Kumaresan a/l Nadarajan (NRIC No. 881110-08-7075) v Pendakwa Raya (B-05(M)-137-02/2018)

The appellant was charged and convicted of the murder of his own sister-in-law, Sivasanggeri a/p Arumugam and was sentenced to death by the Shah Alam High Court, which decision was affirmed by us on 26th March 2019. The charge against the appellant reads:- “Bahawa kamu di antara 9.6.2014 jam lebih kurang 9.00 malam sehingga 10.6.2014 jam lebih kurang 11.00 pagi, di bilik 201, Hotel Myhome, No 15, Jalan SS4D/2, 47301 Petaling Jaya di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah melakukan bunuh dengan menyebabkan kematian terhadap seorang perempuan India SIVASANGGERI A/P ARUMUGAM (NO. KP: 920402-18-5662) dengan itu kamu telah melakukan suatu kesalahan yang boleh di hukum di bawah Seksyen 302 Kanun Kesiksaan.” The Prosecution’s Case 2. The prosecution’s case rests very much on the evidence of the appellant’s wife, Ambigadevi a/p Arumugam (PW5) who, 3 together with her cousin, Jakathisvaran a/l Ramanmurthi (PW2), PW2’s brother, Lingeswaran a/l Nagaparam (DW2) and a friend, Kartik discovered the deceased’s naked body in the hotel room as stated in the charge. According to her evidence, the appellant called and told her that he had killed the deceased and that her body was in the said hotel room. He also told her that he was in Teluk Intan to see his mother and would be drinking poison. Upon the discovery of the body, PW5 lodged a police report at 1723 hrs. on 10/6/2014 (Ex.P8 at page 40 of Volume 3A of the Appeal Record) in which she also mentioned the said confession. That report also made reference to an earlier one she made a few hours earlier that is, at 1402 hours (Ex.P6 at page 30 of Volume 3A of the Appeal Record) in which she lodged a missing person report on the deceased because she failed to contact the deceased and suspected that the appellant was behind her disappearance. In her evidence, PW2 explained that she was supposed to pick up the deceased from her workplace which was just nearby the said hotel after the latter finished work at 12 midnight on 9/6/2014 but when she went there with her cousin, she was told that the deceased had left the work place at 9.00 p.m. PW5 said she suspected that her husband was behind the deceased’s disappearance because 4 sometime on 4th or 5th June 2014, that is a few days earlier, they quarrelled and she left him and stayed with her cousin named Linges. The appellant called her and threatened to kill the deceased if she did not come home. In her police report Ex.P8, she did mention this threat. It was on account of this police report which she showed the hotel staff that the door to the hotel room was opened by them. In cross-examination by learned counsel for the appellant it was put to PW5 that there was a past occasion when the appellant, herself and the deceased slept together in one bed, which she denied and that she knew that the appellant and the deceased were having an affair. It was even put to her that her DNA was found from the nail clipping of the deceased which in the chemist report (Ex.P9) dated 11/11/2014 states was from an unknown female contributor named “Female 1”. Likewise the same DNA was found together with that of the appellant’s on a panty with semen stains found in the hotel room. PW5 denied she was the said “Female 1” and that she was the actual murderer. We would not go into the details of PW2’s evidence as it merely corroborates the discovery of the body. 5

The prosecution also relied heavily on the undisputed fact that the appellant registered himself as the guest for that hotel room as in the evidence of the then Senior Supervisor of the hotel (PW1) who also tendered the receipt issued [(Ex.P4) at page 5 of Volume 3A of the Appeal Record] which had the appellant’s personal details i.e. his Identity Card number and telephone contact as well as his signature. This fact was never disputed in the cross-examination of the said witness whose evidence was further strengthened by the images from the CCTV recordings which show the appellant and deceased at the registration counter of the hotel and going up the staircase of the hotel.

The forensic pathologist, Dr. Prashant Naresh Samberkar (PW6) testified that the deceased died because of manual compression of the neck, that is, strangulation. Prima Facie Case 5. The learned High Court Judge identified the essential elements to prove the charge against the appellant to wit, the identity of the deceased, the bodily injuries which caused her death, that the appellant’s actions caused the said injuries and that these were done with the intention to cause death to the deceased or 6 with the intention to cause such bodily injuries which the appellant knew was likely to cause her death as provided under section 300 of the Penal Code. His Lordship found that the first two elements have been proven and it was rightly so based on the undisputed evidence adduced by the prosecution. As for the third element, he considered the same also proven because the appellant was the last person seen with the deceased when she was alive from the evidence of the prosecution witnesses and the CCTV recording. As for the evidence of the DNA profile of “Female 1”, this according to the learned High Court Judge, had been explained from the fact that the deceased’s blood was never sent for analysis to the Forensic Laboratory for comparison – only her nail clipping. Therefore PW7, the Chemist had concluded that “Female 1” was the deceased and not PW5 as alleged by the defence. His Lordship also considered the evidence of PW5 on the alleged threat by the appellant and the police report that she made. The intention to kill, said His Lordship further, can be seen from the injury on the neck of the deceased. 7 The Defence 6. In his sworn evidence the appellant did not dispute that he spent the night with the deceased at the hotel with whom he had an affair with since December 2011 and that affair was with the knowledge of PW5. The deceased, he said was fond of erotic sex which involved force being used and that night at the hotel, they had one. After that was done they slept and had another round of sex the next morning before he left whilst the deceased was sleeping. He denied in cross-examination that he killed the deceased because she told him that she would be leaving him and going to work in Penang which was when he strangled her. It was put to him that the deceased struggled so much that the wall beside the bed (as shown in Ex.P11A (at page 12 of Volume 3A of the Appeal Report) was damaged. He said it was damaged because the deceased kicked it out of anger when he refused to divorce PW5. The appellant however admitted drinking poison after he returned to Teluk Intan and that he was actually arrested whilst recovering from it in hospital. In re-examination he explained that he went back to see his mother because of his problems and because of his stress he took the poison. 8

DW2, whom PW5 had mentioned in her evidence by a short form of his name, i.e. Linges as narrated earlier, denied any knowledge of the illicit affair between the appellant and the deceased but gave the damning evidence against the appellant in that he said the appellant called him to confess that he had killed the deceased and her body was at the hotel. The appellant, said DW2 was in Teluk Intan when he made the call. DW2 confirmed that he was also together with PW5 when she went to the hotel and when the deceased body was discovered in the hotel room.

The learned High Court Judge found strong circumstantial evidence that the appellant committed the murder since he was the last person seen with the deceased when she was alive, that the appellant ran to Teluk Intan and drank poison. His Lordship also considered the confession the appellant made to DW2 that he killed the deceased. His Lordship rejected the defence allegation that it was PW5 who strangled the deceased and there was a struggle between them which cause the deceased to scratch PW5’s hand which in turn explained the mixed DNA profile obtained from her nail clipping. This rejection was because of DW2’s own evidence that before they entered the 9 room, the hotel manager entered first and ran out in fear before they i.e. PW5, himself and Kartik entered and found the deceased whose body, upon his own physical examination of the same was “stiff and cold”. DW2 himself offered the explanation that the mixed DNA profile could have come from clients of the deceased who, when she was alive was working in a spa. The failure of PW6 to take the measurement of the fingerprint marks on the neck of the deceased was not fatal according to His Lordship because the cause of death had been ascertained by him and the evidence against the appellant as a whole was overwhelming. The Appeal 9. Although the petition of appeal and the written submission of learned counsel for the appellant raised a number of issues, in the oral submission before us, learned counsel submitted only on 2 issues and they are:-

The murder was committed by a third party; and

(ii) The chemist report shows the presence of a DNA of another women in the sample of the deceased’s nail clipping. 10

In the written submission of learned counsel for the appellant the same issue on the failure to take the measurement of the fingerprint on the deceased’s neck was also raised, that PW5 was an interested witness and there was no prima facie case proved against the appellant. It was also raised in the said submission that the learned High Court Judge failed to evaluate the defence of the appellant and that he had no motive to kill the deceased.

It cannot be denied that the evidence against the appellant was largely circumstantial, in particular those showing that he was the last person seen with the deceased when she was alive, that is the CCTV recordings mentioned earlier and the undeniable fact that the appellant had consumed poison after the discovery of the body as evidenced by his hospitalisation. What was even more damning is the fact that the confession that he made to PW5 was not seriously challenged and even if it were, it must be remembered that his own witness DW2 also testified on the same confession being made to him. That piece of corroborative evidence, which again was never challenged has bolstered PW5’s credibility as a witness even though she was related to 11 the deceased by blood and to the appellant by marriage. Coming as it were from the appellant’s own mouth and from his own witness, the confession had reduced the defence that a third party or rather PW5 had committed the murder, to nothing. The evidence of DW2, his own witness we again stressed, that the deceased was already dead when PW5 and him entered the room has destroyed the appellant’s defence that when he left the room, the deceased was well, alive and sleeping.

The fact that PW5 was related to the victim does not automatically render her evidence meaningless. It is only so if there are cogent reasons advanced for disbelieving her evidence. In this regard the learned Deputy Public Prosecutor had referred to this court’s decision in Mohd Nahar Abu Bakar v PP [2013] 5 CLJ 977 which quoted Raja Azlan Shah J in Liew Siew Long v PP [1969] 1 LNS 98 and what His Lordship said is pertinent to our case here:- “It is difficult to accept that suggestion that if a witness is shown to be a relation of the deceased his evidence is tainted. Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses are 12 competent witness who were at the scene of the occurrence and could have been what had happened. But if it is proved that they are not entirely disinterested witnesses eg. they are either partisans of the complaint or are in any way inimical to the accused, then their testimony is tainted and requires corroboration if to be acted upon.”

Learned counsel for the appellant referred to the Federal Court case of Low Kian Boon & Anor [2010] 5 CLJ 489 where at paragraph 16 thereof, Federal Court examined the law on circumstantial evidence and at page 508, the court reproduced what was said by Visu Sinnadurai J in Public Prosecutor v Sarjit Kaur Najar Singh [1998] 5 CLJ 609 as follows:- “However, although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another. For this reason, it has been said that: 13 It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference (Teper v. The Queen [1952] AC 480, per Lord Normand at p 489). Nonetheless, there is no requirement, in cases in which the prosecution’s case is based on circumstantial evidence, that the judge direct the jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion (McGreevy v. Director of Public Prosecutions [1973] 1 WLR 276). Similar to the English position, it is also now established in Malaysia that in cases where circumstantial evidence is relied upon by the prosecution, the proper test to be applied by the judge trying a case without the jury is for the judge: 14 … to remember only that the prosecution need prove its case beyond reasonable doubt, and failure by him to also say that the circumstances are not only consistent with the accused having committed the crime but also such that they are inconsistent with any other reasonable explanation, is not fatal. In other words, … in a case depending on circumstantial evidence, it is enough if the court merely says that it is satisfied of the accused’s guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused’s guilt (per Suffian LP in Jayaraman & Ors v. PP [1982] 2 MLJ 306 at p 310).” (emphasis added).

On the facts of this case there was no reason at all to suspect that the circumstantial evidence such as the hotel’s in-house guests record and CCTV recordings taken therefrom had been fabricated or that the direct evidence from the appellant’s own 15 mouth, which were said confessions were equally concocted or fabricated by PW5 and DW2.

As was held by the Supreme Court of India in Ashok v State of Maharashtra 4 Supreme Court Case 393, when the prosecution has established that the accused was the last person seen with the deceased, the prosecution is exempted from proving the exact happening of the incident because the accused himself would have special knowledge of the incident and the burden of proof therefore lies with him under section 106 of the Evidence Act 1872 (which is a pari materia with our own section 106 of the Evidence Act 1950) to explain what had happened. However, the Supreme Court acknowledged that being last seen together is not conclusive proof of guilt against the accused and it must be considered along with other circumstances surrounding the incident such as the relationship of the accused and the deceased, the history of hostility between them as well as non-explanation of the death of the deceased. That burden has not been discharged by the appellant in this appeal before us as the other circumstance which the court was entitled to consider was the appellant’s own attempted suicide by drinking the poison and the confessions that he made to PW5 16 and DW2. Together all these strands of evidence are more than sufficient to make a rope to hang him for murdering the deceased.

The evidence of the female DNA found in the deceased’s nail clipping given DW2’s own evidence that the deceased was already dead when they entered the room does not raise any reasonable doubt that it was not the appellant who committed the murder or that it was PW5 who did it. This is because it was clear from the evidence that PW5 did not have any access to the room before that for the evidence shows that it had to be by the hotel staff. Neither was there any evidence such as CCTV recording to show that she had gone up to the said room before the one when the deceased body was discovered.

In his oral submission before us learned counsel questioned why PW5 had to make the first police report when she could have just reported about the killing. He also raised the failure of the prosecution to prove when exactly the appellant made that call to PW5 confessing about the said killing. On that last point, we are of the view that proof of the exact timing of that call is not fatal to the prosecution’s case because there was clear evidence 17 when PW5 made the 2 reports and these were lodged 3 hours and 20 minutes apart. Further, from not just the evidence of PW1 but also the CCTV recording of the hotel at its staircase (see page 108 of Volume 3B of the Appeal Record) PW5 and her companions were seen going up the staircase at 16.50 hours and going down it at 16.55 hours which was after the lodgement of the first report and before the lodgement of the second report. Therefore the time when the call was made can be safely ascertained by way of inference from the timings of the 2 reports and the recordings of the CCTV. Besides, the evidence of the appellant’s own witness, DW2 is very clear that they went to the hotel right after receiving the call from the appellant and casting aspersion on PW5 for having an ulterior motive for lodging that first report cannot be accepted considering the sheer evidence staked against the appellant as the murderer here. Admittedly the best evidence when the calls were made would be from the telecommunication service provider of the appellant’s mobile number. It was not in evidence at the trial because PW9, the Investigating Officer said in cross-examination that he did check with the said company but received no reply (see page 72 of Volume 2B of the Appeal Record). Nonetheless, the earlier evidence by way of inference as stated earlier should suffice for 18 the exact minute and second when the call was made and it was not crucial to prove a prima facie case against the appellant.

As for the presence of the DNA of an unknown female from the nail clipping of the deceased, PW7, the chemist clearly said at page 60 of the Appeal Record Volume 2B that it does not matched that of PW5, the person whom the defence alleged was the real murderer. Therefore, based on all the above considerations there was just no merit in the learned counsel’s contention that no prima facie case has been proven against the appellant.

In respect of the failure of the learned High Court Judge to evaluate the defence, it was again a complaint made without any merit for not only was the defence a mere bare denial of the commission of the offence, as stated earlier, the appellant’s own witness had given that damning evidence about his own culpability. No where in the submission of his counsel, either oral or written, was it even raised that the said confession was not admissible or that it should not be given any weight at all. In the circumstances, despite the absence of evidence about the exact timing when the appellant spoke to PW5 and DW2 and 19 made that confession, the evidence of it is of considerable weightage for us to affirm the finding of the learned High Court Judge that the defence has failed to raise any reasonable doubt on the prosecution’s case.

Our conclusion as aforesaid is further strengthened by another anomaly in the defence case which is that the damage to the wall in the hotel room was first attributed to the struggle between PW5 and the victim during cross-examination of PW5 in the prosecution’s case but in his defence the appellant said it was kicked by the deceased out of anger because he refused to leave PW5. Such inconsistency in the defence has reduced the credibility of the appellant and the weight to be given to his evidence. In Karam Singh v PP [1967] 2 MLJ 25 the Federal Court held that in a case where the prosecution relied on circumstantial evidence, such evidence must be inconsistent with any other hypothesis other than that of the guilt of the accused. We have found, after giving due consideration to both the evidence adduced by the prosecution and that by the defence that there was no other hypothesis to be made other than that the appellant was the murderer in this case. The 20 appeal was therefore dismissed and the conviction and sentence of the learned High Court Judge affirmed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 11th June 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. Parties Appearing For The Appellant: Logendran a/l K. Narayanan Norfazilah Jaafar (Messrs Fazilah & Logen) For The Respondent: Muhammad Azmi Mashud Mohd Zain Bin Ibrahim Deputy Public Prosecutor Attorney General’s Chambers 21

Low Kian Boon & Anor [2010] 5 CLJ 489;

(ii) Public Prosecutor v Sarjit Kaur Najar Singh [1998] 5 CLJ 609;

(iii) Mohd Nahar Abu Bakar v PP [2013] 5 CLJ 977;

(iv) Liew Siew Long v PP [1969] 1 LNS 98;

Karam Singh v PP [1967] 2 MLJ 25.