[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v THIAGARAJAN A/L PERANANDAM (WA-45B-13-12/2021)

Content

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CRIMINAL TRIAL NO. WA-45B-13-12/2021 BETWEEN PUBLIC PROSECUTOR

Preamble

Pursuant to section 180 (1) of the Criminal Procedure Code (CPC/Act 593), when the case for prosecution is concluded, this court shall consider whether the prosecution has made out a prima facie case against both the accused persons. Following to that, pursuant to section 180 (4) CPC, a prima facie case is only made out against them, where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. Credible evidence is in effect believable evidence free from reasonable doubt. Although the prosecution is only required to prove a prima facie case at the end of the case of prosecution, it does not relieve the prosecution of its burden of proof to prove its case beyond reasonable doubt against both the accused persons from commencement of trial until conclusion. [4] In this case, both the accused persons were acquitted of the charge against them without the necessity of defending themselves. [5] The prosecution had relied on limb (c) to section 300 PC to prove the offence of murder against both the accused persons, which provides that culpable homicide amounts to murder if it is done with the intention of causing bodily injury to the deceased, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to have caused death. [6] The injury caused to the deceased in the present case, is slash wound to the right temporal area which extended to the back of the right external ear, causing the deceased victim to bleed profusely, eventually leading to his death. [7] According to the narrative of the prosecution, the alleged involvement of both the accused persons is, they were responsible to have caused the said injury leading to death of the deceased. The slash wound was concluded to be a fatal one by the pathologist SP5, who had conducted autopsy on the body of the deceased. Core Issues [8] The pivotal issue in this case, pertains identification and thereon involvement of both the accused persons in the alleged crime. The prosecution’s case in its entirely was dependent on these two issues. Without proper identification of the accused persons as the assailants whom had attacked and caused the death of the deceased, their involvement in the crime would be nil, thus the case of the prosecution would be toppled, like a house of cards. [9] Apparently, case of the prosecution is two-fold - firstly occurrence of the slashing episode near a nasi lemak stall, outside the venue stated in the charge. It was purportedly witnessed by the operator of the nasi lemak stall who was named as a prosecution witness in the witness list P5 tendered in court but not called to testify. Although legally speaking, it is entirely up to the discretion of the prosecution to call her, but the rule of evidence demands that without her testimony, there has to be indeed sufficient proof to support a prima facie case against the accused persons. Thus, the prosecution must have in court all witnesses from whom statements have been taken, but they have the discretion whether to call them or not. However, it is their bounden duty to call witnesses essential to unfolding of the narrative on which the case of the prosecution is based. Only then proof against the accused persons would suffice, and if otherwise they must be acquitted. (See: settled case authorities like Teh Lee Tong v PP (1956) MLJ 194; Ti Chuee Hiang v PP (1995) 2 MLJ 433). Non-calling of the nasi lemak stall operator [10] If the nasi lemak stall operator was called to testify, she could have offered testimonial evidence as to what she saw had happened to the deceased on that fateful day. According to the prosecution’s own witness SP13, who claims to be another eye-witness, she was supposed to be at close range to both the accused persons when the slashing incident took place. Therefore, her testimony, if proffered by the prosecution would befit section 60 (1) (a) of the Evidence Act 1950 (EA/Act 56) as she had witnessed the incident with her own eyes. But the prosecution had deemed it fit to miss her evidence in order to support a prima facie case. [11] Incidentally, albeit not called as witness, her police statement contained in Lampiran A to the document Pol 31 prepared by the investigation officer (IO) of the case SP14 for the purpose of sending specimen of blood of the deceased victim and the accused persons for DNA forensic analysis was tendered in court as P58. As it was tendered as part of the case of the prosecution, it has the requisite probative value as SP14 was vehemently cross-examined on its content, although the nasi lemak stall operator was not called as a witness to be chief and cross examined on her oral testimony as to what she saw and perceived at the locus in quo on the said date. Thus, the content was examined and considered by this court. The effect of it, was submitted on in extenso by counsel for the first accused, quite diligently. In that statement it was stated that the nasi lemak stall operator had seen two male Indians came on a motorcycle to her nasi lemak stall; one of them came down from the motorcycle to buy nasi lemak whereas the other stayed back near the motorcycle; she also mentioned both of them were not wearing helmet at that time; startlingly she had said she saw one male Indian whom she never met before, with helmet, visor and wearing dark shirt, holding a short parang in his hand slashed the deceased who was still seating on the motorcycle, at the back of his head; the person who was slashed then ran to Block B to save himself; the person who slashed the deceased then chased another Indian man who came to buy the nasi lemak towards the back of the lift at Block E; then the assailant cum suspect went away on a motorcycle in front of the nasi lemak stall with another Indian man who was waiting for him. Identification evidence by SP13 [12] SP13 who had testified had admitted when the CCTV footage in P26 was showed to him that he was the person who was wearing the red helmet and running because of a chase by an individual who was brandishing a knife. This was in contrast to the statement by the nasi lemak stall operator who had given a statement to the police that the deceased and the person who was chased (presumably SP13) were not helmeted at the material time of the incident near the stall. Hence, the question that comes about is that, since he was not helmeted, could it be the same incident referred to by SP13 when he was chased after by another individual who was helmeted and masked as shown in the CCTV recording? [13] This query and doubt in the case of the prosecution is justified by the variance of time as narrated by the prosecution, between the slashing episode which took place at about 8.45 am and the run and chase episode occurring at about 10.26 am. In the absence of a logical explanation by any of the prosecution witnesses, it could be deemed to be two separate incidents not linked to one another. [14] On the other hand, as alluded to above, the nasi lemak stall operator had offered material information and statement to the effect that after the deceased was slashed by one Indian man, he later bolted the scene with another Indian man (and not a Malay man) on a motorcycle who was waiting for him near her stall. This has to be juxtaposed with the narrative unfolded by the prosecution that its story revolves around one Indian man which was the first accused and another Malay man, the second accused who were charged for committing murder on the deceased by slashing him till it caused his death. The testimony by SP13 also raises a doubt in the case of the prosecution, as to whether he had correctly identified the first accused as the assailant who had slashed the deceased and had also chased him at the point of time, which was immediately after about 8.45 am and not later at about 10.26 am. This doubt could have been resolved in favor of the prosecution, if the nasi lemak stall operator was called as witness to testify for sure, if the person who was chased by the assailant was in fact SP13 after the slashing episode on the deceased. Also, on the variance of time, if need be. To reiterate, the variance in time, leaves a doubt on the prosecution’s narrative. Moreover, in the same P58, there is also information at paragraph 7 to Lampiran A, to the effect “tangkapan 1 lelaki Singh dan 2 lelaki India telah dilakukan …”. The arrest of the ‘Singh’ is not revealed to this court and who were the two Indian males, as only one Indian male was charged for the alleged crime and another Indian male was called as prosecution witness SP13. The other individual who was charged was a Malay male. Only for the purpose of this case and for the sole purpose of clarification as to the identity of the individuals involved, they are all referred to as Indian, Malay, Singh, but all of them are Malaysians by identity. Identification Parade [15] In evidence is also the testimony of the identification (ID) parade officer SP9, who had testified that SP13 took part in the ID parade and he had positively identified the first and second accused as perpetrators of the crime on the deceased. SP9 had also confirmed that another witness who took part in the ID parade was the nasi lemak stall operator. His report comprising material information on her identification was not tendered by the prosecution (as it does not favor them), but it was caused to be tendered by counsel for the first accused during cross-examination of SP9, as exhibit D31 and D32. The nasi lemak stall operator is said to have not identified the first and second accused but a different person entirely. In fact, she cannot be faulted for being consistent with what she had told the police, as could be discerned from paragraph 5 of Lampiran A to P58. Her account of the individual who had slashed the deceased is material to the proof of the offence against the two accused persons, as it negates their involvement in the alleged crime. It syncs with her information and statement to the police where she was positive about the involvement of two male Indians, one who had slashed the deceased who had then bolted the scene together with another Indian man. Additionally, she had also described the second individual to be thin and short and of the Indian race, but the second accused in the dock does not appear so, as he is tall and not thin and of the Malay race. If the second accused was involved at the scene of the crime, she would have instantly identified by her to be another Malay man. Her statement in the ID parade report on all fours negates the complicity of both the first and second accused in the alleged crime of murder for which they were charged and prosecuted. [16] Therefore, the prosecution’s own narrative via testimony of witnesses is contrary to paragraph 5 of Lampiran A to P58, which was also tendered by the prosecution via the IO, SP14. To recapitulate, the nasi lemak stall operator had said on questioning by the police “hasil temubual bersama saksi bekerja sebagai penjual nasi lemak di bawah Blok E, PPR Intan Baiduri, penjual nasi lemak telah memberitahu bahawa setelah saspek menetak si mati dan mengejar lelaki India yang sedang membeli nasi lemak, saspek telah menaiki motosikal yang ada di hadapan gerai nasi lemak bersama seorang lagi lelaki India yang sedang menunggu dan melarikan diri menuju ke arah Blok F”. So, there are two varied versions on the identification and involvement of the individuals in the case with that of the accused persons who were in the dock. There isn’t involvement of a Malay individual in the case, as confirmed by the nasi lemak stall operator in paragraph 5 as well as by SP14 at paragraph 7. Hence, what is the basis of the charge against the second accused, who is a Malay man? What is also the basis of the charge against the first accused, when there was another Indian male involved in the case, and both had bolted the scene according to the nasi lemak stall operator? These questions do not arise out of thin air but raised pursuant to contrary evidence in the case of the prosecution itself, leaving behind a reasonable doubt in the case of the prosecution as well as the guilt of both the accused persons. [17] As opposed to the identification by the nasi lemak stall operator who was in a close range to the slashing incident, the identification by SP13 of the first and second accused is dubious. He had only a fleeting glance of them and he had only met them for the first time; according to him the first accused was wearing helmet, visor and mask. But the fact remains, there is no apparent reason for him to remember him, save for the slashing occurrence on the deceased with a knife. Thus, his observation is for all intents and purposes on the knife and the slashing incident and not the appearance of the individual. Moreover, in precedence of time, the slashing incident took place much earlier than the chase and run episode, where there was a lapse of about 1 hour 41 minutes. [18] The case IO, SP14 had offered evidence quite inexplicably when confronted as to the reason why the nasi lemak stall operator was not called to testify, that although she is a material eye witness but as she could not identify both the accused persons at the ID parade, it tantamount to corroboration of the defence of the accused persons that they were not involved in the alleged crime. Is that a just statement by the IO of a case as the fact of the matter is, it is not for him to decide on the materiality of the evidence of the nasi lemak stall operator but for the prosecution to bring out the real unvarnished truth and nothing less. (See: Jamuna Chaudhary & Ors v State of Bihar (1974) 3 SCC 774). On those terms, the rule of law prevails, since the evidence by the prosecution admits of two or more inferences, and one favors the accused, it is then the duty of this court to draw the requisite inference that is favorable to the accused persons, that is, they are not involved in the crime alleged against them. (See: PP v Mohd Radzi Abu Bakar (2006) 1 CLJ 457 at page 459 (FC)) DNA evidence [19] A tie-up to the dubious nature of the identification evidence by SP13 as well as the information to the police and ID parade report by the nasi lemak stall operator is the DNA analysis report which had turned out negative against the first and second accused, as testified by SP14. Albeit the CCTV footage showing blood profusely oozing out of the neck of the deceased, there is no evidence of stains of blood found on the belongings of the first accused which were sent for DNA analysis, including his helmet, shoes, long pant and jacket. Further to that, exhibit P66 discloses the stark fact that there is also no DNA nexus between the second accused and the deceased. So, once again this is where the rule of evidence truly prevails, that it is only when the accused persons are properly identified to be the assailants and their DNA matches and it points to only one conclusion, that the offence for which the accused persons are charged was committed by them and no one else. (See: PP v Hanif Basree Abdul Rahman (2008) 3 MLJ 161). Only then, the charge against them would hold water. Sadly, in the present case the identification evidence by SP13 is dubious as opposed to the nasi lemak stall operator who was not called as a witness but her ID parade report speaks volumes as it demonstrates a divergent proof of identification, leaving behind a reasonable doubt, did the accused persons in the dock commit the alleged offence of murder on the deceased? Reliability of the testimony of SP13 [20] Secondly, which appears to be the fulcrum of the case of prosecution is the chase and run episode narrated by SP13 (who was helmeted) by an individual who was also masked, helmeted and brandishing a long knife. This episode was captured in a CCTV footage produced as P26 which in fact showed that SP13 was in fact running for his life in aggression from the said individual. [21] Twist to the case was that SP13 who was initially arrested for this case had appeared in court as a prosecution witness to testify that the individual who had chased him was the first accused. His story was that the chase and run took place as he had witnessed the slashing incident of the deceased by the first accused who was accompanied by the second accused on a motorcycle with registration no. VEE 328. To reiterate, this was not the information given by the nasi lemak stall operator, who was in a closer range to the slashing incident than SP13, but not called to testify. It is also bizarre and improbable for a person to chase after SP13, when he had merely witnessed the slashing of the deceased, purportedly by the first accused, unless he had an axe to grind with the said individual. Save for the identification of that individual, it appears so, as according to the information given to the police by the nasi lemak stall operator, after slashing the deceased, the said individual chased after another Indian male, but the said individual was not identified by the nasi lemak stall operator to be the first accused. There is no evidence tendered by the prosecution as to whether the other Indian male was SP13 and the individual who had chased him was in fact the first accused. That gap could have been easily filled up by the nasi lemak stall operator. For all intents and purposes, she was in a much better position to have identified them as they were at a closer range with her at the nasi lemak stall as oppose to SP13 whom had scooted off after his friend the deceased, was slashed. He allegedly ran and was chased by that individual. [22] In law, although SP13 could be considered to be a chance witness who had allegedly witnessed the slashing occurrence on to the deceased, but the nagging question is, what was his involvement in the case with the first accused (whom he had identified) to the extent that he has to run away from him for his life. Could it be also a case where the individual who was chasing him, in fact wanted to teach SP13 a lesson as he may have been also involved in the slashing of the deceased. This is a probable story, as the weapon was not found at the scene of the crime, for it to be produced as an exhibit in court. Moreover, it is unknown to the court, as to whom the nasi lemak stall operator had identified as the assailant, we only have a person who was number “5” and “3” in the parade, could it be SP13? a question which had remained unanswered until the end of the case of prosecution. Once again, this court had not the benefit of the testimonial evidence of the nasi lemak stall operator. Hence, the looming doubt prevails that SP13 could have been entangled in the entire episode, involving the deceased as well as the other individuals. But to save his own skin he had appeared as a witness for the prosecution to testify against both the accused persons and claimed that it was the first accused who had slashed the deceased which had ultimately caused his death and the second accused was with him at the material time. This inference is fortified by the time variance between the slashing occurrence and the run and chase episode, denoting that the said instances are separate and distinct, with no nexus. [23] Moreover, SP13’s evidence is also riddled with contradictions, He was involved at different identification parades - see P29 and P30 – although it is in reference to two different accused persons, but the cancellation on the report which was not initialed by SP9 only goes to show SP13 had prior information of the suspects. At paragraph 14 to P29, the cancellation reads “… saksi ada menyatakan saspek telah menetak simati dan mengejar saksi dengan mengunakan pisau pemotong daging” and at paragraph 14 to P30 the cancellation reads, “… saksi ada menyatakan saspek adalah lelaki yang menunggang motosikal jenis Yamaha 155 cc berwarna biru.” Observing his demeanor in court, he came across as a witness who is ready to implicate the accused persons, as he was prompt in answering questions on their involvement, and unreservedly. There were also instances where he had refused to see them in their eyes, especially so when he was asked specifically to identify them as assailants of the deceased. Crowning it up, is the fact that he is not a stranger to the vicinity of the crime as he was picked up by the police as a suspect, remanded in custody and at point of testimony, he hailed from the prison. As he was also a suspect to the crime alleged against the accused persons, he is a tainted witness and his testimony ought to be treated with circumspect. His testimony, as I observe is not forthcoming, especially on the identification of the accused persons, but wavering which had further contributed to the jigsaw puzzle in the case of prosecution, comprising a myriad of unanswered questions. Although his demeanor is not touchstone on his credibility as a witness, but it is a factor affecting it, especially so when he had offered evidence under oath that he could identify the two accused persons, albeit seemingly. Obviously, the alleged slashing occurrence at the nasi lemak stall and SP13’s run and chase by an individual who is alleged by him to be the first accused, are unconnected in terms of time. His identification that it was the first accused, was not obvious to anyone’s naked eye, including the case IO SP14, as that individual was masked, helmeted and brandishing a long knife, and the said knife too was not covered with bloodstains of any sort, negating the fact that the same individual who is identified by SP13 as the first accused was in fact the person who had slashed the deceased prior to that. Fortifying this inference is the fact that the deceased was seen bleeding profusely and yet alive way after the slashing incident which had occurred earlier at about 8.45 am. To reiterate, the deceased was seen alive as at