MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgement dated 15.02.2018 of the High Court of Galle. The accused appellant (hereinafter referred to as appellant) has been indicted with three others under Section 140, 146/296, 146/315 and in the alternative on the basis of Common Intention under the provisions of the Penal Code.

The Appellant has pleaded not guilty and he had been convicted and sentenced to the fourth charge in the Indictment.

The Appellant being aggrieved by the said judgement has filed the instant appeal.

The main grounds of appeal raised by the learned counsel for the appellant was the identification of the appellant at the scene of crime.

The main witness for the prosecution has been PW1 who had been the daughter of the deceased. According to the said witness, the incident had taken place around 8.45 in the evening, on the 4^th of February 1998, in the house of the deceased. She had said in evidence, that ,she and her father (the deceased) had been near the front door of their house when four people had entered their compound out of which she had identified the first accused to be as Neil. The said, Neil, according to her narration had been carrying a knife and the appellant had been carrying a Kriss knife.

The first accused had approached her father and had assaulted with a knife and thereafter he had given the said knife to the appellant whom he had addressed as “Titus”. By this mention of the name “Titus”, the PW1 had got to know the name of the appellant. According to her, thereafter also “Titus” has assaulted the father and he had fallen down. The witness had tried to prevent the first accused but she had been dragged out by him. While she was outside, she had seen the father being held by the third and the fourth accused and the appellant had continued to assault the deceased while he had been fallen down ( 120 of the Appeal brief).

At this point, the third witness (The grandmother of the first witness) had come to the scene and had shouted for help. PW2 had also rushed in to the scene at this point. By this time, the assailants had left the scene.

At page 124 of the brief, this witness had said that she was so shocked with what had happened that she could not at once recall the incident in detail, which explains the state of mind of the witness, soon after the incident.

At page 127 of the brief, she had said that the entire incident had lasted for about 30 minutes.

At page 130 of the brief, she had referred to a previous misunderstanding between the deceased and the appellant.

This witness had identified the appellant at the identification parade, which had been held on 09.05.2001, which is nearly three years after the incident but this Court observes that this appellant had been arrested on 29.04.2001, which explains the delay for the holding of the Identification parade.

The witness has been extensively cross examined, and the learned presidents Counsel for the appellant had pointed out to the court that although the witness identified the appellant at the Identification parade, she had failed to mention his name in the police statement which had been made soon after the incident but this Court is mindful of the fact that the witness being a 17 year old girl witnessing the father being injured by a group of people, would have obviously been in distress as expressed by the witness in evidence at page 124 of the brief. But we observe that she had corroborated her position, taken up at the Identification parade, by her narration in court.

The witness had further been cross examined on minor contradictions, as with regards to the length of the weapon possessed by the first accused and the appellant and whether the appellant assaulted the deceased, after he had fallen down. But the witness in court reiterated her position that the appellant assaulted the deceased before and after he had been fallen down.

Counsel for the appellant submitted that the Trial Judge has misdirected himself by not