IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331(1) of the Code of Criminal Procedure Act No.15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Marasinghe Siriwardenalage Nilantha Kumara APPELLANT Vs.

Court of Appeal No: The Attorney General CA/HCC/0238/20 Attorney General’s Department High Court of Colombo Colombo-12 Case No. HC 1862/2004 RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Kasun Chamara Munasinghe for the Appellant.

Sudharshana De Silva, DSG for the Respondent.

ARGUED ON : 12/10/2023 DECIDED ON : 09/02/2024 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Appellant was indicted along with three other accused by the Attorney General for committing the offences as mentioned below.

1. On or about the 08th of June 2001, at Mattakkuliya, by causing death of Wickramasinghe Arachchige Sumith alias Sunith committed an offence punishable under Section 296 read with Section 32 of the Penal Code.

2. In the course of the same transaction, committed an offence of Robbery of a three-wheeler from the possession of Ponniah Mahendiran an offence punishable under Section 380 read with Section 32 of the Penal Code.

The trial commenced before the High Court Judge of Colombo as the Appellant and other accused who had been numbered as 1^st ,2^nd and 4^th accused opted for a non-jury trial. The indictment was amended after the commencement of the trial as the 1^st and 2^nd accused had passed away during the pendency of the trial. The case against the Appellant who was named as 3^rd accused and the 4^th accused continued, and the prosecution had led 16 witnesses and marking productions closed the case.

The Learned High Court Judge having satisfied that evidence presented by the prosecution warranted a case to answer, called for the defence and explained the rights of the Appellant and the 4^th accused.

The Appellant and the 4th Accused remained silent and did not offer any defence evidence.

After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant on the 1^st count only and sentenced him to death on 30/07/2020. The 4^th accused was acquitted from all the charges.

Being aggrieved by the aforesaid conviction and the sentence, the Appellant had preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant had given his consent to argue this matter in his absence due to the Covid 19 pandemic. At the hearing, the Appellant was connected via Zoom platform from prison.

The background of the case albeit briefly is as follows:

PW2, Vijay Kumara, the three-wheeler driver is the only eyewitness to the incident in which the deceased was allegedly killed by the Appellant and others named in the indictment. On the day of the incident, 08.06.2001, the deceased had gone to the Modera Temple at about 5.00 pm and returned to the three-wheeler in 15 minutes. On his was way, the deceased had given lift to his brother’s daughters and dropped them at Pokkunuwatte and proceeded to his home situated at Samithpura, Mattakuliya. As there was a traffic congestion near the Mattakkuliya bus stand, the witness (PW2) had slowed down the three-wheeler. Suddenly, two persons got into the rear part of the three-wheeler and had begun to stab the deceased using sharp knives.

At that time, PW2 identified the Appellant as one of the assailants as he too resides at Samithpura. But he could not identify the other person. At that time, PW2 could not identify the other person. When he tried to prevent the stabbing, the Appellant had pointed the knife at him. Due to fear, he had run from the three-wheeler and observed the continuation of the incident from a distance of 10 feet. The Appellant and the other dragged the deceased out of the three-wheeler and stabbed further.

A few minutes later, he took the three-wheeler from the scene