JUDGMENT

Thomson CJ:

[1] Jag-Jit Singh for the appellant: Prosecution invoked Penal Code s 34 but did not frame charge under that section. No suggestion of offence committed in furtherance of a common intention. Ratanlal 18th Edn pp 69, 771 and 821. Bishuwanath v. R AIR 1946 All 153. No evidence of common intention, prearranged plan and motive R v. Sathiah, [1938] MLJ 30.

[2] The learned trial Judge dealt with the question of common intention inadequately and incorrectly. He did not use the expression "common intention." Mahbub Singh v. R LR 72 IA 148. Question put to asessors: "Are you satisfied it was the accused who inflicted the fatal blow?" Answer: "Yes" (by one Assessor). Questions to assessors ignored the question of common intention. Statements made in course of Police investigation were admitted in contravention of Criminal Procedure Code (Cap 6) s 113(i) . Did not comply with Criminal Procedure Code s 113(ii) - as read with Evidence Ordiance s 145. Muthusamy v. Public Prosecutor, [1948] MLJ 57 Learned Judge was wrong as to burden of proof, did not attach sufficient importance to discrepancies, was wrong as a to dying declaration (Evidence Ordinance s 118); was deceased mentally competent then to say anything? Assessors' answers not properly considred (Criminal Procedure Code s 197 & s 198 ). Assessors insufficiently directed on issue of identity. First in formation report not produced. Contradictory evidence of witness not dealt nor mentioned in summing-up not grounds of judgement. Motive was never established, though suggested by prosecution.

[3] B Sheldon (Federal Counsel) for the respondent: (Called on as to common intention and use made of statements to the Police). Conceded that statements were not served. Criminal Procedure Code s 113(ii) and Evidence Oridinance s 145 were complied with in their entirety. Distinction DW2 who did not admit matters put to him and DW 3 who did admit. Penal Code on common intention, addmittedly charge contained no refewrence to Penal Code s 34 but there had been a preliminary was based on a joint attack. Ratanlal p 69. Courts Ordinance s 29 cf Criminal Appeal Act 1907 s 4 No substantial miscarriage of justice. Cooray v. R [1953] AC 407,419; R v. Cohen 3 Cr App R 180; IS R v. Harris 5 Cr App R 285; R v. Thompson 9 Cr App R 252. The point as to charge being defective was not taken at the trial. R v. Ballysingh 37 Cr App R 28. Othercases on miscarriage of justice; R v. Taylor 25 Cr App R 46; R v. Woolmington 25 Cr App R 96; R v. Bishirgian 29 Cr App R 182, 188. Common intention may arise at time of fight: Dost Mohd v. R AIR 1942 Pesh 29,32; Mahbub Singh v. R LR 72 IA 148; Ghosh v. R 41 TLR 27; Waryam Singh v. R ILR 22 Lah 432. On proper direction submit answers of assessorsand Court-would have been the same. Ask to apply proviso to Courts Ordinance s 29.

[3] Jag-Jit Singh in reply: Prosecution could have amended the charge-but they did not. And it was defective. By law there is nothing to show common intention. If learned trial Judge misdirects assessors he must be held to have misdirected himself.

[4] The Judgement of the Court was delivered by:-

JUDGMENT

Thomson J:

[5] This appellant was tried and convicted at the Kedah Assizes on the following charge:-

That you on the 27 May 1956, at about 7.00pm at Feeder 14, Sanglang, in the District of Kubang Pasu, in the State of Kedah, committed murder by causing the death of one Inin s/o Endin Kelai and you thereby committed an offence punishable unders 302 of the Penal Code.

[6] He appealed against his conviction and we dismissed his appeal. In doing so, however, we intimated that we would give our reasons at a later stage.

[7] The prosecution case was that the appellant Osman, the deceased Inin and a man named Hashim all lived in the same small village on the banks of an irrigation canal. It was throughout treated as a matter of common knowledge that the people here are subject to considerable Siamese influence and that among them "Man" is a common a