Circumstantial evidence must point irresistibly to guilt; material gaps and inconsistencies in evidence may lead to reasonable doubt, warranting acquittal.

VT Singham J:

1 In this case, the charge against the ‘penama’ (‘the accused’) is as follows: Bahawa kamu pada di antara jam lebih kurang 2.30 petang 13.02.2001 hingga jam lebih kurang 7.15 petang 14.02.2001 di dalam longkang besar di bawah jambatan, jalan masuk ke Kampung Tersusun Batu 2, Jalan lama Bidor, Tapah di dalam Daerah Batang Padang di dalam Negeri Perak Darul Ridzuan, telah melakukan pembunuhan dengan melibatkan kematian seorang bernama FARRAH DEEBA BT RUSTAM KP NO 840129-08-6776 dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan .

2 The accused was 16 years 10 months and 24 days of age at the time of the offence alleged against him on 13 February 2001. He was 19 years four months and 16 days at the time of the trial hich commenced on 5 August 2003.

3 The prosecution introduced evidence through 15 witnesses to testify in support of the charge against the accused and had relied on circumstantial evidence, scientific and medical evidence. As for the scientific and medical evidence, the two chemist, namely, Mr Ng Chang Chai (PW13) and Mr Lim Kong Boon (PW14) and a forensic pathologist, Dr Mohd Shah Bin Mahmud (PW15) had testified on behalf of the prosecution.

4 As to the circumstantial evidence, the prosecution called En Bakar bin Amin (PW7), the registered owner of motor car No ACE 8971. Basically, his evidence was that the accused had borrowed his motor car from him on 11 February 2001 at or about 1pm and his motor car was not returned to him till 18 April 2001. However, this court found that his evidence as to the[2004] 6 MLJ 303 at 314 identity of the accused as the person who had borrowed the motor car from PW7 and consequently to implicate him to the crime of the murder is not reliable and safe to accept for the following reasons:

(i)PW7 has testified that the first time he saw the ‘lelaki Melayu’ who borrowed his motor car was on 11 February 2001. He did not obtain any personal details of the ‘lelaki Melayu’ who borrowed his motor car, ie his name, address and particulars of his driving licence. In other words, the ‘lelaki Melayu’ who borrowed the motor car from PW7 on 11 February 2001 was a complete stranger and was not known to him at all and that was his own admission. He does not know the ‘lelaki Melayu’ who borrowed his motor car and there was also no details of the person’s identity such as his features, mark, age, height, complexion or any other peculiarities which was adduced on behalf of the prosecution before PW7 identified the accused in court other than his evidence that the person was a ‘lelaki Melayu’;

(ii)the identification of the accused by PW7 in court on 6 August 2003, ie about two years four months later has little evidential value because:

(a)the ‘lelaki Melayu’ who borrowed his motor car on 11 February 2001 was a complete stranger to PW7;

(b)PW7 did not obtain personal details of the ‘lelaki Melayu’ who borrowed his motor car and did not testify as to any details or description as to the identity of the ‘lelaki Melayu’;

(c)there is admission by PW7 that he saw the accused at the Magistrate’s Court, Tapah on 18 April 2001 when his motor car was returned to him;

(d)there is admission by PW7 that he had seen the accused at the High Court, Ipoh on or about 28 October 2002 and this was prior to identifying the accused in court on 6 August 2003;

(e)PW7 was given the opportunity to see the accused at the Magistrate’s Court, Tapah on 18 April 2001 before the case was transferred to the High Court, Ipoh and on or about 28 October 2002 at the High Court, Ipoh prior to the date of trial when the case proceeded on 5 August 2003 and both this occasions were prior to the date when PW7 had identified the accused in court on 6 August 2003;

(f)there was no identification parade held to identify the accused as the ‘lelaki Melayu’ who had borrowed the motor car from PW7 on 11 February 2001 even though the ‘lelaki Melayu’ who borrowed his motor car was not