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

Hallyawattage Dayananda Accused – Appellant Court of Appeal Case No. CA 273 / 2018 Vs.

High Court of Embilipitiya Case No. 25/2015 The Attorney – General Complainant – Respondent Before : Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel : Palitha Fernando P.C. with Sachithra Harshana for the Accused – Appellant.

Dileepa Peiris, S.D.S.G. for the Respondent Argued on : 17.07.2023 Decided on : 05.10.2023 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated 18.10.2018 of the High Court of Embilipitiya.

The appellant along with another accused had been indicted for murder in the High Court on the basis of common intention. But upon the conclusion of the trial the trial judge had found the appellant guilty for the charge in the indictment and had acquitted the other accused. The appellant being aggrieved by the said conviction had lodged the instant appeal.

One of the main grounds of appeal raised by the appellant was that the identification of the dead body was not sufÏcient.

According to the version of the prosecution the entire case for the prosecution is based on circumstantial evidence.

The deceased on the 14^th of April 1999 had told PW1 who is related to him, that he was going to the house of the appellant who was known by the name of Dayananda. Thereafter he had gone missing until his body had been found in a urea bag in a deserted place on the 23^rd of the same month. When the body had been taken out of the bag it had been identified by the shirt he had been wearing last. PW1 also had identified the deceased from the toe of one foot of his because that particular toe had been shorter than the others The evidence of the niece of the deceased had revealed that when she was at home soon after the body of the deceased had been discovered the appellant had come to her house and when the police also came at the same time, he had runoff. But when her mother later who is the sister of the deceased had confronted the appellant, he had said that he had killed the deceased, which had been told to the niece also.

But when referring to the evidence of the niece of the appellant the learned president’s counsel appearing for the appellant stated that the niece of the appellant had been treated adverse but the learned High Court Judge had not considered the same. But upon perusal of the brief, we observe that there was no order by Court to treat the witness adverse but Court had given time for the state Counsel to consider the same. Therefore, there had been no material for the High Court Judge to consider under section 154 of the Evidence Ordinance.

But we observe that the sister of the appellant had not told the police about the confession made to her by the appellant. But we observe that the sister of the appellant appears to be a very illiterate person. Therefore, her laps in not telling the police about the confession does not create a reasonable doubt in her credibility as a witness, because hundred percent accuracy cannot be expected from a witness of this nature.

According to the evidence of the police ofÏcers the appellant had fled the area soon after the incident. The appellant had been taken in to custody on 01st of May 1999 at Udawalawe and on his statement two knives had been recovered. According to the evidence of the police the body of the deceased had been heavily decomposed at the time of the recovery, even the shirt on the body had surfaced after the body had been washed.

The hand written postmortem report of Professor Chandrasiri Niriella has been produced and given evidence on by Dr. Priyantha Perera. According to the evidence of the doctor that when the body is heavily decomposed possibility of identification could be difÏcult. But by certain individual outstanding features pertaining to the deceased the body can be identified. The body had been examined on the 29^th of April 1999. The body had been iden younger