Vijayakumar A/L Muthu Raman V Public Prosecutor


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[In the matters of Criminal Trial No: 45-6-2005 Before the High Court of Malaya in Seremban]










Mohamed Apandi bin Haji Ali, JCA David Wong Dak Wah, JCA Hamid Sultan Bin Abu Backer, JCA


Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)




[1] The appellant’s/accused appeal came up for hearing on 29-032013 and upon hearing we dismissed it on the same day. My learned brothers Mohamed Apandi bin Haji Ali JCA and David Wong Dak Wah JCA have read the judgment and had approved the same. This is our judgment.


[2] The learned counsel for the appellant only raised one issue relating to the identification of the deceased, by SP1 (pathology) in relation to SP7 (I.O.) and SP8 (photographer) who took the photograph of the victim at the hospital where all 3 were present.


Brief Facts


[3] The appellant was charged for murder and convicted and sentenced to death pursuant to section 302 of the Penal Code. The amended charge read as follows:


“Bahawa kamu pada 2 Februari 2004 jam di antara 2.00 petang hingga 6.30 petang, di hadapan sebuah tokong kecil Cina, di tepi Jalan Labu, Batu 3, Kg. Dato Mohd Said, di dalam Daerah Seremban, dalam Negeri Sembilan Darul Khusus, telah melakukan pembunuhan dengan menyebabkan kematian KESAVAN A/L MUNIANDY, oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan. ”


[4] The facts of the case are well adumbrated by the learned trial judge in his 45 page judgment. We do not wish to repeat the same save to summarise as follows:




(i) PW2 and PW5 were appellant’s friend;


(ii) PW2 saw the victim being attacked by the appellant with a parang;


(iii) PW5 did not see the actual striking by the appellant but narrated all relevant events during his presence;


(iv) After the attack PW2, PW5 and one by the name Mani gave chase to the appellant and apprehended him;


(v) Subsequently the father and brother came to the appellant’s rescue;


(vi) PW5 and PW6 (deceased’s brother) brought the victim to the hospital where the victim subsequently died.


(vii) PW1 (the pathologist) had confirmed the cause of death and identified PW7 and PW8 without stating any nexus. That part of the evidence reads as follows:


“Pads tarikh tersebut 3/2/2004, 10.30 pagi saya telah menjalankan bedah siasat ke atas mendiang Kesavan Muniandy (No. KP: 730329-10-5073). ASP Satwant Singh dan jurugambar polis – dicamkan. ”


(viii) The nexus of PW1’s evidence can be found from the evidence of PW7 where he states:




“Saya ada menghadiri bedah siasat simatipada 3.2.04 jam lebih kurang 10.30 pagi di Hospital Seremban.


Bedah siasat dijalankan oleh Dr. Sharifah Safoorah, Jurugambar yang mengikut saya ke bedah siasat ialah Encik Zamanhuri. Saya telah arahkan Encik Zamanhuri ambil gambar semasa bedah siasat. ”


(ix) PW8 evidence also shows the nexus of PW1’s court identification of PW7 and PW8. The evidence of PW8 states:


“Pada 3/2/04 saya diarahkan oleh ASP Satwant Singh untuk ambil gambar bedah siasat di Hospital Seremban. ”


[5] The learned counsel for the appellant in reliance of the case of Looi Kow Chai Anor v PP [2003] 2 MLJ 65; Balachandran v PP [2005] 1 CLJ 85; Magendran Mohan v Public Prosecutor [2011] 1 CLJ 85 submits inter alia as follows:


“It is submitted, the prosecution had failed to make out a prima facie case against the appellant for his defence to be called.


Reference is made to ground 8 of the amended petition of appeal which is to the effect that the learned trial judge was wrong in not concluding that the identity of the deceased, a vital ingredient of the charge, had not be conclusively proven.




On the evidence, it is significant to note SP1, Dr. Sharifah Safoorah bt Syed Alwee Al’ Aidrus, does not positively advert to the presence of SP7, the investigating officer, ASP Satwant Singh during the post-mortem. Neither does she identify the police photographer all that appears at page 2 of RR Tambahan is,


“Pada tarikh tersebut 3.2.2004, 10.30 pagi saya telah jalankan bedah siasat ke atas mendiang Kesavan Muniandy (N. K/P: 730329-10-5073). ASP Satwant Singh dan jurugambar dicamkan’.


It is significant to note SP8, Lans/Kpl RF/102097 Zamanhuri bin Ahmad does not state he is the police photographer.


He says in evidence:


‘Pada 3.2.2004, saya diarahkan oleh Inspektor Satwant Singh untuk ambil gambar bedah siasat di Hospital Seremban’.


He does not even state that he took photographs but identifies certain photographs and negative as reflected below,


‘Ruiuk ID 5A-1 Dicamkan


P5 A-1: Gambar. Negatif dikemukakan


P5 An – In : Negatif’.




Under cross-examination he says,


‘Saya tidak tahu siapa dalam gambar’


And he is not re-examined by this prosecution on this score. [see page 40 of the RR Tambahan].


SP7, investigating officer, ASP Satwant Singh in his evidence at page 33 of RR Tambahan says,


‘Saya ada menghadiri bedah siasat si mati pada 3.2.2004 jam lebih kurang 10.30 pagi di Hospital Seremban. Bedah siasat dijalankan oleh Dr. Sharifah Safoorah, Jurugambar yang mengikut saya ke bedah siasat ialah Encik Zamanhuri. Saya telah arahkan Encik Zamanhuri ambil gambar semasa bedah siasat’.


Ruiuk ID5 A


Ini adalah gambar si mati Kesavan a/l Muniandy’.


SP6, Chanterakesh a/l Muniandy, the brother of the deceased at page 28 of RR Tambahan states after being referred to ID 5 – gambar 5A,


‘Ini gambar abang saya Kesavan a/l Muniandy’.


It is submitted, the evidence of SP6, SP7 and SP8 is contradicted by the evidence of SP1, Dr. Sharifah Safoorah,




whose evidence does not advert to the presence of ASP Satwant Singh and SP8. ”


[6] And relies on the case of Public Prosecutor v Mansur bin Yahya & Anor [2004] 2 MLJ 512 where it was held:


“Where there is a conflict of evidence in the prosecution’s case itself, and in this case a very material conflict, the benefit of the doubt must be given to the accused. There was no evidence against the first accused. The court dismissed the prosecution’s appeal against the first accused. ”


And says the appeal must be allowed.


[7] We agree with learned counsel that the prosecution omitted to clarify or lead evidence through PW1 the purpose why she identified PW7 and PW8. Omission by any stretch of imagination cannot amount to conflict of evidence. Conflict relates to contradiction. We do not find any contradiction in PW1’s evidence as it is supported by the evidence of PW7 and PW8. In addition there are overwhelming evidence that it was the appellant who attacked the victim, and the victim died of the attack and deceased was identified by all concerned, sufficient to attract the charge of murder. [see Cheong Kam Kuen v PP [2012] 8 CLJ 537 (FC)].


[8] After having gone through the evidence and the amended petition in detail (notwithstanding the learned counsel did not submit on all of the grounds), we are of the considered view the appeal has no merits.




[9] It is well settled that it is in the hands of triers of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction as well as sentence. We have perused the evidence in detail and we are satisfied that there are sufficient material to support a charge of murder including evidence to confirm the identity of the deceased and the view taken by the trial court on the relevant issues in our view was a reasonable view of the evidence on record, and the court had followed Radhi’s direction and rightly applied the maximum evaluation and beyond reasonable doubt test. [see PP v Aszzid Abdullah [2008] 1 MLJ 281; Tong Kam Yew & Wang Wee Cheng v PP Criminal Appeal No: B-05-63-2011 (20-3-2013; Chin Kek Shen v PP Criminal Appeal No: B-05-83/03-2012 (05-04-2013)].


[10] In consequence it is our judgment that it is a safe decision and appellate intervention is not necessary. Appeal is dismissed. The conviction and sentence by the High Court is affirmed.


We hereby order so.


Dated: 06 May 2013








Court of Appeal Malaysia




Note: Grounds of Judgment subject to correction of error and editorial adjustment etc.


For Appellant:


For Respondent:


Karpal Singh with Sangeet Kaur Deo Messrs. Karpal Singh & Co.


Kuala Lumpur.


Kwan Li Sa


Jabatan Peguam Negara Putrajaya



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