The court established that culpable homicide, defined by provocation and circumstances, warrants a lesser sentence than murder, emphasizing rehabilitation.

Introduction

[1] This is an appeal against the conviction and sentence of the five (5) appellants on the charge under s 302 of the Penal Code .

[2] At the close of the prosecution's case, the learned trial judge found that the prosecution had established a prima facie case and all the appellants were called to enter their defence.

[3] The appellants gave evidence under oath and at the end of the defence case, the learned trial judge found that the appellants failed to raise a reasonable doubt in the prosecution's case and convicted the appellants for murder. They were each sentenced to death.

[4] Being dissatisfied with the said decision, the five appellants appeal to this court.

[5] At the start of the party's submission, the learned deputy public prosecutor informed us that they have accepted the five appellants representation for the charge to be reduced from one of murder to culpable homicide not amounting to murder punishable under s 304(a) of the Penal Code .

[6] The amended charge was read and explained to the appellants and they pleaded guilty to the said charge.

[7] Hence, the appeal before us was only in respect of the sentence.

[8] We will for convenience in this appeal, refer the five appellants in the manner they were referred to in the High court.

The Charge

[9] The charge preferred against all the five accused reads as follows:

"Bahawa kamu bersama-sama dengan seorang lagi yang masih bebas pada 15 August 2017 jam lebih kurang 11:00 malam di sebuah pondok pengawal berhampiran Blok H, Taman Kejiranan, Jalan Ayer Jerneh, PPR Sungai Bonus, di dalam Daerah Wangsa Maju, di dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama kamu, telah melakukan pembunuhan terhadap Ragesh Rao a/l Meriayah (No. K/P: 860617-38-7269). Oleh yang demikian, kamu telah melakukan kesalahan di bawah s 302 Kanun Keseksaan dan dibaca bersama s 34 Kanun Keseksaan."

The Prosecution's Case

[10] The events which led to the murder of the deceased may be divided into three. First is the event at a hotel, second is the event at the bus stop at s 10, Wangsa Maju and third is the event at Sungai Bonus where the deceased was eventually found dead.

First Event

[11] The first event began on the evening of 15 August 2017 with the 3rd accused and Navin a/l Gopalan (PW16) and two other Indian males, called "Boy" and "Ravi" setting off to Section 10, Wangsa Maju at between 6.00pm to 6.30pm for a continued drinking session. They departed from a hotel where they had earlier been drinking as well while PW16 was having his tattoo done. They found a spot at a bus stop at Section 10, Wangsa Maju and lounged there.

Second Event

[12] According to PW16, at the bus stop "Boy" called up the 4th accused and asked him to join them drinking and later the 4th accused came over. Later, "Boy" received a telephone call from the 1st accused, asking for his whereabouts. Naturally, "Boy" asked the 1st accused to join in as well and for the 1st accused to take the deceased with him. Moments later, the 1st accused arrived with the deceased and the 2nd accused had tagged along. This was the second event.

[13] According to PW16, at the bus stop the 3rd accused, the 4th accused and "Boy" asked the deceased why he took the money. It was disclosed in evidence that the deceased purportedly owed the 1st and 2nd accused's parents some money and has yet to pay up. The deceased denied taking the money. PW16 then heard the deceased telling them that he wanted to go to the back of an abandoned shed to ease himsel