[Pendakwa Raya] v 1. ) VENTHAAN A/L EMURUGA (BA-45B-37-10/2020)

SRI MAHAVISHNU A/L AMMASIS (No. KP: 820914-08-5893)

KANNADASAN A/L SANTHIRAPIRAGASAM (No. KP: 910916-08-5669)

VENTHAAN A/L EMURUGA (No. KP: 910223-10-5575)

DEVARAJU A/L TIAGARAJAN (No. KP: 910307-10-5281)

VIKKINES A/L KAMALANATHAN (No. KP: 910128-10-5171) …TERTUDUH-TERTUDUH GROUNDS OF JUDGMENT Introduction. [1] All the first 4 accused with OKT5 still at large, were charged with the murder of a lady named Runkanaikey a/p Pallaniappan under section 302 of the Penal Code read with section 34 of the same Code. All were also charged with causing injury to the grandson Silamparasan a/l Nahu under section 324 of the Penal Code read with section 34 of the same. OKT 5 was subsequently arrested and faced the same charges. The charges are as follows: BA-45B-37-10/2020 & BA-45B-4-03/2022 “Bahawa kamu bersama-sama pada 12.8.2019 jam di antara jam 3.30 pagi hingga jam 4.30 pagi di alamat Lot 1051, Jalan Rose Biru, Kampung Tebuk Pulai, 45200 Sabak Bernama dalam daerah Sabak Bernam, di dalam negeri Selangor Darul Ehsan, telah melakukan kesalahan membunuh seorang perempuan bernama Runkanaikey a/p Pallaniappan (No. KP: XXXXX) oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dibaca bersama seksyen 34 Akta yang sama”. BA-45-36-10/2020, BA-38-10/2020 & BA-24-03/2022 “Bahawa kamu bersama-sama pada 12.8.2019 jam di antara jam 3.30 pagi hingga jam 4.30 pagi di alamat Lot 1051, Jalan Rose Biru, Kampung Tebuk Pulai, 45200 Sabak Bernama dalam daerah Sabak Bernam, di dalam negeri Selangor Darul Ehsan, telah mencederakan Silamparasan a/l Nahu (No. KP: XXXXX) dengan cara menetak di bahagian tangan kiri, bahu sebelah kiri, kaki kiri dan kanan, oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 324 Kanun Keseksaan dan boleh dihukum di bawah peruntukkan yang sama dan dibacakan bersama seksyen 34 Kanun Keseksaan”. [2] After hearing the evidence of the Prosecution, this Court found a prima facie case proven and called all the accused persons to enter their defence. In being satisfied that a prima facie case was proven and called for the defence of all the accused persons on both the charges, means that there was sufficient evidence at the close of the Prosecution case, not challenged by the defence by way of any credible evidence as yet, nor any evidence arising from the prosecution case to suggest those evidence supports the defence of all the accused. Challenge on the identification: Accused persons in mask and Notice of Alibi [3] In deciding so, any challenge by the defence at the close of the prosecution case (in this present case, a challenge by way of notice of alibi on the identification of all the accused persons except one, who were wearing mask during the commission of the crime, suggesting the accused persons were elsewhere at that material time) would raise a further scrutiny to the prosecution evidence. In doing so, it is reminded that the burden is always on the prosecution to prove and this, despite the fact that any challenge by the defence to the prosecution evidence at the prosecution stage, unless proven, would only amount to mere suggestions (see: Ali Hossein Basher v PP [2015]1CLJ 918 COA). Evidence of identification by victim SP8 [4] The victim Silamparasan SP8 testified that although he has a home in Taman Feri, he would on frequent basis sleep at his grandmother’s house in Tebuk Pulai as his grandmother would often invite him over as she felt disturbed by sounds of strangers roaming within vicinity of the said house. [5] That night on the 12.8.2019 at about 3.00 am, he was asleep in the living room with the grandmother sleeping in her room, when he heard sounds of his grandmother’s dogs barking. He took a look out through a window and as there was light outside, he was able to see a Honda Civic with 2 men in mask outside the car with the bonnet opened whilst he saw another 2 in the same car. SP8 said he was able to recognize the 4 men when he looked through the glass window as he had seen them before in Sabak Benam. [6] This led SP8 to make a call to a police officer he knew (not named by SP8) in Sabak Bernam station but failed to reach him. SP8 then called her sister SP13 Inspector Indra also police personnel, informing her of the presence of 2 masked men and asked for help. SP13 was residing in Kelantan at that material time. [7] SP8 then ran to the grandmother’s room. He testified that he peeped through the window and saw the face of the 2 men who then hacked the front door of the house. Upon gaining entry, one of this masked man identified by SP8 as Venthaan (OKT3) dashed into the room and armed with a machete, slashed the grandmother. This was followed by another suspect Devarajan (OKT4) who also proceeded to attack SP8’s grandmother with his machete. [8] SP8 at the material time was in the same room and on seeing the attack, attempted to help his grandmother. This resulted in him jumping on the bed to prevent the attack, causing him to suffer injuries on his left arm. A third suspect who SP8 identified as Vikkines (OKT5) as the person he earlier saw in the car, then came and slashed SP8 on his left leg. SP8 managed to escape and ran across to his friend’s house Dennish (SP2), for help. [9] SP2 then made a call to the police informing of a robbery taking place at the said house. This information was converted into a First Information Report (FIR) tendered as P12 by SP4. P12 however, contained additional information that there were 5 suspects involved and according to SP4, an information that was notified by SP2 in the call, made. The information of robbery and murder was also translated into the opening statement tendered as P3(A) by the prosecution. [10] SP8 in the course of him running away, fell at the house porch and saw the suspect “Sri” identified as OKT1 at the driver seat of the Civic car. SP8 said he can identify OKT1 as he had seen all of them before as all reside in the same housing area and SP8 had seen them when they visited the suspects’ relatives house. But SP8 said he is not related to any of them. No question was asked as to the lighting that enabled SP8 to identify OKT1 but SP2’s evidence on this would be relevant. [11] SP8 then told SP2 of the intrusion by this group of suspects (no names mentioned) and SP2 then called the police. In SP2’s examination in chief, SP2 merely said SP8 told him he was injured arising from machete attack and sought SP2 to help his grandmother. No other information was offered by SP8. SP2 further said he was unaware of any blood drops from the entrance door to the said room. He was also unable to see any blood drops from his house up to the front door of Silam’s abode as it was dark. However, there was light at the living room whilst the room where the grandmother was in, was dark. There was no re-examination on this, by the prosecution. [12] As to SP8’s examination in chief on the identification of these suspects, it however changed subsequently when he said that the reason for the attack was because the suspects said SP8 had cheated them of RM10,000.00. The money was for the purpose to release SP8, a story made-up by Kannadasan OKT2 of SP8’s arrest by police. This, arising from SP8 permitting safekeeping of drugs at a construction site by OKT Sri where SP8 was working at that time. [13] SP8 testified further that on the invitation by OKT2 Kannadasan who is the brother in law of OKT1 Sri, SP8 met with OKT1 and OKT1’s brother Dhorei to discuss on this demand. SP8 said the money was in fact taken by OKT2 and not him. This evidence, to this Court’s finding, in short is to show that SP8 had met with all these accused before the incident and therefore, SP8’s identification of these suspects is in fact an identification of recognition and not merely identification of strangers. [14] This Court viewed this piece of evidence by SP8 as perplexed as from SP8’s own evidence, the attack by these suspects when they intruded in to the room, was first on the grandmother with one of them saying “orang tua juga tidak boleh angkuh” and not on SP8. To say that the reason behind this attack arose from the suspects claim for the sum RM10,000 owing by SP8 is not supported by this fact. Furthermore, the IO SP14 herself said there was no such proof of what was said by SP8 except his own words from his mouth. [15] Rather, SP8 agreed the family has a property dispute amongst them that led to the grandmother lodging a police report. According to SP8, the severity of the bad blood amongst them is something widely known in the town of Sabak Bernam. Thus, the information of robbery communicated by Dennish SP2 to SP4 may carry some basis. SP8 in fact, agreed in cross-examination that the newspaper reports ID D23 to IDD25 (the authenticity of these newspaper reports objected to by the prosecution) containing statement of 5 suspects in mask were communicated by him. [16] SP8’s testimonies however as to the number of suspects involved (in his police report P16 lodged only on 15.8.2019 after he was conscious), he said “2 masked man believed to be Indians” without mentioning any names. This contradicts with SP8’s evidence that before he managed to escape, the suspect who resembled Kannadasan was also at the front door (no further clarification sought on the actual position of Kannadasan hence why the word ‘resembled’ was used which, to this Court’s finding may possibly mean SP8 was not 100% certain) and this “Kannadasan” had pulled his (SP8’s) shoulder. [17] SP8 further said he had no relationship with them but knew Venthaan OKT3 when a 3rd party (not named by SP8) told him of Venthaan. No further evidence was led by the prosecution on the identity of this 3rd party and the meeting between this 3rd party and SP8 that led to OKT3’s presence and description. This left this Court with no other option but to rule this evidence as hearsay (see: PP v Dato’ Seri Anwar Bin Ibrahim [1999] 2 MLJ 1) [18] As to SP8’s telephone conversation with his sister SP13 made before the suspects had gained access into the house, nothing was communicated as to the names of the suspects, possibly at this time SP8 had yet to clearly look at the suspects face to face until the suspects successfully entered the said house. This, however goes against SP8’s own evidence that he recognized the suspects when he had a look through the glass window prior to their entry into the said house. As to the number of suspects involved in the attack, SP8’s testimony was silent on this, contrary to SP13’s evidence who said SP8 conveyed there were 5. [19] SP8’s testimonies suggest he recognized the suspects but did not disclose their names in his police report P16 (lodged on 15.8.2019) as he was still not sober but maintained he did disclose to the Investigating Officer SP14. The defence challenged this as details as to specific facts such as dogs barking and SP8 hiding underneath the bed were noted in P16, thus submitted that SP8 was unable to identify them. [20] There was also no evidence from SP13 that Silam who had called her twice before the attack and after the attack, had conveyed the identities of the suspects to her either during the telephone call made by Silam on that fateful night nor any time after Silam was fully conscious at the hospital. The only relevant fact conveyed is that there were 5 suspects but it must be noted that the number of suspects being 5 were actually first contained in the question by the Deputy Public Prosecutor, hence amounts to leading question. Added with the challenge by the defence that this answer from SP13 arose from witnessing that there were in fact 5 accused in the dock. [21] In the absence of any DNA (collected from the crime scene but with negative results) to link the presence of the suspects in that vicinity or the deceased victim (see: Satvender Singh Pirthpar Singh v. PP & Another appeal [2024] 6 CLJ 18 [COA] distinguished) nor CCTV recording (collected but unclear) that could trace the identity of the car, the strength of the witness’s identification of the suspects become crucial. This is added by the fact that SP8 had failed to name the suspects not only in his police report P16 but also in his conversation with his sister SP13 [see: Lee Ah Seng & anor v PP [2007] 5CLJ 1 majority decision (FC)]. This brings this Court to the leading authority on identification of R v Turnbull and others [1976] 3 All ER 549. [22] In Turnbull, Lord Widgery CJ expressed his and is extracted below: “Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger…”. [23] The notice of alibi by the defence may possibly lend credence to the challenge that the accused were elsewhere hence would invite a deduction that it was a case of mistaken identity. The Investigating Officer SP14 from her oral evidence, said none of the named individuals in the notice of alibi could confirm that the accused persons were with them elsewhere, instead of being present at that crime scene. [24] Despite no elaborate details to reflect when and who the individuals named in the notice of alibi were in fact called for statement taking but merely oral statement by SP14 that there was no such proof that the suspects were elsewhere and although the testimony of SP14 on alibi of Kannadasan OKT2 suggests disparity as on one hand she said witnesses confirmed they were with the accused, she then changed to no one can confirmed this. That aside, the end result on identification by SP8 at the crime scene proven. On the finding of a prima facie case, all the suspects were called to enter their defence. [25] In finding a prima facie case, it would be pertinent to discuss the ruling made by this Court not to admit the ID parade report which was attempted by the prosecution to be admitted at the time the relevant witness SP12 was testifying on 16.12.2022. First and foremost, the ID parade handled by SP12 for SP8 to identify OKT5 was done on 5.12.2021 almost 2 years after the incident (12.8.2019) on the basis that OKT5 was only arrested during that time. The ID parade report was only attempted to be tendered via SP12 after SP8 had testified but only served on counsel under section 51A on 15.12.2022. [26] Although SP12 was not listed on the list of witnesses P4 (possibly as his role on ID parade of OKT5 only emerged after OKT5’s arrest on 2.12.2021 by SP10 whilst the trial commenced earlier on 17.11.2021 despite SP12 also testified on the role he played as arresting officer of OKT1), prosecution was aware SP12 would be called next when the case was adjourned on 6.12.2022 but did not serve the said report and ID reports of the rest then, but opted to make available the report on the 15.12.2022, giving reason that the prosecution was under a mistaken belief that these reports had been served. [27] The defence objected to the tendering of this report on ID of OKT5, as this report including the reports on identification of other accused were never served on them in accordance with section 51A of the Criminal Procedure Code (CPC), hence the submission by the defence team that they were taken by surprise, done on purpose by the prosecution, intended to restrict and to limit the cross-examination by the defence of SP8 on this identification. [28] Section 51A of the CPC provides as follows: Section 51A. Delivery of certain documents.

The prosecution shall before the commencement of the trial deliver to the accused the following documents:

a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;

a copy of any document which would be tendered as part of the evidence for the prosecution; and

a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest. [(1) & (2) Ins. by Act A1274: s.8]

A document shall not be inadmissible in evidence merely because of non-compliance with subsection (1).

The Court may exclude any document delivered after the commencement of the trial if it is shown that such delivery was so done deliberately and in bad faith.

Where a document is delivered to the accused after the commencement of the trial, the Court shall allow the accused—

a reasonable time to examine the document; and

to recall or re-summon and examine any witness in relation to the document. [(3), (4) & (5) Ins. by Act A1423/2012] [29] Subsection (3), (4) and (5) were inserted simultaneously by the legislature. Subsection (3) appears to be the general rule stating that available evidence in the form of reports remain admissible even if there is non-compliance with subsection (1) on service. Subsection (4) provides the exception for Courts not to admit such reports subject it being shown that the delivery was done deliberately and in bad faith. [30] Next important subsection is subsection (5). Although, reading section 51A CPC on the whole, the spirit of section 51A is for subsection

to be addressed first by the trial Court before a determination either to accept the tendering of the report or otherwise not to, is made. The reason being, firstly section 51A is not a section specifically on admissibility. The argument on late service can be addressed and salvaged by allowing more time for the other party to peruse and study the contents of the said documents as provided by subsection (5). [31] But yet, the law recognized that, position may be taken by an interested party and in this present case, the prosecution including the enforcement team such as the police, to ‘strategize’ the presentation of the crucial evidence by not disclosing the relevant documents until it appears right for it to surface. This is the point raised by the defence that with SP8 having been called and having completed his testimonies and discharged by this Court as witness, without any detailed elaboration on the manner identification was done (said by SP12 done with and without mask) which means end of SP8’s testimony, the re-calling under subsection (5) must be confined to only special and exceptional circumstances. [32] The defence submitted that allowing for the ID report to be tendered which would inevitably mean, the exercise of subsection (5) by this Court, would give rise to authorizing the prosecution to have a second bite of the cherry and this, the defence argued is deliberately done and amounts to ‘bad faith’. The prosecution, on the other hand had graciously agreed to allow time for the defence to study the ID report and said they were not acting on bad faith but on a mistaken belief that it was already served. [33] This Court is of the view that even if the re-calling of witnesses is exercised on the option by the defence as permissible under section 51A(5), the prosecution admitted the re-call of witnesses would include not just SP8 but a few other witnesses, which was not contemplated by the defence. Therefore, the re-call of witnesses under section 51A, from the prosecution stand would entail also the right on the part of the prosecution to recall other witnesses. [34] Even if the prosecution did address on any other safeguards to refute the defence allegation of “having second bite of the cherry”, such as SP8 and those other witness testimonies be confined strictly to only evidence on identification during the ID parade, this Court is of the view the reservation by the defence carries weight as SP8’s evidence on the ID parade is sketchy but as submitted by the defence, is extracted verbatim as follows: “S: Encik Silam ingat berapa kali kamu dipanggil oleh polis berhubung kes ini? Lebih kurang 5-6 kali termasuk untuk cam muka. S: Jadi bila kamu kata cam muka ini, dibuat kawad cam? Ya. S: Pada kawad cam tersebut, adakah kamu mengecam orang yang ditunjukkan kepada kamu? Ya.” [35] In the absence of any guarantee to limit SP8’s evidence put forward by the prosecution, this Court, unfortunately agrees with the submission by the defence that allowing SP8 to be re-called would only lead to having “a second bite of the cherry” as the prosecution, would by way of re-examination be in the position to patch up any gap. As a matter of fact, prosecution, admitted there would be other witnesses to be re-called and not just SP8. This deduction is arrived at, irrespective of the fact that the re-calling of other witnesses would be aimed to cater the subsequent charging of OKT5 after these witnesses had testified. [36] However, as no further clarification was put forward by the prosecution, such suggestion ought to be interpreted to the benefit of the accused persons as the subject of recalling of witnesses arose during this debate on late service of the ID reports. Furthermore, parts of the evidence in this case arose from leading questions posed by the prosecution, without which evidence may have not been forthcoming either from SP8 nor SP13 (the sister Insp Indrah). [37] It is important to note that not all fact that is stated by a witness in court becomes evidence as it must satisfy the not inherently improbable test of “the cow jumping over the moon” (see: PP v Mohamed Ali [1962] MLJ 257), direct evidence but not hearsay (see: Dato’ Sei Anwar Bin Ibrahim (supra) and inferences are deduced from known facts after it is subject to proof either by oral evidence having been tested by cross-examination and re-examination (see: Liew Kaling & Ors v PP [1960]CLJU 60) or proof by other means such as documentary evidence subject to section 90A for computer generated document [see: Hanafi Mat Hassan v PP (2006) 3CLJ 269 (FC)] and by application of a presumption subject to it being rebutted by a degree and cogency of evidence (see: Muhammed Hassan v Public Prosecutor [1998] 2 MLJ 273, Public Prosecutor v GCH Retail (M) Sdn Bhd [2021] MLJU 391). [38] More on this “proved facts”, it is equally important to highlight that even in cases where there is a plea of guilt, “the prosecution in outlining the facts of the case in order to assist the Court in assessing the sentence, should not allege anything against the accused which cannot be substantiated. Statements of opinion or suspicion should be omitted and only matters of known facts or of argument arising out of proved facts should be given. (Yap Tan Lim v. R [1930], 2 MC 119; [1947] MLJ xvii and Chua Ah Gan (f) v. PP [1958] MLJ liv)”. [39] The definition of the pertinent words can be found in the Evidence Act 1950 itself as follows: evidence” includes—

all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence;

all documents produced for the inspection of the court: such documents are called documentary evidence; “fact” means and includes—

any thing, state of things or relation of things capable of being perceived by the senses;

any mental condition of which any person is conscious; [40] As to the meaning of the word “prima facie” in BALACHANDRAN v. PP [2004] 2 MLRA 547, his Lordship Justice Augustine Paul succinctly puts it in these words, “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal. The phrase “prima facie case” is defined in similar terms in Mozley and Whiteley’s Law Dictionary, 11th edn as: A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand, if a prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier in order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established”. (emphasis mine) [41] In the CPC, section 173 that centres on “Procedure in summary trial” at the lower court and section 180 on “Procedure after conclusion of case for prosecution” for trials at the High Court, defines the word “prima facie” as follows: “For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction”. [42] This Court, having viewed all the above and relying on the arguments and cases above, ruled out the ID report by SP12 including the other ID reports of other accused from being tendered. It is crucial to note that the identification of the others was tasked on one ASP Faizal and not SP14 but was not called by the prosecution. Yet, at the end of the prosecution case, there remains oral evidence of SP8 supported by SP12 and SP14 to the extent that SP8 identified all the suspects at the ID parade, arising from his own words of his encounter with them about a week before date of the incident in the charge, arising from the sum RM10,000.00 owing. [43] This finding is arrived at despite challenges put forward by the defence that SP8 had conveyed different set of facts on the number of suspects involved, the type of car he saw (said by SP8 a Vios and then a Honda), how many were in mask and the absence of the description of the said mask. The history in the medical report P5 of SP8 also states “allerged ‘[sic]’ assaulted by a group of mask person” similarly requires further clarification as to whether only one person was masked or all were in mask” which, unfortunately was not addressed by the prosecution. [44] This is fatal as this Court was not clear when SP8 described the mask as “topeng sampai dahi” what sort of mask is involved as SP8 was not invited to sketch it during his testimony nor a picture extracted through SP12 or SP14 produced as they have in fact testified the ID parades of the suspects were also conducted wearing mask. [45] In addition, SP14 (IO) testified that OKT2 “Kannadasan” is an acquaintance to Silam SP8 and had surrendered himself to the police when asked by the police to avail himself at the police station for the purpose of the investigation into the death of an Indian lady. Nothing adverse can be deduced here to infer a guilty act on the part of OKT2, rather this gives rise to a neutral and innocent act on the part of OKT2 to help or to comply with the direction given by the police to make himself present at the police station. [46] All these aside, this Court awaits the defence evidence put forward in the “Notice of Alibi” for this Court’s further deliberation and assessment, as enumerated earlier, the result remains that SP8 had identified the suspects, hence what is suggested by the defence at this stage remains a mere contention without proof (see: Ali Hossein Basher (supra) Defence case: Notice of Alibi [47] The “Notice of Alibi” by the respective accused were tendered through SP14 (IO) and marked respectively as follows: a) by OKT1 dated 19.8.2021 marked D58: with Kalairasu and Sivan Raman at a house in Taman Alam Nyata, Shah Alam for OKT1 bachelor’s party as OKT1 getting married; b) by OKT2 dated 3.8.2022 marked D55: with Jeevan Naidu and Kannan a/l Salwom (a different Kannan and not OKT2) at KFC Sungai Besar on 11.8.2019 at 11p.m, the outlet operating 24hours; c) by OKT3 & 4 dated 19.8.2021 marked D57: both were with Viknes Waran in Penang. Viknes at that material time was under restriction order PCO section 7(1) Dangerous Drugs Act (Special Preventive Measure) 1985 (see: D26); d) by OKT5 dated 27.7.2022 marked D79: with Kirenraj in Klang for dinner at 10pm before watching football that began at 12midnight and over at 2pm. They then moved to a cow shed to drink beer before OKT5 left for home at about 4-5am as OKT5’s family and him were supposed to leave for Pangkor for a holiday. [48] As to the degree of proof required in an alibi defence, reliance is placed by this Court in the case of Duis Akim & Ors v PP (2013) 9 CLJ 692 (FC). One crucial evidence in Duis Akim is that the all the accused (3 of them) were not in mask at the time of the intrusion into the 7 elven outlet and the witness had a good 5 minutes look at the appellants accused. There was also lighting in the outlet. This enabled identification at the ID parade, held a month later. [49] Rightly so in Duis Akim, with no discrepancy to the witness testimonies, even in the absence of any DNA evidence to link the presence of the all accused at the crime scene, a prima facie case was proven and they were called to enter their defence. In Duis Akim, reference was made to the Turnbull guidelines (R v. Turnbull & Ors [1976] 3 All ER 549) and succinctly summarised in the case of Heng Aik Ren Thomas v. PP [1998] 3 SLR(R) 142. [50] The Federal Court in Duis Akim quoted with approval M Karthigesu JA in Heng Aik Ren Thomas, who said this at paras 33-35 of the judgment: “Although the Turnbull guidelines were drafted to assist a trial judge in correctly directing the jury, the principles which were enunciated in it are of equal relevance to our criminal trial system. In adapting the Turnbull guidelines for our local system, we have reworked the Turnbull guidelines into the following three-step test. The first question which a judge should ask when encountering a criminal case where there is identification evidence, is whether the case against the accused depends wholly or substantially on the correctness of the identification evidence which is alleged by the Defence to be mistaken. If so, the second question should be this. Is the identification evidence of good quality, taking into account the circumstances in which the identification by the witness was made? A non-exhaustive list of factors which could be considered include the length of time that the witness observed the accused, the distance at which the observation was made, the presence of obstructions in the way of the observation, the number of times the witness had seen the accused, the frequency with which the witness saw the accused, the presence of any special reasons for the witness to remember the accused, the length of time which had elapsed between the original observation and the subsequent identification to the police and the presence of material discrepancies between the description of the accused as given by the witness and the actual appearance of the accused. In considering the circumstances in which the identification was made, the judge should take note of any specific weaknesses in the identification evidence. If after evaluation of the identification evidence, the judge is satisfied that the quality of the identification is good, he may then go on to safely assess the value of the identification evidence. Where the quality of the identification evidence is poor, the judge should go on to ask the third question. Is there in any other evidence which goes to support the correctness of the identification. If the judge is unable to find other supporting evidence for the identification evidence, he should then be mindful that a conviction which relies on such poor identification evidence would be unsafe. The supporting evidence need not be corroboration evidence of the kind required in R v. Baskerville [1916] 2 KB 658. What the supporting evidence has to be is evidence that makes the judge sure that there was no mistake in the identification. (emphasis added). We agree with the summary of the guidelines. (See also: Zulkifli @ Sakun Ahmad Endin Chun lwn. PP [2012] CLJU 435; [2012] 1 LNS 435; [2013] 1 MLJ 733; Dorai Pandian Munian & Anor v. PP [2012] 10 CLJ 22; [2009] 4 MLJ 525)”. [51] Doubt as to “Evidence to support the correctness of the identification” in this present case can be raised by showing that there was no supporting evidence of the identification. This, to a certain extent has been shown when this Court dealt with the prosecution evidence above. One clear example is when word “resemble” was used to show uncertainty and a chance of a possibility of a mistaken identity. [52] However, confirmation of this mistake is further supported by the defence of alibi. All the names in the respective notice of alibi were called and testified to show that the accused were elsewhere in the presence of those individual or group of people identified by the accused persons. They are as below. [53] As to the defence of alibi, the witnesses named in the Notice of Alibi were called by the respective accused as SD6 to SD11 and all testified to confirm their presence with those accused during the said material time. OKT1 called Kalai being SD8, OKT2 called the mother as SD6, OKT3 and OKT4 called SD7 and SD9, OKT5 called the mother SD10 and a friend named Kiren as SD11. [54] Names of individuals who are not the suspects in this case but said by SP8 to be connected to the motive behind the attack by this group of suspects were not called as witness especially Bala named by SP8 to be the brother of OKT2 and witness number 15 Mahendirah a/l Ammasis in the list of witness P4 (known as Dhorei by SP8 in the prosecution case as the brother of Sri OKT1), even though they may have been summoned during the investigation by the police by way of an arrest and surely statements have been taken either to prove or disprove the motive, to form the supporting evidence of identity. [55] These names were repeated in the defence case to indicate the relationship of the accused with these names being Bala (bother of OKT2) and Dhorei (brother of OKT1) but evidence of table talk was consistently denied by the accused. Some of the facts raised by the defence would amount to hearsay such as contained in the witness statement PSD2 para 41 and in the oral testimony of OKT1 as follows: “41. Silamparasan selalu mengadu berkenaan hal keluarga beliau kepada saya. Beliau pernah memberitahu saya bahawa pakcik beliau yang bernama Rajan a/l Krishnan pernah membuat laporan polis kerana rumah nenek Silamparasan pernah disamun dan mereka mengesyaki Silamparasan yang merupakan punca rumah neneknya disamun”. PZ: Dalam kes ini juga nenek Silamparasan ni merupakan ibu mertua kepada kakak kamu. SD2: Benar. PZ: Soalan saya, Sri Mahavishnu kamu dituduh mencederakan dan membunuh mak mertua kakak kamu ni. Bagaimana perhubungan kamu dengan kakak kamu ketika ini? SD2: Hubungan baik malah kakak saya pernah lawat saya di penjara dan beritahu bahawa beliau kenal saya dan tidak percaya bahawa perkara ini saya yang buat dan ini adalah cerita, it’s a story yang di-create kan. Tidak mungkin kamu lakukan. Malah suami kakak saya datang jumpa saya”. [56] Despite the absence of any objection from the others (prosecution nor other counsel for the accused), unless expressly referred to, that evidence is not relied upon by this Court except to point out that evidence of a police report lodged to show dispute amongst the family members pertaining to property is nothing new as SP8 had testified of knowledge to that effect of police report lodged by the deceased grandmother. [57] That aside, the version given by OKT1 as to why SP8 was occupying his grandmother’s house in Tebuk Pulai and not SP8 mother’s house in Taman Feri was because SP8 is indebted to many names. This is consistent with the suggestion put forward by the defence that it was SP8 who had taken the 10K s there was no table talk as mentioned by SP8 and hence not the 1st nor the 2nd accused specifically named by SP8 that had taken the said sum. [58] Based on all these, this Court came to a finding that the defence has succeeded in raising a reasonable doubt and succeeded to satisfy the defence of alibi that the accused persons were not at the crime scene. All the accused persons are discharged and acquitted. Judge MTS1 Johor Bharu. Dated: 29th March 2024. For the prosecution: TPR Mohammed Heikal Bin Ismail Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45 Persiaran Perdana Presint 4 62506 Putrajaya For the 1st to 5th accused: Zaleha Sikkander Hayat Messrs Zaleha Hayat & Co Advocates & Solicitors F-03-07 Kompleks Q Jalan Dwitasik 1, Bandar Sri Permaisuri 56000 Kuala Lumpur Gabriel Gobeekrishnan Susayan Messrs Gabriel Susayan Advocates & Solicitors No. 61, 2nd Floor, Bangunan Ban Guan Hin Jalan Dato’ Hamzah, Kawasan 1 41000 Klang, Selangor Dinesh a/l Muthal