IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Attorney General Complainant CA. No. 243/2015 Vs.

High Court of Matara 1. Abeywickrama Gamachige Jayantha Case No. HC 150/2010 Kumarasiri alias Ranji.

2. Boparagoda Gamage Sirisena alias Sira. 3. Boparagoda Gamage Chandrasena alias Chandare.

Accused And Now

1. Abeywickrama Gamachige Jayantha Kumarasiri alias Ranji.

2. Boparagoda Gamage Sirisena alias Sira.

3. Boparagoda Gamage Chandrasena alias Chandare.

Accused-Appellants Vs.

Attorney General Complainant-Respondent BEFORE : N. Bandula Karunarathna, J.

: R. Gurusinghe, J.

COUNSEL : U.R. de Silva PC., with Savithri Fernando for Appellants.

A.Navavi DSG. for Respondent.

ARGUED ON : 29.03.2021 DECIDED ON : 29.07.2021 R. Gurusinghe, J.

The appellants, in this case, were charged with the murder of one Prasanna and were convicted. In addition, they were accused of hurt punishable under Section 315 of the Penal Code and convicted. The appellants preferred this appeal against the conviction and the sentence.

The appellants urged the following grounds of appeal.

a). The learned Trial Judge has erred in law in not taking into account the fact that the visual identification of the appellants by PW2 and PW3 does not satisfy Turnbull principles.

2). The learned Trial Judge has misdirected himself on the facts transpired in the evidence of PW2.

3). The learned Trial Judge has erred in law by failing to consider the absence of indication of the participatory presence of 3rd accused. The learned Trial Judge has erred in law in not contemplating the defects in the investigation, which has consequentially failed in sustaining the conviction on the indictment.

In addition to the above grounds, when this appeal was taken up for hearing, Counsel for the appellants argued that the evidence of PW3 on the first date of his evidence contradicts the rest of his evidence. On the first date of evidence, PW3 had stated that he could not identify the assailants of the deceased.

The first accused is a son of PW3 Ariyadasa and a brother of PW2, Kularatne. PW1 is the wife of PW2.

PW3 stated in his evidence that on 4^th July 2008 at about 8.30 p.m. when he was at home, he had heard a loud wailing sound of his neighbor, “Mahathun” from a distance and he came to his threshold. He also heard people running about when he flashed his torch through the window in the front, and he had seen his son, the first accused, assaulting somebody on the ground with a sword. The first accused had slashed several times up and down. He had seen the second and third accused there. Immediately, he went to his almirah and took acid for his defence. When he came back to the window, about one or one and half minutes later all had gone. He opened the door and looked. He saw the deceased lying fallen on his threshold in a pool of blood.

He telephoned his daughter and told her that “Mahathun” was killed and lying fallen on the threshold of his house and told her to inform the police.

The police had come at about midnight. One of the grounds of appeal is that the evidence of PW2 and PW3 does not satisfy Turnbull principles.

In this case, all the accused were known to PW2 and PW3. The first accused is one of the sons of PW3. The second and third accused were from the adjoining village. The witnesses have seen them before the incident. PW3 had observed the incident about one and half minutes by flashing the torch. One of the accused also flashed the torch. There was a window with a broken glass panel; PW3 observed through that space. He was very close to the scene.

PW3 described as follows:

[Evidence was recorded on page 114 and 115 of the appeal brief] ⷁᮅ: තමන් සි්᭟ිය වුනා කියන්නන් තමන්නේ න ාන ේද පු්᭟ගලනයක් වැටිල හිටිනේ?

උ: මනේ ඡනන්ලය නමන ම නම් එතනම හිටිනේ.

ⷁᮅ: තමුන්නේ ඡනන්ලය කියන්නන්?

උ: නගයි බි්තිය ලගම, ඡනන්ලය ලග.

ⷁᮅ: ඒ කියන්නන් තමුන්නග නේ ඇතුනල ඉදල බලන න ාට අඞියක් නද ක්ව්ත නැ ැ?

උ: නැ ැ.

The Court had observed that though there was a limitation, the space was sufficient to see what had been desc