[2010] 4 MLJ A B C D E Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 469 to overpower them on their way out of the house. In all probability, the fatal injury must have been inflicted, unintentionally, in this ‘fight’ downstairs. Again, based on the testimony of SP20, who testified that she saw one of the intruders running downstairs when she opened her bedroom door, and that he came back towards her, it can be inferred that this person could be no other than either the first accused or the fourth child in the process of fleeing out of the house, after placing the parang neatly away on the window sill of Sue Yin’s room, immediately before, or after the collapse of the deceased, downstairs. It is my finding, that as there was clearly no intention to kill the deceased, the first accused and fourth child cannot be found guilty of the offence of murder under s 302 of the Penal Code, notwithstanding the 23 injuries found on the deceased and the nature of the weapon used — a 22 inch parang (exh P22). Bearing in mind that it is difficult to infer who actually inflicted the injuries with the parang on the deceased, and the fact that only ones weapon was recovered, justice would be done if both of them are given the benefit of the doubt for the commission of the offence under s 302 of the Penal Code, but, instead, found guilty only of the lesser offence of culpable homicide not amounting to murder, under s 304 of the Penal Code, second limb. In the above circumstances, the first accused is found guilty and convicted of the offence under s 304 of the Penal Code, second limb. There shall be recorded a finding of guilt as against the fourth child for an offence under s 304 of the Penal Code, second limb. (Emphasis added.) F G H I [61] The COA described the above quoted paragraphs in the judgment of the HC as ‘pure speculation’. The COA then proceeded to consider the matter in the following terms: It was submitted that this is a case in which the learned judge was attributing a defence to the accused which had not been advanced by either of them or warranted by the evidence that had been placed before the court. After very careful and anxious consideration, we have arrived at the conclusion that there is merit in this argument. First, there is not an iota of evidence to suggest that the deceased had pursued his attackers in the manner described by the learned judge. On the other hand, there is evidence to show that one of the attackers had gone after the deceased. That is indeed what PW20 said. Second, there are the injuries suffered by the deceased. Third, there is the weapon exh P22 that was used to inflict the injuries in question. In answer to these points, learned counsel for both the first accused as well as the fourth child have argued that there is material within the prosecution’s case which negates an intention to kill. They relied principally on the statement made by the fourth child to PW17. In that statement the fourth child had said that there was no intention to kill. It is submitted that since this forms part of the prosecution’s case, the defence is entitled to rely on it to show that one of the vital ingredients of the offence of murder had not been made out. With respect, we do not agree. What PW17 was narrating was the fourth child’s version given to him. The