Wan Yahya J:

Private Dalbir Singh (now deceased) joined the army in 1975. In 1976 his father passed away. On 15 June 1977 he failed to return to the 4th Engineering Squadron, Taiping after 17 days' leave. For this act of indiscipline he was arrested on 17 August 1977 and sentenced to 90 days' detention at the 1st Commando Regiment, Sungai Udang. He was sent there on 25 August 1977. After serving his detention for 25 days Dalbir escaped because, as he informed his mother, he could not bear the torture inflicted upon him at the camp. On 10 February 1978 Madam Jasmit Kaur, Dalbir's mother, unaware of the so called orientation ceremony and the subsequent brutality that awaited her son, - reported his whereabouts to the military authorities in Seremban and had him arrested. No doubt she was acting out of her sense of duty, but, ironically, this innocuous act turned out to be a sentence of death on her own flesh and blood. Barely three days afterwards she was called upon to identify the body of her son in an almost unrecognisable state. He had injuries over his body and his hair, eyebrows and even his eyelids had not been spared from the agile razor of his tormentors.

It would appear from the evidence that at 1.30 p.m. on 13 February 1978 the deceased was handed over to the guard room at Sungai Udang, where he was subjected to what four witnesses, who were army personnel, described as an orientation ceremony. There is some uncertainty regarding the actual form and nature of the ceremony but the object of it is clearly to punish the detainee. According to the witnesses, the deceased was first shaved and assaulted by the regimental police and those on duty at the guard room and after that was ordered to walk along a line of 8 fellow detainess, who rained upon him slaps and punches. It is common knowledge that an assault by 8 persons is an excruciating experience for anybody, but when the assaultors happen to include some men from the Commando unit, the resulting injuries can be mortiferous.

To cut short, Dalbir Singh died soon after this unfortunate episode and the post mortem report on him shows, amongst other injuries, ten broken ribs, massive internal bleeding in his abdominal and chest cavities and injuries to his liver, pancreas, kidneys and intestines.

As a result of this incident, the five appellants, who were on duty at that time, were charged for culpable homicide not amounting to murder in the Sessions Court, Melaka. At the end of prosecution case the learned trial President found that a case under s. 304 had not been made out but there was sufficient evidence to warrant defence to be called under s. 323 of the Penal Code. When the amended charge was read out, all five appellants elected to remain silent. Consequently the learned President convicted them for the offence under the amended charge.

The 1st appellant appealed against the conviction and all five appealed against their sentences.

In this Court the Counsel for the 1st appellant took to issue the learned President's findings of fact on his client's actual participation in the assault. In particular, Counsel attacked the learned President's reliance on PW16, an eye witness to the assault. Now PW16 Lance Corporal Shamsuddin, had first mentioned in his evidence "that all the 5 appellants were on duty on that day" followed by the expression "whoever was on duty also slapped the Sikh".

Subsequently however this witness said he did not see the 1st appellant or the other three assaulting the deceased and that he only saw the 5th appellant slapping the deceased. The alleged objectionable part of the learned President's judgment runs as follows:

There were about 4 - 5 officers with the Sikh. They are the 5 accused persons. He and the other detainees were asked to line up. They were instructed to shake hands with the Sikh and slap him. They also punched the Sikh. He said that the accused persons slapped and punched the Sikh in an aggressive manner. After receiving th