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IN THE COURT OF APPEAL MALAYSIA HOLDEN IN KUCHING,

SARAWAK

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO: Q-05(LB)-232-09/2015

BETWEEN

PUBLIC PROSECUTOR … APPELLANT

AND

WILLEY ANAK SALLEH … RESPONDENT

(In the Matter of High Court of Sri Aman, Sarawak

Criminal Trial No: SRA 45-302-1/7-2013

Between

Public Prosecutor

And

Willey Anak Salleh)

CORAM:

MOHD ZAWAWI SALLEH, JCA

VERNON ONG LAM KIAT, JCA

ABDUL KARIM ABDUL JALIL, JCA

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JUDGMENT

Introduction

[1] The respondent was charged with an offence punishable under

section 302 of the Penal Code for causing the death of Langgang Anak

Kaju (L). The charge read as follows:

“Bahawa kamu, pada 16 haribulan Disember 2012 pada jam lebih kurang

02.00 pagi, bertempat di kawasan beranda Rumah Panjang Tuai Rumah

Ulak, Tanjung Bijat, Sri Aman, di dalam Negeri Sarawak, telah

membunuh Langgang Anak Kaju (L) (KPT: 901224-13-6205) dan dengan

itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah

seksyen 302 Kanun Keseksaan.”

[2] At the end of the trial, the learned trial judge acquitted and

discharged the respondent. Dissatisfied, the Public Prosecutor (the

prosecution) appealed to this court. Upon hearing both parties, we

dismissed the appeal. Our reasons now follows.

The Prosecution’s Case

[3] The case of the prosecution was well laid down by the learned

trial judge in his grounds of judgment which we reproduce below:

“It was a fact that on the 15.12.2012 around 7.00 p.m. there was a

wedding reception at Rumah Panjang Ulak (Rumah Ulak) and that

many guests were in attendance. Amongst the guest were the Accused,

Rhemhandy Elsa ak Ricky Balang (PW7), Christy ak Joseph Agan

(PW12), Romio ak Tamin (Romio), Delly ak James Belusan (Delly),

Qazlinas Elsa ak Ricky Balang (Qazlinas) (hereinafter referred to as

PW7 & his friends). The deceased and his two friends Jhia Iqbal (Jhia)

and Soekri Putit (Soekri) were also there (hereinafter referred to as the

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deceased & his friends). The Accused’s parents, Biah anak Charlie

(DW2), Salleh anak Malin (DW4), the Accused’s younger sister

(Jennifer anak Salleh) and his uncle (Bryan anak Charlie (DW3)) were

also present. Since this was a traditional wedding reception there was

eating, drinking beer and langkau a local brew, karaoke music, singing

and dancing.

On the 16.12.2012 the facts were as follows. Around 2.00a.m, there

was a fight (the fight) at Rumah Ulak involving PW7 & his friends and

the deceased & his friends. The fight was at the five foot way of ruai

No.2.

Around 4.15 a.m. Karen John (PW5) was manning the Pusat Kawalan

Gerakan IPD Sri Aman. She received a telephone call from Kpl Bayang

anak Jaya informing her that there was an unconscious person found

lying on a road side at Jalan Stumbin Tanjung Bijat. PW5 then informed

the Assistant Investigation Officer, Sjn Joseph Bikari anak Takor (PW8).

PW5 lodged a police report namely Sri Aman/001889/12 (Ex.P34). PW8

then informed Insp Amir Wahid bin Santoh (PW5) who was the 24

Hours Investigation Officer on duty. PW5 also informed ASP Sazali bin

Abdul Latip (PW14) who was the Investigation Officer (IO) of this case.

Around 4.50 a.m. PW15 received a call from Sjh Joseph Bikari anak

Takor (PW8) about the murder at Tanjung Bijat. PW15 and his police

team consisting of Kpl Tajjul Faizal bin Tahir (PW1), Sjh Joseph Bikari

anak Takor (PW8), Sjn Jackson Sujang anak Mut (PW10), Kpl/D

Mardeka (Kpl Mardeka) then went to Tanjung Bijat, arriving at the scene

around 6.10a.m where they saw the deceased lying on the road side.

PW15 checked the deceased and noticed injuries in the left of his chest

and also at the back of his head. He instructed Kpl Tajjul (PW1) to take

photographs of the crime scene and the deceased. He then instructed

PW1 and Kpl Mardeka to put the deceased’s body inside a plastic bag

and sent the same to the Sri Aman Hospital.

PW15 and his team went to Rumah Ulak the actual crime scene where

it was alleged the deceased was initially found on the ground. He

directed PW1 to take photographs of exhibits recovered there. One of

the exhibits seized was a knife (Ex P20C) which looked like a spur (taji

ayam) with bloodstains on it (See Q1A2 p 386 NOP). He said the knife

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was a metal blade without handle (Q1A2 p386 NOP). PW15 had also

taken photo of P20C (See Q20A21 p385 NOP). PW15 then lodged a

police report of the seizure of P20C (P55).

Around 5.30 p.m. a Forensic team from Kuching led by Inspector

Sumarno bin Lamunsi (PW13) arrived at the crime scene at Rumah

Ulak. He was with PW15, Kpl Martinus anak Muka (PW2), SM Wahid

bin Hj Apit, Kpl Alif Putera Kudie and Kpl Jemayah. PW13 took several

exhibits at the crime scene. He then prepared the 2 Laporan

Pemeriksaan Tempat Kejadian which are exhibits Ex P47 & P48.

PW7 gave evidence of his involvement in the fight with the deceased &

his friends. In summary this was his evidence. He said the deceased

was already drunk and was following him and his friends from ruai to ruai

and wanted to pick a fight with Delly. When he asked the deceased

“what is the matter”, the deceased instead punched him. According to

PW7 the fight then started. The deceased’s friends joined in. Delly, the

Accused, Christy and Romio also joined the fight to help PW7. Romio

dragged him from the five foot way where the fight was. Delly, the

Accused and Christy continued to fight with the deceased & his friends.

PW7 saw the Accused fought with the deceased with his hands (See

Q6A7 p159 NOP) punching the front part of the deceased’s body (See

Q9A10 p 159 NOP). Around 2.00 a.m. PW7 saw the deceased fell face

down to the ground from the five foot way (See Q10A11 p113 NOP). He

was then about six feet from where the deceased had fallen. PW7 also

said there were a lot of people dancing at the ‘ruai’ as well as at the five

foot way but some of those people at the five foot way were just

watching the fight. After the deceased fell down to the ground PW7 and

his friends went to the ‘ruai’ of bilik No.2 to continue drinking and

dancing. They were there between 2.00 to 4.00 a.m (See Q15A17 p165

NOP). PW7 said the Accused had joined them at ruai No. 3 around 2.00

a.m. (See Q25A28 p117 NOP). PW7 said he did not know what

happened to the deceased after he fell down to the ground. He also said

the deceased’s friends had run away.

PW7 said he and his friends only discovered the deceased under the

five foot way of Room No. 2 around 4.00 a.m when Christy (PW12) had

gone down to the ground to urinate. According to PW7 when they saw

the deceased he was lying on his back (See Q26A27 p118 NOP) and

seemed unconscious (See Q5A6 p120 NOP).

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They then sent the deceased to his kampong but on the way they fell off

their motorbike on the road side. PW7, Delly and Romio then went on to

Sungai Semilang leaving the deceased at the road side to look for the

deceased’s mother. Howeverthey coincidentally met her while she was

waiting for transport at the road side. The deceased’s mother had

checked the deceased and informed PW7 & his friends that the

deceased had died.

PW11 is the Tuai Rumah of Rumah Ulak Tawang. He confirmed that on

the 15.12.2012 there was a wedding ceremony at Rumah Ulak. He said

there were 300 guests in attendance that night (See Q28A29 p243

NOP). He said around midnight he heard a commotion but because of

the loud karaoke he could not really hear what the commotion was all

about and where it was coming from. He said he was the Accused in

between “ruai” Bilik No.2 and “ruai” Bilik No. 3. He was about 8 feet from

the Accused when he walked past him (See Q21A23 p246 NOP). He

noticed the Accused was wearing a white and yellow colour short sleeve

shirt. He was the Accused’s shirt splattered with blood (See Q25A27

p240 NOP). PW11 then went back to sleep (See Q9A10 p241NOP).

Around 5.00 a.m on the 16.12.2012, PW11 was woken up and was

informed of a person lying by the road side. PW11 was informed that the

deceased was Langgang whom he knew as the deceased used to visit

him when the deceased was still alive.

PW12 related more or less the same scenario as told by PW7 about the

fight. PW12 said Delly went forward and punched the deceased. Both

had exchanged punches (See Q12A13 p255 NOP). PW12 said he

dragged Delly away while Romio dragged PW7 away from the fight (See

Q24A25 p254 NOP). PW12 said he was about 6 feet away from the

deceased when he saw the Accused went towards the deceased

(SeeQ1A2 & Q9A10 p255 NOP). He also said before going towards the

deceased he was the Accused pulled out some sort of white cloth from

his sling bag but he did not know what it was (See Q18A19 p255 &

Q13A14 p256 NOP). PW12 then saw the deceased fell down to the

ground face down (See 13A14 and Q24A25 p256 NOP). PW12 said

during the fight there were also other people watching but he did not

recognize them (See Q21A22 p256 NOP). PW12 said the fight stopped

after the deceased fell down (See Q21A23 p289 NOP). He and Delly

then went in and sat at ruai bilik No.3 (See Q1A3 p257 NOP). PW7 and

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Romio joined them a few minutes later (See Q5A6 p257 NOP) and after

that the Accused also joined them (See Q14 A15 p257 NOP). PW12

said he discovered the deceased on the ground when he went down to

urinate around 4.00 a.m. (See Q4A5 p258 NOP). PW12 also said the

deceased was unconscious and was drunk (See Q28A29 p258 NOP).

He then informed PW7 and together with his friends they sent the

deceased on a motorbike to his long house but on the way they fell

oftheir motorbike. They left the deceased on the road side. When the

deceased’s mother came, PW12 and the rest of his friends went home.”

Prima Facie Case

[4] At the end of the prosecution’s case, the learned trial judge found

that the prosecution had proved that:

(a) Langgang Anak Kaju (the deceased) had died;

(b) The deceased died as a result of injuries sustained by him;

and

(c) The injuries of the deceased which resulted in the

deceased’s death were caused by the act of the accused.

As to the injuries suffered by the deceased and the cause of death, the

learned trial Judge accepted the evidence of PW4, Dr. Norliza binti

Ibrahim (Pathologist), and said (page 14 AR):

“[34] PW4 said she had stated in paragraph 2 under sub-heading

“Kesimpulan”: “Si mati mengalami lebih kurang 11 tanda kecederaan,

sepuluh dari luka tersebut merupakan luka yang selaras diakibatkan

trauma benda tumpul. Satu lagi merupakan luka tikaman”. PW4 said the

injury that is fatal is the stabbing injury and at page 5 paragraph 2 of Ex.

P31 she had stated that this injury was sufficient in the ordinary

course of nature to cause the death of the deceased. She had also

explained that the deceased did not have any other disease or injuries

that might cause or contributed to his death nor were there any injuries

consistent with defensive injuries.” (Emphasis added)

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[5] The learned trial judge then found the prosecution had

established a prima facie case against the respondent based on

testimonies of the PW4, PW7, PW12, and PW14. The respondent was

called to enter his defence.

Defence

[6] The accused had decided to give unsworn statement from the

dock. In his written unsworn statement in the Iban language (exhibit

D6), which he read from the dock, he said, as interpreted by the court

interpreter, as follows:

“(i) The things that happened that I could recall, by me. Willey anak

Salleh, things that happened on 15th December 2012, 16th December

2012 and 17th December 2012.

(ii) On the 15th December 2012 I followed my father and mother visited

the wedding ceremony at Rumah Panjang Ulak Tawang Hilir. On that

day, I was working with my father to build house of Barayan anak

Charlie. Barayan is my mother’s brother.

(iii) My father and my mother went to Rumah Ulak by walking from Rumah

Gerunjong taking about 10 minutes.

(iv) I followed my father and my mother because they have been invited to

the wedding ceremony.

(v) On the night of wedding ceremony I have met Rhemhandy, Romio

anak Tamin, Christy anak Joseph Agan, Delly anak James Belusan

and Qalzalinas. They know my uncle by the name of Brayan anak

Charlie. Whenever they visited my uncle, I have met them. So on that

night I hang out with them, together we went to Bilik No 8 of Rumah

Ulak. There we eat and drink. We have been served and drink beer at

Bilik No 8.

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(vi) At about past 8.00 pm, we went out to Ruai No 8 because we wanted

to see the wedding ceremony. After the wedding ceremony end, we sit

at Ruai No. 9. There we have been served and drink beer again and

also liquor. We have been serve by the owner of Ruai No 9.

(vii) After that we moved to Ruai No 8. There we were served with drinks

and eat biscuit that have been served by the owner of Ruai No 8.

(viii) Then me, Rhemhandy, Christy anak Joseph Agan, Delly anak James

Belusan, Romio anak Tamin and Qalzalinas moved to Ruai No 3. We

sit and we drink beer and liquor. When we moved to Ruai No 3, I drink

so much and I was dizzy or headhache necause I was drunk. At that

time I saw Rhemhandy, Christy anak Joseph Agan, Delly anak James

Belusan, Romio anak Tamin and Qalzalinas also drunk.

(ix) Even though I was drunk, I still can dance at Ruai No 2 because band

boy have played karaoke at Ruai No 1. A lot of people dancing at Ruai

No 2. As what I can see at that time Rhemhandy, Christy anak Joseph

Agan, Delly anak James Belusan, Romio anak Tamin and Qalzalinas

have drunk but they also can dance and mingle with other people at

Ruai No 2.

(x) On 15th & 16th December 2012 I brought my sling bag. My sling bag

was always with me when I sit at Ruai No 8, Ruai No 9 and Tuai No 3.

Inside my bag there is a handphone that cannot be used and broken

and also inside my sling bag I have crooked knife resembling a tin can

opener. The said knife was sharp but do not have a handle

(xi) At the time when we dance at Ruai No 2 together with all the guests

then Qalzalinas asked permission to borrow my sling bag because he

said he wants to put his wallet. I then gave my sling bag to him. I do

not know how long he borrowed my bag but he has returned my sling

bag to me. After Qalzalinas returned my sling bag to me, I did not

open and check what is inside my sling bag because I was drunk plus

still keep on dancing.

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(xii) I still remember when I sit at Ruai No 3 together with Rhemhandy,

Christy anak Joseph Agan, Delly anak James Belusan, Romio anak

Tamin and Qalzalinas my face was facing toward pintu bilik Ruai No 3.

My back facing towards five foot way. I was drunk. I do not know what

happen surround me either on my side, on my front or my back.at that

time there were a lot of people and boy band was playing the music. It

was loud that is why I cannot hear what the thing happen.

(xiii) The night of 15th December 2012 I don’t know there is a fight occurred

at Rumah Panjang because I was drunk and the music was loud but I

know my sling bag was never away from my side. On that night I didn’t

open my bag. I did not take the handphone, did not show the braclet

as well as I did not show the knife without the handle. All these things

were inside my bag.

(xiv) At about past midnight Christy anak Joseph Agan talking with us when

we sit together. He is talking more with Rhemhandy. After Christy

anak Joseph Agan talking with Rhemhandy, Rhemhandy then asked

me, Delly anak James Belusan, Christy anak Joseph Agan and Romio

anak Tamin went down to five foot way of Ruai No 3.

(xv) Underneath the five foot way of BilikNo 3 there is no light. Christy

anak Joseph Agan said to Rhemhandy there is someone lay

underneath the five foot way of Bilik No 3. Underneath the five foot

way of Ruai No 3 is dark because there is no light even though I still

can see that someone lay down underneath the five foot way. I do not

know who that person is. Rhemhandy told Laggang was drunk and

have to send him back to his own Rumah Panjang.

(xvi) I did not hang around with Langgang and I do not know who he is, I

trust Rhemhandy because he says that person is Langgang and

Langgang was drunk.

(xvii) Rhemhandy asked me, Christy anak Joseph Agan and Delly anak

James Belusan to send Langgang to his rumah panjang using Romio

anak Tamin;s motorcycle. I did help carry Langgang to motorcycle.

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Langgang was placed and seated on the motorcycle. He was seated

between Christy anak Joseph Agan and Delly anak James Belusan on

the motorcycle. Christy anak Joseph Agan was seated at the back

holiding Langgang and Delly anak James Belusan riding the said

motorcycle.

(xviii) I followed the motorcycle by walking toward the main road of Tanjung

Bijat and Romio anak Tamin and Rhemhandy followed using their own

motorcycle.

(xix) I walked to main road not far from the Rumah Panjang where the

wedding ceremony held. I saw the motorcycle that been ride by

Christy anak Joseph Agan, Langgang and Delly anak James Belusan

fell off to the side of the road. At that time it was dark but from the

motorcycle main light that was fell off. I saw Langgang was lay down

at the side of the road. From the main light of the motorcycle then I

saw blood on Langgang’s body.

(xx) When I reached the place where the motorcycle fell off, Rhemhandy,

Romio anak Tamin, Christy anak Joseph Agan and Delly anak James

Belusan were already there.

(xxi) Soon after Rhemhandy and Romio anak Tamin picked up the fallen

motorcycle and Langgang still lay down at the side of the road. Romio

anak Tamin took his own motorcycle that been used to carry

Langgang. He used the motorcycle to the other place together with

Rhemhandy.

(xxii) I do not know where Rhemghandy Romio anak Tamin, Delly anak

James Belusan and Christy anak Joseph Agan went with their

motorcycles but they all left me alone at the side of the road to take

care of Langgang who was lay down there.

(xxiii) I do not know how long I waited there. Then people from rumah

panjang came there. After that Langgang mother also came. She in

tears, hug Langgang and said Langgang had died. At that time I was

shocked upon hearing Langgang was dead. At the time when I helped

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Langgang seated at the motorcycle at rumah panjang I do not know

whether he had died or drunk because I just believe what Rhemhandy

had said. He said Langgang is drunk.

(xxiv) At that time, a lot of people from rumah panjang came to the said

place. I went back to my mother’s rumah panjang at Tawang

Gerunjong by walking. If I know Langgang was dead, I would not dare

to take care of Langgang alone at the said road.

(xxv) On the 17th December 2012 at the time I was working with my father

at the rumah panjang, the police came and wanted to take my

statement on the matter that happened on the night of 15th December

2012 and also on the morning of 16th December 2012.

(xxvi) I did not kill Langgang with the knife that does not have the handle. If I

use that knife that been accused on me, I would injured myself

because the said knife don’t have any handle. The knife does not

have any handle from the day I found it.

(xxvii) I pray the court release me from the charge of killing Langgang.”

[7] The respondent called three witnesses to support his defence. In

brief, Biah anak Charlie (his mother) (DW2), Brayan anak Charlie

(DW3), and Salleh anak Malin (DW4) testified that the respondent had

gone with them to the wedding reception and they had not heard of any

incidence of quarrel or fight that night. DW2 and DW4 also said that the

respondent was a good son to the family, was always helping his family

and not capable of killing as he had been brought up properly. DW4

further said the respondent was with him when the police came to arrest

the respondent.

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Findings of The Learned Trial Judge At The End of The Defence

Case

[8] At the end of the trial, the learned trial Judge found that there was

insufficient evidence to connect the respondent with the killing of the

deceased. The findings of the learned trial judge can be summarized as

follows:

(a) No direct or circumstantial evidence to prove that the

respondent had used exhibit P20C to stab the deceased;

(b) PW12 had given two versions on the object that came out of

the respondent’s sling bag. In court, PW12 testified it was a

white cloth while in his statements to the police, it was a knife

that look like ‘taji ayam’;

(c) PW7 testified that he had seen the respondent fighting the

deceased with his hands. He did not see any weapon used or

the respondent taking out P20C from his sling bag. Reliance

on this evidence was not sufficient to establish the guilt of the

respondent because PW7 did not testify having seen the

respondent using exhibit P20C to stab the deceased;

(d) PW14 (investigation officer) testified that based on his reading

and summation of the statements he had recorded from the

respondent, PW7, PW12, Delly, Romio, Qazalinas, Jhia,

Soekri, PW4 (pathologist), PW3, and PW7 revealed that

PW14, Romio, Delly, Qazalinas, Jhia and Soekri were at the

scene and witnessed the fight. However, the prosecution had

failed to call them as witnesses. Jhia and Soekri were not even

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offered to the defence. As a result, the prosecution had left the

court with two versions and a doubt was created as to the guilt

of the respondent;

(e) No explanation was proffered by the learned DPP pertaining to

‘mixed profiles’ in the PW9’s report (exhibit P44) about the

DNA profiles in (item iii) and about the swab from nail clipping

(item iv). The report was of no help to the prosecution as there

was no evidence to implicate the respondent; and

(f) No proof that the respondent had handled exhibit P20C which

had the deceased’s blood on it or that the respondent’s finger

print uplifted from exhibit P20C.

[9] Based on the above findings, the learned trial judge held that the

prosecution had not proven their case against the respondent beyond

reasonable doubt. Instead, the respondent had raised a reasonable

doubt as to his guilt. In the result, the learned trial judge had acquitted

and discharged the respondent of the charge preferred against him.

The Appeal

[10] Before us, the decision of the learned trial judge was challenged

on the following main grounds:

(a) there is strong circumstantial evidence that conclusively

point to the respondent as the person responsible for the

murder;

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(b) the learned judge erred in rejecting the evidence of PW12 in

its entirety when he should have accepted parts that were

not impeached or contradicted; and

(c) the learned judge erred in not taking into consideration the

evidence of PW14, the investigating officer, who testified

that it was the respondent who took and showed him the

place where he threw the handle of the weapon ‘taji’ which

was used to stab and thereby caused the death of the

deceased.

[11] Learned counsel in response fully supported the decision of the

trial judge and submitted that there was no nexus or connection to link

the respondent with the crime as charged, especially on the facts that

there was no blood trace on the weapon recovered and on the shirt

alleged to be worn by the respondent. In short, the decision of the

learned trial judge should be upheld.

Our Decision

[12] We have heard arguments by learned counsel and Deputy Public

Prosecutor (DPP) and perused the entire record. After giving our

anxious consideration, we are not with the DPP on all points raised in

challenging the learned trial judge’s decision.

[13] As to circumstantial evidence, the DPP had vehemently

contended that there was strong circumstantial evidence to conclusively

point to the respondent as the person responsible to cause the death of

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the deceased. It was pointed out that despite the cross examination of

PW12 by the prosecution, who was declared hostile by the learned trial

judge, there was evidence to show that the respondent had led PW14

to the place where he had thrown the handle of the spur (taji ayam). It is

to be noted that the spur, exhibit P20C, was earlier found at the scene

of incident without a handle. It was stressed upon us that the spur must

belong to respondent and was used by him to stab the deceased. It was

further argued that the respondent later threw the handle of the spur

somewhere after stabbing the deceased. Taking those evidence

together with the fact that the respondent was last seen together and in

close proximity with the deceased before he fell and later was found

dead, and the nature of the injuries as found by PW 4 (the pathologist),

the only inference to be drawn is that it was the respondent who

stabbed the deceased. It was submitted that the learned judge has

failed to consider the aforesaid strong circumstantial evidence and,

hence has erred in his decision.

[14] We do not find any merit in this contention. At the outset, we

noticed that the prosecution’s case was based on direct and

circumstantial evidence. On circumstantial evidence, it is trite law that

the circumstances from which the conclusion of guilt is to be drawn

should be fully proved and those circumstances must be conclusive in

nature to connect the respondent with the crime. This must be proved

beyond reasonable doubt by the prosecution and the circumstances

should be consistent only with the hypothesis of the guilt of the

respondent and totally inconsistent with his innocence. On a

consideration of the entire evidence on record, we find that the learned

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trial judge had correctly applied the law when he referred to cases on

this subject viz: Sunny Ang v PP (1996) 2 MLJ 195; Chan Chwen

Kong v PP (1962) 1 MLJ 307; Karam Singh v PP (1967) 2 MLJ 2;

Chang Kim Siong v PP (1968) 1 MLJ 68; Jayaraman Velayuthan &

Ors v PP (1982) CLJ 464; Dato Mohktar bin Hashim & Anor v PP

(1983) 2 MLJ 232; and, PP v Magendran Mohan (2005) 3 CLJ 92.

Based on those laws, he found that the circumstantial evidence referred

to by the DPP did not conclusively point to the guilt of the accused but

instead created a reasonable doubt as to who actually stabbed the

accused. We entirely in agreement with the learned judge’s analysis of

the evidence as follows:

“[76] Can the prosecution rely on circumstantial evidence that would

irresistibly point to the Accused to the murder of the deceased? What are

the circumstantial evidence here? I am concern (sic) the prosecution had

not specifically identified to me what are those circumstantial evidence

they are relying on.

(The learned trial judge stated the law as garnered from the above

cases, and continues as follows)

Circumstantial Evidence

[84] I think in this instant case, the following could be considered as

circumstantial evidence. I should therefore discuss them for purpose of

completion. They are these:

a) The Accused was the last person with the deceased before he

fell to the ground.

PW7 testified the Accused was exchanging punches with the deceased.

PW12 testified the Accused went towards the deceased before the

deceased fell down. PW7 and PW12 were the only two witnesses that

were called to testify seeing the deceased falling down. But was the

Accused the last person seen with the deceased. PW7 said before the

deceased fell Delly, Willey and Christy were with the Accused (See

Q1A3 p172 NOP). Could it be that the Accused had stabbed the

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deceased before the fell down to the ground. Only PW12 had allegedly

seen the Accused which he had given statements to the police. But then

PW12 had given two versions on the object that came out of the

Accused’s sling bag. One was a white cloth and the other was Ex P20C.

I have already given my reason why I could not rely on PW12’s evidence

because of this two versions.

b) Who inflicted the 11 injuries on the body of the deceased.

The injuries could have been inflicted during the fight and possibly when

the deceased fell of the motorbike. But who was the one that had

stabbed the deceased that caused his death. My answer to this is as in

my discussion in (a) above. But I would also add that I cannot rely on the

evidence PW12 and PW14 on Ex P20C being used by the Accused for

reasons which I have also discussed above. The report of the Scientific

Officer (PW9) was of no help as there were no evidence to implicate the

Accused such as DNA of the deceased found on Ex P20C or the

Accused’s finger print found on it. PW9 said she could not detect any

bloodstains on Ex P20C (See Q12A14 p228 NOP) and could not do any

DNA analysis.

I need to comment on the poor handling of this particular exhibit (Ex

P20C). PW15 said Ex P20C had bloodstains when he first seized it at the

crime scene. What caused the bloodstains on Ex P20C to be wiped out,

removed or disappeared could only be due to poor handling of exhibits

by the police forensic team. The bloodstains found on Ex P20C would

have really helped the Court. PW9 said no DNA was done on Ex P20C

as she could not detect any bloodstains (See Q12A14 p228 NOP).

c) Accused’s shirt spotted/splattered with blood.

PW11 said he was 8 feet away from where the Accused was when he

was his shirt splattered with blood. In one of his statement referred to by

learned DPP in her cross-examination under section 154, PW12 had

purportedly stated that the Accused came back looking worried with

spots of blood on his shirt. Again I cannot rely on the evidence of PW12

for similar reason as above. As far as PW11’s evidence the report of the

Scientific Officer (PW9) did not indicate DNA was done on the Accused’s

shirt as it had no blood specimen to enable her to do DNA analysis (See

Q15 A16 p192 NOP).

18

d) The can opener shape like knife with handle.

In his unsworn statement the Accused had in his sling bag a can opener

shape like knife without handle and looking at Ex P20C the Accused’s

description of the can opener shape like knife without handle would

appear to look similar to Ex P20C. The Learned DPP submitted only the

Accused knew of this can opener shape like knife which he kept in his

sling bag and which was with him during the incidence on the

15.12.2012. The assertion is that this can opener shape like knife which

looks similar to Ex P20C was the weapon used by the Accused to stab

the deceased. But there is no proof that the Accused had handled Ex

P20C which had the deceased’s blood on it or that it had the Accused’s

finger print uplifted from Ex P250C.

I should add here the police should have uplifted finger print on Ex P20C.

Since the Accused had stated in his unsworn statement that the knife

looked like a can opener which he had kept in his sling bag, his finger

print would have been present on Ex P20C to confirm it if this was the

knife that was used to stab the deceased.”

[15] The learned DPP further contended that the learned trial judge

had erred by not taking into account the fact that the respondent was

last seen and in close proximity with the accused. This is one of the

strong circumstantial evidence to implicate the respondent with the

murder. On this issue of last seen together, it is apposite for us to refer

to the case of Ashok v State of Maharashtra [2015] 4 Supreme Court

393 where it was said:

"The "last seen together" theory has been elucidated by this Court in

Trimukh Marotiu Kirkan v. State of Maharashtra, [2006] 10 SCC 106, in

the following words:

"Where an accused is alleged to have committed the murder of his

wife and the prosecution succeeds in leading evidence to show that

shortly before the commission of crime they were seen together or

the offence takes place in the dwelling home where the husband

also normally resided, it has been consistently held that if the

accused does not offer any explanation how the wife received

19

injuries or offers an explanation which is found to be false, it is a

strong circumstance which indicates that he is responsible for

commission of the crime. Thus, the doctrine of last seen together

shifts the burden of proof on the accused, requiring him to explain

how the incident had occurred. Failure on the part of the accused to

furnish any explanation in this regard, would give rise to a very

strong presumption against him."

In Ram Gulab Chaudhary v. State of Bihar, [2001] 8 SCC 311, the

accused after brutally assaulting a boy carried him away and thereafter

the boy was not seen alive nor his body was found. The accused,

however, offered no explanation as to what they did after they took away

the boy. It was held that for absence of any explanation from the side of

the accused about the boy, there was every justification for drawing an

inference that they had murdered the boy.

In Nika Ram v. State of H.P., [1972] 2 SCC 80, it was observed that the

fact that the accused alone was with his wife in the house when she was

murdered with a "Khukhri" and the fact that the relations of the accused

with her were strained would, in the absence of any cogent explanation

by him, point to his guilt.

The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan,

[2014] 4 SCC 715. In this case this Court has held that the circumstance

of last seen together does not by itself and necessarily lead to the

inference that it was the accused who committed the crime. There must

be something more establishing the connectivity between the accused

and the crime. Mere non-explanation on the part of the accused by itself

cannot lead to the proof of guilt against the accused.

From the study of above stated judgments and many others delivered by

this Court over a period of years, the rule can be summarized as that the

initial burden of proof is on the prosecution to bring sufficient evidence

pointing towards guilt of accused. However, in case of last seen together,

the prosecution is exempted to prove exact happening of the incident as

the accused himself would have special knowledge of the incident and

thus, would have burden of proof as per Section 106 of Indian Evidence

Act. Therefore, last seen together itself is not a conclusive proof but

along with other circumstances surrounding the incident, like relations

between the accused and the deceased, enmity between them, previous

history of hostility, recovery of weapon from the accused etc., non-

20

explanation of death of the deceased, may lead to a presumption of

guilt."

[16] In the factual matrix of the present case as found by the learned

trial judge, we are of the opinion that the concept of last seen together

as stressed by the DPP, with respect, does not apply here. There was

no enmity shown between them; there was no previous history of

hostility; no recovery of weapon from the respondent (as was found to

be in doubt), and there was clear evidence to explain the cause of

death of the deceased. All the more reason, the fight involved many

persons and the respondent was not the last to be seen with the

deceased, albeit last in the brawl. We would say that this concept

should not be intermingled with the facts of the respondent seen to be

last brawling with the deceased. The mere fact of been in close

proximity, without more, is begging the question. On this aspect alone,

the reliance on this concept is clearly misconceived and the DPP’s

contention is rejected in limine.

[17] Learned DPP next contended that the learned trial judge had

seriously erred in law and in fact when he rejected the evidence of

PW12, the prosecution’s only eye witness (i.e direct evidence), in its

entirety when he should have accepted parts that were not impeached

or contradicted. Again, we do not find merit in this contention. It is to be

noted that the prosecution had been allowed, upon application, to

subject PW12’s credibility to a section 154 procedure of the Evidence

Act 1950. It transpired that while giving evidence during examination in

chief, PW12 testified that during the concerned fight he saw the

21

respondent pulled out some sort of a white cloth from his sling bag. He

did not know what it was. He further confirmed this in his cross

examination. Those statements seem to run counter to his numerous

police statements where he was alleged to have said that the

respondent took out a knife from his sling bag, went towards the

deceased and stabbed the deceased with it. PW12 was also alleged to

have said that the respondent admitted that the knife belonged to him

and that he had stabbed the deceased with that knife. Realizing the

above contradictions between PW12 oral statements in court with his

previous written statements made to the police under section 112, of

the Criminal Procedure Code, the prosecution, at the end of the cross

examination, applied to the court for permission to ask leading

questions to PW12, commonly dubbed as declaring him as a hostile

witness, pursuant to section 154 of the Evidence Act 1950. As alluded

to earlier, the learned trial judge allowed the application, and at the end

of the trial found that PW12 had rendered two versions of the incident

relating to the knife and who actually used the weapon (P 20C) to stab

the deceased. In such event, the trial judge found PW12 to be a hostile

witness and disregarded his evidence. We do not see any flaw in the

judge’s decision on this issue.

[18] Upon a thorough consideration of the learned trial judge’s above

findings on this issue of challenge, we find that the learned trial judge

has in deciding as he did acted within the scope of the section 154,

Evidence Act 1950. Section 154 provides as follows:

22

“154 Question by party to his own witness

The court may, in its discretion, permit the person who calls a

witness to put any questions to him which might be put in cross-

examination by the adverse party.”

[19] It is trite that the scope of this provision, in brief, is to allow a

party, with the permission of the court, to put any questions to his own

witness which might be put in cross-examination by the adverse party.

Commonly dubbed as cross-examination of a party own witness, or

declaring one’s own witness as hostile, such cross-examination means

that the witness can be asked (a) leading questions under section 143,

(b) questions relating to his previous statement in writing under section

145, and (c) questions under section 146, of the Evidence Act 1950.

The discretion is the sole discretion of the trial judge and it can be

initiated at any stages of the proceeding. (See further: Sarkar Law of

Evidence, 17 Edn 2010, pages 2803 et seq on the principle and scope

of the provision; and, PP v Ramli bin Shafie (2002) 6 MLJ 153, inter

alia). In PP v Tan Chye Joo (1989) 2 MLJ 253, it was said that: “The

object of the cross examination under section 154 of the EA is only to

test the veracity of the witness.” As to procedure, the case of Re Wee

Swee Hoon, deceased; Lim Ah Moy & Anor v Ong Eng Say (1953)

MLJ 123; and the subsequent cases of S Lourdenadin v M Ratnavele

(1986) 1 CLJ 228 (HC), Muniandy & Anor v PP (1973) 1 MLJ 179

(FC); and also Yuen Chun Yii v PP (1997) 2 SLR 57, have laid the

procedure with such clarity needing no further elaboration from us.

Based on the above authorities, we find that the trial judge had acted

within the principle and scope of section 154 as elucidated above in

23

allowing the prosecution’s application to cross-examine PW12, the

prosecution witness. We noted that the prosecution did not challenge

this aspect of the procedure. What had been seriously challenged is the

effect of such procedure to the PW12’s credibility and evidence.

[20] The learned DPP contended that the court still have the discretion

to accept part and reject part of the evidence and not to reject PW12’s

evidence in its entirety. Upon consideration of the authorities, we cannot

agree totally with such proposition. Depending on the results of the

cross examination, the discretion lies with the trial judge whether to

reject in whole or in part the evidence of the witness. It is to be recalled

that in PP v Tan Chye Joo (1989) 2 MLJ 253, Wan Adnan J (as he then

was) said that:

“The object of the cross examination under section 154 of the EA is

only to test the veracity of the witness. The grant of the permission to

cross examine is not an adjudication by the court adverse to the

veracity of the witness. Whether the testimony of the witness should

be rejected in whole or in part depends on the result of the cross-

examination.” (Emphasis added)

In PP v Ramli bin Shafie (2002) 6 MLJ 153, Augustine Paul J (as he

then was) has this to say:

“It must be observed that even in the case of a witness who has been

declared hostile as much of his evidence which is corroborated by

other evidence can be accepted” (Emphasis added).

And, in Lee Kwan Woh v PP [2009] 5 CLJ 631; [2009] 5 MLJ 301, his

Lordship Gopal Sri Ram FCJ lucidly says as follows:

“The fact remains that PW8 had made a previous statement to PW3

which was inconsistent with his evidence in court. This, at the very least,

24

had the effect of rendering his evidence suspect. It most certainly required the trier of fact to approach that evidence with caution. As Ali J (later Ag LP) said in Mohamed bin Kasdi v. Public Prosecutor [1968] 1 LNS 78.

No hard and fast rule can be laid down for determining the credibility or otherwise of a witness, but when a witness gives or makes two statements which differ in material particulars there must necessarily be ground for believing that he is not a truthful witness.”

[21] We, however, are of the opinion that once a witness has been

successfully declared hostile by the court, his evidence cannot, as a

matter of law, be treated as washed off the record altogether. It is to be

noted that the prosecution did not at any stage apply to court to

impeach its own witness under section 155 (c) read with section 145 of

the Evidence Act 1950, which as the laws stand in praesenti, will have

that drastic effect of washed off the record altogether (see: Dato

Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232

(FC); and DSAI v PP & Another Appeal (2004) 3 MLJ 405 (FC).

Hence, we are of the considered view that such drastic effect should not

be equally applied to a successful invocation of the section 154

procedure per se. Apart from the underlying rationale of section 154, we

agree with the following decision of the Supreme Court of India in

Krishnan Chander v State of Delhi (2016) INSC 8 (SC) which says:

“The fallacy underlying this view stems from the assumption that the only purpose of cross examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admission of facts which would help build the case of the cross-examiner. When a party with leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that a witness might revert to what he had stated previously… 51. From the above conspectus, it emerges clear that even in criminal prosecution when a witness is cross-examined and contradicted with the

25

leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony”.

[22] Bearing the above principles in mind, we have no hesitation to

hold that the learned judge was right in the way he treated the evidence

of PW12’s evidence. It is within his discretion, upon the result of cross-

examination of PW12, to reject or wash off PW12’s evidence altogether.

We, therefore, have no hesitation in agreeing with the learned judge’s

decision as follows:

“68. It has been argued that where a witness was not a truthful

witness, the Court could not accept part of his evidence and reject the

rest, since the principle was that where a witness for the Prosecution

led two sets of evidence which were contradictory with each other on a

fundamental matter, the inevitable conclusion was the Court would be

left with no trustworthy evidence upon which a conviction could be

based (Public Prosecutor v Rajandran Kadirveil (2002) 1 LNS 234;

(2002) MLJ 77). In such a situation, the Accused would be entitled to

the benefit of a reasonable doubt in his favour (Yusoff Kassim v. Public

Prosecutor (1992) 3 CLJ 1533……Public Prosecutor v. Lee Eng Kooi

(1993) 2 CLJ 534….)

69. My reading of those cases above have persuaded me not to rely

on PW12’s evidence or at all.”

[23] For completeness, we must say that we also agree with the

further findings of the learned judge especially on the evidence of PW 7

and PW14 in his quest to find any further link to the guilt of the

respondent. We agree with the following learned trial judge’s findings:

“[70] What then of the evidence of PW7. Is he of any help? He was

certainly in the thick of the fight. PW14 said during interrogation when Ex

P20C was shown to PW7, he agreed it belonged to the Accused (See

26

Q30 p362 and A3-4 p368 NOP). PW7’s evidence in Court however

showed he did not testify seeing the Accused taking out this Ex P20C

from his sling bag. In fact all that PW7 said, was that he saw the Accused

fighting the deceased with his hands (See Q1A4, Q6A7 & Q9A10 p159

and Q19A21 p161 NOP). I would have thought PW7 would have seen

the Accused taking out his Ex P20C from his sling bag he being merely 6

feet away from where the Accused, Delly, Christy and the deceased

were fighting (See Q27A29 p 112 NOP). But in Court he said he did not

see the Accused taking out Ex P20C from his sling bag. PW7’s evidence

is of no help to the Court.

[71] What about the evidence of PW14. He was the IO of this case.

PW14 testified from his investigation this Ex P20C was the weapon that

was used by the Accused to kill the deceased (See Q4A5 & Q7A8 p366

NOP). PW14 also said the Ex P20C had a handle but it fell down to the

floor during the fight. The Accused then picked it up and had thrown it

somewhere. PW14 in his evidence said he and together with his police

team had gone to search at the place where the Accused had allegedly

thrown the handle but could not find the same (Q1 A26 p365 NOP). The

prosecution however did not call any witnesses from the so called police

team to corroborate PW14’s evidence of such search for the handle. Mr.

Peli submitted that without the handle it would be difficult for the Accused

to exert a grip on it and carried out the stabbing on the deceased without

his fingers or hand being expose to injury. There was no evidence that

the Accused had injuries to his fingers or hand. I also agree that looking

at Ex P20C without its handle it could not be gripped by the fingers or the

hand so as to have the kind of force to stab.

[72] But PW14 said their (the Police) investigation led to Willey (the

Accused) (See Q23A24 p373 NOP). He obviously had relied on the

statements he recorded from PW7, PW12, delly, Romio, Qarizalinas, the

Accused, Jhia and Sokeri (See Q16A17 p347 NOP & Q26A27 p364

NOP). The learned DPP had urged the Court to accept PW14’s evidence

as the police had no motive to frame the Accused.

[73] This is how I consider PW14’s evidence. In giving his evidence in

Court PW14 is merely relating the result of his investigation of the case

against the Accused based on his reading and summation of those

statements he had recorded from the Accused, PW7, PW12, Delly,

Romo, Qazalinas, Jhia and Soekri. Of course his investigation would also

include looking at the reports of PW4 (the patalogist), PW3 and PW7

(scientific officers). But what PW14 had said in Court may even be

27

hearsay based on what others had told him though recorded but not

tendered in Court. Further it is my view that merely relying on the

evidence of the Investigation Officer without more would be saying that

all that is needed is for the Investigation Officer to give evidence to the

Court and that would secure the conviction of the Accused. This however

would not be proving the prosecution’s case beyond reasonable doubt.

[74] The prosecution therefore needs to call those witnesses who had

given their statements to the police to testify in Court. The prosecution

reliance on PW7’s evidence that he was the Accused fought the

deceased with his hands was not enough because he did not testify

having seen the Accused used Ex P20C and stabbing the deceased. As

for PW12’s evidence I am unable to give any weight to it since PW12 had

given two versions of what he was, namely a white cloth and the other Ex

P20C. Mr. Peli said Romio, Delly, Qazlinas, Jhia and Soekri should have

been called to give evidence as they were all in the fight. The learned

DPP submitted their evidence would be repetitious because they would

be giving evidence as that of PW12 and PW7.

[75] I agree Romio, Delly, Qazlinas, Jhia and Soekri as well as those

who had watched the fight should have been called to give evidence.

These witnesses could provide us with direct evidence on the weapon

used by the Accused. To me for the learned DPP to say that these

witnesses would be giving “repetitious evidence” could be construed that

either these witnesses did not see the Accused taking out the Ex P20C

from the Accused sling bag or that they saw the Accused taking out a

white cloth. But for the learned DPP to say both Jhia and Soekri would

also be giving repetitious evidence as PW7 and PW12 would be very

presumptuous indeed as to me Jhia and Soekri could be considered

independent witnesses since their friend (the deceased) had died during

the fight and they surely want the real perpetrator to face the wrath of the

law. I am also concern that Jhia, Soekri and Romio were not even

offered to the defence. I am also concern that Soekri is a local

Sarawakian yet the prosecution had failed to secure his attendance. But

in the end where the Court is left with two versions and the Court is in

doubt as to the guilt of the Accused it is trite law the Court should give

the benefit of doubt to the Accused.”

[24] Resultantly, it is clear that there are several missing links in the

chain and it is not possible to hold that the circumstances as

28

established lead to the irresistible inference that the respondent was

guilty of the offence with which he stood charged. The learned trial is

thus fully justified in coming to the following ultimate findings:

“[96] I now ask myself whether the cumulative effect of all the

evidence leads to the irresistible conclusion that it was the Accused

who committed this crime or whether the prosecution had proven its

case beyond reasonable doubt. My answer is No and in stating so I

have taken guidance from the reported cases which I have referred to

above. There is no direct evidence and the circumstantial evidence also

fall short of the standard required and does not satisfy the required test

as stated in those cases I have referred to. There is therefore

insufficient evidence to connect the Accused with the killing. In view of

the above it is my finding that the Prosecution had not proven their case

against the Accused beyond reasonable doubt but that the Accused

had raised a reasonable doubt as to his guilt. I therefore discharge and

acquit the Accused of the charge against him.”

[25] On a consideration of all the materials on record and the

arguments as presented before us, the appeal is devoid of merit and we

have no hesitation to affirm the judgment of the learned trial judge.

Therefore, the appeal is dismissed. So ordered.

signed

ABDUL KARIM BIN ABDUL JALIL

Judge

Court of Appeal

Malaysia

Dated: 21st November 2017

29

For the Appellant:

Norinna Bahadun

Deputy Public Prosecutor

Attorney General’s Chambers

Putrajaya

For the Respondent:

Abdul Rahman Mohd Hazmi

Messrs Ziyyad Mohammad & Company