IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under 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.

The Attorney General Attorney General’s Department Colombo-12 COMPLAINANT Court of Appeal No: 1. Mohamad Lebbe Mohamad Zakaria CA/HCC/196/17 2. Mohamad Jamaldeen Mohamad High Court of Panadura Cassim Case No.HC 2396/2007 3. Mohamad Farook Mohamad Iqbal

4. Mohamad Zakaria Mohamad Safran

5. Mohamad Rahim Mohamad Irshad 6. Mohamad Nazeer Mohamad Rizwan

7. Mohamad Rahim Mohamad Nowshad ACCUSED AND NOW BETWEEN

1. Mohamad Lebbe Mohamad Zakaria 2. Mohamad Jamaldeen Mohamad Cassim

3. Mohamad Farook Mohamad Iqbal ACCUSED-APPELLANTS Vs.

The Hon. Attorney General Attorney General's Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Neranjan Jayasinghe with Harshana Ananda for the 2^nd Appellant.

Indica Mallawarachchi for the 3^rd Appellant.

Dileepa Peeris, SDSG for the Respondent.

ARGUED ON : 06/10/2023 DECIDED ON : 29/01/2024 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named 1st, 2nd, and 3rd Accused-Appellants (hereinafter referred to as the Appellants) were indicted along with 4^th ,5^th ,6^th , and 7^th Accused by the Attorney General for committing the offences as mentioned below. 1. On or about the 17^th of November 2005, at Bandaragama, by being of an unlawful assembly with common object of causing injuries to Mohammed Maharoof Mohammed Izadeen the accused committed an offence punishable under Section 140 of the Penal Code.

2. In the course of the same transaction, one or several of them caused the death of said Mohammed Maharoof Mohammed Izadeeen, and said death was caused in furtherance of the said common object or knowingly that said death be caused, the Accused, by being members of the said unlawful assembly, committed an offence punishable under Section 296 read with Section 146 of the Penal Code.

3. In the course of the same transaction, by causing death of Mohammed Maharoof Mohammed Izadeen committed an offence punishable under Section 296 read with Section 32 of the Penal Code.

The trial commenced before the High Court Judge of Hambantota as the Appellants and other accused opted for a non-jury trial. The prosecution had led 08 witnesses and marked production P1 and closed the case.

At the conclusion of the prosecution’s case, an application was made under Section 200 of the Code of Criminal Procedure Act No.15 of 1979 on behalf of 4^th ,5^th ,6^th and 7^th Accused.

The Learned High Court Judge having satisfied that evidence presented by the prosecution warranted a case to answer, called for the defence and explained the rights of the accused. All Accused had made dock statements and closed their case after marking 1V2-1V7 and V6-V8.

After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellants on 3^rd count only and sentenced them to death on 12/07/2017. In the meantime, the Learned High Court Judge had acquitted 4^th ,5^th ,6^th,and 7^th accused from all the charges.

Being aggrieved by the aforesaid conviction and the sentence, the Appellants had preferred this appeal to this court.

While the Appeal was pending, the 1st Appellant who was detained at the Welikada Prison had died on 16.09.2021 at the Prison Hospital. Hence, now this appeal is only considered in respect of 2^nd and 3^rd Appellants.

The Learned Counsel for the Appellant informed this court that the Appellants had given their consent to argue this matter in their absence due to the Covid 19 pandemic. At the hearing, the Appellants were connected via Zoom platform from prison.

The background of the case albeit briefly is as follows:

PW1, Mohammed Maharoof, father of the deceased is the only eye witness to the incident in which his deceased son was allegedly killed by the Appellants. On the day of the incident,