Man on death row found innocent after defence proves his alibi

• Accused had maintained an alibi from the very moment of his arrest and throughout the case

By Lakmal Sooriyagoda 

A man has been acquitted by the Court of Appeal of murder charges after being on death row for two years after defence proved that the accused was somewhere else at the time of the offence (alibi).

While ordering to acquit the accused from murder charges, the Court of Appeal held that letting the conviction stand is highly unsafe because of the prosecution’s failure to establish the identity of the accused beyond reasonable doubt.

Court of Appeal two-judge-bench comprising Justices Sampath B. Abayakoon and P. Kumararatnam delivered this judgement pursuant to an appeal petition filed by the accused challenging the High Court conviction.

Accused Liyana Arachchige Don Gunasena, a resident of Kalutara was sentenced to death on July 28, 2020, for causing the death of Imiyage Don Sirisena on May 10, 1998. He was further sentenced to 10-year-rigorous imprisonment for causing grievous injuries to Nathandalage Hemapala, the first prosecution witness, using a manna knife.
The deceased was a person who had a small business. Hemapala who was the injured and the main witness for the prosecution was the deceased’s long-serving servant. On the day of the incident, the deceased and Hemapala along with the 16-year-old daughter of the deceased, the first witness left around 8.30 pm in the night to go home after closing the business for the day. 

In his evidence, Hemapala had stated that accused Gunasena running towards them wearing a short and after going past him, attacked the deceased using a short, flat weapon.
However, the daughter of the deceased has confirmed in her evidence that the person who attacked her father and Hemapala were wearing dark clothes, and she could not identify anyone.

Defence Counsel appeared for the accused informed court that relying on the evidence of Hemapala for the purposes of identification of the appellant was highly unreliable and the High Court Judge has failed to consider the inherent infirmities in his evidence before finding the accused guilty of the charges.

Having considered the relevant evidence and the judgement of the High Court, the Senior Deputy Solicitor General who appeared for the Attorney General also conceded that he is in no position to support the conviction and the sentence of the accused. He also maintained that this is not a case where the conviction can be considered a safe conviction due to the serious infirmities in the identification of the accused by the second witness.

Meanwhile, the accused has maintained an alibi from the very moment of his arrest and throughout the case. He has given evidence on oath and has faced the test of cross-examination, where he has maintained the same position. 

In order to prove his alibi, the accused has called witnesses in support, to establish that he was elsewhere during the time the incident happened. It has been an admitted fact that there was a wedding function in the village at the alleged time of the incident.

Senior Counsel Darshana Kuruppu with Counsel Buddhika Thilakarathne and Dineru Bandara appeared for the accused. Senior Deputy Solicitor Dileepa Pieris appeared for the Attorney General.

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• In order to prove his alibi, the accused has called witnesses in support, to establish that he was elsewhere during the time the incident happened