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 Hon. Attorney General CA HCC-145-148/2015 Attorney General’s Department Colombo 12 HC Panadura Complainant Case No. HC 2266/2006 Vs

1. Lokukawadihennadige Roshan De Silva

2. Mudiyanselage Jayasena

3. Sinhala Virudawalage Deepathi Shantha Accused And

1. Lokukawadihennadige Roshan De Silva

2. Mudiyanselage Jayasena

3. Sinhala Virudawalage Deepathi Shantha Accused-Appellant VS Hon. Attorney General Attorney General’s Department, Colombo 12 Respondent And Now In the matter of an application under and in terms of the section 358 (1) and (2) of the Code of Criminal Procedure Act No: 15 of 1979 in respect of the conviction of the 1st Accused-Appellant who is now deceased.

Renuka Damayanthi Kalukeerthi, No. 409A Nanda De Silva Mawatha Kuruna, Katunayake Petitioner VS Hon. Attorney General, Attorney General’s Department, Colombo 12.

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

R. Gurusinghe J.

&

K.K.A.V. Swarnadhipathi J.

Counsel : Saliya Pieris, PC with Pasindu Tilakarathne AAL and Savinda Jayawardena For the 1^st Accused Appellant.

Dileepa Peiris SDSG for the Hon. Attorney General Argued on : 25.10.2023 Decided on : 14.11.2023 R. Gurusinghe, J.

I have had the advantage of reading the draft judgment of His Lordship Justice Karunaratne, the President of the Court of Appeal, and I respectfully express a divergence of opinion with him. I deem it superfluous to reiterate all the details of this case, as they are comprehensively elucidated in the judgment of Justice Karunaratne. Nevertheless, I shall recount the essential facts to elucidate my reservation.

The individual allegedly killed by the accused in this case was Porage Janinda Kalana Kumara Perera, a sixteen-year-old boy at the time of his death. PW1 and PW2 are the father and mother of the deceased, respectively.

PW2 was taken into custody by the Horana Police on the 7^th of November 1989. PW1, a retired police officer visited the Horana Police Station to inquire about his wife’s detainment. Then, the Officer-in-Charge of the station, I.P. Linton informed him that his wife would be released if he surrendered his son, Janinda Kalana Kumara Perera. PW1 inquired as to why the police wanted his son. I.P. Linton said that after recording a statement of the son, he would be released. PW1 met the Superintendent of police, Mahinda Hettiarachchi the next day. Following SP Hettiarachchi’s advice, PW1 handed over the deceased to I.P. Linton of the Horona police station on the 10th of November 1989. Neither PW1 nor the deceased were informed of any charges against the deceased. The deceased was kept in the custody of the Horana police station, where he was subject to physical assaults from certain police officers during that period. Around December 7, 1989, upon visiting the Horana Police Station, PW2 discovered that her son had been transferred to the Panadura Police Station. Upon arriving at the Assistant Superintendent’s office in Panadura Police Station, PW1 met ASP Ariyapala, and ASP instructed a police constable to show the deceased to PW1. Even at that time, the police had not communicated any allegations against the deceased to PW1 or the deceased.

I refrain from detailing the entirety of the events that happened at the Panadura police station.

The deceased had been kept in a special anti-subversive unit in the Panadura police for nearly three months. As per the evidence of PW 1 and PW 2, the deceased had been tortured physically and mentally. He had also been interrogated extensively by the police officers attached to the special subversive unit. PW 1 and PW2 had visited their son almost every day.

On the 15th of January 1990, PW1 and PW2 had come to see their son, the deceased. They gave lunch and