Given the fact that J. Ramesh a/l Jayakumar, OKT1, Gunasegar a/l Pitchamuthu, OKT2 and Sasivarnam a/l Jayakumar have been executed on 25/3/2016, I thought that it may be of interest to look at the High Court and Court of Appeal judgment of these case. The Current Law Journal reports of the cases are relied on.
MADPET calls for stop of possible ‘Good Friday’ execution of Gunasegar Pitchaymuthu
Malaysia hangs three men for murder in 'secretive' execution (Guardian, 25/3/2016)
SUHAKAM: The Death Penalty Violates the Right to Life and is the Ultimate Cruel, Inhuman and Degrading Punishment
Now, different lawyers have different approaches and/or strategies when it comes to handling of cases, and there is nothing wrong with this so long as they have done their best. The grounds of judgment sadly do not tell us all that happened in court - and note when it comes to Appeals, the Appellate Court looks at not just the Grounds of Judgment but also the Notes of Proceedings/Evidence. My opinion and views below, are merely based on the Judgments below.
CONCERNS
A sad reality is that judges could have a tendency to believe more evidence adduced by the prosecution, especially the police involved in the investigation and specialists.
And some accussed persons, and/or their witnesses may unfortunately not have best 'demeanour' - i.e. they may be telling the truth but they look like they are lying - hence, it is a hurdle that judges must try to overcome.
And some accussed persons, and/or their witnesses may unfortunately not have best 'demeanour' - i.e. they may be telling the truth but they look like they are lying - hence, it is a hurdle that judges must try to overcome.
2 versions of what happened - In this judgment, what comes out is that there are 2 versions of what happened. The accussed's contention is that 'one Alagu was armed with a knife and he stabbed the deceased (Robo)'
The accused were attacked and they defended themselves?
It all happened at night, about 9.30 - 10 pm on a field - where there were about 20-30 people fighting?... Why were there so few witnesses called by the Prosecution? or the Defence? Surely, there would have been others who could have contributed to the truth of what happened. Some witnesses could have even corroborated the version of the accused's story...
The Judge raised a question to one of the accused as to identification of the said 'Alagu' - but was the Judge similarly concerned when the prosecution witnesses identified the accused persons...?
The judge considered the accussed's version that they did not kill the deceased but it was done by some other person, Alagu... an 'afterthought' - The fact that the accused lawyer, only made the suggestion that someone else killed the deceased only once to one prosecution witness - did the lawyer make a mistake? Why did he not put that question to all the other prosecution witnesses, who claimed to be 'eye witnesses'? Was this a mistake by the lawyer?
LAWYERS can have different styles and strategies... but, in criminal cases where life and liberty are at stake, there must be more effort put into preparation. Did the lawyer even visit the crime scene at night to get a sense of the place, the lighting, etc... Did the lawyer even try to find other witnesses - or even try to interview prosecution witnesses before the trial? In this case, where there were 2 versions... it would have been important...
It looks like the Defence only called 3 witnesses - i.e. the 3 accused persons - why? Normally, in a criminal case, some believe that it may be unwise for the accused person to be called as witness...
Section 34 - a draconian provision, when the alleged crime has a mandatory death penalty..
An extract from the judgment of the effect of this section 34.
"The provision is intended to make a person liable for the action of an offence not committed by him but by another person with whom he shared the common intention. By invoking s. 34, it means that the appellant was equally liable for the act of robbery in the same manner as if the act were done by him alone, notwithstanding that it was the other person who actually committed the offence."One person may have killed - but alas, the others with him can also be found guilty irrespective of the fact that they personally did not hurt or kill anyone, or even have any intention of doing so...or letting anyone else to do so.
In this case, which was really something that seem to have happened unexpectedly and suddenly - should the friends (and/or relatives) that happened to be together also be equally guilty and hanged to death? If people attack your friend or relative, what would any reasonable person do? Defend oneself... or just run away and abandon friends/brothers...
In a robbery, which was planned earlier - using s.34 may be OK - but for a case like this... certainly, it was wrong...This is my opinion.
The charge... accused the 3 and one other still at large.... Well, no evidence seem to have been adduced by the prosecution as to WHO this person was? He may have been the person who killed...but then because of s.34 - the other 3 can also be found guilty... Surely, this is unjust..
In any criminal trial - the charge must be clear and not contain anything vague, like 'and one other at large'...how is an accussed person expected to defend oneself...
Now, that the 3 have been executed - what about the 4th person? Would it not have been important to have the 3 as witnesses if and when the 4th is caught and prosecuted...Justice is not served by the execution of this 3 now....certainly not until the 4th or the 5th..was arrested and tried..
The inclusion of 'and the one other at large', the unidentified one - also raises the 'uncertainty' on the part of the prosecution as to who really killed the deceased...more so, when he remains unidentified.
Burden of proof is 'Beyond a Reasonable Doubt' - and, for me, this means almost 100% sure, more so in an offence which carries the mandatory death penalty...
Remember, that in Malaysia, there is also section 304 Punishment for culpable homicide not amounting to murder...
Well, if I were the judge, I would be more inclined to find them guilty not for an offence under sec. 302 (Murder) which carries the mandatory death penalty - but rather under sec. 304... given the facts and circumstances.Whoever commits culpable homicide not amounting to murder shall be punished-
(a) with imprisonment for a term which may extend to thirty years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or
(b) with imprisonment for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
I certainly would not have used section 34, but rather resorted to section 38 of the Penal Code..
38 Several persons engaged in the commission of a criminal act, may be guilty of different offences
Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
ILLUSTRATIONA attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill will towards Z, and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z's death, B is guilty of murder, and A is guilty only of culpable homicide.
Section 34, reads as follows:-
34 Each of several persons liable for an act done by all, in like manner as if done by him alone
Was this killing 'in furtherance of the common intention of all'? As I mentioned earlier, if a group of person plan and go rob a place, maybe section 34 may apply. But, here there is much uncertainty - did the 3 go to the said location to kill the deceased? Were they 'attacked', and was excessive in their retaliation? Was it the intention of all 3 to to kill? I would say that in this case, I believe, there may have been a miscarriage of justice...and 3 persons are dead.
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.
My comments and discussion, are mere opinion based just on a reading of the Judgments of this case that was available. I did not have access to the Notes of Proceedings/Evidence which will certainly contain more.
The judgment also did not even deal with the 'murder weapon' - was it discovered? Was there finger prints or DNA evidence? Was there blood of the deceased found on the clothings of the accused persons? Was there proof that showed the 'murder weapon' was owned or was in the possession of the accussed person?
[2011] 1 LNS 1231
PP v. J RAMESH JAYAKUMAR & ORS
HIGH COURT MALAYA, ALOR SETAR
ZAMANI A RAHIM J
[PERBICARAAN JENAYAH NO: 45-08-2006]
28 AUGUST 2011
| Counsel: For the prosecution - Wan Nor Hasnita Wan Daud For the accused - Jagdeep Singh Deo; M/s Karpal Singh & Co |
DALAM MAHKAMAH TINGGI MALAYA DI ALOR SETAR
DALAM NEGERI KEDAH DARUL AMAN
[PERBICARAAN JENAYAH NO: 45-08-2006]
PENDAKWA RAYA
v.
1. J. RAMESH JAYAKUMAK
2. GUNASEGAR PITCHAMUTHU
3. SASIVARNAM JAYAKUMAR
GROUNDS OF DECISION
J. Ramesh a/l Jayakumar, OKT1, Gunasegar a/l Pitchamuthu, OKT2 and Sasivarnam a/l Jayakumar, OKT3 and one other still at large were jointly indicted with an offence of murder under s. 302 of the Penal Code read together with s. 34 of the same Code. The charge reads as follows:
The essential ingredients of murder, an offence under s. 302 of the Penal Code are as follows:"Bahawa kamu bersama-sama dengan seorang lagi yang masih bebas pada 16.4.2005, jam lebih kurang 9.30 malam hingga 10.30 malam bertempat di padang permainan, Lorong Bunga Rampai 1, Taman Ria Jaya, Sungai Petani, di dalam Daerah Kuala Muda, di dalam Negeri Kedah telah didapati melakukan pembunuhan dengan menyebabkan kematian ke atas Venukumar a/l Balakrishnan No. KP: 810824-02-5855 dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun Keseksaan".
(a) Venukumar a/l Balakrishnan (deceased) had died on 16.4.2005 between 9.30 pm to 10.30 pm.
(b) The deceased death was caused by the acts of OKT1, OKT2 and OKT3.
(c) Such acts were done with the intention:-
i) to cause the death, or
ii) to cause such bodily injury as OKT1, OKT2 and OKT3 knew to be likely to cause the death, or
iii) to cause bodily injury which in the ordinary course of nature is sufficient to cause the death, or
iv) with the knowledge that such acts were so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and the accused committed such acts without any excuse for incurring the risk of causing death or such injury as aforesaid.
As
to ingredient (a) above, there was ample evidence to show that the
deceased had died on 16.4.2005 between 9.30 pm to 10.30 pm as stated in
the indictment. Throughout the trial this fact has not been disputed by
the defence.
The next ingredient is whether the death of the deceased was caused by OKT1, OKT2 and OKT3. In other words, were the injuries sustained by the deceased were inflicted by OKT1, OKT2 and OKT3. This part of the prosecution case is dependent on the eye witnesses namely, Nandakumar a/l Sandraraju, SP9, Kesavarthanan a/l Santhiavellu, SP10 and Nagashwaran a/l Muniandy, SP8.
In his testimony, SP9 said inter alia, on 16.4.2005 at about 9.15 pm, he went out to eat with the deceased at a stall situated on a field at Taman Ria Jaya, Sungai Petani. He went on a motorcycle with the deceased who was his pillion rider.
At the field, SP9 and the deceased got down from the motorcycle. At that time, OKT1, OKT2 and OKT3 walked across SP9 and stopped near the deceased and SP9. OKT1, OKT2 and OKT3 fought with the deceased. In the fight, OKT1 and OKT2 were armed with knives. OKT2 and OKT3 held the deceased, whilst OKT1 stabbed on the left side of the deceased's abdomen with a knife. The knife was about 1 foot in length and 4 inches in width. SP9 was side by side with the deceased when the later was stabbed by OKT1.
After he was stabbed by OKT1, the deceased ran away and he was chased by OKT1, OKT2 and OKT3. At that juncture, SP9 was hit on the head with a crash helmet by OKT3. SP9 fell. He managed to run away and took refuge behind a tree near a certain house.
As for the deceased who had run away, he made a turn to the middle of the field, he collapsed. OKT1 and OKT2 had hit him.
According to SP10, on the night in question, at about 10.00 pm, while on the way to his employer's house, he stopped by the side of a field at Taman Ria Jaya, Sungai Petani because he saw the deceased was chased by OKT1, OKT2 and OKT3 and a male Indian. They passed in front of SP10 at a distance at about 13 feet. SP10 could see them clearly. OKT1 was armed with a knife. SP10 called the deceased with a view to render assistance to him but OKT1 ran towards him and brandishing the knife at him. SP10 was about 3 feet away. The knife was about 1 1/2 feet long.
Thereafter, OKT1 joined OKT2 and OKT3 to continue chasing the deceased until he collapsed in the middle of the field. OKT3 was seen stabbing the deceased thigh and the other stomped the deceased abdomen. Whilst OKT3 also hit the deceased head. SP10 could not remember what OKT2 did to the deceased.
Another witness, SP8 said he was on the way to work when he stopped on the field. He saw a fight between the deceased and OKT1, OKT2 and OKT3. OKT1 was standing in front of the deceased, whilst OKT2 and OKT3 were standing on the left and right of the deceased respectively. OKT1 had stabbed on the abdomen of the deceased with a knife. The knife was measuring 1 foot in length and 5 cm in width.
Upon being stabbed, the deceased ran away and he was chased by OKT1, OKT2 and OKT3. OKT1 was still wielding a knife. After about 5 to 10 minutes' chase, the deceased made a turn to the middle of the field where he collapsed. While on the ground, OKT1, OKT2 and OKT3 continued to beat the deceased.
The third ingredient is whether such acts done by OKT1, OKT2 and OKT3 with the intention to cause death of the deceased. Intention may not be proved by direct evidence but may be inferred from surrounding facts and circumstances of each particular case. In PP v. Norazam Ibrahim [2006] 8 CLJ 462, Low Hop Bing J (as he then was) said :
Alternatively, whether such acts done by OKT1, OKT2 and OKT3 with the common intention to cause bodily injury which in the ordinary course of nature is sufficient to cause death. Under clause (c) of s. 300 of the Penal Code and for its application reference is made to the case of PP v. Visuvanathan [1977] 1 LNS 103; [1978] 1 MLJ 159, Choor Singh and Rajah JJ said:
Based on the location and depth of the stab wound clearly showed that OKT1, OKT2 and OKT3 intended to cause the death of the deceased or at least they possessed the intention of causing such bodily injuries to the deceased and that such injuries were sufficient in the ordinary course of nature to cause death.
The prosecution too, in this case framed the charge with reference to common intention under s. 34 of the Penal Code. In the recent Federal Court case of Low Soo Sang v. PP [2009] 3 CLJ 309, Nik Hashim FCJ having referred to Sabarudin Non & Anor v. PP & Other Appeals [2005] 1 CLJ 466 and Lee Kwai Heong & Anor v. PP [2006] 1 CLJ 1043 stated the principle of s. 34 at p 318 as follows:
Having considered all the evidence tendered by the prosecution at the close of its case on a maximum basis as mandated in the Court of Appeal case of Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 and in the Federal Court case of PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, I am satisfied that the prosecution has successfully established a prima facie case of murder under s. 302 of the Penal Code as charged against OKT1, OKT2 and OKT3.
Accordingly, OKT1, OKT2 and OKT3 are called upon to enter their defence.
OKT1, OKT2 and OKT3 gave their evidence on affirmation. The defence version may be summarised as follows.
Having attended a political party meeting on 6.4.2005 at about 10.00 pm, OKT1, OKT2 and OKT3 went to eat at Taman Ria Jaya, Sungai Petani on two motorcycles.
When they arrived there, OKT1, OKT2 and OKT3 noticed there were 20 - 30 people on the field in front of a food stall. They were shouting and running about. According to OKT1, while stopping his motorcycle in front of the said stall, suddenly the deceased (Robo), Kalidas, Kesavan and Nandakumar @ Aya Kunci, SP9 came and attacked him. OKT1 was asked whether he was Alagu's supporter. OKT1 replied that he came there to eat and not to fight.
While OKT2 said the deceased (Robo) and 3 others came towards them and asked what they really wanted and why they wanted to fight. They beat OKT1, OKT2 and OKT3.
However, OKT3's version was slightly at variance with OKT1's version. OKT3 said the deceased (Robo) and 3 others blocked them. At first, there was verbal abuse and followed by an assault. The deceased (Robo) and his friends were alleged to have assaulted them. As the accused could not stand the pain, they escaped. In due course, OKT3 fell at the edge of the field.
The next ingredient is whether the death of the deceased was caused by OKT1, OKT2 and OKT3. In other words, were the injuries sustained by the deceased were inflicted by OKT1, OKT2 and OKT3. This part of the prosecution case is dependent on the eye witnesses namely, Nandakumar a/l Sandraraju, SP9, Kesavarthanan a/l Santhiavellu, SP10 and Nagashwaran a/l Muniandy, SP8.
In his testimony, SP9 said inter alia, on 16.4.2005 at about 9.15 pm, he went out to eat with the deceased at a stall situated on a field at Taman Ria Jaya, Sungai Petani. He went on a motorcycle with the deceased who was his pillion rider.
At the field, SP9 and the deceased got down from the motorcycle. At that time, OKT1, OKT2 and OKT3 walked across SP9 and stopped near the deceased and SP9. OKT1, OKT2 and OKT3 fought with the deceased. In the fight, OKT1 and OKT2 were armed with knives. OKT2 and OKT3 held the deceased, whilst OKT1 stabbed on the left side of the deceased's abdomen with a knife. The knife was about 1 foot in length and 4 inches in width. SP9 was side by side with the deceased when the later was stabbed by OKT1.
After he was stabbed by OKT1, the deceased ran away and he was chased by OKT1, OKT2 and OKT3. At that juncture, SP9 was hit on the head with a crash helmet by OKT3. SP9 fell. He managed to run away and took refuge behind a tree near a certain house.
As for the deceased who had run away, he made a turn to the middle of the field, he collapsed. OKT1 and OKT2 had hit him.
According to SP10, on the night in question, at about 10.00 pm, while on the way to his employer's house, he stopped by the side of a field at Taman Ria Jaya, Sungai Petani because he saw the deceased was chased by OKT1, OKT2 and OKT3 and a male Indian. They passed in front of SP10 at a distance at about 13 feet. SP10 could see them clearly. OKT1 was armed with a knife. SP10 called the deceased with a view to render assistance to him but OKT1 ran towards him and brandishing the knife at him. SP10 was about 3 feet away. The knife was about 1 1/2 feet long.
Thereafter, OKT1 joined OKT2 and OKT3 to continue chasing the deceased until he collapsed in the middle of the field. OKT3 was seen stabbing the deceased thigh and the other stomped the deceased abdomen. Whilst OKT3 also hit the deceased head. SP10 could not remember what OKT2 did to the deceased.
Another witness, SP8 said he was on the way to work when he stopped on the field. He saw a fight between the deceased and OKT1, OKT2 and OKT3. OKT1 was standing in front of the deceased, whilst OKT2 and OKT3 were standing on the left and right of the deceased respectively. OKT1 had stabbed on the abdomen of the deceased with a knife. The knife was measuring 1 foot in length and 5 cm in width.
Upon being stabbed, the deceased ran away and he was chased by OKT1, OKT2 and OKT3. OKT1 was still wielding a knife. After about 5 to 10 minutes' chase, the deceased made a turn to the middle of the field where he collapsed. While on the ground, OKT1, OKT2 and OKT3 continued to beat the deceased.
The third ingredient is whether such acts done by OKT1, OKT2 and OKT3 with the intention to cause death of the deceased. Intention may not be proved by direct evidence but may be inferred from surrounding facts and circumstances of each particular case. In PP v. Norazam Ibrahim [2006] 8 CLJ 462, Low Hop Bing J (as he then was) said :
"In this regard, the accused's intention of causing bodily injury to the deceased may be gathered from the accused's act."In this case, the deceased sustained 12 external injuries and several internal injuries. The grievous and fatal internal injuries clearly showed OKT1, OKT2 and OKT3 had intended to kill the deceased. In PP v. Krishna Rao a/l Gurumurthi & Ors [2000] 1 CLJ 446; [2000] 1 MLJ 274, the court held:
"multiple wounds inflicted on the deceased victims could only lead to the conclusion that the person who caused them had intended to commit murder."The weapons used by OKT1, OKT2 and OKT3, as described by SP8, SP9 and SP10, were dangerous and fatal to human life. In this respect, the evidence of SP8, SP9 and SP10 were corroborated by the evidence of the Consultant Forensic Pathologist, SP11 who confirmed the pattern of injuries sustained by the deceased was caused by thin (pipih) and sharp instrument and had penetrated the depth of 17cm. The use of dangerous weapon may lead to an inference that OKT1, OKT2 and OKT3 had intended to cause the death of the deceased: see the case of Ghazali bin Mat Ghani v. PP [1998] 2 CLJ 652; [1998] 2 MLJ 675.
Alternatively, whether such acts done by OKT1, OKT2 and OKT3 with the common intention to cause bodily injury which in the ordinary course of nature is sufficient to cause death. Under clause (c) of s. 300 of the Penal Code and for its application reference is made to the case of PP v. Visuvanathan [1977] 1 LNS 103; [1978] 1 MLJ 159, Choor Singh and Rajah JJ said:
"In our opinion there is a 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 prosecution do not have to prove the latter intention....... In our judgment for the application of clause (c) of s. 300 of the Penal Code all the prosecution need prove is:-In Singapore Court of Appeal case of Tan Cheow Bock v. PP [1991] 1 LNS 37; [1991] 3 MLJ 404, it was said:
(1) that the accused did an act which caused the death of the deceased;
(2) that the said act was done with the intention of causing bodily injury;
(3) that the injury caused:-
a) was intended and was not accidental or otherwise unintentional; and
b) was sufficient in the ordinary course of nature to cause death."
"In our opinion, the law is not in doubt. Virsa Singh's case AIR 1958 SC 465 is clear on s. 300(c). V Bose J delivering the judgment of the Supreme Court said, at p 467:In the instant case, the several injuries sustained by the deceased, the type of injuries as listed at No.: 1 in the postmortem report, P23 was fatal in nature because "the stab wound to the left abdomen has almost completely transected the descending colon, transfixed the left kidney and completely transected the left renal artery, perforated the left hemidiaphragm and penetrated the left lower part of the back of the rib cage. The linear depth of the stab wound was about 17 cm."
In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on the broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that 'twelve good men and true' could readily appreciate and understand."
Based on the location and depth of the stab wound clearly showed that OKT1, OKT2 and OKT3 intended to cause the death of the deceased or at least they possessed the intention of causing such bodily injuries to the deceased and that such injuries were sufficient in the ordinary course of nature to cause death.
The prosecution too, in this case framed the charge with reference to common intention under s. 34 of the Penal Code. In the recent Federal Court case of Low Soo Sang v. PP [2009] 3 CLJ 309, Nik Hashim FCJ having referred to Sabarudin Non & Anor v. PP & Other Appeals [2005] 1 CLJ 466 and Lee Kwai Heong & Anor v. PP [2006] 1 CLJ 1043 stated the principle of s. 34 at p 318 as follows:
"The provision is intended to make a person liable for the action of an offence not committed by him but by another person with whom he shared the common intention. By invoking s. 34, it means that the appellant was equally liable for the act of robbery in the same manner as if the act were done by him alone, notwithstanding that it was the other person who actually committed the offence."In this case, the role and conduct of OKT1, OKT2 and OKT3 in inflicting the bodily injuries which resulted in the death of the deceased showed common design and common intention. It was no doubt that OKT1 who stabbed the left abdomen of the deceased which proved to be fatal. OKT2 and OKT3 had held the deceased body to enable OKT1 to inflict the injury on the deceased abdomen. The application of the principles of common intention in s. 34, OKT2 and OKT3 were also liable for the action of OKT1 with whom they shared the common intention. Common intention may be formed previously or in the course of occurrence and on a spur of moment.
Having considered all the evidence tendered by the prosecution at the close of its case on a maximum basis as mandated in the Court of Appeal case of Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 and in the Federal Court case of PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, I am satisfied that the prosecution has successfully established a prima facie case of murder under s. 302 of the Penal Code as charged against OKT1, OKT2 and OKT3.
Accordingly, OKT1, OKT2 and OKT3 are called upon to enter their defence.
OKT1, OKT2 and OKT3 gave their evidence on affirmation. The defence version may be summarised as follows.
Having attended a political party meeting on 6.4.2005 at about 10.00 pm, OKT1, OKT2 and OKT3 went to eat at Taman Ria Jaya, Sungai Petani on two motorcycles.
When they arrived there, OKT1, OKT2 and OKT3 noticed there were 20 - 30 people on the field in front of a food stall. They were shouting and running about. According to OKT1, while stopping his motorcycle in front of the said stall, suddenly the deceased (Robo), Kalidas, Kesavan and Nandakumar @ Aya Kunci, SP9 came and attacked him. OKT1 was asked whether he was Alagu's supporter. OKT1 replied that he came there to eat and not to fight.
While OKT2 said the deceased (Robo) and 3 others came towards them and asked what they really wanted and why they wanted to fight. They beat OKT1, OKT2 and OKT3.
However, OKT3's version was slightly at variance with OKT1's version. OKT3 said the deceased (Robo) and 3 others blocked them. At first, there was verbal abuse and followed by an assault. The deceased (Robo) and his friends were alleged to have assaulted them. As the accused could not stand the pain, they escaped. In due course, OKT3 fell at the edge of the field.
All the accused ie, OKT1, OKT2 and OKT3 saw one Alagu
was armed with a knife and he stabbed the deceased (Robo). OKT3's
evidence is not convincing. Initially OKT3 said he only saw Alagu's
movement but did not get to see Alagu's face clearly. When I
interjected, how could he identified him without seeing Alagu's face,
immediately OKT3 changed his testimony by saying he could see Alagu's
face clearly though the light was not bright. Be that as it may, the
line of defence showed that the deceased and his friends were the
aggressors who assaulted OKT1, OKT2 and OKT3. They ran away from the
deceased. All the accused denied having assaulted or caused the injuries
to the deceased. They had failed, on the balance of probabilities, to
bring their case under Exception 1 of s. 300: see Lorensus Tukan v. PP [1988] 1 CLJ (Rep) 162; [1988] 1 CLJ 143 and sudden fight in the heat of passion upon a sudden quarrel under Exception 4 of s. 300: see Teoh Seng Lian v. PP [1985] 1 LNS 108; [1986] 1 MLJ 474, Tan Chee Wee v. PP [2004] 1 SLR 479, Mohamed Kunjo v. PP [1977] 1 LNS 74; [1978] 1 MLJ 51 and PP v. Awang Raduan Awang Bol [2005] 1 CLJ 649 in which case they are entitled to have the charge reduced to one of culpable homicide not amounting to murder under s. 304.
By alleging that the deceased was stabbed by Alagu, the final result of
the accused defence is either an outright acquittal or a conviction as
charged.
Learned counsel submitted that the accused evidence were consistent with each other and they were not shakened in cross-examination by the learned Deputy. If there are any inconsistencies (which is denied), they are immaterial and do not affect the defence case. On the issue of inconsistencies, the case of Pie bin Chin v. PP [1983] CLJ 703 (Rep); [1983] 1 CLJ 316; [1985] 1 MLJ 234 was cited by learned counsel wherein Wan Yahya J said:
Learned counsel submitted that the accused evidence were consistent with each other and they were not shakened in cross-examination by the learned Deputy. If there are any inconsistencies (which is denied), they are immaterial and do not affect the defence case. On the issue of inconsistencies, the case of Pie bin Chin v. PP [1983] CLJ 703 (Rep); [1983] 1 CLJ 316; [1985] 1 MLJ 234 was cited by learned counsel wherein Wan Yahya J said:
"Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions."
I agree
with learned counsel that at the conclusion of the trial, the trial
court is to consider both the evidence of the prosecution and the
defence and to decide whether the prosecution has proved its case beyond
reasonable doubt: see s. 182A Criminal Procedure Code and Mohd Najidi bin Abdul Halim & Ors. v. PP [2011] 1 LNS 172;
[2011] 4 AMR 245.
And learned counsel had drawn to three instances where the three eye witnesses for the prosecution had contradicted themselves.
The first contradiction - which accused were armed with knives and how many knives were altogether. Learned counsel said, according to SP8's evidence, only OKT1 was armed with the knife, but SP9 testified that OKT1 and OKT2 were armed with the knives, whilst SP10 said all the accused - OKT1, OKT2 and OKT3 - were armed with the knives. That being the case, how many accused was / were armed with the knife or knives. Learned counsel went on to say the knife issue was material as it was the cause of the deceased's death. The foregoing contradictions, according to learned counsel had raised a reasonable doubt in the prosecution case. In any criminal trial, be it in the evidence of the prosecution or defence witnesses the contradictions or discrepancies will always be there. The question is: whether the discrepancies are serious enough so as to chisel away or destroy their credibilities. The principle in Pie bin Chin, supra cited by learned counsel is equally applicable to the testimony of the prosecution witnesses as much as the defence witnesses. One thing is crystal clear and beyond any reasonable doubt that OKT1 was the assailant who was armed with the knife about 1 foot long and 4 inches wide and stabbed the deceased abdomen which caused his death. And we must not forget that OKT1, OKT2 and OKT3 were charged with reference to common intention under s. 34 of the Penal Code. By invoking s. 34, it means that OKT2 and OKT3 were equally liable for the act of murder in the same manner as if the act were done by them both, notwithstanding that it was OKT1 who actually stabbed the deceased abdomen which caused his death. Whether both OKT2 and OKT3 were armed with the knives or not, do not detract their shared liability by virtue of their common intention.
The second contradiction - the number of persons who chased the deceased. According to SP8 and SP9, the deceased was chased by OKT1, OKT2 and OKT3, whilst SP10 said apart from OKT1, OKT2 and OKT3, there was another male Indian who also chased the deceased. SP10 could only identified OKT1, OKT2 and OKT3. He did not know the name of the fourth male Indian but he could identify him if he sees him again. The presence of the fourth male Indian borned out in the evidence of SP10 is in no way adversely affect the prosecution case. In any case, OKT1, OKT2 and OKT3 were jointly charged with another person still at large in furtherance of common intention under s. 34.
The third contradiction - who stabbed the deceased? At first sight this appears to be learned counsel formidable contention. The evidence of SP8 and SP9 showed that OKT1 who stabbed the deceased, whereas according to learned counsel, SP10's evidence showed otherwise. It was OKT3 who had stabbed the deceased. That requires a close scrutiny of the evidence of SP10. Having re-visited SP10's evidence under examination-in-chief, this is how he said:-
And learned counsel had drawn to three instances where the three eye witnesses for the prosecution had contradicted themselves.
The first contradiction - which accused were armed with knives and how many knives were altogether. Learned counsel said, according to SP8's evidence, only OKT1 was armed with the knife, but SP9 testified that OKT1 and OKT2 were armed with the knives, whilst SP10 said all the accused - OKT1, OKT2 and OKT3 - were armed with the knives. That being the case, how many accused was / were armed with the knife or knives. Learned counsel went on to say the knife issue was material as it was the cause of the deceased's death. The foregoing contradictions, according to learned counsel had raised a reasonable doubt in the prosecution case. In any criminal trial, be it in the evidence of the prosecution or defence witnesses the contradictions or discrepancies will always be there. The question is: whether the discrepancies are serious enough so as to chisel away or destroy their credibilities. The principle in Pie bin Chin, supra cited by learned counsel is equally applicable to the testimony of the prosecution witnesses as much as the defence witnesses. One thing is crystal clear and beyond any reasonable doubt that OKT1 was the assailant who was armed with the knife about 1 foot long and 4 inches wide and stabbed the deceased abdomen which caused his death. And we must not forget that OKT1, OKT2 and OKT3 were charged with reference to common intention under s. 34 of the Penal Code. By invoking s. 34, it means that OKT2 and OKT3 were equally liable for the act of murder in the same manner as if the act were done by them both, notwithstanding that it was OKT1 who actually stabbed the deceased abdomen which caused his death. Whether both OKT2 and OKT3 were armed with the knives or not, do not detract their shared liability by virtue of their common intention.
The second contradiction - the number of persons who chased the deceased. According to SP8 and SP9, the deceased was chased by OKT1, OKT2 and OKT3, whilst SP10 said apart from OKT1, OKT2 and OKT3, there was another male Indian who also chased the deceased. SP10 could only identified OKT1, OKT2 and OKT3. He did not know the name of the fourth male Indian but he could identify him if he sees him again. The presence of the fourth male Indian borned out in the evidence of SP10 is in no way adversely affect the prosecution case. In any case, OKT1, OKT2 and OKT3 were jointly charged with another person still at large in furtherance of common intention under s. 34.
The third contradiction - who stabbed the deceased? At first sight this appears to be learned counsel formidable contention. The evidence of SP8 and SP9 showed that OKT1 who stabbed the deceased, whereas according to learned counsel, SP10's evidence showed otherwise. It was OKT3 who had stabbed the deceased. That requires a close scrutiny of the evidence of SP10. Having re-visited SP10's evidence under examination-in-chief, this is how he said:-
"Selepas itu, Ramesh, OKT1 berlari balik ke tengah padang. Semasa ini, saya nampak Robo dalam keadaan jatuh di atas padang. Robo dalam keadaan melentang di atas padang. Saya lihat Sasi, OKT3 telah tikam paha Robo. Saya tidak ingat paha mana yang ditikam oleh Sasi, OKT3."[at p 45 notes of proceedings]
In their evidence, SP8 and SP9 were referring to the stabbing on the left side of the deceased's abdomen
when the deceased was first accosted by OKT1, OKT2 and OKT3. However,
SP10's evidence was referring to the stabbing on the deceased's thigh
when he collapsed on the field after being chased by OKT1, OKT2, OKT3
and another male Indian. SP10 did not see the initial assault on the
deceased. Thus, the reference were made to two different wounds on the
deceased body and they were inflicted at different stages of the
assault. The stabbing on the deceased abdomen was witnessed by SP8 and
SP9 at the initial or beginning of the assault before the deceased ran
away. Whereas the stabbing on the deceased thigh as seen by SP10 had
occurred towards the tail end of the assault when the deceased had
dropped on the field. All the stab wounds on the deceased abdomen and
thigh were corroborated by the evidence of the Consultant Forensic
Pathologist, SP11 (see under "Mark of Injury" No.: 10 and 11 of
post-mortem report, P23). There is, therefore, no material
contradictions between the evidence of SP8, SP9 on one hand and SP10 on
the other, as they were referring to two different stab wounds. The
evidence of SP8, SP9 and SP10 are direct within the terms of s. 60 of Evidence Act and not inferences drawn from proved facts as enunciated in the cases of Tai Chai Keh v. PP [1948] 1 LNS 122; [1948 - 49] MLJ Supp 105 and PP v. Kasmin bin Soeb [1974] 1 LNS 116; [1974] 1 MLJ 230 which authorities were referred to with approval in the Federal Court case of PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (authorities cited by learned counsel). Further, the application of the principle in PP v. Lee Eng Kooi [1993] 2 CLJ 534;
[1993] 2 MLJ 322 is not possible as the prosecution do not lead two
sets of evidence which contradict and strike at each other as contended
by learned counsel.
Learned counsel went on to submit that the
defence case had gained support from the prosecution case in that, there
were 20 - 30 people were already fighting on the field. The fight was
originally started by Elanggo @ Alagu and the deceased. As there were
many people involved there was always a possibility that the
identification of the deceased's assailant was inaccurate. Having regard
to the defence case and contradictions in the testimonies of the
prosecution witnesses, learned counsel contended that the defence has
succeeded in casting a reasonable doubt in the prosecution's case. The
landmark Supreme Court case of Mohamad Radhi bin Yaacob v. PP [1991] 1 CLJ 311 (Rep); [1991] 3 CLJ 2073 relating to the burdens both on the prosecution and defence was cited.
The
learned Deputy submitted that OKT1, OKT2 and OKT3's defences were mere
denial to save their skin. More so OKT1 and OKT3 are brothers and OKT2
is their nephew. The learned Deputy went on to submit the allegation
that Alagu had stabbed the deceased was not raised during the
prosecution's case and therefore an afterthought as the learned Deputy
was of the view that Elanggo and Alagu were two different characters.
Learned counsel countered that the defence has previously put to SP9
during the prosecution case that "Elanggo yang menikam Robo". Thus the
question of an afterthought defence has not arisened. Learned Deputy was
attempting to split hairs and being petty over the spelling of the name
"Alagu" and "Elanggo". The name "Alagu" was mentioned by all the
accused persons in their respective defences, while the name "Elanggo"
was put to SP9 by earlier counsel acting for all the accused. I spelt
the names in the notes of proceedings in accordance with their
pronunciations. As for me, a benefit of any doubt must be given to the
accused. In other words, Alagu and Elanggo was probably meant the same
person.
In this case, the moment the defence has advanced a mere singular suggestion "Elanggo yang menikam Robo" to SP9 to which SP9 denied, do not automatically elevate the defence case as being truthful and therefore believable or has raised a reasonable doubt in the prosecution case. The defence case has to be considered alongside with the prosecution evidence and to determine whether a reasonable doubt has been created in the prosecution case and that the prosecution has proved its beyond reasonable doubt.
The defence version was clearly contrary to the evidence of three eye witnesses for the prosecution. According to SP9 who was closest to the deceased and accused persons, he saw OKT1 and OKT2 were armed with knives. OKT1 had stabbed the deceased with a knife on his left side of the abdomen. The knife was approximately 1 foot long and the blade was about 4 inches wide. SP9 witnessed OKT1 stabbed the deceased at an arm's length - about 2 feet. At the time of stabbing, the deceased hands were held by OKT2 and OKT3. On this point SP9's evidence under cross-examination is positive and categorical as follows:
After he was stabbed, the deceased managed to run away and he was chased by all the accused persons. SP9 also said OKT3 had hit on the right side of his head with a crash helmet. He fell down and then he ran to take refuge beside a tree. SP9 went on to say the deceased who was chased by all the accused made a turn to the middle of the field. The deceased collapsed. OKT1 and OKT3 stomped the deceased abdomen.
SP10's testimony in brief is this. On the night in question, while on the way to his employer's house, SP10 saw four persons including OKT1, OKT2 and OKT3 were chasing the deceased. They passed in front of him (SP10) at a distance of about 13 feet. OKT1, OKT2 and OKT3 were known to SP10 as they grew up together in an estate, that is, UP Estate, at Sungai Petani. SP10 saw OKT1 was armed with a knife about 1 1/2 feet long. As SP10 wanted to help the deceased, OKT1 rushed towards him threatening him with the knife. OKT1 was about 3 feet away from him. SP10 hurled a crash helmet at OKT1 but missed him. Thereafter, OKT1 continued to join OKT2 and OKT3 to chase the deceased until the later collapsed on the field. SP10 saw OKT3 had stabbed the deceased thigh and an unidentified male Indian stomped the deceased abdomen, while OKT1 hit the deceased head.
Another prosecution witness, SP8 saw OKT1 had stabbed the deceased abdomen with a knife measuring 1 foot in length and 5 cm in width. At the time of the stabbing, OKT2 and OKT3 were holding the deceased hands. The deceased was able to escape but was chased by OKT1, OKT2 and OKT3. The deceased made a turn to the middle of the field where he finally dropped on the field. SP8 saw the deceased was hit by OKT1, OKT2 and OKT3.
The injuries sustained by the deceased as described by SP8, SP9 and SP10 were corroborated by the evidence of Consultant Forensic Pathologist, SP11. SP11 said the injuries were fatal in nature "the stab wound to the left abdomen had almost completely transected the descending colon, transfixed the left kidney and completely hemidiaphgram and penetrated the left lower part of the rib cage. The linear depth of the stab wound was about 17 cm."
In considering OKT1, OKT2 and OKT3's evidence in the light of the evidence of SP8, SP9, SP10 and SP11 the defence version, that is, Alagu @ Elanggo who stabbed the deceased with the knife is difficult to believe. On the other hand, the evidence of the prosecution witnesses are reliable, credible and they are witnesses of truth. As conceded by OKT1 that the accused persons bore no animosity with the prosecution witnesses and had no reason for them to gang up to implicate the accused in the crime.
The evidence of OKT1, OKT2 and OKT3 were at variance with each other. OKT1 said the moment he stopped the motorcycle, the deceased and his friends straightaway attacked him. On the other hand, OKT2 said the deceased and his friends approached him, there was an initial altercation before they were assaulted. Finally, OKT3 said the deceased and his friends had blocked or obstructed them. There was verbal abuse and followed by a fight.
OKT2 also said in his evidence that after he was beaten up. He escaped as he could not stand the pain. But he suffered no injuries, let alone he sought any medical treatment. OKT3 too was advised to a lodge police report as regard the alleged assault on him, but he chose not to. All the above assertions by OKT1, OKT2 and OKT3 that it was Alagu @ Elanggo who stabbed the deceased abdomen was not true or had not raised any doubt on the evidence of SP8 and SP9 who said that it was OKT1 who had driven the knife into the deceased left abdomen which caused his death, while OKT2 and OKT3 held the deceased hands. At the risk of repetition, I do not entertain any doubt whatsoever that the accused persons were responsible and no one else, including Alagu @ Elanggo.
Having considered the defence case with reference to the prosecution evidence with great care, I found that OKT1, OKT2 and OKT3 had not created any reasonable doubt on the truth of the prosecution case: see Bala Matik v. PP [2006] 2 CLJ 229. The prosecution, on the other hand, has therefore proved its case beyond any reasonable doubt.
Accordingly, OKT1, OKT2 and OKT3 are found guilty as charged. They are convicted and each of them is sentenced to death by hanging.
Dated: 28 AUGUST 2011
In this case, the moment the defence has advanced a mere singular suggestion "Elanggo yang menikam Robo" to SP9 to which SP9 denied, do not automatically elevate the defence case as being truthful and therefore believable or has raised a reasonable doubt in the prosecution case. The defence case has to be considered alongside with the prosecution evidence and to determine whether a reasonable doubt has been created in the prosecution case and that the prosecution has proved its beyond reasonable doubt.
The defence version was clearly contrary to the evidence of three eye witnesses for the prosecution. According to SP9 who was closest to the deceased and accused persons, he saw OKT1 and OKT2 were armed with knives. OKT1 had stabbed the deceased with a knife on his left side of the abdomen. The knife was approximately 1 foot long and the blade was about 4 inches wide. SP9 witnessed OKT1 stabbed the deceased at an arm's length - about 2 feet. At the time of stabbing, the deceased hands were held by OKT2 and OKT3. On this point SP9's evidence under cross-examination is positive and categorical as follows:
Katakan - keterangan awak menyatakan Ramesh, OKT1 menikam Robo dan tangan kiri dan kanan Robo dipegang oleh OKT2 dan OKT3 adalah tidak benar.In the course of giving evidence, SP9 had demonstrated in court that he was standing next to the deceased on his left side when the deceased was stabbed by OKT1, while OKT2 and OKT3 held the left and right hands of the deceased respectively.
Jawab - saya tidak bersetuju dengan peguam.
Katakan - Elanggo yang menikam Robo.
Jawab - saya tidak setuju dengan peguam.
Katakan - keterangan kamu yang menyatakan selepas Ramesh menikam Robo, Robo telah melarikan dan dikejar oleh OKT1 dan OKT2, sementara OKT3 memukul kamu dengan helmet adalah tidak benar.
Jawab - saya tidak setuju.
Katakan - setelah Robo larikan diri, Robo patah balik dan rebah, masa itu Robo dipukul oleh OKT1 dan OKT2 adalah tidak benar.
Jawab - saya tidak setuju.
[at p 40 & 41 notes of proceedings]
Based
on the ocular evidence of SP9 (let alone the evidence of SP8 and SP10),
there is not a slightest possibility of a mistaken identification of
OKT1 as being the assailant who thrusted the knife into the deceased
left abdomen.After he was stabbed, the deceased managed to run away and he was chased by all the accused persons. SP9 also said OKT3 had hit on the right side of his head with a crash helmet. He fell down and then he ran to take refuge beside a tree. SP9 went on to say the deceased who was chased by all the accused made a turn to the middle of the field. The deceased collapsed. OKT1 and OKT3 stomped the deceased abdomen.
SP10's testimony in brief is this. On the night in question, while on the way to his employer's house, SP10 saw four persons including OKT1, OKT2 and OKT3 were chasing the deceased. They passed in front of him (SP10) at a distance of about 13 feet. OKT1, OKT2 and OKT3 were known to SP10 as they grew up together in an estate, that is, UP Estate, at Sungai Petani. SP10 saw OKT1 was armed with a knife about 1 1/2 feet long. As SP10 wanted to help the deceased, OKT1 rushed towards him threatening him with the knife. OKT1 was about 3 feet away from him. SP10 hurled a crash helmet at OKT1 but missed him. Thereafter, OKT1 continued to join OKT2 and OKT3 to chase the deceased until the later collapsed on the field. SP10 saw OKT3 had stabbed the deceased thigh and an unidentified male Indian stomped the deceased abdomen, while OKT1 hit the deceased head.
Another prosecution witness, SP8 saw OKT1 had stabbed the deceased abdomen with a knife measuring 1 foot in length and 5 cm in width. At the time of the stabbing, OKT2 and OKT3 were holding the deceased hands. The deceased was able to escape but was chased by OKT1, OKT2 and OKT3. The deceased made a turn to the middle of the field where he finally dropped on the field. SP8 saw the deceased was hit by OKT1, OKT2 and OKT3.
The injuries sustained by the deceased as described by SP8, SP9 and SP10 were corroborated by the evidence of Consultant Forensic Pathologist, SP11. SP11 said the injuries were fatal in nature "the stab wound to the left abdomen had almost completely transected the descending colon, transfixed the left kidney and completely hemidiaphgram and penetrated the left lower part of the rib cage. The linear depth of the stab wound was about 17 cm."
In considering OKT1, OKT2 and OKT3's evidence in the light of the evidence of SP8, SP9, SP10 and SP11 the defence version, that is, Alagu @ Elanggo who stabbed the deceased with the knife is difficult to believe. On the other hand, the evidence of the prosecution witnesses are reliable, credible and they are witnesses of truth. As conceded by OKT1 that the accused persons bore no animosity with the prosecution witnesses and had no reason for them to gang up to implicate the accused in the crime.
The evidence of OKT1, OKT2 and OKT3 were at variance with each other. OKT1 said the moment he stopped the motorcycle, the deceased and his friends straightaway attacked him. On the other hand, OKT2 said the deceased and his friends approached him, there was an initial altercation before they were assaulted. Finally, OKT3 said the deceased and his friends had blocked or obstructed them. There was verbal abuse and followed by a fight.
OKT2 also said in his evidence that after he was beaten up. He escaped as he could not stand the pain. But he suffered no injuries, let alone he sought any medical treatment. OKT3 too was advised to a lodge police report as regard the alleged assault on him, but he chose not to. All the above assertions by OKT1, OKT2 and OKT3 that it was Alagu @ Elanggo who stabbed the deceased abdomen was not true or had not raised any doubt on the evidence of SP8 and SP9 who said that it was OKT1 who had driven the knife into the deceased left abdomen which caused his death, while OKT2 and OKT3 held the deceased hands. At the risk of repetition, I do not entertain any doubt whatsoever that the accused persons were responsible and no one else, including Alagu @ Elanggo.
Having considered the defence case with reference to the prosecution evidence with great care, I found that OKT1, OKT2 and OKT3 had not created any reasonable doubt on the truth of the prosecution case: see Bala Matik v. PP [2006] 2 CLJ 229. The prosecution, on the other hand, has therefore proved its case beyond any reasonable doubt.
Accordingly, OKT1, OKT2 and OKT3 are found guilty as charged. They are convicted and each of them is sentenced to death by hanging.
Dated: 28 AUGUST 2011
(ZAMANI A RAHIM)
JUDGE
HIGH COURT ALOR SETAR
KEDAH DARUL AMAN.
[2012] 1 LNS 1453
J RAMESH JAYAKUMAR & ORS v. PP COURT OF APPEAL, PUTRAJAYA RAMLY ALI JCA; SYED AHMAD HELMY JCA; BALIA YUSOF WAHI JCA [CRIMINAL APPEALS NO: K-05-257-2011, K-05-258-2011 & K-05-259-2011] 3 DECEMBER 2012
CRIMINAL LAW: Penal Code - Section 302 - Murder - Ingredients - Common intention - Stab wounds on deceased's abdomen almost completely transacted descending colon, transfixed left kidney and completely transacted left penal artery hemidiaphgram as well as penetrated lower part of back of rib cage - Intention to cause death - Whether proved - Discrepancies in evidence - Whether not raising reasonable doubt in prosecution's case - Conviction - Whether warranted - Penal Code, ss. 302, 304 |
Held: Dismissing appeal; affirming conviction and death sentence passed by High Court. Annotation: (1) The issue of discrepancies in the evidence of the witnesses for the prosecution has been sufficiently dealt with by the learned trial judge. His Lordship had considered all the three discrepancies raised by the defence and there is no reason to disagree with His Lordship's findings. (2) On common intention, the learned judge has rightly considered the issue and in concluding that on the facts and circumstances of the case, the prosecution has proven common intention. There is nothing wrong with finding of the learned judge. (3) On the facts, it is not fair to suggest that the learned trial judge had descended into the area by asking just a single question against the third appellant. Judges do not sit on the bench stone cold. Judges are also not mere umpires but must seek to do justice according to law. They ask questions and seek clerification from witnesses and parties in any form at any time. |
| Case(s) referred to: Chean Siong Guat v. PP [1969] 1 LNS 23 HC (refd) Hari Ram v. State of Uttar Pradesh [2004] 3 LRI 523 SC (refd) Herchun Singh & Ors v. PP [1969] 1 LNS 52 FC (refd) Jones v. National Coal Board [1957] 2 QB 55 (refd) Lee Ah Seng v. PP [2007] 5 CLJ 1 FC (refd) Pie Chin v. PP [1983] 1 CLJ 316; [1983] CLJ (Rep) 703 HC (refd) PP v. Datuk Haji Harun Hj Idris (No 2) [1976] 1 LNS 184 FC (refd) Suresh v. State of Uttar Pradesh AIR [2001] SC 1344 (refd) Yuill v. Yuill [1945] 1 All ER 183 (refd) |
| Legislation referred to: Criminal Procedure Code, ss. 182A, 256 Evidence Act 1950, s. 165 Penal Code, ss. 34, 302 |
| Counsel: For the appellants - Karpal Singh (Jagdeep Singh Deo with him); M/s Karpal Singh & Co For the prosecution - Munahyza Mustaffa; DPP |
| [Appeal from High Court, Alor Setar; Criminal Trial No: 45-08-2006] |
JUDGMENT
Balia Yusof Wahi JCA:Background
[1] J Ramesh a/l Jayakumar (OKT1), Gunasegar a/l Pitchamuthu (OKT2) and Sasivarnam a/l Jayakumar (OKT3) and one other still at large were jointly charged in the Alor Setar High Court under s. 302 of the Penal Code and read together with s. 34 of the same Code. At the end of the case, all the accuseds were convicted and sentenced to death.
[2] Hence, these appeals.
The Charge
[3] The charge against the three accuseds reads:
Bahawa kamu bersama-sama dengan seorang lagi yang masih bebas pada 16.4.2005, jam lebih kurang 9.30 malam hingga 10.30 malam bertempat di padang permainan, Lorong Bunga Rampai 1, Taman Ria Jaya, Sungai Petani, Kedah telah didapati melakukan pembunuhan dengan menyebabkan kematian ke atas Venukumar a/l Balakrishnan No. K/P: 810824-02-5855 dan dengan itu kamu telah melakukan kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun KeseksaanThe Prosecution's Case
[4] On 16 April 2005 at about 9.15pm, SP9 went out with the deceased for dinner at a stall situated on a field at Taman Ria Jaya, Sungai Petani and they rode a motorcycle together. The moment SP9 and the deceased got down from the motorcycle, OKT1, OKT2 and OKT3 walked over to SP9 and stopped near the deceased and SP9. A fight broke out.
[5] OKT1 and OKT2 were armed with knives and both of them held the deceased whilst OKT1 stabbed the deceased on the left side of his abdomen with a knife. SP9 was hit on the head with a crash helmet by OKT3. SP9 fell down. However, he managed to escape and hid behind a tree.
[6] After being stabbed, the deceased ran away but he was chased by all the accuseds. He made a turn to the middle of the field and collapsed. He was later hit by OKT1 and OKT2.
[7] SP10 testified that at that time he was on his way to his employer's house. He stopped by the side of a field because he saw the deceased being chased by all the accuseds and another male Indian. They chased the deceased in front of SP10 at a distance about 13 feet and thus SP10 could see them clearly. SP10 recognized all the accuseds since they were all brought up together in UP Estate.
[8] SP10 further testified that he tried to help the deceased but OKT1 ran towards him and waved the knife at him. The knife was about 11/2 feet long.
[9] OKT1 later joined OKT2 and OKT3 and continued chasing the deceased until he fell. OKT3 stabbed the deceased's thigh and hit the deceased's head while OKT1 stomped the deceased's abdomen. SP10 however said he could not remember what OKT2 did.
[10] Another witness, SP8 said during the fight, he saw OKT1 standing in front of the deceased, whilst OKT2 and OKT3 were standing on the left and right of the deceased. OKT1 stabbed the abdomen of the deceased with a knife measuring about 1 foot in length and 5cm in width. After being stabbed, the deceased ran away and all the three accuseds continued to chase him. He made a turn to the middle of the field and fell down. The three accuseds continued to beat him.
[11] The Consultant Forensic Pathologist (SP11) confirmed the pattern of injuries sustained by the deceased was caused by a thin and sharp instrument and had penetrated the depth of 17cm. The deceased sustained 12 external injuries and several internal injuries. The stab wound on the left abdomen had almost completely transacted the descending colon, transfixed the left kidney and completely transacted the left renal artery hemidiaphgram and penetrated the left lower part of the back of the rib cage.
[12] At the end of the prosecution's case, the learned trial judge found a prima facie case had been established and called for the three accuseds to enter their defence.
The Defence Case
[13] The defence of the three accused persons were summarized by the learned trial judge as follows:
Having attended a political party meeting on 16 April 2005 at about 10pm, OKT1, OKT2 and OKT3 went to eat at Taman Ria Jaya, Sungai Petani on two motorcycles.[14] The defence of the three accused persons clearly showed that the deceased and his friends were the aggressors and assaulted the accuseds. All three denied assaulting or causing any injuries to the deceased.
When they arrived there, OKT1, OKT2 and OKT3 noticed there were 20-30 people on the field in front of a food stall. They were shouting and running about. According to OKT1, while stopping his motorcycle in front of the said stall, suddenly the deceased (Robo), Kalidas, Kesavan and Nandakumar @ Aya Kunci, SP9 came and attacked him. OKT1 was asked whether he was Alagu's supporter. OKT1 replied that he came there to eat and not to fight, while OKT2 said the deceased (Robo) and three others came towards them and asked what they really wanted and why they wanted to fight. They beat OKT1, OKT2 and OKT3.
However, OKT3's version was slightly at variance with OKT1's version. OKT3 said the deceased and three others blocked them. At first, there was verbal abuse and followed by an assault. The deceased and his friends were alleged to have assaulted them. As the accuseds could not stand the pain, they escaped. In due course, OKT3 fell at the edge of the field.
All the accuseds saw one Alagu was armed with a knife and stabbed the deceased. All the three accuseds ran away.
The Appeal
[15] The three accused persons filed separate appeals. Hence the three appeals before us. With the concurrence of the learned defence counsel Mr Jagdeep Singh Deo and the learned Deputy Public Prosecutor, Puan Munahyza the three appeals were heard together.
[16] The issues raised by the three appellants in these appeals may be summarized as follows:
(1) That the learned trial judge has erred in finding that a prima facie case has been established;Issues 1 And 2
(2) Contradictions in the evidence of SP8, SP9 and SP10;
(3) Failure of the prosecution to prove common intention;
(4) The learned trial judge has descended into the arena;
(5) Failure of the trial judge to consider the defence.
[17] Learned counsel for the appellants has taken the first and second issues together. In his submissions, Mr Jagdeep Singh Deo contended that the learned trial judge ought not to have called for the defence of the three appellants as a prima facie case could not be said to have been made out. In this regard, he submitted there were several material discrepancies in the evidence proffered by the prosecution. It was unsafe for the learned trial judge to have acted upon the evidence of those witnesses.
[18] The discrepancies referred to by the learned counsel are:
(a) which of the accused person held the knife and how many knives were used;[19] Having heard the learned counsel in his submissions both written and oral and having ourselves perused the appeal records, we do not think there is any merit in the two grounds raised. The issue of discrepancies in the evidence of the witnesses for the prosecution has been sufficiently dealt with by the learned trial judge. His Lordship has considered all the three discrepancies above. In this instance, we find it necessary to reproduce what the learned trial judge had stated in his grounds of judgment. His Lordship started with the oft quoted case of Pie Chin v. PP [1983] 1 CLJ 316; [1983] CLJ (Rep) 703; [1985] 1 MLJ 234 wherein we have been reminded by Wan Yahya J that:
(b) how many people were chasing the deceased and
(c) who stabbed the deceased.
Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions.[20] On the three discrepancies referred to by the learned counsel which were raised in the court below and repeated before us in these appeals, we find the learned trial judge has sufficiently dealt with the issue and we find no reason to disagree with His Lordship's finding. The learned trial judge referred to them as contradictions, and this is what His Lordship had to say in respect of the said three contradictions at pp. 125-127 of the appeal record:
The first contradiction - which accused were armed with knives and how many knives were altogether. Learned counsel said, according to SP8's evidence, only OKT1 was armed with the knife, but SP9 testified that OKT1 and OKT2 were armed with the knives, whilst SP10 said all the accused - OKT1, OKT2 and OKT3 - were armed with the knives. That being the case, how many accused was/were armed with the knife or knives. Learned counsel went on to say the knife issue was material as it was the cause of the deceased's death. The foregoing contradictions, according to learned counsel had raised a reasonable doubt in the prosecution case. In any criminal trial, be it in the evidence of the prosecution or defence witnesses the contradictions or discrepancies will always be there. The question is: whether the discrepancies are serious enough so as to chisel away or destroy their credibilities. The principle in Pie bin Chin, supra cited by learned counsel is equally applicable to the testimony of the prosecution witnesses as much as the defence witnesses. One this is crystal clear and beyond any reasonable doubt that OKT1 was the assailant who was armed with the knife about 1 foot long and 4 inches wide and stabbed the deceased abdomen which caused his death. And we must not forget that OKT1, OKT2 and OKT3 were charged with reference to common intention under s. 34 of the Penal Code. By invoking s. 34, it means that OKT2 and OKT3 were equally liable for the act of murder in the same manner as if the act were done by them both, notwithstanding, that is was OKT1 who actually stabbed the deceased abdomen which caused his death. Whether both OKT2 and OKT3 were armed with the knives or not, do not detract their shared liability by virtue of their common intention.
The second contradiction - the number of persons who chased the deceased. According to SP8 and SP9, the deceased was chased by OKT1, OKT2 and OKT3, whilst SP10 said apart from OKT1, OKT2 and OKT3, there was another male Indian who also chased the deceased. SP10 could only identified OKT1, OKT2 and OKT3. He did not know the name of the fourth male Indian but he could identify him if he sees him again. The presence of the fourth male Indian borned out in the evidence of SP10 is in no way adversely affect the prosecution case. In any case, OKT1, OKT2 and OKT3 were jointly charged with another person still at large in furtherance of common intention under s. 34.
The third contradiction - who stabbed the deceased? At first sight this appears to be learned counsel formidable contention. The evidence of SP8 and SP9 showed that OKT1 who stabbed the deceased, whereas according to learned counsel, SP10's evidence showed otherwise. It was OKT3 who had stabbed the deceased. That requires a close scrutiny of the evidence of SP10. Having re-visited SP10's evidence under "examination-in-chief, this is how he said:[21] It must be borne in mind that surely there was a lot of confusion as to what happened on that fateful night. There was a fight and a good number of people were around (about 20-30 people according to the appellants). "No two persons can describe the same thing in exactly the same way. Sometimes what may appear to be discrepancies are in reality different ways of describing the same thing, or it may happen that the witnesses who are describing the same thing might have seen it in different ways and at different times and that is how discrepancies are likely to arise... Absolute truth is I think beyond human perception and conflicting versions of an incident, even by honest and disinterested witnesses, is a common experience" (per Abdul Hamid J in Chean Siong Guat v. PP [1969] 1 LNS 23;[1969] 2 MLJ 63).
Selepas itu, Ramesh, OKT1 berlari balik ke tengah padang. Semasa ini, saya nampak Robo dalam keadaan jatuh di atas padang. Robo dalam keadaan melentang di atas padang. Saya lihat Sasi, OKT3 telah tikam paha Robo. Saya tidak ingat paha mana yang ditikam oleh Sasi, OKT3.
[22] We are mindful of the fact that the learned trial judge has made his own findings of facts after having heard and seen the witnesses. The learned trial judge has that audio visual advantage as to the assessment of the demeanor and credibility of those witnesses (Lee Ah Seng v. PP [2007] 5 CLJ 1, Herchun Singh & Ors v. PP [1969] 1 LNS 52; [1969] 2 MLJ 209, PP v. Datuk Haji Harun Haji Idris (No 2) [1976] 1 LNS 184). We do not have that advantage and we have no sufficient ground to interfere with that finding. For the aforesaid reasons, the appeal on this ground must fail.
Issue No. 3
[23] On common intention, we are of the view that the learned trial judge has rightly considered the issue and in concluding that on the facts and circumstance of the case, the prosecution has proven common intention. At pp. 121-122 of the appeal records His Lordship stated:
The prosecution too, in this case framed the charge with reference to common intention under s. 34 of the Penal Code. In the recent Federal Court case of Low Soo Sang v. PP [2009] 3 CLJ 309 Nik Hashim FCJ having referred to Sabarudin Non & Anor v. PP & Other Appeals [2005] 1 CLJ 466 and Lee Kwai Heong & Anor v. PP [2006] 1 CLJ 1043 stated the principle of s. 34 at p. 318 as follows:[24] In Suresh v. State of Uttar Pradesh AIR [2001] SC 1344, Sethi J speaking for himself and Agrawal J said:
The provision is intended to make a person liable for the action of an offence not committed by him but by another person with whom he shared the common intention. By invoking s. 34, it means that the appellant was equally liable for the act of robbery in the same manner as if the act were done by him alone, notwithstanding that it was the other person who actually committed the offence.
In this case, the role and conduct of OKT1, OKT2 and OKT3 in inflicting the bodily injuries which resulted in the death of the deceased showed common design and common intention. It was no doubt that OKT1 who stabbed the left abdomen of the deceased which proved to be fatal. OKT2 and OKT3 had held the deceased body to enable OKT1 to inflict the injury on the deceased abdomen. The application of the principles of common intention in s. 34, OKT2 and OKT3 were also liable for the action of OKT1 with whom they shared the common intention. Common intention may be formed previously or in the course of occurrence and on a spur moment.
Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gain saying that a common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.[25] In Hari Ram v. State of Uttar Pradesh [2004] 3 LRI 523 (SC) which was decided by the Indian Supreme Court in August 2004, Arijit Pasayat J said:
Under the provisions of s. 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in s. 34, when an accused is convicted under s. 302 read with s. 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision in intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch Pulla Reddy & Ors v. State of Andhra Pradesh AIR [1993] SC 1899, s. 34 is applicable even if no injury has been caused by the particular accused himself. For applying s. 34 it is not necessary to show some overt act on the part of the accused.[26] We do not find anything wrong with the finding of the learned judge. Bearing in mind that common intention is question of fact, we are of the view there has been no error on the part of the learned trial judge. We agree that the prosecution has proved common intention between the three appellants in the commission of the offence charged.
Issue No. 4
[27] Mr Karpal Singh, another counsel for the appellants took issue when the learned trial judge asked the third appellant, Sasivarnam a/l Jayakumar a question. Our attention was drawn to p. 110 of the appeal records where the learned trial judge asked the following:
Mahkamah - Kalau tidak lihat muka, macam mana boleh cam?
[28] This happened while the third appellant was being cross-examined by the learned Deputy Public Prosecutor.
[29] Mr Karpal Singh contended before us that the learned trial judge has descended into the arena.
[30] The learned trial judge had admitted in his grounds of judgment that His Lordship interjected when it was found that the evidence of the third appellant was not convincing on his identification of Alagu without seeing his face (See: p. 124 appeal records).
[31] With all due respect to the learned counsel, we do not think it was fair to suggest that the learned trial judge had descended into the arena by asking just that single question against the third appellant. As I have stated in another matter, judges do not sit on the bench stone cold. Judges are not mere umpires but must seek to do justice according to law. They ask questions and seek clarification from witnesses and parties in any form at any time. Section 165 of the Evidence Act 1950, which we do not deem it necessary to reproduce empowers the judge to do so. Again, reference must be made to s. 256 of the Criminal Procedure Code which provides specifically on the powers of the court to put questions to an accused person.
[32] Lord Greene MR has explained in Yuill v. Yuill [1945] 1 All ER 183 that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations. If a judge should himself conduct the examination of witnesses, said Lord Greene, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".
[33] Speaking in the same tune, Denning LJ in Jones v. National Coal Board [1957] 2 QB 55 at p. 64 said:
The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follow the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.and continued at p. 65 saying:
Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness's evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying.[34] We cannot agree with the learned counsel that the learned trial judge has descended into the arena. The judge's right to ask questions and to intervene is entrenched. We dismiss this ground of appeal by the appellants as being without any merit.
Issue No. 5
[35] Learned counsel for the appellants contended that having regard to the material contradictions in the prosecution's case and the fact that the defence had put to the prosecution witnesses that it was Alagu who had stabbed the deceased, the learned trial judge ought to have ruled that the defence had succeeded in raising a reasonable doubt in the prosecution's case. Learned counsel also submitted on s. 182A of the Criminal Procedure Code on the requirement of the court to consider all the evidence adduced at the conclusion of the trial. In other words, the reappraisal of the prosecution's evidence against that of the defence.
[36] We have perused the appeal records with a fine tooth comb and we find that the learned trial judge was fully conscious of this requirement. Before embarking on the process of evaluating the evidence before him, the learned trial judge started by saying:
I agree with learned counsel that at the conclusion of the trial, the trial court is to consider both the evidence of the prosecution and the defence and to decide whether the prosecution has proved its case beyond reasonable doubt: see s. 182A Criminal Procedure Code and Mohd Najidi Abdul Halim & Ors v. PP [2011] 4 AMR 245.[37] Our perusal of the appeal records clearly indicated that the learned trial judge has indeed gone on an elaborate process of evaluating and assessing the evidence of both the prosecution and the defence, considering the contradictions in the evidence of SP8, SP9 and SP10 and the denials of the three appellants as to their culpability with respect to the death of the deceased. The learned trial judge also found that the evidence of the three appellants were also at variance with each other. Our perusal of the records further indicated that the learned trial judge has dedicated a good part of his written judgment on the process as required under s. 182A of the Criminal Procedure Code. For the sake of brevity, suffice it to say that pp. 125-134 of the appeal records bear testimony to the said process undertaken by the learned trial judge which again we do not deem it necessary to be repeated here.
[38] We need say no more. There is no merit in this ground of appeal.
[39] In the upshot, the appeals by the three appellants are hereby dismissed and the conviction and sentence imposed by the learned trial judge on each of the appellants are affirmed.
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