IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Section 331 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.

Hon. Attorney – General, Attorney General’s Department, Colombo 12.

Court of Appeal Case No. Complainant HCC/157-158/2009 High Court of Gampaha Case No. HC/11/2002 Vs.

1. Panawala Widanalage Joseph Douglas Peiris.

1^st Accused

2. Ratnayake Adikari Perennehelage Shantha Gamini Ratnayake.

2nd Accused

3. Ihala Panditha Gedara Jayaratne.

3^rd Accused

4. Mahadurage Ranathunge.

4th Accused

5. Baddegama Ranjith Jayasekara. 5^th Accused AND NOW BETWEEN

1. Panawala Widanalage Joseph Douglas Peiris.

1st Accused-Appellant

2. Ratnayake Adikari Perennehelage Shantha Gamini Ratnayake.

2nd Accused-Appellant

3. Ihala Panditha Gedara Jayaratne.

3rd Accused-Appellant

4. Mahadurage Ranathunge.

4th Accused-Appellant 5. Baddegama Ranjith Jayasekara.

5th Accused-Appellant Vs.

Hon. Attorney – General, Attorney General’s Department, Colombo 12.

Complainant-Respondent BEFORE : MENAKA WIJESUNDERA, J WICKUM A. KALUARACHCHI, J COUNSEL : Nalin Ladduwahetty, PC with Kavithri Hirusha Ubeysekera for the 1st Accused-Appellant.

Ranjan Mendis with Kavinda Priyankarage for the

2^nd, 3^rd and 5^th Accused-Appellants.

Darshana Kuruppu with Tharushi Gamage for the

4th Accused-Appellant.

Rohantha Abeysuriya, ASG for the Respondent.

ARGUED ON : 06.06.2024, 10.06.2024 and 11.06.2024 DECIDED ON : 25.07.2024 WICKUM A. KALUARACHCHI, J.

The five accused-appellants were indicted in the High Court of Gampaha on seven counts. All five accused were convicted by the learned High Court Judge by his Judgment dated 26.08.2009, only for the fifth count of the indictment, i.e. for abducting one Rathnachandra Liyanage in order to murder him, acting in furtherance of a common intention, an offence punishable under Section 355 of the Penal Code read with Section 32. Accordingly, five years of rigorous imprisonment were imposed on each accused-appellant. Against the said conviction, the 1st accused preferred one appeal and the 2nd to 5th accused preferred another appeal. Both appeals have been filed against the conviction but not against the sentence.

Prior to the hearing, written submissions were filed on behalf of the 1^st accused-appellant and the 2^nd, 3^rd and 5^th accused-appellants. At the hearing of the appeal, the learned President’s Counsel for the 1^st accused-appellant, the learned Counsel for the 2^nd, 3^rd and 5^th accused- appellants, the learned Counsel for the 4^th accused-appellant and the learned Additional Solicitor General for the respondent made oral submissions.

The story of the prosecution emanates from the evidence of four main witnesses, PW-1, PW-2, PW-3 and PW-7. Liyanage Udayachandra (PW-3) is the brother of Rathnachandra Liyanage (hereinafter sometimes referred to as the ‘Victim’). PW-7, Yasawardena Liyanage is the cousin brother of Rathnachandra Liyanage and Udayachandra Liyanage. The father of the victim, Liyanage Sumanadasa Perera (PW-1) and the mother of the victim Wickramasinghe Arachchige Somawathie Elisabeth (PW-2) had died prior to the High Court trial. Accordingly, evidence given by PW-1 and PW-2 in the non-summary inquiry held in the Magistrate Court of Gampaha was admitted as evidence in the High Court trial in terms of Section 33 of the Evidence.

Ordinance.

According to the evidence of the prosecution witnesses, Rathnachandra Liyanage was a sixteen-year-old school boy at the time of the incident. On 07th July 1989, around 11.00 p.m., a group of persons including an officer who was clad in police uniform came to the house of Rathnachandra Liyanage which was situated at Delgoda. They took away Rathnachandra Liyanage with them stating to his father, PW-1 that they want to record a statement from him.

PW-3, the brother of the said Rathnachandra Liyanage was not living in the same house with his parents at that time. He resided in t