IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of 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: Democratic Socialist Republic of Sri Lanka CA/HCC/0302-306/2016 COMPLAINANT High Court of Colombo Vs.

Case No: HC/2254/2005

1. Thiruchelvam Nixon alias Ramesh

2. Jeyaraj Mahalingam Mahendran alias Ravi

3. Wadivel Ravindra Kumar alias Ragu

4. Dinesh Kumar

5. Sinnathambi ACCUSED AND NOW BETWEEN

1. Thiruchelvam Nixon alias Ramesh

2. Jeyaraj Mahalingam Mahendran alias Ravi

3. Wadivel Ravindra Kumar alias Ragu

4. Dinesh Kumar

5. Sinnathambi (deceased)

ACCUSED-APPELLANTS Vs.

The Attorney General Attorney General’s Department Colombo 12 RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Indica Mallawaratchi for the 1^st Accused Appellant.

: Rienzie Arsekularatne, P.C. with N. Karunaratne, Thilina Punchihewa and P. Gamage for the 2nd to 4th Accused Appellants.

: Madhawa Tennakoon, DSG for the Respondent Argued on : 06-12-2022 Written Submissions : 17-06-2019, 18-06-2018, 23-03-2018 (By the 1^st Accused Appellant)

: 19-11-2019 (By the 2^nd to the 5^th Accused-

Appellants)

: 22-08-2022 (By the Respondent)

Decided on : 30-01-2023 Sampath B. Abayakoon, J.

This is an appeal by the accused appellants (hereinafter sometimes referred to as the appellants) on being aggrieved by their conviction and the sentence by the learned High Court Judge of Colombo.

The appellants were indicted before the High Court of Colombo on following counts.

(1) For being members of an unlawful assembly on 14^th March 2001 with the common object of causing harm to one Rajgopal Wijeratnam and thereby committing an offence punishable in terms of section 140 of the Penal Code.

(2) At the same time and at the same transaction, in furtherance of the above common object, committing the murder of the above mentioned Wijeratnam, an offence punishable in terms of section 296 read with section 146 of the Penal Code.

(3) At the same time and at the same transaction, acting with a common intention, and thereby committing the murder of the above mentioned Wijeratnam, an offence punishable in terms of section 296 read with section 32 of the Penal Code.

After trial without a jury, the appellants were found guilty as charged by the learned High Court Judge of Colombo by the judgment dated 31-10-2016.

Accordingly, they were sentenced to a term of six months rigorous imprisonment and to a fine of Rs. 5000/- on count one preferred against them. In default of paying the fine, they were sentenced for six months simple imprisonment.

On count two, all of them were sentenced to death.

No order was made on the third count for which they were convicted, apparently on the basis that it was an alternative count to the second count.

At the hearing of this appeal, it was informed to the Court that the 5th accused appellant had passed away while in prison.

The Grounds of Appeal The learned Counsel for the 1^st accused appellant formulated the following grounds of appeal for consideration at the hearing of the appeal.

(1) The evidence led at the trial does not support the contention that PW-

02 Roshani was an eyewitness to the incident of murder, and the conviction reached on such a basis was bad in law.

(2) The inherent weaknesses of the evidence of PW-01 Veronica with regard to the culpability of the 1^st accused at the time of the incident crates a reasonable doubt.

(3) The learned High Court Judge has erred by certifying with regard to the demeanor and deportment of the prosecution witness PW-02, when the learned High Court Judge was not the Judge before whom the evidence was taken.

(4) The provisions of section 114 (f) of the Evidence Ordinance operate against the prosecution because of the failure to lead the evidence of PW-06, who was an important and a vital witness for the prosecution.

(5) The appellants were denied of