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 Democratic Socialist Republic of Sri Lanka COMPLAINANT Vs.

Court of Appeal No:

CA/HCC/0151/2020 1. Mohomed Nawshad Doole Nawshad High Court of Colombo 2. Mohomed Sali Mohomed Faize alias Case No: HC/6916/2013 Sori Faize ACCUSED AND BETWEEN Mohomed Naushad Doole Naushad ACCUSED-APPELLANNT Vs.

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

P. Kumararatnam, J.

COUNSEL : Asitha Vipulanayake for the Appellant.

Sudharshana De Silva, DSG for the Respondent.

ARGUED ON : 22/11/2023 DECIDED ON : 01/04/2024 ******************************

JUDGMENT

P. Kumararatnam, J.

The above-named Accused-Appellant (hereinafter referred to as the Appellant) along with the 2^nd Accused were indicted in the High Court of Colombo as follows:

1. That on or about the 20.04.2004 the accused named in the indictment with some others unknown to the prosecution were members of an unlawful assembly with the common object of causing hurt to Jesu Nasarenu Felix Fernando alias Tony thereby committing an offence punishable under Section 140 of the Penal Code.

2. At the same time and same place and in the course of the same transaction the accused committed the murder of afore named Jesu Nasarenu Felix Fernando alias Tony thereby committing an offence punishable under Section 296 read with Section 146 of the Penal Code.

3. At the same time and same place and in the course of the same transaction the accused committed the grievous hurt of Godauda Pathiranage Indrasiri thereby committing an offence punishable under Section 315 read with Section 146 of the Penal Code.

4. Section 296 read with Section 32 of the Penal Code. (Alternative common intention charge to count 02).

5. Section 315 read with Section 32 of the Penal Code. (Alternative common intention charge to count 03).

The trial commenced before the Judge of the High Court of Colombo as the Appellant and other Accused had opted for a non-jury trial. After the conclusion of the prosecution’s witnesses, when the case was adjourned to mark statutory statements of the Appellant and the 2^nd Accused, the Appellant had absconded the Court. Hence, evidence led under 241(1) of the Code of Criminal Procedure Act No.15 of 1979 and fixed the case in absentia of the Appellant. But he was arrested and produced before the defence was called.

When the defence was called the Appellant remained silent and the 2^nd Accused had made dock statement and had denied the charges. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellant for 1^st,2^nd and 3^rd counts and sentenced him as follows:

• First Count 06 months rigorous imprisonment.

• Second Count death sentence imposed.

• Third Count 02 years rigorous imprisonment.

As no sufficient evidence was led against the 2^nd Accused, the Learned High Court Judge had acquitted him from the case.

Being aggrieved by the aforesaid conviction and sentence the Appellant preferred this appeal to this court.

The learned Counsel for the Appellant informed this court that the Appellant had given consent for this matter to be argued in his absence due to the Covid 19 pandemic restrictions. Further, at the time of argument the Appellant was connected via Zoom platform from prison.

Background of the Case.

According to PW2, Rupa Matilda, the mother of the deceased, on the date of the incident, at about 7.00 pm she had gone to fetch water from a public water tap located on the Ginthupitiya Road. When she set off from her home, she had seen the deceased leaning against a wall close by. The place where the deceased was illuminated with the light emanating from a church. While she was filling the water from the tap, had heard her son shouting to sa