IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of section 331 (1) of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: The Hon. Attorney General, CA/HCC/134/135/2020 Attorney General’s Department, Colombo 12.

High Court of Trincomalee COMPLAINANT Case No: HCT/922/2019 Vs.

01. Faizar Fahim

02. Najeer Nafir

03. Jamal Thariq ACCUSED AND NOW BETWEEN

01. Faizar Fahim

02. Najeer Nafir ACCUSED-APPELLANTS Vs.

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

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

: P. Kumararatnam, J.

Counsel : M.S.M Imtias instructed by Irfana Imran for the 1st and the 2nd Accused-Appellant : Azard Navavi, S.D.S.G. for the Respondent Argued on : 02-05-2024 Written Submissions : 30-09-2022 (By the 1st and 2nd Accused-Appellant)

: 22-03-2024 (By the Respondent)

Decided on : 15-07-2024 Sampath B. Abayakoon, J.

The first and the second accused-appellant (hereinafter sometimes referred to as the 1st appellant or the 2nd appellant) along with the 3rd accused named in the indictment, was indicted before the High Court of Trincomalee for committing the following offences.

1. The 1st accused-appellant together with the 2nd accused-appellant and the 3rd accused committed the offence of gang rape on the female named in the indictment on or about 14-04-2015, at Muthur within the jurisdiction of the High Court of Trincomalee, and thereby committed an offence punishable in terms of section 364(2)(g) of the Penal Code as amended by the Penal Code (Amendment) Act No. 22 of 1995.

2. The 2nd accused-appellant together with the 1st accused-appellant and the 3rd accused committed the offence of gang rape on the same female mentioned earlier at the same time and at the same transaction, and thereby committed an offence punishable in terms of section 364(2)(g) of the Penal Code as amended by the Penal Code (Amendment) Act No.

22 of 1995.

3. The 3rd accused together with the 1st and the 2nd accused-appellants committed the offence of gang rape on the same female mentioned earlier at the same time and at the same transaction, and thereby committed an offence punishable in terms of section 364(2)(g) of the Penal Code as amended by the Penal Code (Amendment) Act No. 22 of

1995.

4. At the same time and at the same transaction, the 2nd accused-

appellant knowingly and intentionally set fire on the above-mentioned female, and thereby committed the offence of attempted murder, an offence punishable in terms of section 300 of the Penal Code.

After trial without a jury, the learned High Court Judge of Trincomalee of his judgment dated 02-11-2020 found the appellants and the 3rd accused guilty for the respective 1st, 2nd and 3rd counts against them.

The 2nd appellant was acquitted of the 4th count preferred against him, which was the count of attempted murder.

After having considered the mitigatory as well as the aggravating circumstances, the learned High Court Judge sentenced the 1st accused appellant who was found guilty for the 1st count for a period of 5 years rigorous imprisonment and to a fine of Rs. 5000/-, with a default sentence of 1 month rigorous imprisonment.

He was ordered to pay Rs. 500,000/- as compensation to the victim, namely PW—01, and in default, was ordered two years rigorous imprisonment.

The 2nd accused-appellant who was found guilty of the 2nd count in the indictment was sentenced for a period of 15 years rigorous imprisonment.

He was ordered to pay Rs. 5000/- as a fine, and in default, he was sentenced for a period of 1 month rigorous imprisonment. He was also ordered to pay a compensation of Rs. 1 Million to the victim, and in default, he was sentenced for a period of 5 years rigorous imprisonment.

The 3rd accused who was convicted for the 3rd count in the indictment was sentenced for a period of 15 years rigorous imprisonment and to a fine of Rs. 5000/-, and in default, he was sentenced to a term of 1 month rigorous im