Ong Hock thye FJ:

The appellant appealed against his conviction in the High Court at Ipoh of the murder of one Mohan Singh, a mental hospital attendant, for which he was sentenced to death under s. 302 of the Penal Code. We allowed his appeal and now state the grounds of our decision.

According to the charge the murder was alleged to have been committed between 5 a.m. and 5.50 a.m. On 29 April 1966 that is to say, before daybreak. There was no eye-witness of the actual attack on the deceased; the prosecution case was based entirely on circumstantial evidence. The leading, and indeed only, witness for the prosecution who made any direct allegation against the appellant was Harbans Singh, an 18-year-old son of the deceased, who admitted that, because he saw the appellant about to enter his own quarters two doors away from where the deceased was found murdered in his sleep, he (the witness) assumed that the appellant was the assailant. Since Harbans Singh was the key prosecution witness, his evidence needs to be scrutinised with the utmost care.

In a block of attendants' quarters, housing six families, which are connected by a common outside corridor, the first billet was occupied by the deceased, the second by Duraiappan, another attendant, and the third by the appellant. A road runs past the immediate front of the building. The deceased slept on a charpoy placed on the corridor outside his front door, while his son slept indoors, with the door shut but not bolted. The appellants own front door was a mere 17 feet from the charpoy.

There was no evidence of any previous ill-will between the deceased and the appellant prior to discovery of the murder. But at about 8 p.m. on the previous night, there had been a quarrel between the wives of the appellant and Duraiappan over the use of a common stand-pipe. These two families had not been on talking terms for some time past. Two hours later, when the appellant returned home from duty at about 10.10 p.m. it was alleged by Harbans Singh that he came back shouting and abusing, not only Duraiappan, but also Kernail Singh (another attendant living in the next block) and the deceased. Why these two persons should have incurred his wrath was never disclosed or explained. The appellant was alleged to have challenged each of them by name to come out and fight, and Harbans Singh further testified that the appellant was shouting aloud that one of them was certain to meet his death that very day: "Ini hari tiga orang, satu orang mesti mati." Duraiappan alone accepted the challenge and there appeared to have been a heated argument during which the husband and wife on each side brandished various offensive weapons, but without coming to blows. Kernail Singh was not then at home, having left at 9.45 p.m. to go on duty at 10 p.m., while the deceased neither replied nor came out: he was coolly unconcerned with the disturbance outdoors. His attitude may be summed up in the words quoted by his son, that he had no quarrel with anybody: in fact he had so little anxiety about the whole affair that he still preferred to sleep out in the corridor.

Harbans Singhs' evidence, insofar as it spoke of two separate scenes on the same night, was confirmed by the evidence of sergeant Ismail bin Lazim, who visited the quarters twice to ensure that there was no breach of the peace. Of the alleged threat to kill, there was supporting evidence only by Harbans Kaur, elder sister of Harbans Singh, and by Kamalachi, wife of Duraiappan, but not by Duraiappan himself, who merely spoke of the appellant abusing the three persons and challenging them to come out and fight. It is significant that, since Duraiappan had been personally threatened with death along with Kernail Singh and the deceased, he should naturally have considered himself the most probable victim as the active and direct participant in a confrontation of arms with the appellant. He should have felt the greatest concern for his own personal safety. Y