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2024 MarsdenLR 703
SESSIONS COURT IPOH
PP – Appellant
Versus
DARVINRAJ SUBRAMANIAM & OTHER CASE – Respondent
[Criminal Trial No: AA-61-3-08/2020 AA-61-4-08/2020 AA-61-5-08/2020 AA-82-10-08/2020 AA-82-11-08/2020 AA-82-14-08/2020 & AA-82-15-11/2023]
The prosecution must prove intention or knowledge for charges of attempted murder and related offences, which was not established in this case.
Headnote:(A) Penal Code - Sections 307, 324, 428, 506 - Arms Act 1960 - Section 39 - Acquittal of accused on multiple charges including attempted murder, causing hurt, mischief, and criminal intimidation - Prosecution failed to prove a prima facie case for all charges due to lack of evidence regarding intention and actions of the accused (Paras 20, 27, 31, 40).
(B) The court emphasized that the prosecution must establish intention or knowledge for charges of attempted murder and other violent acts, which was not met in this case (Paras 14, 20).
Facts of the case:
The accused was charged with multiple offences including attempted murder, causing hurt, and criminal intimidation based on incidents occurring on 6 October 2019 and 4 October 2019, where he allegedly discharged a firearm and caused injuries to others.
Findings of Court:
The court found that the prosecution failed to establish a prima facie case against the accused for all charges, resulting in his acquittal and discharge.
Issues: The main issues were the lack of evidence proving the accused's intention to commit the alleged offences and the absence of direct evidence linking him to the discharge of the firearm.
Ratio Decidendi: The court ruled that without clear evidence of the accused's intention or actions, the charges could not be sustained, leading to his acquittal.
Result: The accused was acquitted and discharged from all charges.
JUDGMENT
Introduction
[1] This is an appeal by the prosecution against an order of Acquittal and Discharge (A&D) of the accused.
[2] The accused was preferred with 7 charges under 7 case numbers.
Case For Prosecution
[3] It was the case for the prosecution that on 6 October 2019 at about 6.25 pm at no 16, Regat Merdeka, Taman Merdeka, 30100 Ipoh, the accused attempted to murder, punishable under s 307 of the Penal Code :
[i] Atiswary a/p Velu (Case number AA -61-3-08/2020);
[ii] Vaishnavi a/p Velu (Case number AA -61-4-08/2020); and
[iii] Nirmala a/p Utarai Nathan Thomas (Case number AA -61-5-08/2020)
by discharging pistol Walther P99 AS with serial number RMP 16607.
[4] It was also the case of the prosecution that on the same date, time and place, the accused had voluntarily caused hurt to Vaishnavi a/p Velu by hitting her head by means of instrument for shooting that is pistol Walther P99 AS with serial number RMP 16607, punishable under s 324 of the Penal Code . (Case number AA -82-10-08/2020)
[5] It was also the case of the prosecution that on the same date, time and place, the accused had committed mischief by firing a shot at a dog which caused injury, punishable under s 428 of the Penal Code . (Case number AA -82-11-08/2020)
[6] It was also the case of the prosecution that on the same date, time and place, the accused had discharged a firearm that is pistol Walther P99 AS with serial number RMP 16607, an offence under s 39 of the Arms Act 1960 punishable under s 43 of the same Act. (Case number AA -82-14-08/2020).
[7] Further, it was the case of the prosecution that on 4 October 2019 at about 9 pm, at the same place, the accused had criminally intimidated Atiswary a/p Velu to cause death to her mother, Nirmala a/p Utarai Nathan Thomas, via telephone communication, punishable under s 506 of the Penal Code . (Case number AA -82-15-11/2023)
Findings Of A&D At The End Of Prosecution Case
AA -61-3-08/2020, -61-4-08/2020 And -61-5-08/2020 (Section 307 Of Penal Code)
[8] The charges under 3 case numbers read:
Bahawa kamu pada 6 Oktober 2019 jam lebih kurang 6.25 petang bertempat di no 16, Regat Merdeka, Taman Merdeka, 30100 Ipoh, di dalam daerah Kinta, di dalam negeri Perak, telah cuba membunuh Atiswary a/p Velu, Vaishnavi a/p Velu dan Nirmala a/p Utarai Nathan Thomas dengan cara melepaskan tembakan dengan menggunakan sepucuk senjata api jenis pistol Walther P99 AS No Siri RMP 16607. Oleh yang demikian, kamu telah melakukan satu kesalahan dibawah s 307 Kanun Keseksaan yang boleh dihukum dibawah seksyen yang sama.
[9] The elements under the charge that must be proved:
[i] on 6 October 2019 at about 6.25 pm at no 16, Regat Merdeka, Taman Merdeka, 30100 Ipoh;
[ii] the accused attempted to murder Atiswary a/p Velu, Vaishnavi a/p Velu dan Nirmala a/p Utarai Nathan Thomas; and
[iii] by discharging pistol Walther P99 AS No Siri RMP 16607.
[10] Subsection 307(1) of the Penal Code reads:
Whoever does any act with such intention or knowledge and under such circumstances, that if he by that act caused death he would be guilty of murder, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable to imprisonment for a term which may extend to twenty years.
[11] Based on this subsection, the ingredients to be proven are:
[i] any act;
[ii] intention or knowledge; and
[iii] by that act, caused death thus guilty of murder.
[12] The date, time and place are proven by police reports exhibits P5 and D16.
[13] For attempted murder of Atiswary a/p Velu, Vaishnavi a/p Velu dan Nirmala a/p Utarai Nathan Thomas, there must be intention or knowledge on the part of the accused.
[14] The issue of whether the accused had the intention to attempt murder had not been proven.
[15] SP3 (Atiswary a/p Velu) testified that the accused was holding the pistol and saying he wanted to shoot himself. The testimony read (at p
