IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Article 138 (1) of the Constitution read together with section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

The Democratic Socialist Republic of Sri Lanka Complainant Gunapolasingam Benet Jerome Accused CA Case No:

CA/HCC/255/17 HC of Jaffna Case No: AND NOW BETWEEN HC/1974/2016 Gunapolasingam Benet Jerome Accused-Appellant Vs.

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

Complainant-Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: N. Srikanthan with S. Panchadsaran for the Accused-Appellant Shaminda Wickrama, SSC for the Respondent Written 26.08.2020 (by the Accused-Appellant)

Submissions: 04.05.2022 (by the Respondent)

On Argued On: 13.06.2023 Decided On: 03.08.2023 Sasi Mahendran, J.

The Accused-Appellant (hereinafter referred to as “the Accused”) was indicted in the High Court of Jaffna under Section 296 of the Penal Code for committing the murder of Vetharasa Lily Mary (hereinafter referred to as “the Deceased”) on the 29th of December 2008.

The Prosecution led evidence from eleven witnesses, with marked productions from P1 to P4, and closed its case. The Accused also gave evidence from the witness box. At the conclusion of the trial, the Learned High Court Judge found the Accused guilty and imposed the death sentence.

The following grounds for appeal were set out in the written submission.

1. There is no substantial evidence either direct or circumstantial led by the prosecution incriminating the Accused-Appellant.

2. In the absence of any eyewitness, the evidence submitted by the prosecution went only to the extent of establishing a. The death of the deceased b. The exhumation of her decomposed body on judicial order following information and c. The fact that the death was caused by violence. Thus, the case of the prosecution was bound to fail.

3. The fact that, in addition to the absence of either direct or circumstantial evidence, there was no cogent evidence incriminating the applicant-petitioner, in the form of (1) Any recovery in consequence of his own statement permissible under section 27 (1) of the Evidence Ordinance connecting him with the death of the deceased, or (2) his own confession to a Learned Magistrate, and thus the conviction cannot be sustained.

We must be mindful that this case is based on circumstantial evidence. Therefore, we are guided by the well-established principles of law on circumstantial evidence.

In the case of State of U.P. vs Dr. Ravindra Prakash Mittal( 1992, 2 S.C.J, 549 it was held that the essential ingredients to prove guilt of an accused person by circumstantial evidence are :-

1) The circumstances from which the conclusion was drawn should be fully proved:

2) The circumstances should be conclusive in nature;

3) All the facts so established should be consistent with the hypothesis of guilt and inconsistent with innocence;

4) The circumstance should; to a moral certainty, exclude the possibility of guilt of any person other than the accused.

This judgement was referred by Balapatabendi, J in the case of Karunasena v. Attorney General,2005 (2) SLR 233.

Before we scrutinize the evidence led before the Learned High Court Judge, it is pertinent to consider the reasons found in his judgment that led him to form the opinion with regard to the guilt of the Accused.

On Page 153 of the translated brief;

Analysis of evidence by Court that it was the accused who had committed the murder 1. The person who was murdered in this case had been living at No.18 Martin Lane Jaffna.

2. The accused and his wife too had been living in that house on rent.

3. The first information with regard to murder of Lily Mary and her body was buried at No. 14 Martin Lane was informed to the police by the accused’s wife Roxy.

4. The wife of the accused Roxy is dead now.

5. A complainant was made to the police with regard to Lily Mary going missing, in December 2008.

6. Accused Je