IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal against an order of the High Court under section 331 of the Code of Criminal Procedure Act No 15 of 1979 Thambirasa Kuganeswaran Alias Suthan CA 28/2018 APPELLANT HC Vavuniya 2737/17 VS.

The Hon. Attorney General Attorney General’s Department Colombo 12 RESPONDENT Before: N. Bandula Karunarathna J.

&

R. Gurusinghe J.

Counsel: Indica Mallawaratchy AAL for the Accused – Appellant Dilan Rathnayake DSC for the for the Complainant-Respondent Written Submissions: By the Accused – Appellant on 03.02.2020 By the Complainant-Respondent on 13.03.2020 Argued on : 06.08.2021 Decided on : 29.10.2021.

N. Bandula Karunarathna J.

The accused-appellant was indicted in the High Court of Vavuniya for committing the murder of one Sikkan Thiruchchelvam on 17.12.2011, punishable under section 296 of the Penal Code. After trial without a Jury, the learned High Court Judge convicted the accused-appellant and imposed the death sentence on 30.01.2018. Being aggrieved by the conviction and sentence, the accused-appellant has preferred this appeal to this court.

The learned counsel for the accused-appellant, in the petition of appeal, has contended that the rejection of the plea of grave and sudden provocation is factually and legally flawed and has raised the said issue as the only ground of appeal.

The prosecution led evidence of 9 witnesses including the evidence of the Judicial Medical Officer (JMO). Evidence of Pathmalingam Shanthini (PW 1), Raguwenthan Ranjani (PW 2) and Baliah Nishanthakumar (PW3) can be considered as the most important eye witness testimonies led during the trial. According to the evidence of PW1, the deceased died in a fight. She had witnessed the deceased being assaulted by the appellant. PW1 had identified the accused-appellant during the trial and had confirmed that the accused-appellant had hit the deceased with a pole.

Evidence of PW 2 corroborated the evidence of PW 1. As per her evidence, the accused- appellant had hit the deceased with a Glyceria pole. As a result, the deceased had fallen down. He was taken to Vavuniya Hospital. PW3 also corroborated the evidence of PW 1. According to him, after being beaten, the deceased had been bleeding from nose and mouth. Thereafter, he was taken to the Vavuniya Hospital by a three-wheeler driver and some of his relatives.

Evidence of Baliah Nishanthakumar (PW 3) was that the incident had taken place on

17/12/2011 around 4.30-5.00 p.m.

It was the evidence of the said witness that, he along with the deceased and one Jegan had gone to a party where the others had partaken in liquor and when they were standing outside, 4 people had come and when the deceased had inquired from one Suresh, accused number 3 had abused the deceased. It was the evidence of the said witness that accused number 3 had telephoned accused number 2 asking him to come to the scene. The witness has further testified that when accused number 2 had tried to assault, the witness and the deceased had steered away from getting involved and had gone to their village.

The witness has testified that when they were proceeding towards their village they had to pass the maternal aunt’s house where there had been a large gathering of people converged including the mother of Suresh and when she had inquired into what had happened and when the witness was relating to her what had transpired earlier, Suresh’s mother had admonished them at which point Suresh had come to the scene and in the process accused number 1 & accused number 2 too had come and it was his evidence that whilst accused number 1 had attacked the deceased, accused number 2 had attacked the witness with clubs. It was suggested to the witness that the incident occurred as a result of Suresh being beaten and Suresh’s mother being held by her breast region to which suggestion witness has answered in the negative.

JMO W. Dinesha Peiris (PW 4) had noted two external injuries on the