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[2011] 7 MLJ
consented to the sexual intercourse. When SP5 was asked by the learned
deputy regarding the existence of the white fluid (‘cecair putih’) in the deceased
private part, he had answered thus:
TPR: Jika cecair putih itu sememangnya air mani lelaki, bagaimanakah ianya boleh
berada di kelamin si mati?
SP5: Dengan adanya hubungan seksual sama ada rela atau paksa, sehingga lelaki itu
sampai ke peringkat ejakulasi, dengan lelaki itu memasukkan kelamin lelakinya
yang tegang ke dalam alat kelamin si mati. (Emphasis added.)
[55] Now, that answer by SP5 had brought into focus the pertinent issue of
whether the sexual intercourse was consensual or otherwise, namely whether
the deceased did in fact consent to having the sexual intercourse with the
accused or otherwise. In this case, this court was not able to hear the evidence
from the deceased on very this important issue for obvious reason. But that
does not mean that this court is not entitled to look at the evidence adduced
before it to see whether there exists circumstantial evidence that could support
or justify a finding, one way or another, by this court on the issue of consent.
Lest we forget, the burden is on the prosecution to show that this intercourse
was non-consensual. In this regard, this court is of the view that the evidence of
Chief Inspector Collin Babat (‘SP7’) must be key. In his testimony, SP7 had
said that having studied the scene of crime in the room, it was his conclusion
that a struggle had taken place in the room, as evidenced by the fact that the
room was in a mess and also based on exhibits which, in their raw form, were
tainted with bloodstains and suspected seminal fluids. He had also referred in
court the photographs marked as P4(H), (I), (J), (K) and (L) to illustrate his
point. In cross-examination, he said that the struggle would have involved at
least two persons and agreed with learned counsel that it might have involved
more than two persons. Looking at the evidence led in this case, I agree with
SP7 that there was a struggle that happened in that room. In the light of the
other evidence as enumerated by me in the course of this judgment, apart from
SP7’s evidence, I also found that the struggle was between the accused and the
deceased only. When SP7 had agreed with learned counsel that there could be
more than two persons involved in the struggle, his conclusion may be based on
sheer logic and he had not had the benefit of evaluating other evidence which
had since been adduced before this court emanating from other witnesses,
particularly the evidence of SP8, the chemist. As such, nothing adverse should
be read into his evidence in that regard. For that matter, there is no reason for
this court to doubt the veracity of his testimony taken in totality. Based on the
available evidence before this court, it is my finding that the circumstances in
this case had completely negated any semblance of consent having been given
by the deceased to the accused in relation to the sexual intercourse that which
to my mind had actually taken place between her and the accused. I had
adverted to the defensive nature of the wounds and injuries suffered by the
deceased and that these injuries had not been self-inflicted. The whole thing
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