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

In the matter of an Application for Revision under Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka to be read with Section 364 of the Code of Criminal Procedure Act No. 15 of

1979 as amended.

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

Complainant – Petitioner Vs.

Court of Appeal Revision Application

1. Gamage Ruwan, Case No: CA (PHC) APN 110/ 2017 No: 400, Kuduwatte Road, High Court of Avissawella Case No:

Kiriwathtuduwa, HC 57 /2009 Kahathuduwa.

2. Don Prabu Kotalawala No: 156, Magammana, Homagama.

AND NOW IN BETWEEN The Hon. Attorney General, Attorney General’s Department, Colombo 12.

Complainant Petitioner Vs.

1. Gamage Ruwan

2. Don Prabu Kotalawala Accused – Respondent Before: Menaka Wijesundera J.

Neil Iddawala J.

Counsel: Suharshi Herath, DSG for Attorney General.

Neranjan Jayasinghe for 2nd Accused – Respondent.

Argued on: 07.06.2022 Decided on: 27.06.2022 MENAKA WIJESUNDERA J.

The instant revision application has been filed to revise the Order dated 05.01.2017 of High Court of Avissawella. In the instant matter the accused respondents were indicted in the High Court under Section 315 of the Penal Code.

In the High Court the victim had stated that he is not interested in pursuing the matter as it has taken seventeen years after the incident to reach the current status. Therefore, both accused respondents have pleaded guilty, and they have been convicted with a fine of Rs. 10,000 and two years simple imprisonment. Thereafter, they have been ordered to pay Rs.30,000 as compensation to the victim, in default two years of imprisonment.

The first accused respondent who has had a previous conviction has been fined Rs.25,000 in default one year simple imprisonment for the case which had been at Kesbeewa Magistrate’s Court.

The first accused respondent has had a another previous conviction from the Magistrate’s Court of Rathnapura for which he had been once again fined Rs.25,000 and in default one year simple imprisonment.

The second accused respondent also has had a previous conviction and he had been also fined Rs.25,000 and in default one year simple imprisonment.

The main grievance of the counsel appearing for the petitioner is that the sentence imposed on the second accused respondent for the previous conviction is inadequate because at the time of sentencing, he had been convicted with a death sentence.

There was no appearance for the first accused respondent. But the counsel appearing for the Attorney General did not seriously canvass a case against him. But she vehemently objected to the sentence imposed for the previous conviction of the second accused respondent because according to her it’s a death sentence and the High Court judge should have been more careful and stringent in imposing the sentence.

The counsel, who appeared for the second accused respondent, took up the position that the victim in the instant matter had not been interested in pursuing the matter, because a long period of seventeen years has lapsed since the incident. The victim in open court had stated that he did not even want compensation but he was only interested in concluding the matter. It is actually this statement of the victim which had prompted the accused respondents to plead to the indictment.

But the counsel for the Attorney General stated that the statement of the victim does not take away the severity of the sentence imposed on the second accused respondent by the trial judge for the previous conviction and the High Court judge in the instant matter should have taken the matter more seriously and acted accordingly.

The counsel appearing for the second accused respondent further stated that the petitioner had not, 1) averred exceptional circumstances

2) has not exercised the right of appeal

3) had not complied with Rule 3(1)B of the Court of Appeal Rules 1990 and Rule 46 of the Supreme Court Rules , as such the instant applicati