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2026 MarsdenLR 1841
HIGH COURT MALAYA JOHOR BAHRU
AVINDER SINGH GILL, JC
MOHD IRFAN SHAH SASHS HAAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: JA-42JSKS-14-07/2025]
A conviction for rape requires proof of penile penetration beyond reasonable doubt. Where evidence regarding the nature of penetration is uncertain and allows for multiple inferences, the court must resolve the doubt in the accused's favour, rendering a conviction for rape or any lesser charge based on that evidence unsafe.
Headnote:(A) Penal Code - Sections 375(g) and 376(1) - Rape of a minor - Standard of proof - Requirement of penile penetration - Necessity of establishing Actus Reus - (Paras 19, 20, 21, 22, 40)
(B) Criminal Procedure Code - Section 173(m) - Duties of trial judge at the close of defence - Maximum evaluation of evidence - Requirement to ascertain conviction safety - (Paras 37, 38, 54, 55, 66)
(C) Appellate Interference - Power to substitute conviction for minor offence - Section 169(2) Criminal Procedure Code - Limitation where evidence leaves two or more inferences - Duty to extend benefit of doubt to accused - (Paras 77, 78, 80, 88)
Facts of the case:
An accused was convicted of the rape of a minor under the age of 16 years. The complainant testified that she felt something enter her during the incident but could not identify the object due to darkness. Medical examination revealed old hymenal tears but was inconclusive regarding recent penile penetration. The accused raised the uncertainty of the complainant's testimony to challenge the conviction on appeal.
Findings of Court:
The Court held that the prosecution failed to establish the essential ingredient of penile penetration beyond reasonable doubt. The trial judge incorrectly elevated the victim's uncertain testimony into a positive finding of rape. Reliance on the doctrine of instinctive knowledge was inapplicable where the victim herself remained uncertain about the nature of the penetration.
Issues: The main issues were whether the essential element of penile penetration was proven beyond reasonable doubt and whether the appellate court should exercise its powers to substitute the conviction with a lesser charge.
Ratio Decidendi: In a charge of rape, the prosecution must prove penile penetration as an essential element. Where the victim's evidence is inconsistent and fails to establish that it was the male organ that penetrated, a conviction for rape is unsafe. Furthermore, where prosecution evidence permits two or more inferences, the court must adopt the version most favourable to the accused.
Result: Appeal allowed; conviction set aside; accused acquitted and discharged.
| Table of Content |
|---|
| 1. factual background of the sexual offences trial. (Para 1 , 2 , 3 , 4 , 5 , 18) |
| 2. appellate court duty to ensure conviction is safe. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. mandatory requirement of penile penetration for rape conviction. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 4. uncertain evidence fails to establish guilt beyond reasonable doubt. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72) |
| 5. substitution of charges requires certainty in evidence. (Para 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91) |
JUDGMENT
A. Introduction
[1] This is an appeal by the accused, who was convicted for the rape of a minor, who was under the age of 16 years at the material time.
[2] the accused was charged with rape under s 375(g) of the Penal Code, punishable under s 376(1) of the Penal Code.
"Section 375(g) of the Penal Code reads:
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:
(g) with or without her consent, when she is under sixteen years of age."
Section 376(1) of the Penal Code states:
"Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years and shall also be punished with whipping."
[3] The Charge that was framed, as seen on p 2 of Jilid 2 Rekod Rayuan, reads as follows:
"Bahawa kamu pada bulan Julai 2021, jam 1.00 tengahari, bertempat di bilik sewa No 16, atas farmasi, Jalan Tun Habab, di dalam Daerah Kota Tinggi, dalam Negeri Johor, telah didapati merogol [xxxxxxxxxxxxxx] yang mana ketika itu berumur 14 tahun 2 bulan. Oleh itu, kamu telah melakukan suatu kesalahan di bawah s 375(g) Kanun Keseksaan yang boleh dihukum di bawah s 376(1) kanun yang sama"
[4] Pursuant to Pekeliling Pendaftar 1/2008, I have deleted the victim's name from the charge reproduced above to protect the identity of the victim, who was a minor at the time of the alleged offence.
[5] After a trial, the Learned Sessions Judge found that the prosecution had proven its case beyond a reasonable doubt and sentenced the accused to 10 years' imprisonment and 10 strokes of the rotan pursuant to ss 375 and 376(1) of the Penal Code. The sentence is to run from the date of conviction.
A. The Position Of A High Court Hearing An Appeal From The Lower Courts
[6] In cases where the High Court sits as an appellate Court, care must be taken to observe the various principles to ensure that the conviction made in the Court below is safe.
[7] learned counsel for the appellant referred the Court to Herchun Singh & Ors v. PP [1969] 1 MLRA 382; [1969] 2 MLJ 209 and an excerpt from the bottom of para 9 wherein the Federal Court said:
"An appellate Court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage 384 Herchun Singh & Ors v. PP [1969] 1 MLRA 382; [1969] 2 MLJ 209 of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding: see Sheo Swarup v. King-Emperor AIR 1934 PC 227. Hence, this case is distinguishable from Ah Mee v. PP [1967] 1 MLRA 291; [1967] 1 MLJ 220, cited to us in argument, where the complainant clearly gave the number other assallant's car as M 6049, a contradiction for which she and no other person could have been held responsible."
[8] The Learned DPP referred the Court to the various statutory provisions on the power of an appellate Court when hearing an appeal, specifically to s 316(b) of the Criminal Procedure Code, which states:
"At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may:
(a)...;
