Sampath B Abayakoon, J.

The 1^st accused appellant (hereinafter referred to as the appellant) was indicted along with another, in the High Court of Kalutara for committing the following offences.

1. That on 10^th May 1998, he, along with the other accused, caused the death of Imiyage Don Sirisena and thereby committed the offence of murder, punishable in terms of section 296 read with section 32 of the Penal Code.

2. At the same time and at the same transaction, caused grievous injuries to Nathandalage Hemapala using a manna knife and thereby committed an offence punishable in terms of section 317 read with section 32 of the Penal Code.

After trial without a jury, the appellant was found guilty of the judgement dated 28-07-2020 for both the charges preferred against him by the learned High Court Judge of Kalutara, while the 2nd accused indicted was acquitted of the charges. Accordingly, the appellant was sentenced to death on the 1st count. He was sentenced to 10 years rigorous imprisonment on the 2^nd count, and ordered to pay a fine of Rs. 10,000/- and a compensation of Rs. 300,000/- to PW-02, who was the injured in the incident. In default, he was ordered to serve six months each simple imprisonment as well.

The Grounds of Appeal At the hearing of this appeal, the learned Counsel for the appellant urged the following grounds of appeal for the consideration of the Court.

1. The learned High Court Judge failed to consider that it is highly unsafe to rely on the evidence of PW-02 Hemapala as his evidence was contradicted by PW-01 and other witnesses called on behalf of the prosecution.

2. The identification of the appellant has not been proved beyond reasonable doubt and the possibility of mistaken identity of the appellant has not been ruled out.

3. The learned High Court Judge has failed to consider that the defence of the appellant is more probable, as the appellant has taken an alibi at the time of his arrest and has maintained it right throughout, which has been corroborated by the prosecution and the defence witnesses as well.

4. There was several misdirection in the judgement with regard to the burden of proof in a criminal case.

The Facts in Brief The deceased Sirisena was a person who had a small business at a place called Digadara junction. PW-02, who was the injured and the main witness for the prosecution was his long serving servant. On the day of the incident, the deceased and PW-02 along with the 16-year-old daughter of the deceased (PW- 01) has left around 8-8.30 in the night to go home after closing the business for the day. PW-01 has come to the shop after attending a tuition class. They were walking along the road to reach the house of the deceased, which was about a kilometer away. According to PW-02, both he and the deceased were carrying torches that were lit at the time of the incident. He has identified the torch carried by the deceased marked as P-02 at the trial.

It had been his evidence that he was walking a little distance behind the deceased and his daughter, and heard somebody approaching them from behind. He has testified that when he turned back and pointed the torch towards the person approaching, he saw the appellant Gunasena running towards them wearing a short and after going past him, attacking the deceased using a short, flat weapon.

It was his evidence that after the 1st attack, he went and grabbed the assailant and grappled with him and the 2nd accused too came to assault the deceased. He has stated that he identified both of them because of the torch light since both of them are well-known to him. It was his position that during the struggle with the appellant, the appellant attacked him with the manna knife he was carrying and as a result his hands got injured. He has testified further that after the 1^st assault, the assailants went away and the deceased asked from his daughter whether the persons who attacked were identified. At that point, the appellant returned and attacked the deceased again usin