Mohamad Rosli Bin Naqur Gani v Pendakwa Raya (C-05(M)-524-11/2019)

The appellant was charged with the offence of murder under section 302 of the Penal Code. The charge read as follows: Bahawa kamu pada 17 April 2017, jam di antara 1.50 pagi hingga 11.20 pagi, bertempat di dalam rumah tidak bernombor, Chuan Leng Rubber Estate, Jalan Belenggu Halt, Taman Perindustrian Mentakab, di dalam daerah Temerloh, di dalam Negeri Pahang Darul Makmur telah melakukan bunuh dengan menyebabkan kematian terhadap Davadas a/l Raju, No. KP: 570617-06-5045. Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.

At the conclusion of the trial, he was convicted of the offence of murder and sentenced to death. He has now appealed against the conviction and sentence.

The prosecution called a total of 14 witnesses. The relevant evidence pertaining to the death of the deceased is as follows.

The deceased in this case is Davadas a/l Raju. At the time of his death, he was 59 years old. He was a plantation worker. He lived in the workers’ quarters (rumah kongsi) in Ladang YCL Belenggu Estate in Mentakab. He shared the quarters with two other workers, namely the appellant and Nasrul bin Mohd Zin (PW14). All three of them worked for a sub-contractor of the plantation by the name of Rajendran a/l Govinder who carried out weeding works and harvesting of oil palm fruit bunches. The estate management allocated a unit of workers’ quarters for the employees of Rajendran. At the time of the incident in question, Rajendran was already unwell and had been hospitalized. He did not testify as he passed away by the time of the trial. His son, Maggeshwarrajen a/l Rajendran (PW9) who is a full-time teacher stood in for him at the estate to oversee the weeding works. He was assisted by Gunasekaran a/l Govindan (PW10) who is his uncle. Gunasekaran acted as a mandor or supervisor for the workers. The fourth worker employed by Rajendran was Santhiran (PW11). However, he did not live in the quarters that was shared by the deceased, the appellant and Nasrul. He lived outside the estate and commuted daily to work.

Before we proceed to summarize the evidence of the prosecution, to avoid confusion in respect of the names of the deceased and witnesses if one only reads excerpts from the notes of proceedings, we shall clarify the same at the outset.

The deceased has been referred to by the witnesses variously as “Vaskaran” or “Das”. His real name is the name stated in the charge, namely Davadas a/l Raju. The appellant is referred to as “Gopi” by the witnesses but his real name is Mohamad Rosli Bin Naqur Gani which is also the name stated in the charge. Santhiran a/l Letchumanan (PW11) is also referred as Chandran by the witnesses. Nasrul is referred to by the witnesses as “Aki”. His real name is Nasrul bin Mohd Zin (PW14). Of the four employees of Rajendran, he is the only one who does not speak or understand Tamil. Nonetheless, despite the different names by which the deceased and the witnesses were called, there was no issue of identity at the trial. The crucial eyewitnesses are acquainted with each other.

On the morning of 17.4.2017, at about 7 a.m., Gunasekaran arrived at the estate as usual. He met the appellant and an estate worker by the name of Vadivalan a/l Nadarajah (PW12) near the workers’ quarters. Vadivalan lived near the quarters in which the appellant, the deceased and Nasrul (PW14) were lodged. They told Gunasekaran that the deceased was unconscious. On the way to see the deceased, Gunasekaran met Nasrul (PW14) who appeared to be leaving the estate with his clothes bag. He was distraught but did not explain why. Gunasekaran proceeded to the quarters that the deceased shared with the appellant and Nasrul (PW14). He found Davadas unresponsive and immediately called his nephew, Maggeshwarrajen who rushed to the quarters from a nearby school. Davadas was lying on the floor with some blood on his head. Maggeshwarrajen called the police. Koperal Mohamad Eamuddin bin Solehan (PW1) received the call at the Temerloh District Police Station and lodged a first information report about the discovery of the body.

The police officer who investigated the case was ASP Nur Hafesah Bt Mohd Noor (PW13). Upon arrival at the crime scene, she noticed that the deceased had died and was drenched in blood. She also noticed blood stains on the floor from the living room to the veranda. The crime scene investigator, ASP Wan Afnan Bin Wan Mukhtar (PW8) arrived soon after and took forensic samples. ASP Nur Hafesah ordered photographs to be taken at the scene. She also arranged for post mortem examination of the deceased.

The pathologist who conducted the post mortem examination was Dr. Sri Marni Bt Zainal Abidin (PW4). Upon external examination, she found numerous laceration and abrasion wounds on the deceased’s head, chest, arms and legs. Internal examination revealed that extensive fractures to the ribs, chest muscle and tissue caused the deceased’s right rib cage to collapse. The trachea and bronchi were filled with blood. The deceased also had injuries to the head consistent with blunt force trauma and underlying injuries to the facial bones. Dr. Sri Marni (PW4) concluded that death was caused by blunt force trauma to the chest and head. She said a hard and blunt object was used to cause the injuries that caused the death of the deceased.

The crucial and sole eyewitness to the events that resulted in the death of the deceased is Nasrul (PW14). He resided in the same quarters as both the deceased and the appellant. He told the court that the deceased and appellant often quarrelled due to the latter’s dissatisfaction with the deceased’s cooking. The appellant also complained that the deceased did not leave much food for him. Things came to a head after both of them consumed an alcoholic drink known as “samsu” on 16.4.2017. They received their pay on that day and were given the daily two bottles of “samsu” to be shared. Nasrul (PW14) and the deceased drank “samsu” in their quarters. They were joined by Vadivalan. The appellant took one of the two bottles of “samsu” and drank with one Baloo in a neighbouring worker’s quarters.

Later, the appellant quarrelled with Baloo and returned to his own quarters. Shortly after, a heated argument between the appellant and the deceased escalated into a physical fight. Nasrul (PW14) left the quarters to seek help. He returned with Santhiran (PW11). Nasrul (PW14) noticed that the deceased was injured in the face but he managed to get up and have a drink with them. The appellant was also in the house. Subsequently, the appellant requested Nasrul (PW14) to go out and purchase more “samsu”.

When Nasrul returned around 10 p.m., he heard a loud sound of something being bashed. He heard the voices of both appellant and the deceased. He heard the deceased saying “Gopi, janganlah”. “Gopi” is the name that the deceased used for the appellant. Nasrul (PW14) attempted to open the front door but failed. When the appellant opened the door about five minutes later, Nasrul (PW14) saw the deceased on the floor bleeding from the head. His face was bloodied and he groaned in pain. Nasrul (PW14) saw the appellant take out a curved long knife known as a “sabit” or scythe. The appellant rolled the scythe over the face of the deceased several times and stopped only when Nasrul (PW14) pleaded with him not to do it.

Nasrul (PW14) went near the deceased and called his name a few times but there was no response. The appellant told Nasrul that he battered the deceased with a block of wood. He said; saya hentam dia Aki, pakai kayu”. He also said that he will be responsible for his actions. Nasrul (PW14) said that there was no one else in the quarters apart from deceased when he entered it. The appellant asked Nasrul (PW14) to assist him to carry the body to a tractor to 7 dispose of it but the latter refused. They continued talking and drinking samsu for a while until both fell asleep. When Nasrul (PW14) woke up, he decided to pack his clothes and leave the quarters. On his way out of the plantation, he met Gunasekaran (PW10). Nasrul (PW14) told the court that he was leaving because the appellant beat up the deceased and he did not want to get involved.

Santhiran (PW11) also confirmed part of the version of events narrated by Nasrul (PW14). He said that on the night in question he came to the quarters of the deceased. He noticed that the deceased was bleeding from the mouth. Nasrul (PW14) told him that the assailant was the appellant. The appellant also instructed Santhiran not to interfere. Shortly after, he left the quarters.

The appellant was arrested by Inspector Sutakar a/l Muniandy (PW5) on 17.4.2017 at 11 a.m. Subsequently, he led the police team to the discovery of a block of wood and a scythe, both of which were admitted into evidence at the trial. The block of wood, which the prosecution asserted as the murder weapon, was marked as P17A. The scythe was marked as P18A.

In ruling that the prosecution had established a prima facie case, the learned High Court Judge considered the following evidence. The pathologist stated in both her post mortem report and her oral evidence that the cause of death was blunt force trauma to the chest and the head. The learned High Court Judge was mindful 8 that Nasrul (PW14) did not actually see the appellant hitting the deceased on the chest or head with a block of wood. However, His Lordship found that there was sufficient circumstantial evidence to link the appellant to the death of the deceased. Notably, the deceased was alone in the house with the appellant at the material time. Nasrul (PW14) was just outside the house when he heard the loud sound of something being struck. The appellant did not open the door initially but when he finally did, the deceased was seen lying on the floor with severe facial bleeding. The appellant persisted in tormenting the deceased by rolling a scythe across his face. The learned High Court Judge also concluded that the element of intention under section 300(c) of the Penal Code can be inferred from the act of the appellant hitting the deceased with force on vulnerable parts of the body, namely the chest and the head with a block of wood.

The appellant gave evidence of oath. He was the sole witness for the defence. He told the court that he quarrelled with the deceased on many occasions prior to the day in question. The reason was that the deceased was foul-mouthed and often abused him verbally. The deceased even insulted his religion. He had referred to him as “Islam Babi”. Another reason had to do with the meals prepared in the quarters. The employer had provided food rations and tasked the deceased with the cooking. But oftentimes, the deceased did not leave any food for him. He complained about it to his employer (PW 9). The appellant believed that during their daily drinking sessions in the quarters they had physically fought 9 after getting drunk because he found bruises on his body the next day.

In respect of the events on the day in question that ultimately led to the death of the deceased, the appellant said as follows in his defence. Nasrul (PW14), the deceased and the appellant received their salary on that day. They were also given their daily “samsu” ration of two bottles. The appellant left one bottle in the house and took another bottle to the neighbouring quarters to drink with a friend by the name of Baloo. When the appellant returned, the deceased verbally abused in him Tamil for taking one “samsu” bottle away to drink with Baloo. The appellant lost his temper and punched the deceased who retaliated by punching and kicking him. The appellant only ceased fighting with the deceased when he noticed that the latter was bleeding from the face. The appellant apologised to the deceased and told him not to insult him again.

Sometime later, when Santhiran came by their quarters, he noticed blood on the deceased’s bruised face. Santhiran asked the appellant why he attacked the deceased. The appellant was angry at the accusation and exchanged words with him. After Santhiran left, the appellant asked Nasrul (PW14) to go out to buy more “samsu”. The appellant then drank alone outside the house while the deceased remained on the bed. The house door was left open, with a block of wood serving as the door stopper. Suddenly, the deceased emerged from the house and confronted the appellant, hurling abusive words; “anak haram kenapa buka pintu”. The deceased demanded samsu. The appellant informed him that Nasrul had gone out to buy some more. The deceased continued 10 to insult him with the following words; anak sundal memang tak ada otak. Kamu mahu belanja Baloo sebab itu pintu kasi buka. Pergi mati sama bapa kamu dan Baloo.

The appellant was furious and punched the deceased in the face causing the deceased to fall hard on the floor. The appellant then started to kick him in the face and body. When the deceased attempted to stand up, the appellant punched and pushed him until he fell again. When Nasrul (PW14) returned later, the deceased was lying on the floor and the appellant had placed the scythe on his face. Upon Nasrul’s (PW14) plea, the appellant returned the scythe to the kitchen and left the deceased alone. He then continued to drink “samsu” with Nasrul outside the house until both fell asleep. When the appellant woke up the next morning, he realised that Nasrul (PW14) had already left the quarters. He attempted to revive the deceased but failed. He noticed a lot of blood on the floor where the deceased lay motionless. The appellant said he suspected somebody had beaten the deceased. Before long, Vadivalan (SP12) arrived at the quarters. The appellant told him that he did not know what happened.

Thus, the appellant’s defence was that he punched and kicked the deceased because he was provoked on the night in question. However, he said did not kill the deceased, nor did he have the intention to kill him. The appellant denied using any weapon to attack the deceased. He said he only used his hands. When he realised the next morning that the deceased had died, he did not attempt to run away. During cross-examination, he denied that he asked Nasrul to buy “samsu” because he wanted to be alone with 11 the deceased to attack him. During re-examination, the appellant denied using the scythe to injure the deceased but he said that he rubbed it on his face as a warning. He also mentioned being slightly injured in the confrontation with the deceased.

His Lordship found that the appellant had contrived to be alone with the deceased late in the evening by sending out Nasrul (PW14) to buy “samsu”. His Lordship also rejected the appellant’s claim that he did not lock the door of the quarters to be alone with the deceased. The deceased was already injured from the earlier physical attack on him by the appellant and was bleeding from the face. The appellant did not open the door for a full five minutes when Nasrul (PW14) asked him to open it upon his return from the “samsu” shop. Meanwhile, Nasrul (PW14) heard the deceased begging the appellant to stop hitting him. Based on the numerous injuries on the deceased’s chest that caused the collapse of his lung, and the serious head injuries, the learned High Court Judge said that an inference that there was intention to cause death on the part of the appellant could be drawn.

The learned High Court Judge also considered the defence whether the appellant was unaware of his actions due to intoxication. He found that there was no evidence in respect of the appellant’s mental state. There was no toxicological evidence of the presence of alcohol in his body. Furthermore, it was never put to the prosecution witnesses that the appellant was drunk at the material time. However, the learned High Court Judge did not 12 consider the evidence of Nasrul (PW 14) that the appellant had been drinking “samsu” from evening until late into the night.

In respect of the defence of grave and sudden provocation, the learned High Court Judge said that it was an afterthought as it was not put to the prosecution witnesses. His Lordship said that previously, the appellant only complained that the deceased did not leave food for him.

The learned High Court Judge also rejected the argument of counsel for the appellant that the charge was defective because the time of the offence was not precisely or accurately stated and therefore misled the appellant in his defence.

For above reasons, after rejecting the said defences, the learned High Court Judge made a finding that the prosecution had proved its case beyond reasonable doubt. He convicted the appellant of the charge of murder under section 302 of the Penal Code and sentenced him to death by hanging.

Before us, counsel for the appellant only raised two grounds of appeal. The first ground concerns the time of the offence as stated in the charge, and the second ground pertains to the defence of grave and sudden provocation which was summarily rejected by the High Court.

The charge states that the appellant murdered the deceased between 1.50 a.m. and 11.20 a.m. on 17.4.2017. Counsel for the appellant argued that there was no evidence indicating that the appellant killed the deceased within this time frame. He contended, based on the testimony of Nasrul (PW 14), that the appellant quarrelled with the deceased around 5 p.m. on 16.4.2017. The altercation developed into a physical fight by around 7 p.m. Nasrul (PW14) testified that upon his return from purchasing “samsu” late in the night, he found the appellant assaulting the deceased. However, counsel for the appellant submitted that Nasrul (PW14) would have come back around 8.00 p.m. to 9.00 p.m. and there was no evidence from anybody about the deceased being attacked between 1.50 a.m. to 11.20 a.m. the following day. Thus, counsel for the appellant argued that the appellant was misled in his defence and that the charge was defective.

This issue was raised in the High Court as well. The learned High Court Judge rejected it on the ground that the time of the offence is not a material element of the offence. His Lordship also found that on the whole of the case, the appellant was not misled in his defence merely because the prosecution did not state the precise time of the offence.

The primary prosecution witness, Nasrul (PW14) was unable to provide the precise timing of the events he witnessed, namely, the various assaults on the deceased that started with a quarrel at 14 around 5 p.m. on 16.4.2017. He was not wearing a watch, nor did he possess a smartphone. Nonetheless, we also take the same view as the learned High Court Judge. There is no merit in this ground of appeal. Our reasons are as follows.

In the old English case of R v Severo Dossi (1918) 12 Cr App R 158 159, Atkin J said as follows: "From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence."

This principle was adopted by our former Federal Court in Law Kiat Lang v PP [1966] 1 MLJ 215 where Thomson LP said that although the dates are wrong and the charge was not amended, that in itself is not important. In the later Federal Court case of Ku Lip See v Public Prosecutor [1982] 1 MLJ 194, the time of the offence was stated as between the month of May of 1978 and June of 1978. The inability of the prosecution to state the time precisely was not held to be fatal as the appellant was able to answer the charge and there was no issue of alibi defence with respect to the time factor. The Federal Court said as follows: With reference to question (1), we are constrained to observe that although the charge has not stated exactly when the offence was committed during the months of May and June 1978 it has nevertheless specifically defined the time and place sufficiently to enable the applicant to answer the charge. The applicant did not put forward any alibi defence.

Similarly, we are of the view that failure to state the time of the offence accurately would only be fatal if the circumstances are such that it would mislead the appellant in his defence. In the instant case, the appellant was in the quarters in question that he shared with the deceased throughout the evening and until the next morning. The appellant did not deny punching and kicking the deceased repeatedly. The only other occupant was Nasrul (PW14). There is no suggestion by the appellant that it was Nasrul (PW14) who injured the deceased or killed him. His defence centred on provocation. The appellant did not put up a defence of alibi by saying that he was away from the quarters during the period specified in the charge and that the deceased died earlier and therefore, he could not have killed him. In the premises, the failure to state time more precisely or accurately did not impact his defence. Therefore, we find no merit in this ground of appeal.

The defence of grave and sudden provocation is a limited defence. Exception 1 to section 300 of the Penal Code reads as follows: Exception 1--Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.

The successful invocation of the above defence would result in a conviction for the lesser offence of culpable homicide not amounting to murder under the first or second limb of section 304 of the Penal Code instead of murder.

The “reasonable man” test is often cited for this defence. It is therefore an objective test. It also partially a subjective test, as the accused must prove that he lost self-control in the circumstances of the case. Otherwise, it would give licence to hot-tempered and pugnacious individuals to unleash their anger disproportionally at the slightest of insults and regardless of the consequences. In Ikau Anak Mail v. Public Prosecutor [1973] 2 MLJ 153, the former Federal Court laid down an objective test for the defence in the following passage: To succeed in a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the court that not only by the acts of the deceased that the accused had been deprived of the power of self-control, but such acts of provocation would also have deprived a reasonable man of the power of self-control.

In the later Supreme Court case of Lorensus Tukan v Public Prosecutor [1988] 1 CLJ 143, George Seah SCJ again emphasised the reasonable man test for the defence of grave and sudden provocation as follows: The test of " grave and sudden " provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control [see Nanavati v.State of Maharashtra [1962] AIR SC 602].

In Che Omar Mohd Akhir v Public Prosecutor [2007] 3 CLJ 281, the Federal Court cited the following pre-conditions for the successful invocation of the defence of grave and sudden provocation:

Thus, in order to successfully set up provocation as a defence for the reduction of the offence of murder to one of culpable homicide not amounting to murder, it is not enough to show that the accused was provoked into losing his self-control; it must be shown that the provocation was grave and sudden and must have by its gravity and suddenness caused a reasonable man to lose his self-control and induced him to do the act which caused the death of the deceased. In determining that question the court may also consider, along with other factors, the nature of the retaliation by the accused, having regard to the nature of the provocation.

In the instant case, although the defence was not put to the prosecution witnesses, especially Nasrul (PW14), it was nonetheless raised by the appellant in his sworn evidence. The deceased had given him cause to be furious in the past because no food was left for him in the quarters. The deceased also insulted the appellant’s religion. The learned deputy public prosecutor correctly submitted that the defence of grave and sudden provocation cannot apply in respect of accumulated provocations or insults from the past as there would have been a cooling off period. We agree with her.

However, the appellant elaborated in some detail in respect of the insults hurled at him by the deceased on the day in question, which caused him to attack the deceased in the manner that he did.

The appellant said that the deceased started to abuse him verbally in the evening because he took a bottle of “samsu” to drink with Baloo in the neighbouring quarters. That was the reason he punched him. But the appellant later apologised to him and 18 entreated him not to insult him further. Much later at night, the deceased woke up to shout at him the following words in Tamil “Bastard, why did you leave the door open?”. The appellant denied leaving the door open. The deceased was dissatisfied and uttered further insults. The appellant said as follows in his witness statement: Das menjerit kepada saya dalam bahasa Tamil. Dia cakap “anak haram kenapa buka pintu”. Saya cakap saya tak tahu, bukan saya yang buka. Kemudian Das buang penyendal kayu ke luar rumah. Das kunci pintu. Lepas itu Das minta samsu dari saya. Saya cakap sudah habis, tunggu Aki pergi beli. Das tak puas hati dan maki saya dalam bahasa kesat. Dia cakap “Anak sundal memang tak ada otak. Kamu mau belanja Balu sebab itu pintu kasi buka. Pergi mati sama mak bapak kamu dan Balu”.

The appellant told the court that the above-mentioned italicised words uttered by the deceased were the immediate cause of his fury. It provoked him to punch and kick the deceased even after he fell to the floor and was helpless. The appellant said that he never intended to kill the deceased but he lost self-control that night. He said as follows during the oral examination in chief: S: Adakah pada bila-bila masa kamu berniat untuk menyebabkan kematian Das? J: Tidak pernah S: Boleh kamu beritahu kepada mahkamah sebab apa kamu berkata begitu? J: Saya berkata begitu sebab Das adalah seorang yang berumur, orang tua, dan saya mengganggapnya sebagai bapa saya tetapi 19 pada malam kejadian kami masing-masing terlalu mabuk dan saya hilang pertimbangan. (emphasis ours)

The learned High Court Judge recognised that this was the main defence of the appellant. However, the learned High Court Judge appears to have rejected the defence roundly because of two reasons.

The first reason is that the defence of grave and sudden provocation was not raised when the witnesses for the prosecution gave evidence and therefore it was branded as an afterthought. His Lordship said so in paragraph [60] of his judgment which is as follows: [60] Keterangan OKT bahawa dia sangat marah apabila Simati menghina dan memaki hamunnya dengan kata-kata kesat hanya timbul pertama kali semasa OKT memberi keterangan. Ianya tidak pernah ditimbulkan semasa kes pendakwaan. Oleh itu ianya merupakan suatu pemikiran terkemudian oleh OKT dan mahkamah telah menolaknya, Hamidon bin Mat Yatim v PP [1995] 3 CLJ 724.

The second reason for the total rejection of the defence of grave and sudden provocation was that the workers at the estate namely, PW9, PW10 and PW14 told the court that the friction between the appellant and deceased was only due to the food issue and not for other reasons.

The learned High Court Judge said that if the deceased could complain to the employer about a “petty” matter such as dissatisfaction with the meals prepared by the deceased, he could 20 have complained about the verbal abuse he had been enduring at the hands of the deceased for some time. His Lordship also said the appellant did not challenge the evidence of the prosecution witness on the food issue. For this reason, as well, he did not give any consideration to the defence of grave and sudden provocation. This direction of the learned High Court Judge is found in paragraph [61] of the judgment: [61] Saksi-saksi pendakwaan iaitu SP9, SP10 dan SP14 jelas mengatakan setahu mereka punca pergaduhan Simati dan OKT hanya melibatkan isu makanan sahaja. Bahkan OKT sendiri bersetuju dalam keterangannya bahawa dia pernah mengadu kepada SP9 sikap Simati yang hanya memasak untuk dirinya sendiri dan tidak meninggalkan apa-apa makanan untuk OKT dan SP14. Jika benar alegasi OKT bahawa Simati selalu memaki hamunnya, mengeluarkan kata-kata kesat dan lucah, hal perkara ini mestilah OKT telah adukan kepada SP9 kerana hal yang remeh seperti isu masakan pun dia ada memaklumkan kepada SP9. Jika benar Simati selalu menghina dan memaki hamunnya sudah tentu SP14 mengetahui berkenaan dengan perkara tersebut kerana beliau tinggal serumah dengan OKT tetapi SP14 hanya mengemukakan keterangan punca pergaduhan OKT dengan Simati disebabkan oleh isu makanan dan OKT tidak pernah mencabar keterangan SP14 dan juga keterangan saksi-saksi pendakwa yang lain.

With respect, we are of the opinion that the learned High Court Judge seriously misdirected himself in not considering the defence of grave and sudden provocation and assessing whether there was any merit in it merely because it was branded as an afterthought and because the appellant had on prior occasions cited the food issue as the source of his grievance with the deceased. Our reasons are as follows.

The prosecution’s case is based on circumstantial evidence as noted by the learned High Court Judge. The star witness, Nasrul (PW14) was not present inside the quarters when the appellant delivered the fatal blows to the deceased with a block of wood. Consequently, Nasrul (PW14) did not witness the incident. He only witnessed the earlier incident when the appellant punched the deceased. Now, Nasrul (PW14), who is a Malay, told the court that he does not speak or understand Tamil. The appellant and the deceased spoke to each other in Tamil. The appellant denied hitting the respondent with a block of wood. But he admitted continuously punching and kicking the deceased even after the latter collapsed to the floor. He was allegedly provoked to do that when the appellant uttered offensive words towards him that also made reference to his parents. Therefore, Nasrul (PW14) certainly cannot bear witness to the defence of provocation as he was either outside the quarters or was away buying “samsu”. Furthermore, he does not understand Tamil. Therefore, it would have been pointless to put the defence that the deceased had uttered provocative words in Tamil to Nasrul (PW14).

As for the other prosecution witnesses, they were nowhere near the quarters in question when the appellant launched his brutal attack on the deceased. In the premises, they would also be in no better position than Nasrul (PW14) to verify the defence. For the above reasons, in our view, it is not fatal that the defence was not put to Nasrul (PW14). It would have been otherwise if Nasrul (PW14) or the other prosecution witnesses were present when the deceased allegedly uttered the words in question.

The learned High Court Judge also dismissed the defence of grave and sudden provocation out of hand because of the prior complaints of the appellant about meals prepared by the deceased. The learned deputy public prosecutor is certainly correct in her argument that there is no such thing as “gradual and accumulated provocation”, as we said earlier. She cited the case of Che Omar Mohd Akhir v Public Prosecutor [2007] 3 CLJ 281 where the Federal Court said as follows: [22] In the present case, the only provocation was a suspicion in the mind of the appellant that the deceased was unfaithful to him when she referred to PW7 as "He is my man". What was found by the learned trial judge was that the provocation was gradual. He was right. To our minds, there is no such thing as gradual and accumulated provocation that amounts to grave and sudden provocation. Devoid of its gravity and suddenness (as in the case here) a gradual and accumulated provocation is not sufficient to constitute a defence under Exception 1 to s. 300 of the PC. The provocative acts of the deceased were not capable of constituting provocation sufficient to reduce the charge of murder to culpable homicide not amounting to murder. Further, the brutal retaliation by the appellant was not proportionate to the provocation. We agree with the learned trial judge that a reasonable man placed in the situation and circumstances the appellant was placed would not have acted as the appellant did.

However, in his witness statement and oral examination in chief, the appellant did not attribute the issue of preparation of meals by the deceased as the immediate cause of his anger. He mentioned it within the broader context of his strained relationship with the deceased. Insofar as the events that led to the brutal attack that resulted in the death of the deceased are concerned, he only cited the alleged abusive words in question that we mentioned earlier.

In the premises, we are of the view that by belabouring the meals issue in paragraph [61] of his judgment and associating it with the plausibility of the appellant’s assertion that abusive words were used against him, the learned High Court Judge had conflated two separate matters. The issue related to the defence of grave and sudden provocation was the alleged abusive words used against him and not the previous complaints about food. Thus, instead of dismissing the defence of grave and sudden provocation outright, the learned High Court Judge ought to have evaluated it by asking himself whether he believed the appellant on a balance of probabilities in the light of all the events that transpired on that fateful evening.

Since, the learned High Court Judge failed to give consideration to the defence of grave and sudden provocation for the wrong reasons, we are of the view that there was a miscarriage of justice.

Although only two grounds of appeal, i.e. the issue in relation to time of offence and the rejection of the defence of grave and sudden provocation, were raised in the written and oral submissions of counsel for the appellant, for sake of completeness, we shall also address other issues raised in the evidence of the appellant and the petition of appeal.

The appellant in his evidence denied using any weapon. He said that he only used his hands. We find that the learned High Court Judge’s finding of fact that the block of wood (P17A) was used by the appellant does not merit interference. The appellant led the police to the discovery of P17A. Furthermore, the evidence of the pathologist (SP4) that the horrific injuries on the head and body of the deceased could only have been caused by a blunt object was not successfully challenged.

The appellant said that he had no intention to kill the deceased. In the petition of appeal as well, one of the grounds argued is that the circumstantial evidence tendered in this case is not sufficient to prove intention to cause death. The learned High Court Judge found that intention can be inferred from the weapon used and the nature of the injuries suffered by the deceased which was sufficient in the ordinary course to cause death. We agree with the reasoning of the learned High Court Judge that the circumstantial evidence linked the appellant alone to the death of the deceased. We are also satisfied that the learned High Court Judge also correctly inferred the element of intention from the circumstantial evidence.

However, as the High Court did not properly consider the main defence of grave and sudden provocation which, if successful, would have resulted in the reduction of the charge, we are of the considered view that the conviction under section 302 of the Penal Code is not safe. We shall accordingly set aside the conviction under section 302 and the death sentence imposed by the High Court. We substituted it with a conviction under the first limb of section 304 of the Penal Code.

In mitigation, it was submitted that the appellant is a first offender, married, has three children and comes from a poverty-stricken background. We also gave due consideration to the circumstances in which the offence was committed. Having considered all the above factors, we imposed 22 years imprisonment from date of arrest. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 20th March 2024 Parties Appearing: For The Appellant: S. Sunderajan [Messrs K. Thushani & Co.] For The Respondent: How May Ling Deputy Public Prosecutor Attorney General’s Chambers