Identification evidence must be clear and reliable; mere presence at a crime scene is insufficient for conviction under common intention without clear proof of participation.

Pradeep Hettiarachchi, J

Judgment

1. The 1^st and 8^th Accused – Appellant (hereinafter the refer to as the Appellant) were indicted before the High Court of Kaluthara on 3 counts. Namely,

a. On or about 24th March 2003, within the jurisdiction of this Court and in Southern Kalutara, the persons above-named being the members of an unlawful assembly acting in furtherance of a common intention to commit the death of one Mohamed Farisz committed an offence punishable under section 140 of the Penal Code.

b. In the same course of conduct and as part of the same transaction, the persons above-named, being a member/members of the aforesaid unlawful assembly, caused the death of Mohamed Farisz and such offence was committed in furtherance of the common intention shared by the aforesaid unlawful assembly or in the alternative, the said members of the said unlawful assembly were at least aware that such offence was likely to be committed in pursuance of the said common intention; the persons above named, being the members of an unlawful assembly, have thereby committed murder punishable under section 146 read with section 296 of the Penal Code.

c. In the same course of conduct and as part of the same transaction, the persons above named by causing the death of Mohamed Farisz, committed murder punishable under section 32 read with section 296 of the Penal Code.

2. The trial was conducted by the learned High Court Judge of Kalutara without a jury.

At the conclusion of the trial, the learned High Court Judge found all the appellants guilty of the charges leveled against them and sentenced them to death.

3. Being aggrieved by the said conviction and sentence, the 1^st, 2^nd, 3^rd, 5^th, 7^th, and 8^th accused preferred an appeal. Similarly, the 4^th and 6^th accused also appealed against the conviction and sentence. Both appeals were taken up together for argument.

4. The grounds of appeal advanced by both sets of Appellants are as follows:

1) PW 1’s evidence lacks credibility.

2) The Learned High Court Judge misdirected himself of the evidence of the defense.

5. On behalf of the prosecution, ten witnesses testified. Thereafter, the 1^st, 2^nd, and 3^rd appellants gave evidence. The 4^th, 5^th, 6^th, 7^th, and 8^th appellants made dock statements.

6. It could be observed that during the argument, the appellants primarily challenged the credibility of the testimony of PW1, who is the mother of the deceased. Accordingly, I will first consider whether the evidence of PW1 is sufficient to sustain the conviction of the appellants and whether its trustworthiness is satisfactory.

7. According to the evidence of PW1, during the relevant period, she was residing at Kaleel Place, Kalutara. The incident had occurred around 9.00–10.00 p.m. on that night. The witness heard someone shouting, “ෆාරිස්ට ගහනවා” (“They are assaulting Faris”). When she ran towards the road, she saw the deceased lying there with cut injuries. She further stated that the deceased was lying on his stomach and that the appellants were present at the scene, but upon seeing her, they ran away. Furthermore, the witness stated that all the appellants were armed, and the 6^th appellant was carrying a sword in his hand. According to PW1, when she arrived at the scene, only the appellants were present. Thereafter, the deceased was taken to the hospital, and the witness made a statement to the police.

8. The second witness who testified on behalf of the prosecution was PW3, Jaizer Zaheed Mohamed, the father of the deceased. He did not witness the incident but went to the scene about ten minutes after PW1 had arrived there. When this witness reached the scene, no one was present. According to his testimony, he was unaware of any dispute or animosity between the appellants and the deceased. He stated that he was informed of the incident by another person, and only thereafter did he proceed to the scene.

9. PW 4 K.Sunil Kumara is the Judicial Medical Officer who performed the autopsy of the deceased. According to him there w