Gopal Sri Ram FCJ:

[1] The appellant was tried and convicted by the High Court at Kangar for the offence of murder and the mandatory death penalty was passed upon him. His appeal to the Court of Appeal was dismissed. He has now appealed to us. The facts relevant to this appeal are as follows.

[2] PW13 (Lai Chwing Churn) runs a shop in Kangar. It is called Kedai Sri Mega Communication. It sells cell phones and other telecommunication equipment. Nor Ayanti (the deceased) was employed there. PW13's father (PW8) also assisted in the running of the business. On 30 April 2001, at about 2.30pm, PW8 came to the shop. He saw three persons there. They were the deceased, PW9 and the appellant. Shortly thereafter PW9 left. After a brief conversation with the appellant, PW8 left the premises. At about 3pm, PW10 who was working in the shop next to PW13's heard the muffled sound of a lady screaming. He ran next door and tried to enter but found the door locked. He saw someone crouching behind the door. He asked his friend PW11 to watch whether anyone emerged from PW13's shop while he went off to get some assistance. PW11 then saw the appellant run out of the shop in question with blood dripping from his left hand. The appellant entered PW9's motorcycle shop and kept on running. He was pursued by PW9 and PW12 (PW9's colleague). PW9 noticed that blood was dripping from the appellant. The appellant sprang into a river, emerged and continued to flee, pushing aside PW12 who tried to apprehend him. Eventually the appellant was apprehended by PW15. The deceased who was initially alive though injured, succumbed to her injuries and died in hospital.

[3] Acting on these facts, the High Court directed the appellant to enter upon his defence. The appellant did so and elected to give evidence on oath. During his evidence, the prosecution sought to impeach his credit, relying upon a written statement made by the appellant to the police in the course of investigations. The relevant parts of the statement that were said to contain the contradictions relied upon were marked and handed up to the judge who, after perusing the relevant parts found material contradictions. However, after a voir dire, he held the statement inadmissible as having been made involuntarily and on that ground declined to proceed with the impeachment. In this he was entirely correct as a witness cannot be cross examined or impeached upon an involuntary statement. See, Nayeb Sahana v. Emperor AIR [1934] Cal 636.

[4] Before us, a submission was made that it was incumbent in these circumstances for the learned judge to have expressly made it clear in his judgement that he had put the appellant's previous statement out of his mind when considering the defence. That did not happen here. Hence the judgment is flawed and the conviction of the appellant rendered unsafe. In support of this argument reliance was placed on Public Prosecutor v. Jamali Adnan [1985] 1 CLJ 196; [1985] CLJ (Rep) 656 and the following passage from the judgment of Shankar J (later JCA) was read to us:

After the Defence was called and the Accused commenced to give evidence on oath he proceeded to give a detailed account of the questions which were put to him during the interrogation and the answers which he gave. This evidence was designed to establish that at no time did he tell the police that he had firearms or ammunition or that he would lead the police to the place where he buried them. Matters were sought to be brought out as to other friends of the Accused, and his relationship with Pie-ie, and his previous visits, and so on and so forth. It was at this point that the court in its anxiety to ensure that inadmissible evidence did not go in by default, invited the close attention of both the Defence Counsel and the learned Deputy Public Prosecutor to the provisions of section 113 of the Criminal Procedure Code and its impact on section 27 of the Evidence Act. Clearly no caution had been administered to the