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2024 MarsdenLR 1435
HIGH COURT MALAYA IPOH
SARAVANA KUMAR KANNU – Appellant
Versus
PP – Respondent
[Criminal Appeal No: AA-42S-4-07/2023]
The court emphasized the prosecution's failure to investigate the appellant's physical incapacity and the flaws in the identification process, leading to reasonable doubt and the allowance of the appeal.
Headnote:(A) Penal Code - Sections 395 and 397 - Conviction for robbery and causing grievous hurt - Appellant's conviction challenged on grounds of physical incapacity to wield a weapon, identification reliability, and alibi validity - Prosecution's failure to investigate appellant's hand condition and the identification process raised reasonable doubt. (Paras 1-36)
(B) Identification - Reliance on dock identification without an identification parade is undesirable; the absence of reliable identification procedures undermines the prosecution's case. (Paras 21-30)
(C) Alibi - The rejection of the alibi based solely on witness relationships without thorough examination is insufficient. (Paras 31-35)
Facts of the case:
The appellant was convicted for robbery and causing grievous hurt with a weapon during an incident involving the complainant, who recognized the appellant despite the appellant's claim of physical incapacity due to a past injury.
Findings of Court:
The prosecution failed to establish the appellant's ability to wield a weapon, and the identification process was flawed, leading to reasonable doubt regarding the appellant's guilt.
Issues: The main issues were the appellant's physical inability to grip a weapon, the reliability of the identification process, and the validity of the alibi.
Ratio Decidendi: The court found that the prosecution's failure to investigate the appellant's physical condition and the flaws in the identification process warranted allowing the appeal.
Result: The conviction was set aside, and the appellant was acquitted and discharged.
JUDGMENT
Introduction
[1] This appeal concerns the conviction of the appellant, who allegedly wielded a "parang" during the commission of a crime, causing grievous injury to the victim (complainant). It is noted that the appellant's hands appear visibly deformed due to a past injury, a deformity confirmed by the Investigating Officer. The pertinent question for the court's consideration is whether the appellant's conviction is safe given the lack of further investigation into the appellant's hand deformities and the issue of his identity.
Facts
[2] The appellant was charged with an offence under s 395, read together with s 397 of the Penal Code , for robbery and causing grievous hurt with a weapon. The charge reads as follows:
"Pertuduhan Pindaan
"Bahawa kamu bersama-sama dengan 2 orang yang masih bebas pada 26 Disember 2019 jam lebih kurang 10.30 malam bertempat di kawasan berhampiran tanah perkuburan India Ara Payung, di dalam daerah Batu Gajah, di dalam Negeri Perak didapati telah melakukan rompakan berkumpulan ke atas wang tunai RM300.00 dan sebuah telefon bimbit jenama Oppo S7 milik Shan a/l Ravendera (No K/P: 960403-08-6485) dan semasa melakukan rompakan itu kamu telah menyebabkan cedera parah kepada Shan a/l Ravendera (No K/P: 960403- 08-6485). Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah s 395 Kanun Keseksaan yang dibaca bersama s 397 Kanun Keseksaan."
Background Facts
[3] On 25 December 2019, at approximately 10 pm, the complainant (SP2) went to a cattle farm on a motorcycle. Suddenly, someone kicked the motorcycle, causing SP2 to fall off the motorcycle. After SP2 fell, someone sat on him while another person covered SP2's face using the t-shirt SP2 was wearing.
[4] SP2's hands were then tied with the jacket he was wearing, and his helmet was removed. SP2 was subsequently beaten.
[5] Another man tied SP2's legs with a tree root and then struck him with a tree branch. This individual also pulled out SP2's bag and took his belongings, including a mobile phone in his pocket.
[6] SP2 tried to remove the cloth covering his face. After managing to do so, he saw one of the men pull out a "parang" and swing it at him in an attempt to slash him. SP2 instinctively blocked the attack, but the "parang" struck his left index finger. He then pushed the attacker and ran towards a nearby park. At the time, SP2 was on the ground, and the "parang" was approximately three feet long.
[7] SP2 ran towards the residential area of Taman Mewah, about 300 to 400 meters from the scene, while the accused and another man chased him for about 30 meters. SP2 ultimately sought help from a member of the public and was rescued.
[8] According to SP2, three men attacked him, two of whom were Indian. He claimed to recognise one of them as the appellant, whom he identified in court.
[9] SP2 stated that he had known the appellant for about a month before the incident. He claimed that it was the appellant who sat on him, tied his hands with his jacket, and removed his helmet. SP2 asserted that he recognised the appellant as the one who sat on him, even though the appellant was wearing a helmet at the time. SP2 noted that the area was somewhat dark but illuminated by moonlight.
[10] The belongings of SP2 that were allegedly stolen were a mobile phone, driving license, bank card, and a cash sum of RM1,000.00. SP2, during the trial, attempted to clarify the discrepancy of the amount RM300.00 as stated in the police report lodged at Batu Gajah report No: 5450/19, whereupon, during the trial, he testified that the amount stolen was RM1,000.00. This apparent contradiction or discrepancy occurred because SP2 was still in the hospital, feeling frightened and in pain when the report was made.
[11] The learned Magistrate found the appellant guilty and sentenced him to 12 years of imprisonment and three strokes of the cane. The appellant appeals against this conviction on three main grounds:
a) His physical inability to grip a weapon due to a pas
