SHAH ALAM: Corporal Jenain Subi’s intention when he opened fire was to shoot at the Proton Iswara and not at the deceased and that his sole intention was to immobilise the car, said the High Court here yesterday.
Reading his 20-page written judgment, Justice Datuk Abdul Rahman Sebli said: “The totality of the evidence does not and cannot support any suggestion that Jenain’s intention was to kill the deceased.
“The loss of life is unfortunate but the police must not be blamed for the deceased’s death.
“If only he had stopped immediately when ordered to do so, he would probably still be alive today and the appellant would be spared the ignominy of being charged with committing a hideous crime when all he did was to answer his call of duty,” he said.
Abdul Rahman acquitted Jenain, 49, from the charge of causing the death of 15-year-old Aminulrasyid Amzah, after allowing the police officer’s appeal on the conviction and five-year imprisonment imposed on him by the Sessions Court, here in September last year.
He was alleged to have committed the offence at Jalan Tarian 11/2, Section 11, here between 1.10am and 2am on April 26, 2010.
Aminulrasyid was reported to have died from gunshot wounds in the head.
The prosecution in the case also filed a cross appeal on the sentence handed down by Sessions Court.
Abdul Rahman said intention is a key element in a prosecution under Section 304 (a) of the Penal Code and it is the same element required to prove murder.
He said, to sustain a conviction the prosecution must prove beyond any reasonable doubt that the appellant’s intention was to kill the deceased and this element must be established at the close of the prosecution case.
Abdul Rahman said, Section 304 of the Penal Code creates no offence but provides the punishment for culpable homicide not amounting to murder, and draws a distinction in the penalty to be inflicted where an intention to kill is present and where the offender knows that his act is likely to cause death.
“Whether the intention is there or not is a question of fact and is a matter of inference. It can rarely be proved by direct evidence. As a wise man once said even the devil himself does not know what goes on inside a person’s mind, but whatever may the devil wish to advocate a man must be judged by his outward acts and omissions,” he said.
Abdul Rahman said it is patently clear that the reason why the learned Sessions Court judge found intention to cause death to be present was because the appellant had no justification to fire at the Proton Iswara car.
However, he said, the question is not whether there was justification to fire at the Iswara, the question is whether, in firing at the Iswara the appellant’s intention was to cause death.
“Judging from the passage quoted above the learned judge appears to have confused intention with knowledge. She appeared to have fused the two elements together … this is a serious misdirection,” he said.
Abdul Rahman said, according to the testimony given by the prosecution witness, the fact that only one out of the 30 bullets hit the upper part of the car while the other 29 hit its lower back and underside shows that the single bullet that hit the back of the deceased’s head was unintended.
He said, Sgt Mohd Sani Hassan, head of the Firearms Division, Selangor District Police Headquarters (IPD) testified that the appellant is a skillful shooter, if that is so and if indeed the appellant had intended to kill the deceased, he would have fired directly at him and the deceased’s body would have been riddled with bullet.
Abdul Rahman further said, although 21 bullets were discharged from the appellant’s sub-machinegun, he only pulled the trigger twice, with a gap of only one or two seconds in between and clearly this is evidence favourable to the appellant.
“To say that the appellant fired the 21 shots repeatedly is to imply that he pulled the trigger more than once in rapid succession. In any case, it is not the number of shots that matters. It is the intention behind the shots that the court should be concerned with,” he said.
Abdul Rahman said, the deceased had engaged not one but two police MPVs in a high speed chase, driving at a speed exceeding 130 km per hour and was showing no sign of stopping even after being ordered to do so several times through the loud-hailer and even after the right rear tyre of the car was shot at the Kayangan roundabout.
In such a situation, he said, the pursuing policemen including Jenain could not reasonably be expected to think that the driver was an innocent 15-year-old boy out to have some kind of fun with the police.
“On the contrary, they had every reason to suspect that there were criminals inside the car who had just committed a robbery. It is a strange coincidence that a long parang without scabbard was found under the front passenger seat of the Iswara. It must also be remembered that it was past midnight when the incident happened, a time when 15-year-olds should be at home,” he said.
While it is true that the Iswara was no longer speeding at Jalan Tarian 11/2 and that the car was wobbly after the right rear tyre was shot at the Kayangan roundabout, Abdul Rahman said, there can be no doubt that the deceased was bent on making his escape.
Even if it is true that the Iswara was very unstable when it entered Jalan Tarian 11/2, he said, there is no evidence that the appellant knew that the condition was due to a flat tyre and that it was about to skid off the road.
“It is therefore wrong for the learned trial judge to conclude that the Iswara was no longer driven in an aggressive manner and that the appellant must have intended to kill the deceased when he opened fire,” he said.
On the learned trial judge’s view that Jenain would only be justified in firing at the Iswara if his life was in real danger, Abdul Rahman said, it is erroneous as it was never the defence case that the appellant was acting in self-defence when he fired at the Iswara.
He said the defence case simply is that Jenain’s intention was to immobilise the car, not that his life was in danger.
“Even if the appellant had been reckless in firing at the Iswara as the learned trial judge seems to be suggesting, which in my view he was not, it was clearly not unrelated to the legitimate object of immobilising it. Therefore, the appellant was not acting beyond the scope of his duty when he opened fire at the Iswara,” he said.
Abdul Rahman said, although the case involves a personal injury claim founded on negligence, the decision is relevant to show the kind of circumstances under which the police can and cannot be held accountable for causing death or injury while carrying out their lawful duties.
In the instant case, he said, the police would not have been justified to open fire at the Iswara if the deceased had not conducted himself like a dangerous criminal intent on evading arrest.
The fact that he was not a criminal is of no consequence if otherwise by his conduct he had led the police into believing that he was one, he said.
“The finding of guilt is therefore unsustainable and liable to be set aside. No prima facie case had in fact been established against the appellant and his defence should not have been called.
“I would go so far as to say that the evidence led by the prosecution proves the appellant’s innocence rather that his guilt. In the circumstances, the conviction is set aside and I order that the appellant be acquitted of the offence charged,” he said.
Jenain, was represented by counsel M Athimulan, Salim Bashir and Halim Ashgar Mohd Hilmi while Deputy public prosecutors Idham Abd Ghani, Mohd Dusuki Mokhtar and Siti Rohaida Che Hamid appeared for the prosecution.
Mohd Dusuki later told reporters that the prosecution will appeal against the decision. — Bernama