IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Appeal under section 331 of the Criminal Procedure Act No. 15 of 1979.

Democratic Socialist Republic of Sri Lanka.

Plaintiff Court of Appeal Case No: V s .

CA / HCC / 0051 / 0052 / 2016 1. Prabu Kotalawala High Court of Rathnapura Case No: 1^st Accused Appellant HCR / 10 /2007 Ratnayake Mudiyanselage Nayanananda Ratnayake.

2^nd Accused Appellant AND Ratnayake Mudiyanselage Nayanananda Ratnayake.

2^nd Accused Appellant Vs.

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

Plaintiff – Respondent Before: Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel: Palitha Fernando, P.C. for the 01^st Accused – Appellant.

Neranjan Jayasinghe for the 2nd Accused – Appellant.

Azard Navavi, D.S.G. for the State.

Argued on: 30.03.2023 Decided on: 17.05.2023 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated 11.2.2016 of the High Court of Rathnapura.

The accused Appellants (hereinafter referred to as the appellants) were indicted for committing murder on 12.7.1999 and upon the conclusion of the trial they had been convicted and sentenced for the offence of murder.

The prosecution had led the evidence of three lay witnesses the doctor and the evidence of the investigative officers.

When the defense was called the appellants had made statements from the dock.

The main grounds of appeal of the two appellants had been, 1) the evidence of the identification parade should never have been placed before Court, 2) the trial judge erroneously seeking corroboration from the police statement, 3) conclusion of the trial judge against the norms of the evidence ordinance.

According to the version of the deceased wife namely Mallika Kulathunga who says that the deceased had been a gem dealer, on the day of the incident the deceased had been watching television with the two elder children when two people had come to the house in a motor bicycle and she had identified them to be the tall and the short man and the tall man had given a letter to the hand of the deceased and had squeezed the mouth of the deceased and the children had started to shout and the short man who had been a little away had shot at the deceased. Then the deceased had been stabbed by the tall man. She had identified the appellants in the dock and had said that she had identified them at the identification parade which had been held one year after the incident.

The incident had taken place at around 7 30 in the night and she had claimed that there was enough illumination inside the house.

The assailants have claimed before leaving that they did it on the instruction of one Gunasekera and the wife said that the said Gunasekera has had a grudge with the deceased.

Two omissions and one contradiction had been brought to the notice of Court in her evidence which this Court is of the opinion has not gone to the root of the case, as per the cases so far decided.

But it had been suggested to her that she had not seen the incident which she had denied and furthermore she had said that there were several other people who also had been taken into custody in the Magistrate Court.

According to the evidence of Kalyani Katunga who had been in the deceased house and who is the sister of the previous witness had seen the tall man stabbing the deceased and she had identified him in the parade and in the dock.

The other assailant had been near the cycle when she had come out of the house after seeing the stabbing of the deceased.

It had been suggested to her in cross examination that she is lying and furthermore that she had failed to state to police that in the morning of the day of the incident she had seen the short assailant going in front of their house in a suspicious manner.

The brother of the deceased had informed the matter to the police. The investigative officers had given evidence and upon the conclusion of the case for the prosecution the defense had been called and both the appellants