IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal against an order of the High Court 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. The Democratic Socialist Republic of Sri Lanka.

CA No: CA/HCC/ 0071/17 The Democratic Socialist Republic of HC: Kurunegala: HC57/2009 Sri Lanka Complainant Vs.

1. Giriwala Gamage Nawarathne Manike

2. Periyathambi Annamuththu Mery Airin Petricia

3. Jayakodi Arachchilage Upul Priyadarshana

4. Appuhamy Arachchilage Sarath Chandra Siriwardhane

5. Widulath Arachchilage Sarath Podi Bandare Accused And now between Widulath Arachchilage Sarath Podi Bandare

5^th Accused- Appellant Vs.

The Hon. Attorney General Attorney General’s Department.

Colombo 12.

Complainant-Respondent Before: N. Bandula Karunarathna J. (P/CA)

&

R. Gurusinghe J.

Counsel: A.M.E.B. Atapattu, AAL for the accused-appellant.

Sudharshana De Silva, DSG for the Complainant-Respondent.

Written Submissions: By the accused-appellant on 04.12.2017.

By the Complainant-Respondent 05.12.2017.

Argued on : 14.10.2022 Decided on : 15.11.2023 N. Bandula Karunarathna J. (P/CA)

The 5^th accused-appellant (here in after called as the appellant), along with four others, stood indicted in the High Court of Kurunegala for having committed the offences punishable under section 360 (B) (1) (b) of the Penal Code. The appellant was found guilty of the above offence as charged under count 1 of the indictment. The appellant was sentenced to a term of 5-year imprisonment and to a fine of Rs. 500,000 with a default term of two years.

As the indictment was read over, the 1^st to 5^th accused pleaded ’not guilty’ to the indictment. Accordingly, the trial commenced before the learned High Court Judge against all five accused. While the trial was in progress, the 2^nd and 4^th accused pleaded guilty to the respective charge, whereupon the two accused were convicted on their own plea. Those two accused were sentenced accordingly, the trial against the 1^st, the 3^rd and the 5^th accused proceeded and concluded. The learned trial judge found the 1^st and the 3^rd accused not guilty of the offences they were charged with and found the 5^th accused-appellant guilty.

The prosecution led the evidence of the following witnesses:

a. Witness No 3 - Basnayake Mudiyanselage Susantha Kumari Basnayake (victim of the crime or 3^rd witness)

b. Witness No 02 - Weerabahu Mudiyanselage Sudharma Kumudini Jayarathne (relation of 3^rd witness or victim)

c. Witness No 01 - Maligarnuwe Gedara Leelawathi (Mother of 2^nd witness)

d. Witness No 10 - Kotuwegedara Subarathna Manike (Mother of 3^rd witness)

e. Witness No 05 - Pahala Gedaralage Nawarathnasiri (Person who worked in the Melsiripura Sajan Restaurant, where 2^nd and 3^rd witnesses were kept)

The prosecution marked the birth certificate, the medical report and identification parade notes in support of its case against the appellant. According to the identification Parade notes the 5^th accused-appellant was identified. According to the evidence revealed against the appellant, the victim was taken to a hotel where the offence was perpetrated. According to the evidence, the victim was kept in the hotel for nearly seven days and introduced her to different men for sexual gratification. After the victim escaped from the appellant, they produced themselves at the police station and lodged complaints.

At the conclusion of the prosecution case, the appellant made a dock statement and denied his involvement in the offence. In preferring an appeal, the appellant urged the following grounds in the petition of appeal dated 02.06.2017 and prayed that the said conviction and the punishment be set aside;

(i) Conviction and the punishment imposed are contrary to the law;

(ii) Prosecution has failed to establish the charges against the appellant beyond reasonable doubt;

(iii) The 1^st charge of the indictment has been framed incorrect