Ismail Khan J:

The appellant was in the first place tried on a charge that he with four other accused being members of an unlawful assembly, the common object of which was to cause hurt to one Ramasamy, one of their members caused grievous hurt to the said Ramasamy with a parang and thereby committed an offence under ss. 149 and 326 of the Penal Code.

Substantive evidence of the primary facts was given by Ramasamy himself supported by close members of his family, viz his younger brother Maniam (PW2), his son Muniandy (PW4) and mother Thanapackiam (PW5). Since, however, Ramasamy himself categorically stated that none of the other four coaccused had said or done anything at all in the events alleged to have taken place, the learned trial Judge at the close of the prosecution case was compelled to hold that these co-accused had no prima facie case to answer. They were accordingly acquitted and discharged. In the result the charge against the appellant as sole remaining accused was amended to one of voluntarily causing grievous hurt to Ramasamy with a parang in contravention of s. 326 of the Penal Code. On that charge he was duly convicted and sentenced to three years' imprisonment. He now appeals against his conviction and sentence.

In his judgment the learned trial Judge said:

At the end of the case I gave the whole of the evidence very careful consideration. I had in mind the various discrepancies in the evidence of the prosecution witnesses. I had in mind what I considered to be a demonstrable

lie about PW1 having taken no alcohol on the day in question. However, notwithstanding such contradictions, discrepancies and lies, I was satisfied, as I stated at the end of the case, that the accused voluntarily caused grievous hurt to Ramasamy.

From the above quotation two facts emerge. In the first place the evidence of Ramasamy required close scrutiny in the context of the rest of the evidence, both for the prosecution and the defence.

In 1961 the then Court of Appeal comprising the same members as this Court, said in Khoon Chye Hin v. PP [1961] MLJ 105, 107:

If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinised with great care and indeed with suspicion.

In the second place, by contrast, the evidence of police constable No. 12428 (PW6) was accepted by the learned trial Judge as that of "the one independent witness in this case."

In our view the evidence of this independent witness ought to have been preferred as carrying more weight to that of Ramasamy himself and other members of his family who were described as partisan witnesses where there was any contradiction. In one material particular, the very essence of the offence there clearly was a conflict of evidence. The police constable stated that the weapon he actually saw the appellant carrying was a stick. Unless his evidence was accepted with reservations - which it was not - it goes without saying that a stick is not an instrument for cutting and specifically not a parang, so that the appellant could not have caused the incised wounds sustained by Ramasamy. On this point alone we think that the charge was not made out and the appellant should have been acquitted.

It was suggested by the learned Deputy Public Prosecutor that it was possible for the appellant to have been carrying both a parang and a stick or to have discarded the parang and picked up the stick which he was seen carrying by the police constable. According to the evidence, however, no one saw him do either of these and no parang if discarded was ever found. This Court therefore must confine itself strictly to the evidence on the record rather than indulge in surmise. In other words, where a conflict of evidence arose, should not the logical choice have been the evidence of the independent witness whose credit stood unshaken? It is true that we are differing from a findi