JUDGMENTBY: WILLAN, CJ

The appellant was convicted of the murder of a Sikh named Achar Singh. The date of the offence was the 7th June, 1948.

The facts are that the deceased and three other Indians -- Lall Din, Shah Mohamed and Ali Mohamed (all witnesses at the trial) -- lived in one house which belonged to the deceased. Those three Indian witnesses all retired to bed in that house about 8 p.m. on the 7th of June, 1948, and their evidence is that they were awakened at about 9 p.m. by shouts from outside the house by the deceased that he was being killed. At that time there was a small kerosene oil lamp -- a tin lamp with a wick but without a glass -- burning in the deceaseds house, and each of those three witnesses said that that lamp gave sufficient light to enable them to see what was happening outside the house. Their evidence as to what happened is generally consistent, and is that each of them saw the appellant and another Sikh, named Duleep Singh, beating the deceased with sticks. They had each of them known the appellant prior to this incident. Each said that, after beating the deceased, both the appellant and Duleep Singh left him lying on the ground and ran away. After that these three Indian witnesses all went to the police station to report what had happened. Their time of arrival at the police station is fixed by the Inspector who investigated this case, at 9.35 p.m.

Before leaving the scene to make their report to the police it is doubtful whether any of them went up to the deceased, who was lying on the ground, to ascertain whether or not he was then dead. As this is of some importance it is necessary for us to examine the evidence which we now proceed to do.

After the appellant and Duleep Singh had run away Lall Din called out to the appellant by name and received no reply from him. That was the evidence of Lall Din at the trial. But, at the Preliminary Enquiry, Lall Din gave somewhat different evidence on this point, and his deposition was put in evidence at the trial. Before the committing Magistrate he said that after the appellant and Duleep Singh had run away he, Lall Din, went up to the deceased and spoke to him. He said that the deceased could not speak -- "he was injured on the head -- he was bleeding on the head -- he appeared to be alive".

Shah Mohamed said that after the appellant and Duleep Singh had run away he, Shah Mohamed, and the other two witnesses Lall Din and Ali Mohamed called out to the deceased by name and received no reply.

Ali Mohamed gave no evidence on this particular point.

The importance of this, as appears later in this judgment, is that when these three witnesses all went to the police station to make a report they left the deceased alone at the spot, and it is doubtful whether he was then dead. In fact the evidence given at the trial as to his condition is indefinite, and so we are thrown back on the more definite evidence given by Lall Din at the Preliminary Enquiry that at that time the deceased appeared to be alive.

Continuing with the facts, the Investigating Police Officer went to the scene with the three Indian witnesses, arriving there about 9.50 p.m. that night. There he found the deceased lying motionless on the ground and, beside him, found a heavy club which was put in evidence at the trial as Exhibit P. 1.

Two important points emerge from the evidence of the Police Inspector. They are:--

(1) He gave no evidence of sending the body of the deceased to the

hospital for post mortem examination.

(2) He took possession of Exhibit P1 and sent it to the Institute of

Medical Research, Kuala Lumpur, to be examined for blood stains

in the usual manner.

Regarding (1), there is no evidence that the body on which the Medical Officer conducted the post mortem examination was the body of the deceased. Turning to the evidence of the Medical Officer on this point, he said:--

On 7th June, 1948, in the evening, I received the