IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331 of the Code of Criminal Procedure Act No.15 of

1979 Court of Appeal Case No.

CA/HCC/ 0166/2016 Jagath Premalal Senanayake High Court of Embilipitiya Case No. HC/73/2014 ACCUSED-APPELLANT Vs.

The Hon. Attorney General Attorney General’s Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Darshana Kuruppu with Sahan Weerasinghe for the Appellant.

Janaka Bandara, DSG for the Respondent.

ARGUED ON : 11/06/2024 DECIDED ON : 13/09/2024 *******************

JUDGMENT

P. Kumararatnam J The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted by the Attorney General for committing two counts of murder of Madarasinhage Chandrawathi and Madarasinhage Padmawathi on or about 22/08/2008 an offence punishable under Section 296 of Penal Code.

Following a jury trial, the learned Trial Judge convicted the Appellant on both counts of murder and sentenced him to death on 12/08/2016.

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. Deceased is the wife of the Appellant.

The learned Counsel for the Appellant informed this court that the Appellant has given consent to argue this matter in his absence. During the argument he was connected via zoom from prison.

The following Grounds of Appeal are raised on behalf of the Appellant.

1. The Appellant was denied a fair trial guaranteed by Article 13(3) of the Constitution due to the following reasons:

I. The Registrar of the High Court announced the verdict of the Jury before the Foreman of the Jury announced their verdict.

II. The learned High Court Judge had refused the application of the Appellant to call the Magistrate who conducted the inquest in this case.

2. The learned High Court Judge erred in law by misdirecting the Jury as to the standard of proof.

3. The learned High Court Judge erred in law by misdirecting the Jury as to the evidential value of the dock statement of the Appellant.

4. The learned High Court Judge erred in law by misdirecting the Jury that the weakness of the defence case would establish the prosecution case.

5. The learned High Court Judge erred in law by misdirecting the Jury about the dying declaration.

6. The learned High Court Judge erred in law by misdirecting the Jury about the Section 27(1) recovery of the Evidence Ordinance.

7. The learned High Court Judge misdirected the Jury regarding culpable homicide not amounting to murder.

8. The verdict of the Jury is against the evidence led at the trial.

Background of the case On the day of the incident around 9.30am when PW1 Appuhamy and PW2 Sumanasena were working outside the deceased’s house, PW1 heard someone shouting ‘menna maranawa’. When PW1 and PW2 had rushed near the deceased’s house after hearing the cries, they had seen the deceased Padmawathi lying fallen on the paving around the house and the Appellant standing a little further away carrying a crowbar. When he went near Padmawathie, she had uttered ‘Aru Jagath, Jagath’. Thereafter, PW1 had gone to the police station to inform the incident.

The Appellant made a dock statement and denied the charges. According to him when he came home, he had had a bath and afterwards he had seen both the deceased persons and he had raised cries. Hearing his cries PW1 and PW2 had arrived at the scene. In this case, although he was named as a prosecution witness, PW2 was not called on behalf of the prosecution. But he was called as a defence witness by the Appellant.

Article 10 of the Universal Declaration of Human Rights, the Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendments to the United States Constitution, and Article 6 of the European Convention of Human Rights, in addition to numerous other constitutions and declarations throughout the world set out the various right