JUDGMENT

P. Kumararatnam J

The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted by the Attorney General for committing the murder of Wellappili Arachchige Wijayaratne on or about 25/05/2010 an offence punishable under Section 296 of Penal Code.

The trial commenced before the High Court Judge of Hambantota as the Appellant elected for a non-jury trial. The prosecution had called 07 witnesses, marked production P1, P2 and X, and closed their case. When the defence was called, the Appellant electing to make a statement from the dock, denied the allegation levelled against him.

The Learned Trial Judge, believing the evidence presented by the prosecution, convicted the Appellant on the count of murder and sentenced him to death on 04/09/2020.

Being aggrieved by the aforesaid conviction and sentence the Appellant preferred this appeal to this court seeking to set aside the conviction and sentence imposed on him.

The Learned Counsel for the Appellant informed this court that the Appellant had given consent to argue this matter in his absence due to the Covid 19 pandemic. During the argument he was connected via zoom from prison.

Back ground of the case

According to PW1, Wijedasa, he is the elder brother of the deceased. On the day of the incident, at around 5.30pm he had gone to his ancestral house in Pahala Kumbuk Wewa to meet the deceased as he had been involved in a fight in the evening where he had said to have assaulted the Appellant’s wife. When the deceased came there, he had inquired about the said incident from the deceased and advised him to avoid such incidents in future. Listening to the advice given, the deceased had left the house saying that he is going to Mahagalwewa. Around 7.30pm PW2, Nimal Ranjith had come and informed that the deceased was fighting with the Appellant at the junction.

Hearing the news, PW3, Sarathchandra had gone first in his motor bike and PW1 had gone after about 5 minutes of the information. When PW1 went to the place of incident, found the deceased was fallen on the road near a boutique owned by a person called Ajith. At that time the deceased had told PW1 that Upul had assaulted him. PW3 had taken the deceased to the Sooriyawewa Hospital in a three-wheeler. PW1 had gone to the hospital in his motor bike. The deceased was pronounced dead upon admission.

According to PW3, when went to the place of incident, he had seen the Appellant holding the neck of the deceased. When he shouted to identify who was assaulting his late brother, the Appellant drove his motor bike over the deceased’s body.

PW07, the JMO who held the post-mortem opined that the death of the deceased was caused due to throttling and a blow to chest wall and bleeding into the chest cavity.

On behalf of the Appellant following Grounds of Appeal are raised.

1. The Trial Judge has misdirected himself by imputing the burden on the Appellant to explain his innocence.

2. The Learned Trial Judge has misdirected himself by failing to apply the established legal principles to evaluate the testimony of PW1 and sole eye witness PW03.

3. The Learned High Court Judge has misdirected himself by failing to direct himself on the issue of a sudden fight between the deceased and the Appellant when such circumstances have been clearly revealed from the testimonies of the prosecution witnesses.

In the initial ground of appeal, the Learned Counsel argued that the conviction is legally flawed as the Trial Judge incorrectly shifted the burden onto the Appellant to prove his innocence.

The concept of reversed burden of proof is a legal doctrine that shifts the obligation of proving a fact from the usual party responsible for doing so to the opposing party. This means that in criminal cases, the burden of proof can be transferred from the prosecution to the defense.

In criminal law, the presumption of innocence is a fundamental principle mandating that the prosecution must establish the guilt of the accused beyond a reasonable doubt. Nev