R. Gurusinghe, J.

The Accused Appellant (the appellant) was indicted in the High Court of Badulla for having committed the murder of one Nihal Sisira Kumara, an offence punishable in terms of Section 296 of the Penal Code.

After trial, the appellant was convicted as charged and sentenced to death.

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

Prosecution Case The deceased was a bus driver attached to the Keppetipola, Sri Lanka Transport Board depot. On the 12th of December 2003, the deceased and PW1 Wijeratne had gone to Welimada town. PW1 bought some fertilizer from a shop, and he went to find a three-wheeler to transport the fertilizer. The deceased stayed back. He was standing on the pavement outside the shop until PW1 returned. When PW1 was coming back to the shop, he saw the appellant coming behind the deceased, and stabbed him at the back. The appellant stabbed the deceased twice on the shoulder. PW1 was about 7 to 8 meters away from the place where the appellant stabbed the deceased.

PW2, a sales assistant at the shop, had also seen the stabbing. PW1 and PW2 both knew the appellant before the incident, as he is a conductor of a private bus, which regularly takes the route from Welimada to Nuwara-Eliya. PW1 immediately took the deceased to the Welimada hospital. The deceased was then transferred from the Welimada hospital to the Badulla hospital. While he was being taken to the Badulla hospital, he succumbed to his injuries, and the ambulance returned to the Welimada hospital.

The Defence case The appellant making a dock statement stated that on the day of the incident, the deceased and four others assaulted him and the deceased came towards him with a knife and the deceased fell on his body when they grappled with each other. He did not say that he stabbed the deceased, but he said that during the struggle, the deceased suffered stab injuries accidentally. He did not explain how the deceased had sustained two wounds on the back of his chest. He also stated that somehow the handle of the knife was in his hand, and he went to the police station and handed over the handle of the knife to the police. The defence called no other witness.

When this matter came up for hearing, Counsel for the appellant relied on two grounds of appeal against the conviction.

1. The appellant was not mentally fit to stand trial at the time of the trial.

2. The cause of death of the deceased was not established beyond reasonable doubt.

It was submitted for the appellant that, as per the proceedings dated 16th December 2008, the learned High Court Judge observed that the appellant had been taking treatment for a mental illness. Then the learned Trial Judge directed the authorities at the Ragama hospital to evaluate whether the appellant was mentally fit to stand trial. However, no report from the psychiatrist was filed of record.

The case came up before the same High Court Judge on the 30th of April 2009, and nothing has been mentioned about the mental condition of the appellant. It is to be noted that there was no application from Counsel for the appellant at the trial, to the effect that the appellant was not fit to stand trial. Counsel for the appellant at that time submitted to court that, as the appellant was at the hospital the previous day, he was unable to appear before the court. He mentioned this fact only as an excuse for the absence of the appellant on the last date. A photocopy of the diagnostic ticket was produced. It did not bear a seal or a signature of a doctor. The trial started on the 6th of January 2011, that is more than a year later. The appellant was represented by a Senior Counsel right throughout the trial. The issue of the fitness of the appellant to stand trial was never raised at the trial.

Section 375 of the Code of Criminal Procedure Act reads as follows:

375. (1) If any person Committed for trial before the High Court appears to the court at his trial to be of uns