IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Appeal in terms of Article 331 of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: Hon. Attorney General CA/HCC/0241/2023 Attorney General Department, Colombo 12.

High Court of Matara Complainant Case No: HC/110/15 Vs. Samarawickrama Liyanage Nandasena Accused AND NOW BETWEEN Samarawickrama Liyanage Nandasena Accused – Appellant Vs.

1. Hon. Attorney General, Attorney General Department, Colombo 12.

2. Officer in Charge of Police, Police Station, Akuressa.

Complainant-Respondents Before : Menaka Wijesundera J.

Wickum A. Kaluarachchi J.

Counsel : Sarath Jayamanne, P.C with Vineshka Mendis, Prashan Wickramaratne, Sajeewa Meegahawaththa. Dakshin Abeykoon and Dinidu Rathnayake for the Accused-

Appellant.

Anoopa De Silva, DSG for the Respondent.

Argued on : 17.07.2024 Decided on : 01.08.2024 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgement dated 18-10-2023 of the High court of Matara. The accused-appellant hereinafter referred to as the “appellant”, has been indicted for committing the murder of his brother, on 13-04-2010. The appellant has pleaded not guilty and the prosecution has led the evidence of PW-01, police evidence and the evidence of the doctor. The accused-appellant had made a statement from the dock and called two defence witnesses. At the conclusion of the trial, the trial judge had found the appellant guilty of the charge in the indictment.

The accused-appellant being aggrieved by the said sentence and conviction had filed the instant appeal.

The grounds of appeal raised by the learned President’s Counsel for the appellant are as follows, 1. The prosecution had placed the evidence of PW-01, who had been the only lay witness, concluding that the entirety of the prosecution’s case is based on circumstantial evidence, but the learned President’s Counsel averred that the prosecution has failed to place before court a vital witness namely “Sarath”, and he relied on the presumption under Section 114 of the Evidence ordinance.

2. Section 27(1) statement not being properly analysed by the trial judge.

3. The statement made prior to the purported first statement on 16-04-

2010, not being given to the accused and thereby denying him a fair trial.

4. The accused being unreasonably burdened to prove his innocence by the trial judge.

The sole and the only lay witness of the prosecution namely, Priyanthika, PW-

01, who is the wife of the deceased, had been led in evidence by the prosecution to say that on the day of the incident, which is the day before the new year, around 1pm, a friend by the name Sarath had visited the deceased.

The deceased and Sarath had been talking outside and PW-01 had been cooking in the kitchen, when she had heard Sarath shouting “Nandasena aiya assaulted”. The witness had gone out to see the deceased fallen and the accused running away with a mammoty and Sarath had been standing nearby. The accused is the brother of the deceased, who had lived nearby and they had shared a well in the garden. Thereafter the deceased had been rushed to hospital, where he had succumbed to his injuries on the 23rd of April 2010. In the examination in chief, she had said that she made the first complaint on 16-

04-2010, but in cross examination she had admitted that there was a statement made before the 16^th, when the police had visited the house (pg 69).

Therefore, there had been two statements made by the witness and the statement made on 16-04-2010 is not really the first statement. The prosecution has failed to provide this statement made prior to the 16^th, to the defence and they have also failed to question the police witnesses regarding this matter. It is a well-accepted principle that the first information received by the police should always be made available to the defence to formulate their case. This has been dealt very lengthily in the decided case submitted by the learned President’s Cou