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2022 MarsdenLR 1062
COURT OF APPEAL PUTRAJAYA
SIVA SANGKER MANI – Appellant
Versus
PP – Respondent
[Criminal Appeal No: J-05(M)-34-02/2021]
The court upheld the murder conviction based on reliable eyewitness identification and affirmed the evidential value despite discrepancies, while deeming DNA evidence as supplementary.
Headnote:(A) Penal Code – Section 302 – Charge of murder – The appellant was charged and found guilty of murder for slashing the deceased with a parang, resulting in her death – The conviction was based on eyewitness identification and DNA evidence, among other supporting testimonies. (Paras 1-2, 46)
(B) Identification Evidence – The court assessed the quality and reliability of eyewitness identifications based on proximity to the crime, lighting conditions, and prior knowledge of the accused, ultimately upholding the conviction. (Paras 16-27, 35-40)
(C) DNA Evidence – DNA evidence was considered but deemed not essential due to strong eyewitness testimony affirming the appellant's identity as the assailant. (Paras 46-49)
Facts of the case: The appellant was accused of murdering Durga Devi A/P Viswanathan in Johor, with multiple eyewitnesses witnessing the attack and identifying the appellant. (Paras 1-12)
Findings of Court: The court affirmed the conviction and sentence of death by hanging, finding no grounds for appeal. (Paras 50-51)
Issues: Core issues included the reliability of eyewitness identifications and the significance of DNA evidence in supporting the prosecution. (Paras 16-46)
Ratio Decidendi: The court found the identification evidence compelling due to the witnesses’ proximity and the clarity of the observation, overruling any concerns regarding discrepancies in witness testimonies. (Paras 22-36)
Result: Appeal dismissed; conviction affirmed.
JUDGMENT
Introduction
[1] The appellant was charged under s 302 of the Penal Code and the charge preferred by the Public Prosecutor against the appellant reads:
"Bahawa kamu pada tarikh 21 November 2016 jam lebih kurang 12.15 tengah hari bertempat di Jalan Kancil 1, Taman Scientex, 81700 Pasir Gudang di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Ta'zim telah melakukan bunuh ke atas seorang perempuan bernama Durga Devi A/P Viswanathan (No KPT: 931020-01-5162), dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan."
[2] The appellant pleaded not guilty to the charge. Twenty-three witnesses gave evidence for the prosecution. At the end of the prosecution case, the learned Judicial Commissioner ("JC") found that the prosecution had proven a prima facie case, and the appellant was consequently called to enter his defence. The appellant gave evidence on oath. Two other witnesses were called to give evidence during the defence case. At the end of the defence case, the appellant was found guilty. He was convicted and sentenced to death by hanging.
[3] Aggrieved with the said decision, the appellant filed the present appeal, which was heard before us. After perusing the appeal records and hearing both parties' submissions to this appeal, we have come to a unanimous decision. We found no merits in the appellant's appeal, and the appellant's conviction was safe. As such, we have affirmed the appellant's conviction and sentence. Our reasons are set down below.
The Prosecution Case
[4] On 21 November 2016, at about 12.20 pm, Constable Akma Amilia binti Hamdan ("SP3") was on duty at the Pejabat Pertanyaan Balai Polis Taman Scientex, when a Malay man, Md Hamidon bin Razali ("SP17") informed her that there was an unconscious Indian woman with injuries to her body. The information was reduced into Police Report Scientex 9004/16 ("P11").
[5] On the same day, at about 11.20 am, N. Sivalingam a/l P Nadaraja ("SP2Q") was repairing a lorry tire with another worker. SP20 saw a man whom he knew, sending the deceased next to his house. SP20 informed the deceased that the house owner had gone to work.
[6] Suddenly, the deceased ran towards SP20's lorry, saying, "Uncle, someone is disturbing me". SP20 then saw the appellant stopping his motorcycle. SP20 asked the appellant why he was chasing the deceased. The appellant replied that he only wanted to talk to the deceased. SP20 left the area, and SP20's wife, Uma Barthi a/p G. Murugasu ("SP22"), accompanied the deceased to meet with the appellant.
[7] The appellant still did not leave. The appellant told SP20 that he wanted to talk to the deceased. The appellant took out his mobile phone and told the deceased to speak through the said phone.
[8] SP20 told the appellant not to cause any disturbance, but the appellant replied, "this is my problem". The deceased held SP20 and SP22's hands and did not answer to any of the appellant's rambling. SP20 told SP22 to take the deceased into their house and told the appellant to leave.
[9] Subsequently, the appellant went to his motorcycle and retrieved a badminton racket case. The appellant tried to give the case to the deceased, but she refused. SP20 told the appellant to give it to him so he could hand it over to the deceased. The appellant told SP20 to mind his own business.
[10] Suddenly, the appellant opened the case and took out a parang (machete). The appellant swung the parang upwards as if the appellant wanted to slash the deceased and SP22. The deceased pushed SP22 aside to prevent her from getting hit by the parang resulting in both the deceased and SP22 falling. The appellant then swung the parang towards SP20 and caused him to fall as well.
[11] SP20 saw the appellant swinging the parang and slashing the deceased several times. The deceased managed to escape towards a nearby hill, but the appellant gave chase. On the hill, the deceased fell, and the appellant slashed the deceased again. The
