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.

The Hon. Attorney General Attorney General's Department Colombo-12 COMPLAINANT Vs.

Court of Appeal Case No: Kurudupatabedilage Sudharshana CA/HCC /0310/2017 Jayasekera High Court of Panadura No.98, Thammannagama, Case No. HC/3142/2014 Horigaswewa, Thambuththegama.

ACCUSED AND NOW Kurudupatabedilage Sudharshana Jayasekera No.98, Thammannagama, Horigaswewa, Thambuththegama.

ACCUSED-APPELLANT Vs.

The Hon. Attorney General Attorney General's Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P.Kumararatnam,J.

COUNSEL : Dharshana Kuruppu with Sahan Weerasinghe for the Appellant.

Janaka Bandara, DSG for the Respondent. ARGUED ON : 13/11/2023 DECIDED ON : 26/03/2024 ***************************

JUDGMENT

P. Kumararatnam, J.

The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted in the High Court of Panadura under Section 296 of the Penal Code for committing double murder of Wimal Malaviarachchi and Nanda Srimathi and committing robbery of items mentioned in the third count of the indictment punishable under Section 380 of the Penal Code on or about 23.11. 2008.

The trial commenced before the High Court Judge of Panadura as the Appellant had opted for a non-jury trial. The prosecution had called 12 witnesses comprising lay, official, and medical witnesses and marked productions P1-20 to fortify the prosecution version.

After the conclusion of the prosecution’s case, the learned High Court Judge had called for the defence and the Appellant had made a dock statement to end the defence case. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant and sentenced him to death on the 1^st and 2^nd counts and imposed 10 years rigorous imprisonment and fine of Rs.2500/- with a default sentence of 03 months simple imprisonment on the 3rd count on 31/08/2017.

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

The Learned Counsel for the Appellant informed this court that the Appellant has given consent to argue this matter in his absence due to the Covid 19 pandemic. Also, at the time of argument the Appellant was connected via Zoom from prison.

Following appeal grounds were advanced by the Appellant.

1. The Learned High Court Judge has failed to consider the items of circumstantial evidence beyond reasonable doubt as the circumstantial evidence led in the trial is insufficient to convict the Appellant.

2. The Learned High Court Judge has failed to explain and record the rights of the Appellant as per section 200(1) of the Code of Criminal Procedure Act No. 15 of 1979.

3. The Learned High Court Judge erred in law by allowing the prosecution to lead the evidence of PW3 in absence of statement given to police and in absence of his evidence in the NS proceedings.

4. The Learned High Court Judge has not considered the dock statement of the Appellant in its correct perspective.

Background of the case is albeit as follows:

According to PW3, Pathum Dharshana the elder son of both deceased persons, on the day of the incident being a Sunday he and his brother had gone to Dhamma School in the morning and returned home after attending the Dhamma class. After lunch, at about 1.00pm, the witness and his brother had gone to attend tuition class. Before he left home, his deceased mother had asked him to deliver the lunch to the Appellant who was engaged in tile work at the upstairs of his house. When he gave the lunch, he could see the face of the Appellant at that time.

Although their Class was finished at 5.30pm his deceased father did not come to pick them until 6.30pm. As such he had borrowed Rs.5/- from a nearby boutique known to his father and went to his aunt’s house informed the reason of their coming. She too tried to contact