IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In a matter of an appeal made under section 331 of the Code of Criminal Procedure Act No. 15 of 1979 against the judgment, conviction and sentences imposed by the High Court of Kalmunai in case No HC/Kal/36/08.

Yaseenbawa Niyas alias Mansoor (Presently remanded at the Bogambara Prison)

Court of Appeal Case No: Accused-Appellant CA-HCC-244/2010 HC of Kalmunai Case No:

HC/Kal/36/08 v.

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

B. Sasi Mahendran, J.

Counsel: M. Nizam Kariapper ,PC with M.I.M. Inynullah and Ms. Nasrina for the Accused-Appellant Maheshika Silva, DSG for the State.

Written Accused-Appellant Filed Submissions: 30.01.2017 (by the Respondent)

On Argued On: 04.09.2023 Decided On: 25.10.2023 Sasi Mahendran, J.

The 2nd Accused Appellant (hereinafter referred to as “the Accused”) was indicted together with Mohamed Faleel (1st Accused) and Abdul Majeed (3rd Accused) before the High Court of Kalmunai on the 15th of December 2010, on two counts:

Count 1- On or about 06.05.2003 at Kalmunai the Accused together with the said 1st and 3rd Accused Allegedly conspired to murder one Athambawa Sahul Hameed an offence punishable under Section 113(b) and 102 of the Penal Code. Count 2- On the said date, time and place the Accused together with the 3rd Accused caused the death of one Athambawa Sahul Hameed, an offence punishable under Section 296 of the Penal Code.

After the trial, The Learned High Court Judge Convicted the 2nd Accused for murder and was sentenced to death and the other two were acquitted.

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

The following are the grounds of appeal as per the written submission:

i. The learned High Court Judge had failed to consider the discrepancies in the evidence tendered by the witnesses of the prosecution.

ii. The learned High Court Judge had attached probative value to the evidence of the

1st Witness, especially regarding the identity of the accused despite the omission and contradiction of her (1st Witness's) evidence, misdirected herself (the learned High Court Judge), and concluded that the identity of the accused was proven beyond reasonable doubt.

iii. The learned High Court Judge erred in law and in fact. and misdirected herself when stating in her judgment that the omissions and contradictions that were marked did not affect the root of the case whereas the same had cast a serious doubt regarding the identity of the accused.

iv. The learned High Court Judge had erred in law by rejecting the dock statement of the Accused before the High Court trial, by comparing the dock statement by the Accused before the learned Magistrate of Kalmunai at the non summary inquiry on the basis that there were differences between the dock statements whereas it was not so.

v. The learned High Court Judge had utilized the weaknesses of the case of the defense in order to strengthen the case of the prosecution, which is contrary to the norms of criminal prosecution.

The following are the facts and circumstances of this case;

Upon scrutiny of the testimony provided by PW1 Sahul Hameed, the daughter of the deceased and the sole eye-witness to this case, several salient points emerge. According to her testimony, she was awakened by an explosive sound, which she later confirmed as a gunshot during her cross-examination. She saw an individual fleeing from her parent’s room and subsequently encountered another individual who knocked her shoulder and fled, jumping over the parapet wall. PW1 asserts that she saw a portion of the Accused’s face and later identified him at the Identification Parade conducted at the Kalmunai Lower Court. During cross-examination by the Counsel for the Accused, PW1 maintained her account. She elaborated that although she did not see the second individual’s face directly, she did see it from a side angle and described specific faci