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 Article138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

The Democratic Socialist Republic of Sri Lanka.

Complainant CA/HCC-101/2020 Vs.

High Court of Kalutara 1) Kalawila Pathirage Pradeep Chandana Case No: 271/2003

2) Senevirathne Aarachchige Hemantha Perera (alias) Jayasuriya Arachchige Bimal Samantha Perera Accused And Now Between

1) Kalawila Pathirage Pradeep Chandana

1^stAccused-Appellant Vs.

The Honourable Attorney General, Attorney General’s Department, Colombo 12 Complainant-Respondent BEFORE : N. Bandula Karunarathna, J.

: R. Gurusinghe, J.

COUNSEL : Chaminda Athukorale with Hafeel Fariz, Veenashani Jayathilake and Isuru Gamage for the Accused-Appellant Shanil Kularatne, DSG and Priyani Abeygunawardena SC for the Respondent.

ARGUED ON : 11/11/2021 DECIDED ON : 09/03/2022 R. Gurusinghe, J.

The first accused-appellant (the appellant) and another was indicted in the High Court of Kalutara for committing the murder of Vithanage Siripala on or around the 15^th of April 1998, at Yatadola Road, Kalawila, an offence punishable under Section 296 of the Penal Code.

Having pleaded not guilty to the charge the accused preferred to have the trial before the Learned High Court Judge without a Jury.

After the trial, the Learned High Court Judge found the appellant guilty to the charge. The second accused was acquitted.

The appellant appealed against that verdict and the sentence.

The prosecution led the evidence of PW1, PW2, PW4, PW3, PW7, PW6, PW8, PW9 and the Court Interpreter. The appellant gave evidence on his behalf and denied the account of the events by the prosecution.

In the hearing of the appeal, the appellant relied on two grounds, which are;

1. The eyewitness PW2 had not said that he saw the appellant stabbing the deceased. However, after declaring PW2 as a hostile witness, some portions of his statement to the police led as evidence were contrary to the provisions of Section 110 of the Criminal Procedure Code. Those portions were mentioned as ’X1’ and ’X2’, which were not admissible evidence, and should have been excluded.

2. The dying deposition relied upon by the prosecution is not a reliable piece of evidence against the appellant and that evidence regarding the dying deposition should not have been taken into consideration to convict the appellant. Case for the prosecution is as follows:

PW1 the wife of the deceased, in her evidence, stated that, on the date of the incident the deceased left home at about 8.30am and came back home at about 6.30pm. Afterwards, he went to buy cigarettes and within about three minutes she heard someone saying ’විතානට ගහනවානේ’. She came to the place where she heard the shouting coming from, and she heard the name of the accused ⷁᮅදීප්. She was not sure who said that word ’ⷁᮅදීප්.’ Her husband was lying on the ground and she saw blood.

PW2 was also there. PW2 told her that ⷁᮅදීප් stabbed her husband.

PW2 described the incident as follows:

There was a new year ceremony and a marathon race on that day. The accused was one of the organizers of the event. In the evening, there was a quarrel. The deceased, Kumarasiri, and some others he could not recollect were there. A fight took place between the people who were present there at that time, including the deceased. The appellant assaulted the deceased. He saw the appellant attacking the deceased with his hands and feet. As somebody tried to assault him, he went to a bus stop for safety. The deceased came towards him saying that Pradeep stabbed him. He later saw the appellant and three or four people running away. He further stated that he told the appellant’s brother Upali that your brother, Pradeep did this.

PW2 later said that if he had stated in his statement to the police that he saw the appellant stabbing the deceased, it was correct.

PW4 said that h