KOTA KINABALU: The High Court here yesterday affirmed the acquittal of a local man who was charged with raping his teenage cousin four years ago.
Judge Chew Soo Ho dismissed an appeal by the prosecution against the 30-year-old man to have his acquittal set aside.
In his decision, the judge held that the evidence of the complainant herself stated the date of the incident was on June 26, 2010.
During cross examination-in-chief at the lower court the victim testified the date could be on June 27, 2010 or June 26, 2010 and she also maintained June 27, 2010 during further cross examination-in-chief.
“During re-examination-in-chief evidence adduced that the victim testified that the incident on June 28, 2010, during the prosecution’s case the Sessions Court accepted the date as June 26, 2010 because the victim told the uncle that it was on June 26, 2010,” he ruled, adding that the trial judge took June 26, 2010 as the date of the offence.
Chew further said that the prosecution could not even be sure whether it was on 26, 27 or 28, June, 2010 and Chew did not see any amendment to be made on the charge as suggested by the prosecution.
“Therefore, the correct date was June 26, 2010, as on the defence’s alibi, it was in the evidence that the respondent’s mother-in-law and his wife had seen the diamond rings that the respondent had bought on the night of June 25, 2010,” he said. “Therefore it is the material facts that the respondent could not be in Kudat at the time of the offence.”
He had left Kota Kinabalu at dawn on June 25, 2010 to proceed to Kudat, from the dates of the two purchase receipts the court cannot presume that the respondent was in Kudat at dawn on June 26, 2010.
He added that he accepted the alibi as evidence adduced in court that the victim could not be at the very place as per charge to commit crime and Chew did not find any adverbial evidence on two defence witnesses (the respondent’s mother-in-law and wife) and accepted they were competent witnesses.
“Therefore the prosecution appeal against the respondent is dismissed,” Chew held.
The subordinate court had on Dec 16, 2011, freed the respondent from a charge of raping a 14-year-and-eight-month-old girl at a house in Kudat at 5.50am on June 26, 2010. The indictment came under Section 376 (2) (d) of the Penal Code which carries a maximum jail of 20 years and also liable to whipping, upon conviction.
Deputy public prosecutor Ahmad Nazneen Zulkifli appeared for the appellant while counsel Ram Singh defended the respondent.