WICKUM A. KALUARACHCHI, J.

The 2^nd accused-appellant was indicted in the High Court of Chilaw along with another two accused in terms of Section 296 of the Penal Code for committing the murder of Perimasamy Sadasivam Subramanium, on or about 24.03.1996 at Kiriyankalliya. The 3^rd accused had died prior to the trial. The 1^st accused absconded during the trial and the trial proceeded in his absence. After trial, the 1st and 2nd accused have been convicted for the charge of Murder by the Judgment dated 15.06.2015 and death sentence was imposed upon them. This appeal has been preferred by the 2^nd accused- appellant against the said conviction.

Prior to the hearing of the appeal, the learned President’s Counsel for the 2nd accused-appellant (herein after referred to as the “appellant”) and the learned Additional Solicitor General (ASG) for the respondent filed written submissions. At the hearing, the learned President’s Counsel and the learned Additional Solicitor General made oral submissions.

Briefly, the prosecution case is as follows:

PW-1 and PW-2 are the eyewitnesses to the incident. According to PW- 2, on the day of the incident, she had gone to the brick kiln owned by her husband, PW-1. On her way, she had seen the 2^nd accused- appellant and the 3^rd accused assaulting the deceased with clubs, in the house of the 2nd accused-appellant. When she inquired about the reason why the accused were assaulting the deceased, they told PW-2 that they want to know something from the deceased. Thereafter, PW-2 had gone to work to the brick kiln. While PW-2 was working in the brick kiln, she had seen the 1^st accused coming to the place of incident and the three accused who were armed with clubs taking the deceased to the palmyra woods behind the house of the 2^nd accused- appellant.

Around 3.00- 3.30 pm, PW-1, the husband of PW-2 had also arrived at the brick kiln to work. After hearing the cries of a person asking not to beat him from the direction of the 2^nd accused-appellant’s house, PW-1 had inquired his wife about the noise. Thereafter, both PW-1 and PW-2 had gone to the place of the incident and witnessed the 2^nd accused appellant and the 3^rd accused continuously assaulting the deceased. However, PW-1 and PW-2 have interfered and taken the deceased to the Chilaw hospital. He died on 31.03.1996 at the hospital after seven days from the incident as a result of the injuries.

At the trial, the prosecution led the evidence of six witnesses. Dying declaration made to the police by the deceased while undergoing treatment in the hospital has been admitted as evidence in terms of Section 32 of the Evidence Ordinance. After the prosecution case was closed, the 2nd accused-appellant gave evidence on oaths and his mother was called as a defence witness.

The learned President’s Counsel for the appellant advanced his arguments mainly on the ground that the learned High Court Judge has misdirected himself on facts and law in coming to a conclusion. In addition, the learned President’s Counsel contended that the learned Trial Judge had wrongly relied upon the dying declaration. He also contended that even if the prosecution story is believed to be true and correct, the accused-appellant could be convicted only for culpable homicide not amounting to murder but not for murder.

The learned Additional Solicitor General submitted that the deceased and the 2^nd accused-appellant were residing in close proximity, and PW-1 and PW-2 had no enmity with the 2^nd accused-appellant to give false evidence against him. The learned ASG contended that the learned Trial Judge correctly considered the dying declaration and the evidence of PW-1 and PW-2 regarding the incident and has come to the correct conclusion.

In this case, a dying declaration recorded by a police officer has been marked as P-2. The learned High Court Judge has relied upon the dying declaration in determining the action. In his Judgment, the learned Judge has extensively dealt with the legal position in accep