JUDGMENT

P. Kumararatnam, J.

The above-named 1^st Accused-Appellant (hereinafter referred to as the Appellant) was indicted along with 2^nd accused and others unknown to the prosecution, in the High Court of Puttalam under Section 296 read with Section 32 of the Penal Code for committing the murder of Mohammed Nauf Mohammed Naim on or about 27th April 2002.

As the 2nd accused absconded the court before commencement of the trial, an inquiry was held under Section 241 of the Code of Criminal Procedure Act No.15 of 1979 and fixed the case in absentia of 2^nd accused on 29/05/2008.

Trial commenced before the High Court Judge 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 given evidence from the witness box and closed his case. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant and the 2^nd accused as charged and sentenced them to death on 09/11/2017.

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. During the argument he was connected via Zoom from prison. The 2^nd accused was not represented by a counsel.

On behalf of the Appellant the following Grounds of Appeal are raised.

1. The Learned Trial Judge erred on facts and law.

2. The prosecution had failed to establish the identity of the Appellant.

3. The Learned Trial Judge had misdirected himself as to the proof of ingredients of the Section 32 of the Penal Code.

4. Relying on the evidence of PW1, the purported eye witness, is highly unsafe given the impeached character.

Background of the case According to PW01 Abdul Mohamed, on the day of the incident he had gone to meet the deceased who had been a candidate of the Local Government Election. He had met the deceased at about 9.00 p.m. at a Mosque namely Thakkiya. As it was raining heavily with lightning and both had sheltered there until the ceasing of the rain. At that time, another three to four people also remained there due to gusty weather. He named three persons by name. According to him Nusrul, Huq and Siyan were there. The place was dark as the electricity had gone off due to bad weather.

At that time, a car had arrived there and stopped about 88 feet away from them. The head light of the car was turned off when it arrived there. He had seen three to four people were inside the car through the hood light when the doors were opened. About three people had got down the car and started firing towards them. As the boundary wall of the mosque was covered with roofing sheets, the bullets struck on the roofing sheet and created loud noise. Due to the darkness, he could not identify the type of the gun. According to the witness, he had identified the Appellant and his brother, the 2^nd accused, when they alighted from the car with the help of the hood light of the car. He had witnessed an object similar to a gun was in the possession of 2^nd accused. When the shooting commenced, the deceased shouting “Allah” had fallen on the ground. According to him, lightning also helped him to identify the appellant and his brother properly. But at the High Court trial he had added lights of the passing vehicle too helped him to identify the assailants.

As he feared, he had run into the mosque and washed his leg. At that time, he had noticed that he too had sustained injuries on one of his legs. He had stayed there for nearly two hours due to fear before being taken to the hospital. Further, he stated that he received threats after the incident. He had given a statement but was not sure whether he had named the Appellant and his brother at that time. There was no charge in the indictment for his injuries.

During the cross examination, the witness was unable to d