IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal against an order of the High Court under Section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal Case No: CA /HCC/0091/2009 Hon. Attorney General, HC Kalmunai Case No: HC/01/2008 Attorney General’s Department, Colombo 12. Complainant Vs.

S.A. Latheef Accused And Now Between S.A. Latheef Accused-Appellant Vs.

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

Complainant-Respondent Before: N. Bandula Karunarathna J.

&

R. Gurusinghe J.

Counsel: Indica Mallawaratchy, AAL for the Accused-Appellant Dileepa Peiris, SDSG for the Complainant-Respondent Written Submissions: By the Accused-Appellant on 09.12.2016 By the Complainant-Respondent 26.01.2017 Argued on : 27.06.2022 Decided on : 26.01.2023.

N. Bandula Karunarathna J.

This appeal is from the judgment, delivered by the learned Trial Judge of the High Court of Kalmunai, dated 10.06.2009, by which, the 1^st accused-appellant, who is before this court, via zoom platform was convicted and sentenced to death along with the 2^nd accused person, for having murdered Seiathu Ismail Razeek (the deceased) and committing the offence of murder, under section 296 of the Penal Code.

The 2^nd accused person did not appeal against the conviction and the sentence. On 10.02.2020 Deputy Registrar of this court inquired from the Prison Authorities at the Anuradhapura prison whether the 2^nd accused person in the High Court Case No. HCEP/KAL/01/2008 at Kalmunai High Court, namely Sinnathamby Gopal preferred an appeal against the conviction and the sentence dated 10.06.2009. This court received a reply from the Anuradhapura Prison on 12.03.2020 indicating that he has never appealed against the said conviction and the sentence.

Thereafter, on directions from this court the Deputy Registrar sent another letter to the Prison Authorities at the Anuradhapura Prison, if the 2^nd accused-person is willing to file an appeal against his conviction and sentence he will be permitted to do so on or before 03.07.2020.

The 2^nd accused person Sinnathamby Gopal, has informed this court, through the prison authorities that he doesn’t want to appeal against the conviction and the sentence dated 10.06.2009. The said letter was written on 25.06.2020 to the Prison Authorities at the Anuradhapura Prison, and if he wanted to tender an appeal it was permitted for him to do so on or before 03.07.2020. As there was no favourable reply for the said last letter this matter was fixed for argument considering the appeal preferred by the 1^st accused person.

The charge against the accused persons were as follows;

that on or around 16.09.1985 they committed the offence of murder by causing the death of Seiathu Ismail Razeek in Akkareipattu, which is an offence punishable under section 296 read with section 32 of the Penal Code.

The accused persons opted for a trial with a jury which commenced before the learned High Court Judge of Kalmunai on 08.06.2009. After the conclusion of the prosecution case both accused persons decided to keep silent. The judgment was delivered on 10.06.2009 and both accused-appellants were convicted and sentenced to death. It is important to note that the prosecution case rests solely and squarely on circumstantial evidence. Deceased was last seen in the company of the 2^nd accused person namely S. Gopal going in the direction of the Kalmunai town on 16.09.1985 around 4.00 p.m.

The prosecution mainly relied on the confessions made by the two accused persons. The 1^st accused showed the place where the dead body was. The learned counsel for the respondent says that the document marked as P 2 confirms that the 2^nd accused person assured to show the dead body and the police recovered the body of the deceased Razeek, consequent to this information. The document marked as P 3 confirms the said recovery. According to the witness Keerthi Athapattu, police found the dead body, when the accused person