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: Democratic Socialist Republic of Sri Lanka CA/HCC/0062/22 COMPLAINANT Vs.

High Court of Ratnapura Gampalage Anil Nishantha Fonseka alias Case No: HCR/25/2014 Suranji ACCUSED AND NOW BETWEEN Gampalage Anil Nishantha Fonseka alias Suranji ACCUSED-APPELLANT Vs.

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

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

: P. Kumararatnam, J.

Counsel : Hafeel Farisz with Sanjeewa Kodithuwakku, Shannon Thilakaratne and Shermina Bangsjayah for the Accused-Appellant : Dileepa Pieris, S.D.S.G. for the Respondent Argued on : 25-06-2024 Written Submissions : 09-12-2022 (By the Respondent)

: 09-12-2022 (By the Accused-Appellant)

Decided on : 04-09-2024 Sampath B. Abayakoon, J.

The accused-appellant (hereinafter referred to as the appellant) was indicted before the High Court of Ratnapura for causing the death of one Ayagama Pitadeniyalage Jayaweera at a place called Pallekada (Ayagama) within the jurisdiction of the High Court of Ratnapura, on or about 29-12-2011, and thereby committing the offence of murder, punishable in terms of section 296 of the Penal Code.

After trial without a jury, the learned High Court Judge of Ratnapura, of his judgment dated 10-12-2021 found the appellant guilty for culpable homicide not amounting to murder in terms of section 294 exception 4 of the Penal Code, and convicted him in terms of section 297 of the Penal Code.

After having considered the mitigatory as well as the aggravating circumstances, the learned High Court Judge sentenced the appellant on the basis of the 1st limb of section 297 for a period of 12 years rigorous imprisonment. He was ordered to pay a fine of Rs. 15,000/-, and in default, to serve 6 months simple imprisonment. The appellant was also ordered to pay Rs. 300,000/- as compensation to the wife of the deceased, namely PW-01, and in default of such payment, he was ordered to serve 1-year simple imprisonment.

On the basis of being aggrieved by the said conviction and the sentence, the appellant preferred this appeal.

At the hearing of this appeal, the learned Counsel for the appellant submitted the following grounds of appeal for consideration of the Court.

1. The learned High Court Judge has caused grave miscarriage of justice to the accused-appellant by failing to give due consideration and importance to the right of private defence exercised by the accused-

appellant.

2. The judgment of the learned High Court Judge is contrary and in excess to law.

Before considering the grounds of appeal urged and the submissions made in that regard, I would like to narrate the evidence led at the trial in brief, for the better understanding of the judgment.

Evidence in Brief According to the evidence of PW-01, who was the wife of the deceased, her husband along with her son had been filling compost fertilizer to plastic bags from their compost pit situated near the boundary that separated the land of theirs from their neighbour in order to grow vegetables. The time was around 2.30 in the afternoon of 29-12-2011. They have been using a mamoty and an iron rod for this purpose. The witness had been seated nearby and was observing what they were doing.

The evidence of PW-01 establishes the fact that there had been a dispute over the common boundary of their neighbour during the relevant period. While they were engaged in this task, the mother of the appellant, namely Punyawathi, has come and informed her husband not to dig at the place they were digging for compost, claiming that portion of land as theirs.

This has led to a verbal altercation between them and as a result, the deceased has stated that “we will be going to the police.” At that point, the appellant has come and gotten involved in the dispute and had cut the filled fertilizer packets using the