IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of Article 138(1) of The Constitution read together with Section 11(1) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 and with Section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka.

CA/HCC/03/2022 COMPLAINANT Vs.

High Court of Negombo 1. Ponweera Arachchige Don Susil Case No: HC/138/14 Nishantha

2. Randeni Arachchige Don Sameera Madhusanka

3. Sanmugaraja Wijendran Shanika Dilshan ACCUSED AND NOW BETWEEN Randeni Arachchige Don Sameera Madhusanka

2nd ACCUSED-APPELLANT Vs.

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

COMPLAINANT-RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Neranjan Jayasinghe for the Accused-Appellant : Dishna Warnakula, D.S.G. for the Respondent Argued on : 10-05-2024 Written Submissions : 09-05-2022 (By the Accused-Appellant)

: 10-01-2023 (By the Complainant-Respondent)

Decided on : 17-07-2024 Sampath B. Abayakoon, J.

Three accused persons were indicted before the High Court of Negombo for committing the following offences.

1. That they abducted the female mentioned in the charge against her will with the intention of raping her, at Uswatakeiyawa within the jurisdiction of the High Court of Negombo on or about 19-12-2005, and thereby committed the offence of abduction, punishable in terms of section 357 of the Penal Code.

2. At the same time and at the same transaction, they committed the offence of robbery on the said female, and thereby committed an offence punishable in terms of section 383 of the Penal Code.

3. At the same time and at the same transaction, the 3rd accused committed rape on the above-mentioned female being a group that comprised of the 1st and the 2nd accused, and thereby committed the offence of gang rape punishable in terms of section 364(2)(g) of the Penal Code.

4. At the same time and at the same transaction, the 1st accused aided and abetted the 2nd and the 3rd accused to commit the offence of gang rape, and thereby committed an offence punishable in terms of section

364(2) of the Penal Code.

5. At the same time and at the same transaction, the 2nd accused aided and abetted the 1st and the 3rd accused to commit the offence of gang rape, and thereby committed an offence punishable in terms of section

364(2) of the Penal Code.

After trial without a jury, the learned High Court Judge of Negombo acquitted the 1st accused indicted for the 1st, 2nd and 4th charges preferred against him.

The 2nd and the 3rd accused indicted were acquitted of the 1st charge preferred against them.

However, both of them were convicted of the 2nd charge in the indictment, namely the charge of robbery. The 2nd accused was also convicted of the 5th charge preferred against him, namely the charge of aiding and abetting to commit gang rape.

The 3rd accused was also convicted for the 3rd count preferred against him, namely the charge of gang rape. Afterward, they were sentenced accordingly.

Being aggrieved of the conviction and the sentence, the 2nd accused-appellant preferred this appeal.

The 2nd accused-appellant (hereinafter referred to as the appellant) has been sentenced as follows.

1. On the 2nd count, for a rigorous imprisonment period of 8 years, and ordered to pay a fine of Rs. 10,000/-, with a default sentence of 6 months simple imprisonment.

2. For the 5th count, he was sentenced for a period of 10 years rigorous imprisonment and ordered to pay Rs. 10,000/- as a fine, with a default sentence of 6 months simple imprisonment.

The two sentences have been ordered to be served consecutive to each other.

Facts in Brief The prosecutrix (PW-01) was a mother of a 3 months old child when this incident happened. Although she could not remember the date of the offence, she has stated in her evidence that it happened in December 2005. On that day, around 10.30 in the night, s