IN THE COURT OF APPEAL OF THE DEMOCRETIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of section 331 (1) of the Code of Criminal Procedure Act No- 15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0220/2017 COMPLAINANT Vs.

High Court of Chilaw Case No:

HC/22/2012 Alpenerislage Nishantha Jayalath alias Pol Kandana Nishantha ACCUSED AND NOW BETWEEN Alpenerislage Nishantha Jayalath alias Pol Kandana Nishantha ACCUSED-APPELLANT Vs.

The Attorney General Attorney General’s Department Colombo 12 RESPONDENT Before : Sampath B Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Anil Silva, P.C. with A. Bandara, for Accused Appellant : Sudarshana De Silva D.S.G. for the Respondent Argued on : 28-03-2022 Written Submissions : 14-05-2018 (By the Accused-Appellant)

: 29-08-2018 (By the Respondent)

Decided on : 23-05-2022 Sampath B Abayakoon, J.

This is an appeal by the accused appellant (hereinafter referred to as the appellant) on being aggrieved by the conviction and sentence of him by the learned High Court Judge of Chilaw.

The appellant was indicted before the High Court of Chilaw on the following counts:

1. For causing the death of Harabage Samantha Kumara on 08-08-2010 and thereby committing the offence of murder, punishable in terms of section

296 of the Penal Code.

2. At the same transaction causing injury by use of a sharp cutting instrument to Kandasami Dewadasa and thereby committing an offence punishable in terms of 315 of the Penal Code.

After trial, the learned High Court Judge of Chilaw found the appellant guilty on both the counts and he was sentenced to death with regard to the first count and was sentenced to two-year rigorous imprisonment with regard to the second count. He was also ordered to pay a fine of Rs. 7500/- and default he was sentenced to 6 months simple imprisonment.

At the hearing of this appeal, the learned President’s Counsel urged the following two main grounds of appeal on behalf of the appellant.

1. There was no fair trial afforded to the appellant and hence, the conviction and the sentence cannot stand.

2. The evidence placed before the Court clearly establishes the basis for a conviction for culpable homicide not amounting to murder in terms of exception 4 of Section 294 of the Penal Code on the basis of a sudden fight, and therefore the conviction in terms of Section 296 of the Penal Code cannot be sustained.

The main basis for the first ground of appeal urged by the learned President’s Counsel was that the Counsel who appeared for the appellant in the original Court had no right to withdraw from the case, whilst leading evidence of the appellant in his defence on the basis that the appellant was not giving evidence as per his advice.

It was his contention that this action of the learned Counsel has led to a great prejudice being caused to the appellant which amounts to no fair trial has been afforded to him.

However, since this Court is of the view that considering the first ground of appeal in detail would not be necessary, if the second ground of appeal urged, namely, that the conviction should have been in terms of Section 294 exception 4, rather than Section 296 of the Penal Code has merit, the said ground of appeal will be considered in preference to the first ground of appeal. The facts placed before the High Court reveals that on the day of the incident namely, 08-08-2010, there was an ‘elle’ tournament at the Morakale ground which was the place of the incident. After the tournament, at around 7:00 p.m. in the night, several of the participants, including the deceased, the appellant, as well as the eyewitnesses were consuming liquor at the ground.

They have all been sitting when the incident has occurred.

According to the evidence of PW-01 Kandasami Dewadas, who was also the injured in the incident, while the consuming of liquor was going on, he has suddenly seen the appella