Theenesh a/l Gunasegaran v Pendakwa Raya (P-05(M)-317-08/2017 & P-05(M)-318-08/2017)

THEENESH A/L GUNASEGARAN ... 1ST APPELLANT

THURKESWARAN A/L MAYAKRISHNAN … 2ND APPELLANT (NRIC NO.: 910912-07-5295) AND PUBLIC PROSECUTOR … RESPONDENT [In The High Court Of Malaya At Pulau Pinang Criminal Case No. 45B-22-07/2015 & 45B-21-07/2015 Between Public Prosecutor And

Dineshkumar a/l Josep (NRIC No.: 940422-07-5257)

Theenesh a/l Gunasegaran (NRIC No.: 930528-07-5475)

Thurkeswaran a/l Mayakrishnan (NRIC No.: 910912-07-5295)

Kugunisvaran a/l Mariyappan (NRIC No.: 911114-07-5033)] Coram: Kamardin Bin Hashim, JCA Rhodzariah Binti Bujang, JCA Mohamad Zabidin Bin Mohd Diah, JCA 2

The two appellants in these appeals, which we heard together, were charged in the High Court of Penang with the murder of one Muniandy a/l Balakrishnan and they were convicted and sentenced to death by the learned High Court Judge. That decision was affirmed by us on 8/5/2019. The joint amended charge against the appellants, who were the 2nd and 3rd accused in the High Court were actually preferred against another as well (the 4th accused) and one other accused (the 1st accused) but the charge against the 1st accused though involving the same victim and the same particulars on the date, time and place, was filed separately in another case. However, the trial of these 2 cases were heard jointly. The 1st and 4th accused persons were not appellants before us for they were discharged and acquitted without their defence being called and there was no appeal by the prosecution against that decision. The said joint charge reads as follows: “Bahawa kamu bersama-sama di antara 17/05/2014 jam lebih kurang 10.00 malam sehingga 18/05/2014 jam lebih kurang 1.00 pagi di Pantai Bersih Bagan Ajam, 3 Butterworth di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang telah membunuh seorang bernama Muniandy a/l Balakrishnan (No. KP 770523-07- 5177) dan dengan ini kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan di baca bersama seksyen 34 Kanun yang sama.” The Prosecution Case 2. The evidence against both appellants were simply circumstantial and it rests on the fact that they were the last persons seen alive with the deceased. The persons who saw them together were Manjula a/l Thandayu Thapani (PW6) and her husband (not a witness at the trial). They were neighbours of the 2nd appellant at an apartment block of Pantai Bersih, Bagan Ajam. PW6 testified that she saw the two appellants hitting the deceased many times on his hands and head at the staircase of the apartment which was brightly lit at that time. The 1st appellant did it with a piece of wood whilst the 2nd appellant was using his bare hands. They stopped after being admonished by PW6 and her husband and left with the deceased after telling them that 4 they would be sending him home. This incident happened at 11.30 p.m. on 17/5/2014.

The deceased never arrived home. Instead on 18/5/2014 at around 11.10 a.m., his body was discovered next to a restaurant which was also located at the same Pantai Bersih and at 12.20 p.m. the same day, the appellants were arrested together with the 4th accused whilst the 1st accused was arrested about a month and a half later on 6/7/2014. Upon the appellants’ and the 4th accused’s arrests they were brought to the scene where the body was found and photographs of the visit were tendered in evidence at the trial which evidence will be alluded to subsequently in our judgment. The other circumstantial evidence relied on by the prosecution was the fact that a t-shirt seized from the 2nd appellant had blood stains which were compatible with that obtained from the deceased’s blood sample. The pathologist (PW11) confirmed in his post-mortem report (Ex.P67) that the deceased died of aspiration of stomach content and blood as well as head injuries due to blunt trauma. This aspiration was brought about, said PW11 in his evidence, when the deceased lost consciousness and aspiration occurred when the lungs could not expand which in turn stopped the 5 breathing. These injuries according to PW11 was sufficient in the ordinary course of nature to cause the death of the deceased (limb (c) of section 300 of the Penal Code).

There were in fact two other eye-witnesses called by the prosecution who allegedly saw the deceased being beaten up by the appellants and their co-accused at the scene where the body was found. The first was PW7 and the other PW8. However their credit worthiness were impeached by the learned High Court Judge because although in their respective statements to the police (Exhs. P54 and P55 respectively), they both said they saw the beatings by the appellants but in their oral evidence in Court both denied this was so. We chose not to elaborate on this because it was not an issue on appeal before us. Prima Facie Case

Based on the salient facts above, the learned High Court Judge found that the necessary ingredient to prove murder under section 302 of the Penal Code had been proven against the two appellants for it was clear that the injuries on the deceased caused his death, that these injuries were inflicted by the two 6 appellants intentionally and the appellants had the common intention to do so under section 34 of the Penal Code based on the earlier assault witnessed by PW6. This earlier assault, said the learned High Court Judge, shows a prior meeting of minds and this meeting of minds continued when they took the deceased away with them to the scene of the murder.

Thus, the 2 appellants were ordered by His Lordship to give their respective defence to the charge whilst the 1st and 4th accused were discharged and acquitted of the same as the evidence against them was wholly based on the testimonies of PW7 and PW8 who had been impeached. As stated earlier, there was no appeal to this court against the said acquittals. The Defence

The 1st appellant did not deny that he was with the deceased and the 2nd appellant at the staircase of the apartment and met PW6 there. However he said both the 2nd appellant and him were there to calm down the deceased whom they had witnessed earlier having an argument with one ‘Mani’ and the deceased had a stick with him. The deceased told him that the argument was about drugs. The 1st appellant said he then escorted Mani 7 back to his home. It was after that when he came back to the scene and the three of them were at the staircase with the deceased who was still in an argumentative mood that PW6 saw them. The 1st appellant claimed that the deceased then left and both appellants did so too. The 1st appellant said he then went home to sleep.

After his arrest by the police, the 1st appellant alleged that he was beaten by them at the police station, then brought to the scene at the beach where he had his photographs taken whilst standing next to a tree. Thereafter he was brought to the hospital where his clothing was seized and nail clippings taken.

The 2nd appellant’s defence corroborated that of the 1st appellant as stated above and both of them said they had told PW6 to not make it appear as though they were involved in a fight for the fight was actually between Mani and the deceased. Whilst he was home, the 2nd appellant said he received a call from his friend Darshan at about 10.10 p.m. – 10.15 p.m. asking to meet him at a place called Tepi Pantai where he met the 1st and the 4th accused but he only stayed for about 5-10 minutes because he had a headache. He went home to sleep and was arrested 8 by the police the next day. The 2nd appellant said he was brought to the scene and was also beaten up by the police. Similarly his photograph was taken next to the tree and his nail clippings taken and clothings seized.

The 2nd appellant’s brother, Kartigesu a/l Mayakrishnan (DW3) testified on their behalf and told the Court that he witnessed a physical fight between Mani and the deceased and that it was the appellants who put a stop to that fight. He also heard the 2nd appellant told PW6 when she came to the scene that it was not their fight with the deceased but Mani’s. He confirmed the deceased leaving the place and his brother coming home but going out later after Darshan called him at about 9.30 p.m. DW4, the 2nd appellant’s mother (Vijayarani a/p Aliyapan) also confirmed the 2nd appellant leaving to meet Darshan as told to her by the 2nd appellant, his subsequent return at about 10.00 p.m. to sleep and arrest the next morning. According to DW4, PW6 fabricated the evidence against her son because there was a prior problem between him and PW6’s husband and son.

The learned High Court Judge, having evaluated the evidence adduced by the appellants came to a conclusion following 9 guidance from Vasan Singh v Public Prosecutor [1988] 3 MLJ 412 that their defence was that of alibi for which no notice of it as required under section 402A of Criminal Procedure Code was given. This was because the charge stated the time of the commission of the offence as between 10.00 p.m. on 17/5/2014 to 1.00 a.m. on 18/5/2014 and both the appellants said they were home at about 10.00 p.m. or 10.30 p.m. respectively on 17/5/2014 until their subsequent arrests the next day. His Lordship then decided to exclude the alibi evidence but proceeded to evaluate the other evidence adduced by the appellants. Contradiction In The Appellants’ Evidence 12. Having done his evaluation, the learned High Court Judge found that there was material contradiction in the evidence of the 2 appellants on the time when PW6 appeared at the staircase. This was what he said in paragraphs 167 and 168 of the grounds of judgment. “[167] According to the Second Accused, when SP6 arrived, he and the Third Accused were in the process of restraining the deceased from fighting and had seized the 10 stick from him while requesting him to not continue making a scene. According to the Third Accused, SP6 arrived while he was advising the deceased to be patient and restraining him from fighting and asked him to sit. At the time when SP6 arrived, the Second Accused had already left. [168] There is also a contradiction as to whether the piece of wood was seized from the deceased when SP6 arrived or after SP6 was ordered to go back by the deceased. Nevertheless, when the case resumed for hearing on 19.4.2017, the Third Accused gave evidence that SP6 arrived while he and the Second Accused were in the middle of restraining the deceased and Mani from fighting.”

However, as rightly noted by the learned High Court Judge, even though both the appellants’ common defence was that it was this Mani who was fighting with the deceased and this was also witnessed by PW6, nevertheless this defence was never put to PW6 or to the Investigating Officer who was also never asked about the appellant being beaten up by the police at the scene 11 where the deceased was found. Neither was the motive for fabricating her evidence against the appellants due to the previous bad blood between them put to PW6. The case of Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 as well as Re Pichi Muthu [1970] 2 MLJ 143 and Megat Halim Megat Omar v Public Prosecutor [2009] 1 CLJ 154 were used by His Lordship to back up his finding on the fatality of such an omission to the defence.

On another point raised by the defence which was that the 2nd appellant was beaten with a black PVC pipe (Ex.P7 (8)) at the scene and that the 1st appellant was forced by the police to take photograph with a piece of wood which is shown in a photograph marked as Ex.P7 (7), the learned High Court Judge held that this was not possible because these 2 items were taken from the scene by the police forensic team at 11.30 a.m., whereas the 2 appellants were arrested at 2.00 p.m. and 12.10 p.m. respectively and were only brought to the scene at 6.00 p.m. and 6.30 p.m. respectively. As for the deceased’s blood stains found on the 2nd appellant’s T-shirt which were seized from him which the defence alleged was as a result of the 2nd appellant being forced to lean against the tree near where the deceased was 12 found, the learned High Court Judge adopted his earlier findings when evaluating the prosecution case that this was also not possible because the photograph of the person alleged to be the 2nd appellant (Ex.P5 (12)) leaning against the tree shows that person wearing a blue T-shirt whereas the T-shirt seized from the 2nd appellant was red in colour as shown in the photographs marked Ex.P7 (2).

Lastly, on the absence of motive, His Lordship applied the ratio in Pathmanabhan Nalliennen v PP & Other Appeals [2017] 4 CLJ 137 which he quoted at length to show that the absence of motive is not fatal to the prosecution case and this court’s decision in Rakesh Kumar Thangagrajoo dan satu lagi lwn Pendakwa Raya [2017] 1 LNS 502 as authority for the proposition that being last seen together shifts the burden of proof on the accused to explain how the incident happened. His Lordship then concluded his judgment as follows before ruling that their defences have failed to raise any reasonable doubt on the prosecution’s case: “[195] As observed earlier, a conviction can be sustained by reliance upon circumstantial evidence. See 13 Yii Soon Ho v Public Prosecutor (supra). The deceased was last seen alive in the presence of the Second and the Third Accused according to SP6. There is nothing that states that a witness to an incident must necessarily lodge a police report regarding the incident failing which the evidence cannot be accepted. The omission of SP6 to lodge a police report therefore is not fatal to the prosecution case. [196] The cases of Hashim Bin Ariffin dan satu lagi lwn Pendakwa Raya [2014] 1 MLJ 345 and Arumugam a/l Shanmugam v Public Prosecutor [2014] 5 MLJ 443, referred to by learned counsel for the defence can be distinguished as the witnesses in those cases were direct eye witnesses to the offences committed and their failure to lodge police reports impacted on their credibility. [197] By contrast, SP6 here did not witness the final and fatal blows which ended the life of the deceased but merely bore testimony to witnessing a fight taking place between both the accused and the deceased. 14 [198] In the final analysis, it is whether or not the testimony of SP6 can be believed. SP6 was not an interested witness. There was no “axe for her to grind” so to speak against the Second and Third Accused. I found her testimony to be therefore credible under the circumstances. [199] The blood stain found on the shirt of the Third Accused was found to be compatible with the blood of the deceased. This was evidence that the Third Accused had come into physical contact with the deceased. These pieces of evidence satisfied the “irresistible conclusion” test that the deceased had met his untimely demise at the hands of the Second and the Third Accused. [200] The defence of the Second and Third Accused and the evidence of SD3 and SD4 that they were not at the scene of the incident but elsewhere was excluded from consideration as they omitted to give the requisite notice of alibi pursuant to section 402 A of the CPC. 15 [201] I also saw no reason to alter my findings that from the circumstances, there was prior meeting of minds between both accused to inflict injury on the deceased. Section 34 of the Penal Code was therefore proven.” The Appeal 16. The common issues raised before us at the hearing were these:

(i) the credibility of PW6;

(v) the presence of a foreign DNA on deceased’s underwear (“seluar pendek”).

For the record, learned counsel for the 2nd appellant informed us that in addition to his written submission, he also adopted the submission of counsel for the 1st appellant. Thus, in our 16 subsequent consideration of the issues raised, any reference to point raised by learned counsel for the 1st appellant would also include that of the 2nd appellant, unless otherwise stated. Another point for us to note before commencing our consideration of the issues raised in this appeal is the concession by both counsel that there was an altercation between the deceased and their clients that night. 1st Issue, 2nd Issue And 3rd Issue 18. These three issues are tied and would be considered together. It is of course trite law that as an appellate court we should be slow to disturb the findings of fact by the trial judge who had the audio-visual advantage over the witnesses which we in the appellate court do not possess. Findings of credibility is clearly tied to that advantage as had been pronounced in so many decided cases and one which we would mention here would be the often quoted decision of the Federal Court in Md Zainudin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773. In this case what stands so much against the appellants is the fact that their common defence that it was Mani fighting with the deceased which PW6 witnessed – not them – was never put to PW6 at all. Clearly their defence was one of an afterthought and a bare 17 denial. Granted that PW6 did not witness the beatings at the scene where the deceased was found, nonetheless what she saw was not the three of them having a good time together but the assaults on the victim. Another pertinent point to note, as submitted by the learned Deputy Public Prosecutor (DPP) is the fact that where the body was found and the place of first assaults was near to each other and that fact has never been contradicted by the appellants’ counsel. Equally pertinent is the fact that the appellants told PW6 that they would be sending the deceased home which, as mentioned earlier was obviously not the case. Therefore, when all these evidence are considered together the sole inference is that they had continued the assaults on the victim and caused the injuries which led to his death. On these issues, the cases raised by the learned High Court Judge on the absence of motive, i.e. Pathmanabhan’s case (supra) and last seen together theory, re Rajesh’s case (supra) were aptly done. Both justified the conclusion he reached about the culpability of the appellants. In this regard learned counsel for the 1st appellant questioned why PW6 and her husband never lodged a police report and why the husband was never called to testify. He referred to the Federal Court of Lee Ah Seng & Anor v PP [2007] 6 MLJ 1 where the court said that: 18 “It is unnatural for a person who claims to have seen another commit a crime to report the crime and yet withhold the identity of the perpetrator, because the purpose of reporting a crime is to bring the wrongdoer to justice. It would require a very strong reason to deter one from revealing the culprit.”

With respect, the case cited is not exactly appropriate for the facts in this case for there the report was made but the identity of the crime doer withheld. Further, PW6 did not witness the murder for which the appellants were charged but just the assaults and given her evidence that the appellants stopped their assaults and gave the assurance to send the deceased home, the non-lodging of the report was fully justified. This was the exact finding of the learned High Court Judge which we had reproduced earlier. As for the husband not being called as a witness by the prosecution, what the learned counsel failed to tell us is that he was offered to them as a witness at the close of the prosecution’s case but they chose not to call him. In any event, the absence of his evidence from the prosecution’s case does not create any material gap in their case as it was merely 19 corroborative of what PW6 had testified since they witnessed the assaults at the same time.

On the last seen theory, learned counsel also referred us to this court’s decision in PP v Willey Anak Salleh [2017] MLRAH 1 which in turn referred to the Supreme Court of India’s decision in Kanhaiya Lal v State of Rajastan [2014] 4 SCC 715 which held “that being last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime.” However, as pointed out by the learned DPP, in Willey’s case (supra), there was another person last seen with the deceased so obviously it raises the question who actually stabbed the deceased.

In this case, we again stressed that the last time the deceased was seen alive he was being assaulted by both the appellants. Then, about 12 hours later which is a relatively short period of time, he was found dead. Therefore, the requirement under that doctrine of last seen together that the appellants explained how the incident happened, failing which a strong presumption would arise against them as quoted in Rakesh’s case (supra) was rightly placed on their shoulders. This they have failed to do 20 although we acknowledged the fact that 3 other persons were arrested with them and 2 of whom had been charged together with them though acquitted. It is to be noted that the other arrestee who was not charged, i.e. one Nanda was offered to the defence. Learned counsel for the 1st appellant questioned why the prosecution did not call him but it is trite law that whom to call is at the prosecution’s discretion and who they must call are only witnesses who are necessary to unfold their case. The fact that the witness was offered shows there was no suppression of evidence and therefore no adverse inference under section 114(g) of the Evidence Act 1950 can be raised against the prosecution for his non calling.

As for the rejection of their alibi defence, learned counsel for the 1st appellant submitted to us this court’s decision in Pendakwa Raya v Arumugam a/l Muniandy & Ors [2018] MLJU 374 where the court held that in spite of the defence failure to give a notice of alibi under section 402 of Criminal Procedure Code, the evidence should be admitted when it does not surprise or otherwise prejudice the prosecution’s case. However, as countered by the learned DPP, the court in this cited case at paragraph 39 held as in Ku Lip See v PP [1982] 1 MLJ 194 that 21 such a notice is mandatory. The rational for requiring so was made clear in Vasan Singh’s case as quoted by the learned High Court Judge and that is because: “The primary purpose of an alibi notice is to alert the prosecution to the fact that an alibi might be relied upon so that they may have the opportunity before the trial of making such investigations as they think fit. It may well be that the alibi is in fact true in which event the prosecution will either withdraw the charge or offer no evidence in the case. ... The defence of alibi is a legitimate defence and in fact is often the only evidence of an innocent man.”

Seen in this light and the clear requirement under section 402A, in particular sub-sections 3 and 4 thereof, we endorsed the view that such a notice is mandatory. Learned counsel for the 1st appellant also argued that the omission to give such a notice was not prejudicial to the prosecution in this case because both DW3 and DW4 had given their statements to the police and the prosecution did not use these statements to impeach their credit. The learned DPP replied that the fact about their giving such a statement was never adduced in evidence before the court – it 22 was only a statement from the Bar but learned counsel countered this by saying that they were never challenged about not giving their statements. With respect, we would say what was there to challenge when the said witnesses were not even asked about the making of the statements in their examination-in-chief and neither was the Investigating Officer when he was cross-examined. In answer to learned counsel’s further submission, we would also say that the Investigating Officer has no duty to interview DW4 unless there was an alibi notice stating her name there as vouching for the 1st appellant’s presence in the house at that material time.

Learned counsel for the 2nd appellant had rightly referred in his written submission the decision of the Supreme Court in Chan Chwen Kong v PP [1962] 1 MLJ 307 where Thomson CJ said this on circumstantial evidence: “That evidence was entirely circumstantial and what the criticism of it amounts to is this, that no single piece of that evidence is strong enough to sustain the convictions. That is very true. It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial 23 what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?”

We would also refer to the Supreme Court case of India in Bakshish Singh v The State of Punjab AIR [1971] SC 2016 which held as follows: “In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 24

Bearing these advices in our minds and our earlier consideration on the first 3 issues, we would now move on to the 4th issue. 4th Issue 27. Learned counsel for the 1st appellant submitted that although there was evidence that the deceased was beaten to death, there was no evidence to implicate his client with that act and that the prosecution has failed to prove that the injuries were caused intentionally. However based on the circumstantial evidence as highlighted above and the application of the case of Virsa Singh v The State of Punjab AIR [1991] SC 467 as was done by the learned High Court Judge, the 4 ingredients of the charge has been satisfied. The cited case held as follows: “To put in shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly”; First, it must establish, quite objectively, that a bodily injury is present: Secondly, the nature of the injury must be proved. These are purely objective investigations. 25 Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause any injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that 26 kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. We were referred to a decision of Lord Goddard in R v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved?”

Here the post mortem report of Dr. Zahari Bin Noor (PW11) tendered as ExP67 listed 16 injuries on the deceased and 27 concluded the cause of death was as stated earlier. Now, although no DNA of the two appellants were found on the piece of wood and PVC pipe allegedly used by the appellants as the murder weapon, their absence does not, in view of the failed defence of the appellants raised any reasonable doubt that they had inflicted the said injuries. Learned counsel for the 2nd appellant attempted to discredit this report but with respect it is without any basis for the witness conducted the post mortem himself and had firsthand knowledge of what was stated in the report. So it is not right to say, in the words of learned counsel, that he “duplicated” the post-mortem report verbally without mentioning anything regarding the cause of death or the fatal wounds. 5th Issue 29. There is no dispute that 2 foreign DNA were found on the underwear of the deceased (Exp23(B)) one of which the chemist, Jacquiline Bernice a/p John Bosco (PW2) said was that of a woman. This according to the 2nd appellant’s counsel has raised a reasonable doubt of the murder being committed by an unknown individual. He cited the case of PP v Hanif Basree [2007] 2 CLJ 33 in support of his point but again with respect to 28 him, the facts in the cited case are clearly distinguishable because in our case the presence of foreign DNA was on the undergarment of the deceased – not his outer clothings. This we say because it is clear from photograph of the deceased at page 70 of Volume 3 of the Appeal Record, that is ExP51(7) and that of his clothings, that is ExP51(9) P10 at page 71 thereof, the deceased was wearing a pair of jeans and a checked shirt when he was found dead at the scene. The presence of the foreign DNA on his undergarment therefore had not cast any reasonable doubt on the prosecution’s case – it is not as though the foreign DNA was found on the alleged murder weapon or as in Hanif’s case, where the scientific evidence shows not only that of an unknown male’s DNA was found in the various materials and exhibits recovered from the apartment where the victim’s body was found but that the deceased had sexual intercourse with not just the respondent but this unknown male within 72 hours prior to her death.

Based on our consideration of the issues above, we have decided to dismiss the appeal and affirmed the decision of the learned High Court Judge for the one and only irresistible inference from the circumstantial evidence adduced by the 29 prosecution and the rejection of the defences of the appellants by the learned High Court Judge is that the 2 appellants committed the murder of the deceased. These evidence, in our view, are more than sufficient to twist into a rope to hang them. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 19th July 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. Parties Appearing For The 1st Appellant: Viknes (M/s Vitnes Ratna & Co.) For The 2nd Appellant: Dev Kumaraendran (M/s Kumar & Co.) For The Respondent: Faizah Binti Mohd Salleh (Attorney General of Malaysia) 30 Cases Referred To:

(i) Vasan Singh v Public Prosecutor [1988] 3 MLJ 412;

(v) Pathmanabhan Nalliennen v PP & Other Appeals [2017] 4 CLJ 137;

(x) Kanhaiya Lal v State of Rajastan [2014] 4 SCC 715;