MENAKA WIJESUNDERA J.

The instant Appeal has been filed to set aside the judgment dated 03.04.2019 of the Court of Appeal.

The Appellant along with five others had been indicted under Sections 296 and 355 of the Penal Code on the basis of unlawful assembly and under Section 32 of the Penal Code as well.

At the conclusion of the trial, the 1st to 5th, all accused were convicted of all charges and had been sentenced to death on the 4th and the 5th counts but the 4th accused had been acquitted of all charges.

The Court of Appeal also has affirmed the said conviction and sentence and being aggrieved by the said judgment of the Court of Appeal the instant appeal has been lodged.

When the instant matter had been supported this Court has granted leave to proceed and the following questions of law has been raised,

(a) Have their Lordships of the Court of Appeal failed to consider that the evidence relating to the identification of the petitioner is plagued with serious infirmities which renders his conviction holy unsafe.

Hence, the main question with regard to the instant matter is whether the prosecution has established the identity of the Appellants adequately.

The prosecution had been mainly relied on the evidence of PW1 who is R.M. Seelawathi, the wife of the deceased.

According to her testimony on the date of offence, around 2.00 am in the night, herself, her husband the deceased and the three daughters had been sleeping in the house when two people armed with knives had entered the house and had identified themselves to be from the Medagama Police station.

The only source of illumination at that time had been the bottle lamp which had been burning inside the house. She had identified these two persons to be the 2nd and the 3rd Appellants. She has not seen them and known them before. These two persons had taken the deceased to the outside verandah and at that point she has seen the 1st and the 5th Appellant outside the house. The 1st Appellant had been armed with a Katty, these two persons had been known to her before. The 2nd Appellant had assaulted the deceased. The assault has taken place in the verandah. This particular witness had identified the 2nd and 3rd Appellants who came to her house at the identification parade. Thereafter she had identified them in Court. She has said in evidence in page 108 that the four persons who came to her house had stayed inside her house for about 15 minutes.

Therefore, I note that the interaction she had been with the two unknown Appellants had not been a fleeting glance. The other two Appellants whom she had seen outside her house were known people to her.

Thereafter, the 1st Appellant, 2nd Appellant, 3rd Appellant and 5th Appellant had taken the deceased away from the house through the garden of Sriyalatha. The witness has further said that there had been a dispute between the deceased and the 1st Appellant regarding a tree to which both had claimed ownership. This witness had been led in the cross examination and she had reiterated her position taken up in examination in chief with regard to the participation of the 1st, 2nd, 3rd and the 5th Appellants. Hence, her evidence had been consistent and with clarity.

The body of the deceased has been found in the next morning.

The doctor who had conducted the post mortem has observed 9 external injuries with corresponding internal injuries. The doctor has classified the impact of all injuries together to be necessarily fatal.

The prosecution has led the evidence of M.W. Senevirathna who had been PW3 who said that on the day of the incident he had been woken up for the sound of stones being pelted on to his front door and when he had bushed out, a torch light has been flashed into his face and he had seen two persons taking away the deceased with some others following. He had identified the 1st Appellant by the voice who had told him that the same would happen to him if makes a protest. He had also identified the 4th and the 5th Appellants.

He also had been len