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.

Court of Appeal No: The Attorney General CA/HCC/ 246-247//2019 Attorney General’s Department High Court of Negombo Colombo-12.

Case No. HC/ 326/2003 COMPLIANANT Vs.

1. Makawitage Suresh Gunasena

2. Jayasinghe Arachchige Nalin Chandimal Jayasinghe

3. Herath Adikaralage Prasad Dilhara Perera

4. Herath Mudiyanselage Asela Kumara Herath ACCUSED AND NOW BETWEEN

1. Makawitage Suresh Gunasena

2. Jayasinghe Arachchige Nalin Chandimal Jayasinghe ACCUSED-APPELLANTS Vs.

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

P.Kumararatnam,J.

COUNSEL : Shanaka Ranasinghe, PC., Niroshan with Niroshan Mihindukulasuriya of the Appellants.

N.R. Abeysuriya, PC., ASG for the Respondent.

ARGUED ON : 02.05.2024, 16.05.2024 and 22.05.2024 DECIDED ON : 30.08.2024 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Accused-Appellants (hereinafter referred to as the Appellants) were indicted along with the 3rd and 4th Accused by the Attorney General for committing an offence as detailed below:

That on or about the 03^rd of June 2003 with others unknown to the prosecution, the Accused above named, subjected one Waragoda Mudalige Gerard Perera to torture, in order to extract information or a confession from him and that they have thereby committed an offence punishable in terms of Section 2(4) of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Act No.22 of 1994 read along with Section 32 of the Penal Code.

The trial commenced before the High Court Judge of Negombo and the prosecution had called 11 witnesses. As the 3^rd Accused passed away pending trial, the indictment was amended accordingly by the prosecution. The learned High Court Judge being satisfied that evidence presented by the prosecution warranted a case to answer, called for the defence and explained the rights of the accused. Having selected the right to make a statement from the dock, the Appellants and the 4th Accused had proceeded to deny the charges and called witnesses on behalf of them.

After considering the evidence presented by both the prosecution and the defence, the learned High Court Judge had convicted the Appellants as charged and sentenced them to 10 years of rigorous imprisonment and a fine of Rs.50,000/- each with a default sentence of 3 years simple imprisonment on 28.06.2019. The 4^th Accused was acquitted from the charge.

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

The learned Counsel for the Appellants informed this court that the 1^st Appellant has given consent to argue this matter in his absence. The 2nd Appellant was present in person as he is on bail pending appeal. At the hearing the 1^st Appellant was connected via Zoom platform from prison.

History of the case Originally the Hon. Attorney General preferred an indictment against 7 Accused including the Accused named above on counts of Torture and Degrading Human Treatment along with aiding and abetting to commit Torture and Degrading Human Treatment. Before the commencement of the trial, the indictment against the 7th Accused - the Officer-in-Charge of the Wattala Police Station IP/Suraweera was withdrawn by the Hon. Attorney General and the trial was proceeded against 1^st to 6^th Accused. At the conclusion of the trial, the learned High Court Judge who heard the trial had acquitted all 6 Accused from the case.

As the Hon. Attorney General did not prefer an appealed against the acquittal, an aggrieved party preferred an appeal against the acquittal in the Court of Appeal. At the conclusion of the appeal, his Lordship while conforming the acquittal of 5^th and 6^th Accused, set aside t