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

In the matter of an appeal made in terms of Article 331(1) of the Code of Criminal Procedure Act No. 15 of 1979.

Democratic Socialist Republic of Sri Lanka Complainant Vs.

1. Gamini Saman Liyanage

2. Hewa Pedige Sarathchandra

3. Deegoda Gamage Kithsiri CA No: 109-111/2011 Accused High Court Colombo Case:351/2001 AND NOW

1. Gamini Saman Liyanage

2. Hewa Pedige Sarathchandra

3. Deegoda Gamage Kithsiri Accused – Appellant Vs.

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

Complainant- Respondent Before : Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel : Rasik Zarook PC with Rehana Deashapriya and Chanakya Liyanage for the 1st Accused – Appellant.

Amila Palliyage with Sandeepani Wijesooriya, Sawani Udugampola, Lakitha Wakishtaarachchi and S. De Silva for the 2nd Accused – Appellant.

Anil Silva, PC with Amaan Bandara for the 3rd Accused- Appellant.

Rohantha Abeysuriya, ASG for the AG.

Argued on : 09.11.2023 Decided on : 28.11.2023 MENAKA WIJESUNDERA J.

The three accused appellants (hereinafter referred to as the appellants) had been indicted for, 1) Conspiracy to abduct the victim, against all three, 2) Abduction of the victim to commit rape against 2^nd and the 3^rd appellant, 3) 1st appellant aided and abetted the 2nd and the 3rd to commit the offence of abduction of the victim, 4) A charge of rape against the 1^st appellant, 5) A charge of rape against the 2^nd appellant, 6) A charge of rape against the 3^rd appellant, 7) Murder of the victim against all.

The three appellants opted for a jury trial and upon the conclusion of the trial the jury delivered a verdict of , 1) All three appellants were found guilty for the 1^st count, 2) 2^nd and the 3^rd were found guilty for the 2^nd count, 3) 1st was found guilty for the 3rd count, 4) All three were found guilty for the charge of murder.

The facts of the case are that a Tamil girl was alleged to have been abducted raped and murdered by the appellants on or about 30.9.1996. The appellants had been on duty at Kondaveeli check point on the Jaffna Palelei Road.

According to witness Upali Ariyadasa who had been a soldier at the time of the incident the 1st appellant had been their Copral and the 2nd appellant also had been a soldier like him and the 3rd had been a Copral attached to the above mentioned check point.

This witness had been on duty by the side of the road on the 30th of September and the three appellants had been inside the abandoned house which had been near the check point and which had been used as a resting place for the officers on duty at the check point.

According to this witness the civilians coming on to the cleared area from the uncleared area has to go through the check point and every such person is checked by the officers on duty but a woman passing by can never be searched by a male officer.

While he had been on duty, he had seen a girl being escorted to the house by the 2^nd and the 3^rd appellants around 1 pm and five minutes later he had heard a female voice shouting from the resting place nearby and he had gone near the house and had looked through the window, and he had seen a human being fallen on the floor and wrapped in some covering. The 1st appellant had seen him looking through the window and the 1^st appellant had ordered him to go back to his duty point.

The learned Counsel for the respondents submitted that the reference to the time by the above witness could be an error because later in evidence he had said that he heard the cries of a female around two hours before he went off duty.

At 6 30 in evening when he was going off duty the 2^nd and the 3^rd had come out and when asked about the girl whom he had seen going in to the house the 2^nd and the 3^rd appellants had said that she was killed (Page 67) but he says in cross examination that he cannot recall as to which one of the appellants said so, but he says that both the 2nd and the 3rd were present at that time. Hence the identification of the