Mokhtar Sidin JCA:

The appellant, Shanmugam a/l Munusamy, was convicted by the High Court, Shah Alam, Selangor under s. 300 of the Penal Code and was sentenced to death under s. 302 of the Code. The trial of the appellant was conducted before a panel of jurors and at the end of the trial, by unanimous decision, the jury found the appellant guilty of the offence of murder under s. 300 of the Penal Code. Based on that verdict the learned trial judge proceeded to sentence the appellant under s. 302 of the Penal Code. Against that decision the appellant appealed to this court.

The facts as enumerated by the learned trial judge in his submission to the jury are as follows:

On the day of incident at about midnight in the hall of their house, the appellant asked the deceased (his wife) for some money. The deceased refused to give the money. As a result of that a quarrel ensued between them. The appellant then left the hall and went to the back portion of the house. He reappeared in the hall carrying a sickle. He then slashed the deceased with the sickle three times on the head. When this happened the appellant and the deceased were standing facing each other. The deceased fell to the floor after she was slashed. While the deceased was lying on the floor the appellant took up a mop and hit the deceased's legs and waist three times. This was witnessed by their daughter, Primadevi a/p Shanmugam (SP9). At the time of the incident she was only nine years of age and at the time she testified in court she was twelve years of age. For all intents and purposes she was a child witness. According to her after the appellant hit the deceased with the mop, the appellant carried the deceased out of the house and placed her on the railway tracks near the house.

After placing the deceased on the rail tracks the appellant returned to the house and slept in the hall. SP9 was able to see all these through holes in the walls of her room.

When the appellant was asleep, SP9 went to the deceased who was lying on the rail tracks. At that time the deceased was still alive and SP9 saw injuries on her head and legs. The deceased was naked and was not able to get up. According to SP9, the deceased then asked SP9 to call her brother by the name of Segar. SP9 then went to wake up Segar and told him that the deceased was on the railway tracks. Segar went to the railway tracks where the deceased was and returned. He told SP9 that he could not find the deceased on the railway tracks and he went on to sleep. SP9 then woke up her two younger sisters and went to the railway tracks where the deceased was lying. One of them returned to the house and told SP9 that the deceased wanted some water. SP9 then woke up the appellant and told him of the deceased lying on the railway tracks. The appellant then told SP9 to tell the deceased to return to the house by herself. SP9 told the appellant that the deceased was unable to

walk. After that the appellant went and picked up the deceased and carried her to the house and placed her in the hall.

The appellant then asked his children to call their grandmother by the name of Poovaie a/p Kulandaivelu (SP10). SP9 together with Segar and another sister went to call SP10. After seeing the condition of the deceased SP10 asked SP9 to call her uncle by the name of Arumugam a/l Palaniandy (SP11). SP11 then went to see the deceased.

SP10, the mother of the deceased, gave evidence that in the morning of the day of incident she went to the deceased's house after she was called by SP9. She found that the house was in total disorder and found some blood stains on the floor. The appellant was drunk. SP11, the brother of the deceased, gave evidence that he was informed of the incident at about 2am. He went to the deceased's house in a car. When he reached the house he found the deceased in serious condition. The appellant was in the hall and looking angry. SP11 with the help of the appellant carried the deceased into the car and the