IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331(1) of the Code of Criminal Procedure Act No.15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No: Nagarasa Sivaseelan CA/HCC /0024/2016 High Court of Jaffna ACCUSED-APPELLANT Case No. HC/1684/2013 vs.

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

P. Kumararatnam, J.

COUNSEL : Indica Mallawaratchy for the Appellant.

Dileepa Peiris, SDSG for the Respondent. ARGUED ON : 24/11/2022 DECIDED ON : 26/01/2023 ***************************

JUDGMENT

P. Kumararatnam, J.

The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted in the High Court of Jaffna under Section 296 of the Penal Code for committing the murder of Sivaseelan Jesutha on or about the

09^th of February 2006.

The trial commenced before the High Court Judge of Jaffna as the Appellant had opted for a non-jury trial. After the conclusion of the prosecution case, the learned High Court Judge had called for the defence and the Appellant had made a dock statement and closed his case. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant under section 296 of Penal code and sentenced him to death on 25/02/2016.

Being aggrieved by the aforesaid conviction and the sentence the Appellant preferred this appeal to this court.

The learned Counsel for the Appellant informed this court that the Appellant has given consent for this matter to be argued in his absence due to the Covid 19 pandemic. Also, at the time of argument the Appellant was connected via Zoom from prison.

Background of the Case According to the evidence led at the trial, the Appellant and the deceased were husband and wife and they were blessed with a 09-year-old daughter at the time of the demise of the deceased. Their married life was not stable as constant fights erupted caused by the inebriated Appellant. The Appellant used to beat the deceased when he was under the influence of liquor. Nobody had visited the deceased including her mother out of fear for the Appellant. On the night in question, the witnesses had heard the Appellant beating the deceased despite her pleas not to harm her. The deceased’s naked body was found wrapped in a mat inside her house on the following day.

According to the Judicial Medical Officer the deceased had sustained several cut injuries on her neck region and shock and hemorrhage due to Primary Brain Damage and Transection of Spinal Cord due to multiple cut injuries were declared as the cause of death.

Following appeal grounds were advanced by the Appellant.

1. The Learned High Court Judge has flawed in law by imposing a burden on the Accused-Appellant to support his plea of alibi.

2. The Learned High Court Judge has factually misdirected himself when evaluation the dock statement, thereby causing serious prejudice to the Accused-Appellant.

3. The Learned High Court Judge has misdirected himself on the burden of proof on an accused by imposing a burden on the Accused-Appellant to rebut the prosecution version.

4. When the prosecution has not established a link between the weapon recovered from the scene and the accused, the Learned High Court Judge has arrived at a conclusive finding that the Accused-Appellant had murdered the deceased using the said weapon.

5. The prosecution has totally failed to establish the time of death, which is vital in the backdrop of the defense of alibi embarked upon by the Accused-Appellant.

6. The Learned High Court Judge has erroneously applied Section

106 of the Evidence Ordinance.

7. Accused-Appellant has been denied a fair trial as the prosecution has failed to conduct the investigations with due diligence by sending the blood-stained sarong and shirt to the Government Analyst.

8. Items of Circumstantial evidence a