IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Officer-in-charge, Police Station, Rambukkana Plaintiff SC APPEAL NO: SC/APPEAL/61/2023 PHC KEGALLE NO: 5626/APPEAL/2020 MC MAWANELLA NO: 45778 Vs.

Nandana Kumarage Sujeewa Nishanka Karunarathna, Near Kadigamuwa Temple, Kadigamuwa.

Accused AND Nandana Kumarage Sujeewa Nishanka Karunarathna, Near Kadigamuwa Temple, Kadigamuwa.

Accused-Appellant Vs.

1. Officer-in-charge, Police Station, Rambukkana Plaintiff-Respondent

2. Hon. Attorney General, Attorney General’s Department, Colombo 12.

2nd Respondent AND NOW BETWEEN Nandana Kumarage Sujeewa Nishanka Karunarathna, Near Kadigamuwa Temple, Kadigamuwa Accused-Appellant-Appellant Vs.

1. Officer-in-charge, Police Station, Rambukkana Plaintiff-Respondent-Respondent

2. Hon. Attorney General, Attorney General’s Department, Colombo 12.

2nd Respondent-Respondent-

Respondent Before: Hon. Justice P. Padman Surasena Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: Dr. Sunil Abeyratne with Sanduni Walawege and Hasala Gunathilake for the Accused-Appellant-Appellant.

Lakmali Karunanayake, Senior Deputy Solicitor General for the Attorney General.

Argued on: 20.06.2024 Written Submissions:

By the Accused-Appellant-Appellant on 20.06.2023 and

22.08.2024 By the 2nd Respondent-Respondent on 10.11.2023 Decided on: 09.10.2024 Samayawardhena, J.

Introduction The accused-appellant (accused) was charged in the Magistrate’s Court of Mawanella with voluntarily causing grievous hurt to his uncle (the younger brother of the accused’s father) on 15.01.2013 by assaulting him with a club, an offence punishable under section 316 of the Penal Code. At the trial, in addition to the injured person, five other witnesses testified for the prosecution. For the defence, the accused, his parents, and one Kapila gave evidence. The accused denied the assault and took up the defence of alibi. He stated that he was at Warakapola at the material time and that his uncle’s injuries were caused by his father, not by him. The learned Magistrate rejected the defence of alibi and convicted the accused. On appeal, the High Court affirmed the conviction. Hence this appeal by the accused.

The two questions of law on which leave to appeal was granted are as follows:

(a) Did the learned High Court Judge erroneously exclude the defence of alibi?

(b) Did the learned High Court Judge erroneously conclude that the accused committed the offence despite insufficient evidence?

Insufficient evidence The question (b) above is primarily based on identification. There are no other eye-witnesses who saw the accused assaulting the injured person. The injured person identified the accused as his assailant. He was assaulted with an object, which he thinks was an iron rod, resulting in grievous injury to his right hand. The Medico-Legal Report supports this version. Since he is the son of his brother, there could not have been a difficulty in identification although the incident took place around 7.00 pm. All were living on the same land. The evidence of the wife of the injured person was that she ran to the place where her injured husband was lying fallen after hearing him shouting that Sujeewa had assaulted him. Sujeewa is the accused.

There was a motive behind this assault. On the same day, prior to the incident in question, the injured person, while under the influence of alcohol, had committed house trespass and attempted to stab the accused’s father with a knife. The evidence of the accused’s parents in the instant case was that, during that incident, the accused’s father who is visually impaired (a blind person) had defended himself by striking the injured person with his walking stick. This has not been believed by the learned Magistrate. It is improbable that a grievous injury, such as an open fracture of the distal humerus above the elbow joint of the right arm as described in the Medico-Legal Report, could have been inflicted by a walking stick, particularly by