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 and in terms of High Court of Provinces (Special Provisions) Section 19 of

1990.

Court of Appeal Case No:

CA-HCC-105-106/20 Democratic Socialist Republic of Sri Lanka HC of Kaluthara Case No: Plaintiff HC 615/06 v.

1. Thudugalage Don Lasantha Niroshan

2. Thudugalage Don Lakshman Priyankara

3. Thudugalage Don Ajith Priyantha

4. Kaluarachchige Somasiri

5. Thudugalage Don Piyasena

6. Mallawaarachchige Leelawathi

7. Kurundukarage Manjula

8. Dodangoda Hewage Jayawathi Accused AND NOW BETWEEN

2.Thudugalage Don Lakshman Priyankara

4. Kaluarachchige Somasiri Accused-Appellants v.

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

Plaintiff-Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Neranjan Jayasinghe for the 2^nd Accused-Appellant Nalaka Samarakoon with Vimukthi Weragama for the 04th Accused-

Appellant Dileepa Pieris, SDSG for the State Written 13.07.2021, (by the 1^st Accused-Appellant) Submissions: 04.08.2021 (by the 4^th Accused-Appellant)

On 11.01.2022 (by the Respondent)

Argued On: 30.11.2023 Decided On: 14.12.2023 ************

Sasi Mahendran, J.

The 2^nd Accused Appellant (hereinafter referred to as the 2nd Accused) and the 4^th Accused Appellant (hereinafter referred to as the 4^th Accused) along with six other Accused were indicted before the High Court of Kaluthara for the following counts, 1. On or about 11 March 1998 at Iddagoda, the Accused committed an offence in terms of section140 of the Penal code by being members of an unlawful assembly with the common object of causing injuries to Thudugalage Don Chandrasena and Thundugalage Don Nishani Shashikala.

2. In the course of the same transaction, the Accused committed an offence in terms of section 146 read with section 296 of the Penal Code by committing the offence of murder of Thudugalage Don Chandrasena.

3. In the course of the same transaction, the Accused committed an offence in terms of section 146 read with section 296 of the Penal Code by committing the offence of murder Thudugalage Don Nishani Shashikala.

4. In the course of the same transaction, the Accused committed an offence in terms of section 296 read with section 32 of the Penal code by committing the offence of Murder Thudugalage Don Chandrasena

5. In the course of the same transaction, the Accused committed an offence in terms of section 296 read with section 32 of the Penal Code by committing the offence of Murder Thundugalage Don Nishani Shashikala.

When the indictment was served on 09.06.2006 except for the 3^rd Accused all the Accused were present. The 3^rd accused had been tried in his absentia. Before the trial commenced since the 1^st Accused was dead, steps were taken to amend the indictment.

The Prosecution led evidence of two lay witnesses and seven official witnesses and marked documents and productions P1 to P8. After the conclusion of the Prosecution case, the 4^th Accused remained silent while the 2^nd,5^th,6^th,7^th, and 8^th Accused made dock statements.

After the conclusion of the trial, the Learned High Court Judge delivered the judgment on 10.06.2020 and found the 1^st, 2^nd, 3^rd, and 4^th Accused guilty of the 4^th and 5^th Count in the indictment and was imposed death sentence and acquitted on 1^st,2^nd, and 3^rd count. Further, he acquitted the 5^th, 6^th, 7^th and 8^th Accused from all counts.

Being aggrieved by the said conviction the 2^nd and 4^th Accused have appealed to this court.

The following are the grounds for Appeal, 1. The Learned High Court Judge had erroneously arrived at a conclusion that both Accused Appellants had participated in the crime with the 1^st Accused and 3^rd Accused in the indictment with a common murderous intention.

2. The Learned High Court Judge had rejected the dock statement of the 2^nd Accused Appellant on unreasonable grounds.

Following are the facts and circumstances of this case;

PW01 Duwa