IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331 of the Code of Criminal Procedure Act No.15 of 1979.

Court of Appeal Case No. Lama Hewage Lohitha CA/HCC/0126/2022 Wickramasinghe High Court of Embilipitiya Koswatiya, Case No. HCE/0024/2016 Pallebedda.

Vs.

ACCUSED-APPELLANT The Hon. Attorney General Attorney General’s Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B.Abayakoon,J.

P.Kumararatnam, J.

COUNSEL : Saliya Pieris, PC with Thanuka Nandasiri for the Appellant.

Dishna Warnakula, DSG for the Respondent.

ARGUED ON : 16/10/2023 DECIDED ON : 13/12/2023

JUDGMENT

P. Kumararatnam J The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted in the High Court of Embilipitiya under Section 296 of the Penal Code for committing the murder of Tissawalangu Mudiyanselage Sadun Kumara alias Podiththa on or about 13th November 2004.

The trial commenced before the High Court Judge of Embilipitiya as the Appellant had opted for a non-jury trial. After the conclusion of the prosecution case, the learned High Court Judge had called for the defence and the Appellant had made a dock statement and closed the case. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant as charged, and sentenced him to death on 20.05.2022.

Being aggrieved by the aforesaid conviction and sentence the Appellant preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant has given consent to argue this matter in his absence due to the Covid 19 pandemic. Also, at the time of argument the Appellant was connected via Zoom from prison.

The Learned President’s Counsel at the very outset of the argument submitted that when considering the circumstances of this case, which concerns an act committed in the course of his duties by the Appellant, the Learned High Court Judge ought not to have come to a finding of guilt against Appellant.

Background of the Case According to PW1, PC 29720 Ranaweera, the incident had occurred near a place called Karamatiara Junction between 10.00p.m. and 12.00 a.m. When PW1 and the Appellant were on duty to search suspicious vehicle near Karamatiara Junction, a motor bike had come there with a rider and a pillion rider. When the Appellant commanded the rider to stop thrice, the said bike proceeded without stopping. When he flashed his torch, had seen an object similar to a gun was carried by one of the persons on his lap. As reasonable suspicious arose on them, the Appellant had opened fire on the motor bike to stop it. He could not obtain the permission to shoot from PW1 as he stood some distance away from the Appellant. The gunshot struck on the deceased’s head. As a result, people nearby had gathered the place of incident and they had to face a hostile situation which was controlled by the police who arrived at the scene shortly.

PW2 Saminda Kumara, who was the rider of the motorbike at the time of the incident stated that the incident had happened when they were returning after visiting his girlfriend. As road was muddy and with lots of pot hole, he had riven the motorbike slowly. As it was a rainy day a large umbrella was carried on the lap of the deceased. After receiving gun shot, both had fallen down on a grass surface and he had noticed that the deceased was bleeding. PW11 SI/Somadasa who had gone with the main investigating officer who had passed away before giving evidence in this case. He had reached the place of incident at about 1.15 a.m. and the place was illuminated with a petromax light. The road was in muddy status with lots of pot holes. He had seen the deceased was lying fallen on the grass. The motor bike bearing No. was fallen on the road. The witness confirmed that the road which led to the place of incident had not been illuminated at the time of the incident.

The JMO who conducted the post mortem had noted o