Pradeep Hettiarachchi, J

Judgment

1. The Accused–Appellant (hereinafter referred to as the Appellant) was indicted before the High Court of Ratnapura along with one Hathwelthotage Randika (the 2nd Accused) under Sections 102 and 113B read with Section 296 of the Penal Code, for abetting and conspiring to commit the murder of Rajapakshalage Gamini Rajapakshalage alias Shantha, and for committing the murder of the said Gamini Rajapaksha, an offence punishable under Section 296 of the Penal Code.

2. The 2nd Accused was also indicted for aiding and abetting the Appellant in committing the murder of Gamini Rajapaksha.

3. The learned High Court Judge acquitted the 2nd Accused of all charges. The Appellant, however, was convicted on the second count and sentenced to death. This appeal has been preferred against the said conviction and sentence. The prosecution case rested solely on circumstantial evidence.

4. On behalf of the prosecution, nine witnesses, namely PW1, PW2, PW3, PW4, PW8, PW9, PW12, PW13, and PW16, testified at the trial. The Appellant and the 2nd Accused opted to make dock statements.

5. In the appeal, the following grounds were urged by the Appellant in impugning the judgment of the learned High Court Judge.

a. The circumstantial evidence led at the trial was insufficient to sustain a conviction.

b. There was no proper identification of the Appellant.

c. The learned High Court Judge had erroneously placed an unwarranted burden on the Appellant.

d. The recovery made under Section 27 of the Evidence Ordinance was not evaluated in its proper perspective.

6. The deceased and the 2^nd Accused were husband and wife. The Appellant had an illicit affair with the 2^nd Accused. About a month prior to the alleged murder, the 2^nd Accused had eloped with the Appellant.

7. It is noteworthy that none of the witnesses who testified on behalf of the prosecution had witnessed the commission of the alleged murder. Hence, the prosecution relied entirely on circumstantial evidence to establish the charges against the appellant.

8. The prosecution case rests entirely on circumstantial evidence, as there was no eyewitness who saw the appellant shooting the deceased. The paramount question, therefore, is whether the circumstantial evidence adduced by the prosecution is sufficient to establish the guilt of the appellant beyond reasonable doubt.

9. It is a well-settled principle that a conviction may lawfully be founded on circumstantial evidence, provided that the circumstances relied upon are cogently and firmly established, are consistent only with the hypothesis of the accused’s guilt, and exclude every reasonable hypothesis of innocence.

10. In other words, the circumstances from which the conclusion of guilt is to be drawn must, in the first instance, be fully and conclusively established. Furthermore, all such established facts must be consistent only with the hypothesis of the accused’s guilt and must exclude every reasonable hypothesis of innocence.

11. To elaborate further, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It is therefore appropriate, at the outset, to consider the principles of law governing circumstantial evidence.

12. It is well settled that when a conviction is based solely on circumstantial evidence, such evidence must satisfy certain essential tests before it can be relied upon. The circumstances, when taken together, must form a complete and unbroken chain pointing unequivocally to the guilt of the accused and must be inconsistent with any reasonable hypothesis of innocence. In other words, the proved circumstances should be of a conclusive nature and tendency, excluding every possible inference except that of the accused’s guilt. This principle has been affirmed in several landmark cases.

13. In King v. Appuhamy (46 NLR 12