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 Case No:

CA HCC 231-235-15 Democratic Socialist Republic of Sri Lanka High Court of Colombo Case No: Complainant

2393/2005

1. Athagamage Laxman Rohitha Silva

2. Hewa Ranasinghalage Shantha Viraj

3. Ihagama Abagaswela Gedara Weerakkody alias Rohan

4. Atalugamage Priyantha Wijayakumara Silva

5. Nahala Devage Sarath Kumara

6. Thuwan Abdul Rahuman Azaam Accused AND NOW BETWEEN

1. Athagamage Laxman Rohitha Silva

2. Hewa Ranasinghalage Shantha Viraj

4. Atalugamage Priyantha Wijayakumara Silva

5. Nahala Devage Sarath Kumara 6. Thuwan Abdul Rahuman Azeem Accused-Appellants Vs.

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

Complainant- Respondent Before : Menaka Wijesundera, J B. Sasi Mahendran, J Counsel : Rasika Samarawickrama for the 1^st Accused-Appellant Gayan Perera with Prabha Perera and P. Ekanayake for the 2nd, 4th and

6th Accused-Appellants.

Dr. Ranjith Fernando with Maleesha Meera for the 05th Accused Appellant.

Shanil Kularathne, SDSG for the Respondent Written Submissions : 07.03.2022 (by the 2^nd, 4^th and 6^th Accused-Appellants)

On 07.03.2022 (by the Respondent)

Argued On : 28.03.2023 Decided On: 22.06.2023 B. Sasi Mahendran, J The 1st, 2nd, 4th, 5th, and 6th Accused-Appellants (here in after referred to as Accused) along with one Ihagama Ambagaswela Gedara Weerakkody alias Rohan, deceased by the time the trial had commenced) were indicted as described in the indictment before the High Court of Colombo on the following three counts, 1. 1.That the Accused persons were members of an unlawful assembly with the common object of which was to cause hurt to Roshan Lasantha Gomas alias Shan, and thereby committing an offence punishable under Section 140 of the Penal Code, 2. At the same place, time and in the course of same transaction, being one or more members of the said unlawful assembly, in prosecution of the said common object, caused the death of said Shan and thereby committed the offence of murder punishable in terms of Section 296 read with Section 146 of the Penal Code.

3. At the same place, time and in the course of same transaction, the accused persons, caused the death of said Shan, thereby committed an offence punishable in terms of Section 296 read with Section 32 of the Penal Code.

It should be noted that the abovesaid indictment only be levelled against the above Accused named as only persons who were only participated, whereas the said indictment had not been presented with the phrase “with those unknown to the prosecution”. The trial commenced before the High Court Judge of Colombo on 18th May 2007 where all Accused opted for a trial without jury. The prosecution led evidence of four witnesses including the judicial medical officer. After the conclusion of the prosecution case, for the defense, 1st, 2nd 3rd and 6th Accused made statements from the dock whilst the 5th Accused gave evidence from the witness box. Upon considering the evidence elicited during the course of the trial, the learned High Court Judge by her judgment dated 30th April 2015 convicted all Accused for all charges in the indictment. It was the contention of the learned counsel who appeared for the Accused that their clients had been falsely implicated and that the story of the prosecution cannot be relied upon due to several inconsistencies and overall lack of credibility, therefore following grounds of appeal was urged by them.

Grounds of appeal

1. Conviction is wholly unsafe in view of the uncorroborated and unsatisfactory nature of the evidence of the sore eye witness.

2. The learned trial judge has failed to apply the principles governing the evaluation of evidence.

3. The learned Trial Judge when writing his judgement has seriously misdirected himself on very