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.

D. Hewage Saman Alias Kalu Malli Accused-Appellant CA Case No: HCC 225/10 HC of Embilipitiya Case No:

22/2006 Vs.

The Attorney General, Attorney General’s Department, Colombo 12. Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Indika Mallwaratchy for the Accused-Appellant Hiranjan Peiris , SDSG for the Respondent Written 05.02.2020 (by the Accused-Appellant)

Submissions: 02.08.2022 (by the Respondent)

On Argued On : 03.05.2023 Decided On : 26.07.2023 Sasi Mahendran, J.

The 1^st Accused-Appellant (hereinafter referred to as ‘the Accused’) and another Deepthi Hewage Piyasena were indicted before the High Court of Embilipititya for having committed the offence of murder of one Athukorala Arachchige Weerasena(the Deceased)

an offence made punishable under Section 296 read with section 32 of the Penal Code.

Prosecution led the evidence of eight witnesses and evidence marked as P1 to P5.

The Accused made a dock statement. At the conclusion of the trial, the Learned High Court Judge acquitted and discharged the 2^nd Accused and convicted the Accused for the murder, and the death sentence was imposed.

Being aggrieved by the said conviction the Accused has appealed to this court.

The following grounds were set out in the written submission.

1. Non-compliance of section 48 of the Judicature Act relating to the adoption of proceedings. (The said ground was later withdrawn).

2. Learned Trial Judge has erred in law on the principles relating to Section 27 Recoveries.

3. Learned Trial Judge erred in law by applying the Lucas principle thereby causing serious prejudice to the Accuse-Appellant.

4. The Application of the Ellenborough Principle is wholly unwarranted in the instant case.

5. The case being projected on the last seen theory, prosecution has failed to establish the exact time of death.

6. The case being on circumstantial evidence, prosecution has failed to exclude the possibility of 3^rd party being the perpetrator of the crime.

7. Learned Trial Judge has erred on a critical issue of fact causing prejudice to the Accused-Appellant.

8. Learned Trial Judge has erred in law by relying upon hearsay evidence thus violating the evidence ordinance.

9. Items of circumstantial evidence are not weighty enough to support the conviction. 10. Items of evidence favorable to the accused-appellant has not been considered by the learned trial Judge consequently denying him of a fair trial.

The facts and circumstances giving rise to this appeal are that:

According to PW1 Garusinhage Karunaseeli who is the wife of the Deceased stated that on the fatal day of the 20^th of October 1997, the Deceased had left home at 6:45 pm saying that he was going to the Accused (alias Kalu Mali) house which is 300 meters away from their house with a bottle of Kassipu. Since the Deceased had not returned in the morning PW1 visited the Accused’s house in search of her husband there she saw the Accused and his elder brother (2^nd Accused) and family were present, the Accused had then told her that the Deceased went to get more Kassipu.

This was further stated in her cross examination that there were 3 to 4 people present but she was unable to identify them clearly.

On Page 50 of the brief;

ⷁᮅ : තමන්ට කලු ම්ලී හමුවුනා?

උ : ඔව්.කළු ම්ලී කිව්වා කසි්පු මදි කියල කසි්පු ගේන්න ගියා කියලා. මම කිව්වා ඒගෝලගලා ගෙදරදි

නැති වුගන් මම ග ාලිසියට ගිහින් කියනවා කියලා. මම ග ාලිසිසියට යනවා කියලා කිව්වා..

ⷁᮅ: කව්ද කලු ම්ලලිගේ ගෙදර ඉන්න අය?

උ : ඒ කාලගේ එයාලගේ අයියා හිටියා. කළු ම්ලලි සිටියා. ව්ල සිටියා

Thereafter PW1 visited the brewer, who said that he had not seen the Deceased after he made the purchase the previous evening. PW1 then lodged a complaint at the Police Station. She was later summoned to the Police Station to identify the body which was recovered from a cesspit in front of the Accuse