IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Appeal under and in terms of the Article 138 (1) of the Constitution read together with the Section 11 (1) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 with the Section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

The Democratic Socialist Republic of Sri Court of Appeal Case No: L a n k a .

CA / HCC / 373 – 374 / 2019 Complainant High Court of Panadura Case No:

Vs.

HC 3745 / 19

1. Pulunkuttige Mohan Priyantha.

2. W. Mudiyanselage Pradeep Pushpakumara.

3. Vinige Asitha Prabath Jayasinghe. 4. Maiyalage Chaminda Ratnayake.

Accused AND NOW IN BETWEEN Wimalasuriya Mudiyanselage Prdeep Pushpakumara.

Maiyalage Chaminda Ratnayake.

02^nd And 04^th Accused – Appellants The Hon. Attorney General Attorney General’s Department Colombo 12.

Complainant – Respondent Before: Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel: Neranjan Jayasingha with Harshana Ananda for the 1^st Accused –

Appellant.

Shavindra Fernando, PC with T. Attyagalle, Mirthula Skandaraja, N.

Wijesekara for the 2^nd Accused – Appellant. (4^th Accused in the High Court)

Sudharshana De Silva, DSG for the Respondent.

Argued on: 15.05.2023 Decided on: 20.06.2023 MENAKA WIJESUNDERA J.

The instant appeals have been lodged to set aside the judgment dated 18.12.2019 of the High Court of Panadura.

In the High Court four accused along with the deceased accused have been indicted under sections 140,146/296 and in the alternative 32/296 under the Penal Code. All four accused have pleaded not guilty and trial had proceeded and upon the conclusion of the trial, the judge had acquitted all four accused on count no 3 and had convicted the second and the fourth accused under counts 1 and 2 and had sentenced both to death.

Hence second and the fourth accused being aggrieved by the said judgment had filed the instant appeals. The main ground of appeal is that if the learned trial judge had acquitted the four accused under section 32 of the penal code there is no evidence of a formation of an unlawful assembly since the first and the third had been acquitted and the charges reads, as the four accused along with the deceased accused and not accused unknown to the prosecution were members of an unlawful assembly. Hence the Counsel for the two appellants strenuously argued that there is no formation of an unlawful assembly at any given point of the prosecution case because there was no participation of five or more accused in the offence committed.

The version of the prosecution is mainly narrated by witness no 1 who had been known to the deceased and the 1^st accused and on the day of the incident the deceased pw1 and the 1^st accused had gone to have a drink at the restaurant in town in the morning and when they went there, there had been a three wheeler parked and another and about six or seven people had been inside the restaurant eating and drinking. The deceased the 1^st accused and witness no 3 and 2 had been talking in the kitchen in the restaurant when the second accused had come from inside the restaurant in to the kitchen and on seeing the deceased had spoken very well to the deceased and had said that the old enmities are well forgotten and had held the hand of the deceased and both of them had gone in to the restaurant and the deceased had locked the door between the kitchen and the restaurant, according to the evidence of pw1 at page 78.

Thereafter the deceased pw 2, 3, and the 1^st accused had remained in the kitchen area when the fourth accused had come from outside in to the kitchen shouting in unwarranted language pointing the gun at pw1 and questioning him as to who brought the “Kerio”.

Thereafter there had been noise form inside the restaurant and somebody had shouted demanding the door to be opened but no one had identified the said voice. At that point the fourth accused had shot and kicked the door opened and had gone in to the restaurant. Thereafter pw2,3, 1A had runo