JUDGMENTBY: VISU SINNADURAI J

This is an appeal from the decision of the magistrate against the conviction and sentence of the two appellants. The two appellants Periasamy and Gunasegaran together with another (Suppiah) were charged as follows:

Bahawa kamu sama-sama lima orang lagi yang masih bebas pada 10 Januari

1988 jam 4.30 ptg di Kg Loke Yew di dalam Bandaraya Kuala Lumpur,

adalah ahli perhimpunan yang menyalahi undang-undang dan dengan niat

yang sama di dalam perhimpunan tersebut dengan sengaja mencederakan

Kumaroo @ Kumaran a/l Sathu KP: 8028232(B) telah melakukan kesalahan

merusuh dengan senjata bahaya iaitu rotan dan jika digunakan sebagai

senjata untuk menyerang mungkin menyebabkan kematian. Oleh yang

demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di

bawah s 148 Kanun Keseksaan (FMS Bab 45). (Emphasis added.)

During the course of the trial, the first accused (Suppiah) pleaded guilty and the trial proceeded against the two appellants. Both the appellants were found guilty and were sentenced to one days imprisonment and a fine of RM3,000, in default of which a term of imprisonment for two months. The appellants appealed to this court against the decision of the magistrate both against sentence and conviction.

Facts

The key witness for the prosecution was the complainant. Except for the police witnesses, no other witness testified at the trial. The facts of the case therefore as obtained from the complainants evidence are as follows. The complainant said that on 10 January 1988 at about 4.30pm he was driving his car along Jalan Setapak, Kuala Lumpur. When he approached Kampung Loke Yew, the exact location of which he could not confirm, but however said it was near Jalan Gurney, Cheras, Kuala Lumpur, he said that seven persons stopped his car. All seven persons were said to be of Indian origin and he said that one of them by the name of Murugesu questioned him regarding a police report which the complainant had made against Murugesus nephew.

He said in evidence that he was then hit with a rotan yang ada besi di hadapannya (rotan hose). He, however, said he was not sure as to who else hit him, except for Murugesu. He then ran away. After 10 or 15 minutes, he returned to the scene of the incident and drove his car home before going to the Tun Razak Police Station to make a police report of the incident. He then said that he went to the hospital to the out-patient clinic for medical treatment for his injuries.

The complainant said that he knew all six persons who attacked him except for one. He said he had known them since he was small.

In an identification parade subsequently conducted by the police, he identified the three accused persons.

I should perhaps point out at this stage that from the notes of evidence, it is evident that the complainant was not consistent in his evidence. Some of the inconsistencies are as follows: In his police report, he had said that there were eight persons who had stopped his car. However, later he said there were seven persons who were present and again later he changed his mind and said there were about seven to eight persons. In giving evidence in court, he said that on the date in question, he was driving his car home. However, in his police report, he said he was on his way to buy four-digit numbers. And again during cross-examination, he said he was not sure where he was going.

Another inconsistency is that, in evidence he said he was taken to the hospital by the police. Later, he said he was not sure who drove him to the hospital, and again later on re-examination, he said he drove the car himself. Furthermore, the complainant at first said that the accused had attacked him with a knife and a stick. Later, he said he was attacked with a wooden stick.

To several inconsistencies in his evidence pointed out to him by the defence, he admitted in cross-examination that he was unsure of certain events as

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