882 Malayan Law Journal [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 A B C D E F G H I