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Malayan Law Journal
[2010] 4 MLJ
prosecution however led cogent evidence to show that the suggestion that there was
no intention to kill was untrue. Next, it was submitted for the first accused and the
fourth child that the learned trial judge was entitled to make a finding that both
accused were attempting to flee the deceased’s house by means of the staircase.
However, as pointed out by the learned deputy who has argued this appeal, if the
accused really wished to make an escape they could have done so through SY’s
room. For, there is evidence to show that SY herself had left the house by exiting
through her room.
[62] In the evaluation of the decision of the COA, two material aspects
could be discerned. Firstly, the HC judge in his grounds of judgment,
referred to above by the COA, appeared to have entered into a series of
conjectures unsupported by evidence and secondly, the issue of s 34 of the
Penal Code has not been properly considered. We note that the conjectures
led to contradictions resulting in misdirection on the question of common
intention.
[63] The COA in giving its decision considered rightly so, the question of
intention in relation to s 300 of the Penal Code. The COA referred to Virsa
Singh v State AIR 1958 SC 465, Jai Prakash v State (Delhi Administration)
AIR 1991 SCW 654 and Jagrup Singh v The State of Haryana AIR 1981 SC
1552 in appraising the law on whether intention to kill is established in a
given case (paras 8 and 9). Having considered the law the COA (at para 10)
stated:
A
B
C
D
E
F
Applying the foregoing principles to the facts of this case, the following
conclusions may be safely arrived at. Firstly, it was the first accused and the fourth
child or either or both of them who must have inflicted the fatal injuries on the
deceased. Secondly, applying the third limb of s 300 of the Penal Code they must
be taken to have intended to cause the injuries found on the deceased. Thirdly,
they must have intended thereby to cause the death of the deceased. Fourthly, the
attack on the deceased was pre-planned. This is supported by the purchase of the
two parangs including exh P22 and the stealthy manner in which the first accused
and the fourth child entered the deceased’s house. It is equally supported by the
fact that one of them — either the first accused or the fourth child — pursued the
deceased down the staircase of the deceased’s home. Thus, taking into account the
element of premeditation, the nature of the weapon used, the nature of the injuries
inflicted on the deceased which indicate a savage attack and all the other
surrounding circumstances to which reference has already been made, the
irresistible conclusion that a reasonable tribunal properly directing itself upon the
law and the totality of the evidence would arrive at is that both accused intended
to kill the deceased.
[64] The question here is whether it could be said that the HC judge has
properly addressed the issue of common intention. The further question is
G
H
I
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