IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA The Petition of Appeal under Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka and in terms of Section 14 of the Judicature Act, read with Section 331 of the Code of Criminal Procedure Act. No.15 of 1979.

CA No: CA/HCC/ 287/2017 The Hon. Attorney General HC: Matara: HC 100/2015 Complainant Vs.

Meegasdeniya Kankanamlage Jayadasa Accused And now between Meegasdeniya Kankanamlage Jayadasa Accused- Appellant Vs.

The Hon. Attorney General Attorney General’s Department.

Colombo 12.

Complainant-Respondent Before: N. Bandula Karunarathna J. (P/CA)

&

R. Gurusinghe J.

Counsel: Yalith Wijesundara AAL for the accused-appellant Dileepa Peiris, SDSG for the complainant-respondent Written Submissions: By the accused-appellant on 04.06.2018 By the complainant-respondent 05.07.2018 Argued on : 28.11.2022 Decided on : 15.11.2023.

N. Bandula Karunarathna J. (P/CA)

The 2^nd Accused Appellant along with the now deceased 1^st accused M.K. Pradeep Nishantha was indicted before the High Court of Matara for committing the murder of Thalpavila Vidana Kankanamge Sujith, an offence punishable under Section 296 of the Penal Code read along with Section 32. The 1^st Accused was reported dead before the trial commenced. The judgment in this matter was delivered on 31. 05. 2017, convicting the 2^nd accused appellant (herein after referred as the appellant). Accordingly, the death sentence was imposed.

The prosecution led the following witness at the trial - PW 01 - T.W.K. Cyril (Page 57) father of the Deceased, PW 02 - T.W.K.C. Lakmal (Page 102) brother of the Deceased, PW 04 - G.A. Chandrasiri (Page 134) employee of the Deceased’s family, PW 05 - Dr. K. I. Padmathilaka (Page 157) JMO, PW 06 - K.M.A. Gunerathne (Page 171) Sub Inspector, PW 07 - A.G.U. Chandrasiri (Page 179) SP Investigating Officer.

The grounds of appeal are as follows;

1. The Learned Trial Judge at Matara has failed to consider the vital inter-se and per-se contradictions in the testimony of the two eye witnesses’ evidence, in which he relied upon to convict the accused.

2. The Learned High Court Judge has failed to consider the unreliable nature of the evidence of the 1^st witness, when the test of probability is applied.

3. The Learned High Court Judge has failed to identify that the accused appellant cannot be held guilty for the common murderous intention, under the circumstances, even though the court decides to believe in the testimony of the eye witnesses.

T.W.K. Cyril (PW 01) father of the Deceased giving evidence informed that the deceased was the eldest in the family of 4 children. The witness is a landowner in Urugamuwa area. On 29. 11. 2000 he recruited several men to pluck coconuts in the estate. In the evening after dinner, a group stayed at his house engaged in a conversation. Thereafter, the deceased and his sister had gone towards the newly built house. The witness went in a different direction to light a fire. He had proceeded about 40 meters passing the new house when he suddenly heard the sound of a gunshot.

Thereafter, he had come back towards the new house. He also heard footsteps of people running. Having aimed his torch light towards the direction of the footsteps, he identified the accused person along with the now deceased accused, running away from the house. He clearly identified the deceased accused armed with a firearm. The accused was seen running closer to the deceased accused person. Thereafter, he had arrived at the newly built house. There he saw his elder son seated on a chair with gunshot injuries. The deceased was rushed to the Batheegama Hospital and was pronounced dead. He claims that the two accused are cousin brothers.

The defence in cross-examination had pointed out several omissions in his testimony. It was further suggested to him that he only arrived at the scene after the incident occurred and villagers having admitted his son to the hospital.

T.W.K.C. Lakmal (PW