IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of section 331 (1) of the Code of Criminal Procedure Act No- 15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0054/22 COMPLAINANT Vs.

High Court of Hambamtota Thuwan Anush Yunush Case No: HC/17/2006 ACCUSED AND NOW BETWEEN Thuwan Anush Yunush ACCUSED-APPELLANT Vs.

1.Democratic Socialist Republic of Sri Lanka COMPLAINANT-RESPONDENT

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

2ND RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Nalin Ladduwahetty, P.C. with Kavithri Ubesekara and Rajith Samarasekara for the Accused Appellant : Rajindra Jayaratne, S.C. for the Respondent Argued on : 24-07-2023 Written Submissions : 20-09-2022 (By the Accused-Appellant)

Decided on : 01-11-2023 Sampath B. Abayakoon, J.

The accused-appellant (hereinafter referred to as the appellant) was indicted before the High Court of Hambantota for causing the death of one Siththinisa Nishadeen on 08-04-2004, and thereby committing an offence punishable in terms of section 296 of the Penal Code.

The allegation against the appellant was that he deliberately set fire to the deceased who was his legally married wife.

After trial without a jury, the learned High Court Judge of Hambantota, by his judgement dated 17-12-2021, found the appellant guilty as charged, and the appellant was sentenced to death accordingly.

It is apparent from the judgement that the conviction has been reached based on an alleged dying declaration of the deceased and the other circumstantial evidence.

Being aggrieved by the said conviction and the sentence, the appellant preferred this appeal.

Facts in brief The deceased was the elder brother’s daughter of PW-01. The deceased was married to the appellant and had one child out of the marriage. At the time of her death, she had been 17 years of age. On the day of the incident, namely 08- 04-2004, the deceased had come to the house of PW-01 around 7.15 am and after chatting with her for some time, has left the house and gone to her house. After some time, she had heard a female voice and some smoke emanating from the direction of the deceased’s house and has later come to know that the deceased has received burn injuries. When she visited the house, she has seen the deceased on a chair with burn injuries all over her body. Even though she has questioned the deceased as to what happened, she was not in a position to talk. The other villagers have taken the deceased to the hospital where she has succumbed to her injuries on the 11th April 2004 at the Kalubowila hospital.

According to the evidence of PW-01, the deceased and her husband lived a normal life other than the routine issues faced by a married couple. The appellant was working in a saltern at that time, and although they had quarrels, they were limited for that moment. It has been the evidence of PW-01 that there were quarrels between the two when the appellant received his salary on the basis that he did not give enough money to the deceased.

She has given evidence in Court stating that when she saw the deceased with burn injuries, the appellant did nothing to take her to the hospital. However, the defence has pointed out several contradictions in that regard in relation to her evidence before the non-summary inquiry, where the witness has stated when she went to the house, the appellant was near his wife and in distress while crying and holding their child, and only the appellant was near her at that time. The prosecution has called PW-04, the doctor who entered some notes in the bedhead ticket marked P-01(අ). She has entered these notes while the deceased was warded in ward number 05 of the Kalubowila hospital after she was transferred from Matara hospital. On the bedhead ticket, the doctor has noted that the incident happ