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 read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

The Democratic Socialist Court of Appeal Case No:

Republic of Sri Lanka.

HCC / 307 – 309 / 2017 Hon. Attorney General.

High Court of Panadura Case Attorney General Department No: 2774 /2010 Colombo 12. Complainant Vs.

1. Illeperuma Arachchige Don Suraj Priyashantha.

2. Ranasinghege Nilantha Chaminda Perera.

3. Illeperuma Arachchige Don Manoj Nishantha.

Accused AND PRESENTLY Illeperuma Arachchige Don Manoj Nishantha.

3^rd Accused – Appellant Vs.

The Democratic Socialist Republic of Sri Lanka.

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

Complainant – Respondent Before: Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel: Nalin Ladduwohetty, P.C with Kavithri Ubeysekera for the 1^st and 3^rd Accused Appellants.

Amila Palliyage appears with Sandee paniWijesooriya and S.Udugampola for the 2nd Accused – Appellant.

Azard Navavi, DSG for the State.

Argued on: 23.03.2023 Decided on: 24.05.2023 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated

29.9.2017 of the High Court of Panadura.

The three accused appellants (hereinafter referred to as the appellant) had been indicted for committing murder and causing hurt on 6.5.2006. The appellants had pleaded not guilty and the prosecution had led the evidence of three lay witnesses and the judicial medical officer and the investigative officers.

When the trial judge called the defense the 1^st and the 2^nd appellants had made dock statements and the third had given evidence and there had been a defense witness who had given evidence on behalf of the appellants.

Upon the conclusion of the trial the trial judge had convicted all three appellants for the charges in the indictment.

The grounds of appeal for the 1^st and the 3^rd are, 1)the lack of proper identity of the appellants at the scene, 2) evidence of the prosecution not being properly considered, 3)evidence of common intention not being properly considered The grounds of appeal for the 2^nd appellant are also the same as above. According to the evidence of the prosecution witness Susanga Gunatillake who had said that there had been a wedding on the alleged day and an argument had taken place at the wedding between two parties and after the wedding he had gone to drop Jayalath who had also been drunk, while he was in Jayalaths house he had received a phone call on his mobile around midnight stating that Kamal the injured had been entered to hospital and to inquire about the deceased because deceased and Kamal had been together at the wedding. The name of the caller has not come out in evidence but the witness had gone to the wedding house and on his way he had found the deceased in a puddle of water injured, and he had been rushed to hospital.

The evidence of Kamal Prasad who is supposed to have been injured says that at the wedding he had been with Priyantha the deceased and a scuffle had taken place between the 3 appellants and some others and he and everybody had consumed alcohol and he deceased and Upul had left the wedding house in the midnight and Upul had been dropped and thereafter the three wheeler had been stopped by the 1^st appellant and he had stabbed the witness with a knife and he had been held by the 2^nd appellant and when he tried to run the 3^rd appellant had stopped him. The third appellant had stabbed the deceased and the witness had run off. He is supposed to have identified the appellants with the aid of the light which had been coming from the wedding house which had been about 75 feet away.

In cross examination the defense had brought to the notice of Court that the witness Kamal had failed to mention, to police that, 1)the 2^nd appellant had held him, during the stabbing, 2)the third appellant had stabbed the deceased, 3)the ap