Hamid Sultan JCA (delivering judgment of the court)

Two appeals relating to the accused Thenegaran a/l Murugan (‘Lobo’) came for hearing on 23 January 2013. We heard them together and the one by the accused was allowed and the one by the public prosecutor was dismissed on the same day. This is our judgment.

The public prosecutor’s appeal is Appeal No B-05–154 of 2008 against the decision of the learned judge who amended the charge of s 302Penal Codes 304(a)same Code

The accused, Lobo’s appeal is Appeal No B-05–145 of 2008 which relates to two matters:

(a)the conviction of Lobo for the murder of Raguram (‘the first deceased’), under s 302Penal Code

(b)the conviction of Lobo for the murder of Murali, to lesser offence of culpable homicide to attract s 304(a)Penal Code

It is well settled that it is in the hands of the trier of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction. In so doing if the court orders an acquittal or conviction it cannot be set-aside by the appellate court unless it records a finding that the view taken by the trial court was not a possible reasonable view of the evidence on record (see Pramod Mandal v State of Bihar (SC) [2004] 4 LRI 24). The instant case is not one of acquittal but whether it was correct to reduce the charge and whether the conviction was safe.

It must be noted that Lobo’s appeal against conviction for the murder of Raguram was heard by another panel of the Court of Appeal on 3 September 2012 and full grounds of judgment had been delivered. The judgment of the learned trial judge was upheld. The Lobo’s appeal in this judgment only deals with the conviction of Lobo for the death of Murali.

We must state at the outset that the learned trial judge had taken much pain to write an articulate judgment adumbrating on physical as well as psychological facts in unusual length to justify conviction and sentence and also to ensure that no gap is given for appellate interference (see Kyros International Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri

(a)the judgment in all aspects is a correct judgment but for Murali: upon hearing the submission of learned counsel for Lobo, we were unanimous to conclude that it is not safe to convict; and

(b)in respect of the prosecution’s appeal we were also unanimous that the charge should not have been amended.

We must make it clear here that had we not allowed Lobo’s appeal in respect of the death of Murali, we would have sentenced Lobo to death under s 302Penal Codess 299300Penal Code

Section 299 Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely by such act to cause death, commits the offence of culpable homicide.

Section 300 Except in the cases hereinafter excepted, culpable homicide is murder:

(a)if the act by which the death is caused is done with the intention of causing death;

(b)if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(c)if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(d)if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

BRIEF FACTS

The brief facts of the case had been well adumbrated by the learned trial judge and for the purpose of these appeals it is suffice to summarise as follows:

(a)during a temple festival, three men were killed. They were Raguram, Murali and Thiagarajan (‘Boy’);

(b)three persons were charged for the murder of the three persons;

(c)Nagathevan (‘Bontal’) was charged for conspiring with others to commit murder resulting in the death o