JUDGEMENT

B. Sasi Mahendran, J.

The Accused Appellant (herein after referred to as “the 2nd and 3rd Accused) was indicted together with Kachchakaduwe Pradeep Chaminda Sumith, who is dead (1st Accused), before the High Court of Chillaw for the alleged murder of one Dehiwattage Ajith Shantha Kumara, which is punishable under Section 296 read with Section 32 of the Penal Code.

The Prosecution led the evidence through nine witnesses and marking productions from P1 to P2, and thereafter closed its case. The Accused, in their defence, made dock statements. At the conclusion of the trial, the Learned High Court Judge, by judgment dated 01.12.2015, found both Accused guilty of murder and imposed the death sentence.

Being aggrieved by said judgment and sentence, this appeal was preferred by the 2nd and 3rd Accused. The following Grounds of Appeal were urged by the counsel for the Accused.

1. Learned Trial Judge failed to comply with Section 48 of the Judicature Act relating to the adoption of proceedings.

2. Evidence of the sole eye-witness wholly conflicts with the evidence of PW 2 and police evidence with regard to the crime scene, thereby creating a serious doubt in the version of the eye-witness.

3. Evidence of the sole eye-witness is plagued with serious infirmities which render the conviction wholly unsafe.

4. Learned Trial Judge was totally oblivious to the highly contradictory evidence between the prosecution witnesses and the unreliable nature of the testimony of the said witness

During the course of the argument, the principal contention advanced by the counsel for the accused was that the sole eyewitness, PW 01, the brother of the deceased, failed to disclose the names of the Accused to the police at the earliest opportunity. It was submitted that this omission casts serious doubt on the credibility of his testimony and renders his evidence unreliable.

Before proceeding to evaluate the merits of this submission, it is necessary to set out the factual narrative as presented by the prosecution.

The facts and circumstances of the case are as follows:

According to PW 01, Dehiwattage Premasiri, the brother of the deceased, who is the only eyewitness, the death occurred on 10th February 1999. On that date, the deceased was residing at a relative’s residence. The incident in question transpired between approximately 3:00 p.m. and 4:00 p.m. along the Weherekala Temple Road. At the time, the witness had arrived at the location on a bicycle, while the deceased was approaching from the direction of the Daduruoya Road. They subsequently encountered each other near the junction leading to Anamaduwa Road. At that moment, three Accused approached them on a red bicycle. The witness stated that he had known the 1st Accused since childhood, and had been acquainted with the 2nd and 3rd Accused for approximately fifteen years. This witness revealed the nicknames of the Accused, stating that the 1st Accused was known as ‘Meeya’, 2^nd Accused as ‘Kopparaya’.

The witness acknowledged that there had been ongoing tensions between the residents of his village and those of the Accused’s village. Upon observing the Accused approaching, and fearing for their safety, the witness and the deceased halted their bicycle. The witness then abandoned the bicycle, fled down a nearby byroad, and concealed himself behind a coconut tree. At that point, the Accused reached the deceased. The witness testified that he observed the 3rd Accused stab his brother three to four times in the chest, while the other Accused restrained him. After the deceased collapsed to the ground, he was further stabbed in the back. Subsequently, the 2nd Accused also stabbed the deceased while the 1st Accused continued to hold him.

This witness later returned to the scene in the company of his relatives and neighbours. Upon his return, he observed that the body of the deceased had been moved and was now situated approximately 20 to 30 feet from the location where he had initially seen it. While the witnes