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This time, it conceded that the Judge had erred in that only Muhammad should be found liable for murder, and that Ismil should not be held to be equally liable as the evidence on record was insufficient to prove a common intention to cause the Deceased’s death.
The Prosecution, however, submitted that Ismil should be found guilty of committing robbery with hurt since he was present at the scene of the crime and there was sufficient evidence to show that he shared a common intention with Muhammad to commit robbery.
4 Another unusual feature is that the Judge did not make a finding as to the identity of the actual assailant – whether it was Muhammad or Ismil. Yet, he concluded that by virtue of s 34 of the Penal Code, both should be held liable for murder as they had shared a common intention to rob.
In arriving at this determination, he relied on the series of confessions made by the Appellants in their statements.
6 The present appeal, in short, presents knotty issues of both fact and law for this court to resolve.
The Judge agreed with the Prosecution in this regard in convicting both the Appellants.
2 At the start of the trial, the Prosecution unequivocally asserted that Ismil was the assailant.
This initial position can be traced to statements that Ismil made on the day after he was arrested.
In maintaining that Ismil should be convicted, albeit for robbery with hurt, the Prosecution referred to statements in which he claimed to be the sole assailant.
This, of course, raises a vexing conundrum – a veritable legal curate’s egg – in that it has to be decided whether the Prosecution can rely on the barest residue of evidence from statements that have already been seriously compromised.
Kanagavijayan Nadarajan (Kana & Co) and Rajan Supramaniam (Hilborne & Co) for the first appellant; Thrumurgan s/o Ramapiram (Thiru & Co) and Balvir Singh Gill (B S Gill & Co) for the second appellant; Anandan s/o Bala, Mark Tay Swee Keng and Mohamed Faizal (Attorney-General’s Chambers) for the respondent. Two brothers, Muhammad bin Kadar (“Muhammad”) and Ismil bin Kadar (“Ismil”) (collectively referred to as “the Appellants”), were charged with the brutal murder of a 69-year-old woman (“the Deceased”) in the High Court.