WICKUM A. KALUARACHCHI, J.

The first and the second accused-appellants were indicted in the High Court of Chilaw for committing the murder of one Mihindukulasuriyalage Chaminda Saman Kumara on or about 15^th November 2011 in Dunkannawa, Naththandiya, an offence punishable under Section 296 of the Penal Code. After trial, the learned High Court Judge convicted both accused-appellants for the offence of murder and imposed the death sentence on them. This appeal is preferred by the accused-appellants against the said convictions and sentences.

Prior to the hearing, written submissions were filed on behalf of all parties. At the hearing of the appeal, the learned Counsel for the first accused-appellant, the learned Counsel for the second accused- appellant and the learned Senior Deputy Solicitor General for the respondent made oral submissions.

In brief, the prosecution case is as follows:

At the time of the incident, the deceased Chaminda Saman Kumara resided in Dunkannawa village situated in Naththandiya. On the day of the incident, PW-4, a resident of the same area and a three-wheeler driver, was in the three-wheeler park at the time of the incident. He stated in his testimony that he saw the 1^st accused-appellant beating the deceased while deceased was fallen down on the left side pavement of the Naththandiya - Kuliyapitiya road. Accordingly, PW-4 has witnessed the 1st accused beating the deceased using his hand (Page 67 of the appeal brief). Thereafter, PW-4 stated that he went behind and held the appellant when he attempted to strike the deceased using an iron rod (Page 69 of the appeal).

PW-3, was a businessman who was inside his shop at the time of the incident. He has seen an unusual road traffic and come to the road to enquire about it. Upon hearing about a quarrel, PW-3 rushed to the place of the incident where large number of people were gathered. At this moment, PW-3 has seen the 1^st accused-appellant shouted saying something like “චන්ඩි ඕන එකෙකුට ගහනවා” (Page 86 of the appeal brief) while holding a pole and the 2^nd accused-appellant trying to take the 1^st accused-appellant away from the incident, asking him to go.

PW-10, one Priyangika who was inside her husband’s retail business store which was situated in the other side of the road where the incident occurred has also given evidence and stated that she has seen the deceased and the two accused-appellants fighting near the petrol shed.

The two accused- appellants have been arrested by the police on 16^th November 2011 whilst they were hiding in a forest near a cemetery situated in Maningala, Dunkannawa. Upon a statement made by the 1st accused-appellant to the police, an iron rod has been recovered by the police on the same day in an adjoining land to the petrol shed of Dunkannawa which was situated close to the place of incident. The said item of evidence has been produced in terms of Section 27 of the Evidence Ordinance.

Prosecution has also led the evidence of a dying declaration made by the deceased to PW-2, one Ravindra Lakmal who took the deceased to the hospital in a three-wheeler.

After the prosecution case was closed and the defence was called, the accused-appellants made dock statements. The 1^st accused has taken up the position that he and the 2^nd accused- appellant went to the shed to fuel up their vehicle and saw people gathered near the place. They have seen a person who was beaten up and seemed dead. He stated that when they went to look at the scene, people at the place tied them with ropes. Thereafter, another group of people came and untied them and let them go.

The 2nd accused-appellant has also stated in his dock statement that both he and the 1st accused-appellant went to the shed to fuel up and they saw people gathered near the place. However, according to the 2^nd accused-appellant, the 1^st accused appellant has gone to beat a man who seemed dead and fallen on the road. Then, he told the 1^st accused appellant to go away asking whether he is insane. At that