’s evidence that he was the Accused fought the
deceased with his hands was not enough because he did not testify
having seen the Accused used Ex P20C and stabbing the deceased. As
for PW12’s evidence I am unable to give any weight to it since PW12 had
given two versions of what he was, namely a white cloth and the other Ex
P20C. Mr. Peli said Romio, Delly, Qazlinas, Jhia and Soekri should have
been called to give evidence as they were all in the fight. The learned
DPP submitted their evidence would be repetitious because they would
be giving evidence as that of PW12 and PW7.
[75] I agree Romio, Delly, Qazlinas, Jhia and Soekri as well as those
who had watched the fight should have been called to give evidence.
These witnesses could provide us with direct evidence on the weapon
used by the Accused. To me for the learned DPP to say that these
witnesses would be giving “repetitious evidence” could be construed that
either these witnesses did not see the Accused taking out the Ex P20C
from the Accused sling bag or that they saw the Accused taking out a
white cloth. But for the learned DPP to say both Jhia and Soekri would
also be giving repetitious evidence as PW7 and PW12 would be very
presumptuous indeed as to me Jhia and Soekri could be considered
independent witnesses since their friend (the deceased) had died during
the fight and they surely want the real perpetrator to face the wrath of the
law. I am also concern that Jhia, Soekri and Romio were not even
offered to the defence. I am also concern that Soekri is a local
Sarawakian yet the prosecution had failed to secure his attendance. But
in the end where the Court is left with two versions and the Court is in
doubt as to the guilt of the Accused it is trite law the Court should give
the benefit of doubt to the Accused.”
[24] Resultantly, it is clear that there are several missing links in the
chain and it is not possible to hold that the circumstances as
28
established lead to the irresistible inference that the respondent was
guilty of the offence with which he stood charged. The learned trial is
thus fully justified in coming to the following ultimate findings:
“[96] I now ask myself whether the cumulative effect of all the
evidence leads to the irresistible conclusion that it was the Accused
who committed this crime or whether the prosecution had proven its
case beyond reasonable doubt. My answer is No and in stating so I
have taken guidance from the reported cases which I have referred to
above. There is no direct evidence and the circumstantial evidence also
fall short of the standard required and does not satisfy the required test
as stated in those cases I have referred to. There is therefore
insufficient evidence to connect the Accused with the killing. In view of
the above it is my finding that the Prosecution had not proven their case
against the Accused beyond reasonable doubt but that the Accused
had raised a reasonable doubt as to his guilt. I therefore discharge and
acquit the Accused of the charge against him.”
[25] On a consideration of all the materials on record and the
arguments as presented before us, the appeal is devoid of merit and we
have no hesitation to affirm the judgment of the learned trial judge.
Therefore, the appeal is dismissed. So ordered.
signed
ABDUL KARIM BIN ABDUL JALIL
Judge
Court of Appeal
Malaysia
Dated: 21st November 2017