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2013 MarsdenLR 2314
FEDERAL COURT PUTRAJAYA
PP – Appellant
Versus
JITWEER SINGH OJAGAR SINGH – Respondent
[Criminal Appeal No: 05-286-2011(B)
The court determined that sufficient circumstantial evidence existed to reverse the trial court's acquittal, establishing potential guilt and the necessity for the accused's defense on murder charges.
Headnote:(A) Penal Code - Section 302 - Murder charge - Accused acquitted by trial court for insufficient circumstantial evidence - Prosecution's final appeal - Prosecution contended death caused by strangulation or smothering by accused - Trial court found prosecution failed to prove connection of accused to the crime or establish cause of death - Court of Appeal also ruled circumstantial evidence insufficient to infer guilt but focused on identity of perpetrator rather than alleged evidential deficiencies. (Paras 1, 4, 6, 20, 21)
(B) Evidence Act 1950 - Sections 32 and 112 - Admissibility of s 112 statement of a material witness and invocation of adverse inference due to prosecution's failure to procure witnesses - Court found that the trial court wrongly rejected the s 112 statement and that the prosecution had made reasonable efforts to procure witnesses, thereby concluding that the adverse inference was unwarranted. (Paras 5, 20)
(C) Homicide - Cause of death established as asphyxiation with multiple injuries - Pathologist's findings contradicted trial court's conclusion that cause of death was unproven - Evidence deemed consistent with homicide, necessitating the reversal of acquittal and a call for the accused's defense in trial court. (Paras 22, 24, 42)
Findings of Court:
The court overturned the trial court’s ruling on acquittal, determining that there was sufficient circumstantial evidence to warrant the reversal of the acquittal and that the matter should proceed to the accused's defense.
Issues: The issues centered around whether the prosecution had adduced sufficient evidence linking the accused to the crime, the admissibility of witness statements, the assessment of circumstantial evidence, and the trial court's handling of evidentiary rulings.
Ratio Decidendi: The court held that the circumstantial evidence when viewed holistically implicated the accused in the homicide, and the rejection of material evidence was incorrect, undermining the trial court's acquittal rationale.
Result: Appeal allowed; acquittal set aside; accused directed to enter defense.
| Table of Content |
|---|
| 1. prosecution's appeal against acquittal. (Para 1 , 1 , 2) |
| 2. prosecution's contention based on circumstantial evidence. (Para 3 , 4 , 5) |
| 3. trial court's evidentiary rulings on witness testimony. (Para 6 , 7) |
| 4. evidence admissibility and burden of prosecution. (Para 8 , 19 , 20) |
| 5. procedural requirements in appeals. (Para 9 , 10 , 18) |
| 6. pathological findings and cause of death. (Para 21 , 22) |
| 7. evaluation of circumstantial evidence and accused's actions. (Para 23 , 24 , 25 , 26) |
| 8. accused's behavior post-death and implications. (Para 27 , 28 , 29 , 30 , 31) |
| 9. homicide conclusion based on circumstantial evidence. (Para 32 , 33) |
| 10. inconsistencies in accused's statements and behavior. (Para 34 , 35 , 36) |
| 11. reliability of s 112 statement corroborating evidence. (Para 37 , 39 , 41) |
| 12. final judgment based on evaluated evidence. (Para 38) |
| 13. circumstantial evidence points to accused. (Para 40) |
[1] At the close of the prosecution case, the trial court acquitted the respondent (accused), a medical doctor, of the following charge of murder of his estranged wife:
"Bahawa kamu pada 22 Oktober 2007 jam di antara 7.00 pagi hingga 8.10 minit pagi, bertempat di No 27, Jalan 2/3, Bandar Country Homes, Rawang, di dalam Daerah Gombak di Negeri Selangor Darul Ehsan, telah melakukan kesalahan membunuh iaitu menyebabkan kematian Shento Kaur a/p Jaswant Singh (K/P No 610530-01-5532) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan."
[2] Against acquittal, the prosecution appealed to the court of Appeal but was unsuccessful. Hence, this is the prosecution's final appeal to reverse the order of acquittal at the close of the prosecution case.
[3] In short, the prosecution contended that the accused strangled or smothered the deceased to death at 27, Jalan 2/3, Bandar Country Homes, Rawang, where she lived separate and apart from the accused, since 2004.
[4] The prosecution case was entirely built on circumstantial evidence. In broad terms, the findings of fact of the trial court were that "The cause of death ... remains unprove[d]", that none of the 21 prosecution witnesses "Testified ... that it was the accused and no one else who was the perpetrator of the crime or that it was the accused who caused the death of the deceased", that "There was insufficient circumstantial evidence to connect the accused to the offence of murder", and that only one of the ingredients of the alleged offence, namely death of the deceased, had been proved. In coming to those findings, the trial court held that the prosecution had not called two material witnesses, namely the driver (Khairuddin) and the maid (Dariah, who was the mother of Khairuddin) of the accused, to exclude the possibility of their involvement in the death of the deceased, and that without their testimony there was a material gap in the prosecution case. Essentially, for those reasons, the trial court held that the prosecution had not made out a prima facie case against the accused.
[5] The prosecution had attempted to adduce the s 112 statement of Khairuddin to make up for want of his oral testimony, but the trial court held that the prosecution had not fulfilled the conditions of s 32 of the Evidence Act 1950 for admission of the same. According to the trial court, there was "no diligent search and reasonable exertion" to procure those two material witnesses, and it was not shown that they "could not be found or that their attendance could not be procured without delay and expense". The adverse inference under s 114(g) of the was invoked against the prosecution for its failure to procure the attendance of those two material witnesses. The trial court also faulted the prosecution for not having applied to admit the s 112 statement under s 396 of the Criminal Procedure Code .
[6] On appeal to the court of Appeal, both the rejection of the s 112 statement in evidence and the invocation of the adverse inference against the prosecution were t
