856
Malayan Law Journal
[2011] 7 MLJ
dangerous that it must in all probability cause death, or such bodily injury as is
likely to cause death. In the case of Krishnan and Anor v Public Prosecutor
[1981] 2 MLJ 121 it was held by the then Supreme Court that it was not a legal
obligation for the prosecution to state specifically, in a charge for murder, as to
which particular clause in the definition under s 300 of the Penal Code, the
accused person was alleged to have committed the offence as charged. Based on
that high authority, the charge such as appeared in P2 would suffice, to my
mind, to bring home to the accused, the alleged complaint by the public
prosecutor on behalf of the State, against him. The requisite evidence would be
unfolded during the course of the trial.
A
B
C
[10] ‘Rape’ connotes a sexual intercourse between a man and a woman of age
of discretion (not being legally ‘underaged’ or incapable of giving consent)
without her prior consent. Under the law as contained under s 376 of the Penal
Code, for the offence of rape, the prosecution is required to prove that the
penetration for the accused’s penis into the private part of the victim was done
without her consent. In the context of this case, the deceased was about 23
years old at the time of the incident and as such, consent was a relevant issue
and the burden was on the prosecution to prove that the deceased had not
consented to the sexual intercourse with the accused.
D
[11] In order to secure a conviction, the prosecution must discharge the
burden placed on its shoulders on the threshold of proof which is beyond
reasonable doubt. Before that is achievable, it would have to establish a prima
facie case with respect to the two charges, through evidence, either direct or in
the form of circumstantial evidence, in order for this court to call the accused
to enter on his defence to each of the charges preferred against him. Anything
that fell short of such proof by the prosecution must entail orders of acquittal
and discharge in favour of the accused, from both the said charges.
F
THE PROSECUTION’S CASE
[12] After the learned deputy had closed the case for the prosecution, it had
become clear that the case against the accused had not been one based on direct
evidence, in the sense that there was no eyewitness who had seen him commit
those offences. Neither was there introduced by the prosecution as evidence, a
confession voluntarily given by the accused, wherein the latter had owned up to
having committed these offences. So basically, the case for the prosecution had
been constructed from the various circumstantial evidence gathered from the
relevant witnesses concerned with this case.
[13] The learned deputy had called 19 witnesses to testify before this court to
prove the two charges against the accused, and though each of these witnesses
had its own important role to play in the course of proving the two charges, it
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