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

Court of Appeal Case No: The Democratic Socialist Republic of HCC – 0433 – 2019 Sri Lanka.

High Court of Colombo Case No: Complainant HC / 3264 / 2006 Vs.

1. Uduwarage Anurudda Saman Silva

2. Degiri Susantha Priyadarshana Silva Accused AND NOW BETWEEN Degiri Susantha Priyadarshana Silva

2^nd Accused – Appellant Vs.

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

Complainant – Respondent Before : Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel : Shanaka Ranasinghe P.C. with Niroshan Mihindukulasooriya for the Accused – Appellant.

Sudarshana De Silva D.S.G. for the State.

Argued on : 18.07.2023 Decided on : 05.09.2023 MENAKA WIJESUNDERA J.

The instant appeal has been lodged to set aside the judgment dated 28.11.2019 of the High Court of Colombo.

The accused appellant (hereinafter referred to as the appellant) has been indicted along with the 1^st accused who had been acquitted by the trial judge, under section

296 of the Penal Code on the basis of common intention.

The grounds of appeal of the appellant were that, (1) The trial judge failed to consider the improbability of the prosecution version, (2) The trial judge could not have convicted the appellant after acquitting the 1^st accused on the evidence placed before Court, (3) The trial judge failed to consider the confusion with regard to the recoveries made on the statements of the accused.

The version of the prosecution is that on the day of the incident in the evening the appellant and the 1^st accused had arrived at the scene to clear the land adjacent to where the deceased had been living on the request of the deceased and had left manna knives under the chair of the deceased. Thereafter after a while they had arrived again and had called his son the pw1 to bring a crow bar and soon afterwards they had seen the 1^st accused assaulting the deceased and the wife of the deceased and his other two children who had been inside the house had come running to the scene and they had seen the 1^st accused brandishing the manna knife in his hand, and then afterwards both the appellant and the 1^st accused had left the scene together.

The witnesses had identified the appellant using the manna knife marked as P1 and there had been another manna knife marked as P2. Both manna knives had been recovered from the custody of the appellant and the accused. On the statement the manna knife marked as P1 had been recovered on the statement of the appellant and the manna knife which had been marked as P2 had been recovered on the statement of the 1^st accused appellant.

The doctor who conducted the post mortem had observed 7 injuries on the deceased and the manna marked as P1 has had a blunt edged whereas the manna knife marked as P2 has had a curved edge. The doctor had said that injuries on the deceased could have been caused by both knives.

At the conclusion of the prosecution the accused had made dock statements stating that at the time of the incident they had been in the house adjacent to the deceased and they have over heard the noise and this position has not been put to the prosecution witnesses at the time of cross examination. As such we see this as a belated defense.

Hence on the evidence of the prosecution it has been established that the appellant and the accused had come together to the scene and while the 1^st accused held a manna knife in hand the appellant had assaulted the deceased and both had fled together. But the manna which had been identified as being used by the appellant had been recovered on the statement of the appellant and furthermore the doctor had identified injuries on the deceased which could have been caused by both the knives marked by the prosecution.

But we observe that the learned trial judge had acquitted the 1^st accused and had convicted the appellant. We fail to understand the merit behind this, because we observe that both the accused had come together to the scene of crime and have