IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of section 331 (1) of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: The Hon. Attorney General, CA/HCC/426/2019 Attorney General’s Department, Colombo 12.

COMPLAINANT Vs.

High Court of Colombo Sandun Dinusha Wanigasuriya Case No: 2968/2006 ACCUSED AND NOW BETWEEN Sandun Dinusha Wanigasuriya ACCUSED-APPELLANT Vs.

The Hon. Attorney General, Attorney General’s Department, Colombo 12.

COMPLAINANT-RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Nipun Samaratunga for the Accused-Appellant : Madhawa Tennakoon, D.S.G. for the Respondent Argued on : 29-05-2024 Written Submissions : 24-01-2023 (By the Accused-Appellant)

Decided on : 25-07-2024 Sampath B. Abayakoon, J.

This an appeal preferred by the accused-appellant (hereinafter referred to as the appellant) on the basis of being aggrieved of his conviction and the sentence by the learned High Court Judge of Colombo.

The appellant was indicted before the High Court of Colombo for committing the following offences.

1. That he caused the death of one Harshika Damith Fonseka at Kaldamulla within the jurisdiction of the High Court of Colombo on or about 22-05-2002, and thereby committed the offence of murder, punishable in terms of section 296 of the Penal Code.

2. At the same time and at the same transaction, he committed the offence of robbery on one Lalani Fonseka by robbing her gold chain, and thereby committed an offence punishable in terms of section 382 of the Penal Code.

After trial without a jury, the learned High Court Judge of Colombo found the appellant guilty as charged of his judgment dated 26-06-2019.

Accordingly, he was sentenced to death in relation to the 1st count and was sentenced for a period of 12 years rigorous imprisonment in relation to the 2nd count.

In addition, he was ordered to pay Rs. 50,000/- with a default sentence of 2 years rigorous imprisonment.

He was also ordered to pay Rs. 25,000/- as compensation with a default sentence of 1 year rigorous imprisonment.

The Facts in Brief PW-01 Lalani Fonseka, who was the victim in relation to the 2nd count preferred against the appellant, was the only eyewitness to this incident. She and her son, who was the deceased, has gone to the site of the partly built house belonging to them on the day of this incident in order to inspect the work done at the building site. They have gone there around 3.15 in the evening and it was not a day where the building construction was happening. During that time, there has been a notice exhibited in front of their building site informing that anyone who is interested can buy the satalin planks used for the construction of the house.

While they were on the site, the appellant to whom the witness has referred to as ‘Sandun’ in her evidence has come and inquired about the advertisement. The appellant, after inspecting the satalin planks stored on the ground outside of the house had informed her that the amount mentioned in the advertisement is not there. This has prompted the PW-01 to tell her son to go with him to the upper floor of the house and show him the balance satalin planks, which were stored on the upper floor.

Accordingly, the deceased and the appellant has gone upstairs, and after some time, she has seen the appellant running down the staircase and has also seen her son collapsed on the staircase with bleeding injuries. The appellant has come down with a blood-soaked knife in his hand, and has pressed the knife onto the neck of PW-01. He had demanded her to hand over the gold chain she was wearing. Through fear of death, she has not resisted. After grabbing the chain, the appellant has run away from the building site.

When she reached her son, she has seen him with bleeding injuries to the left side of his stomach and has seen him having in his hand the gold chain worn by him. When inquired, he has uttered the words that the chain was sn