IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331 of the Code of Criminal Procedure Act No.15 of 1979.

CA 138/2020 HC/ Kalutara/700/2006

1. Nakandalage Don Premasiri Jayaratna

2. Rathran Pramadige Vincent Wijewardena ACCUSED-APPELLANTS vs.

The Hon. Attorney General Attorney General’s Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Devika Abeyratne J P. Kumararatnam J COUNSEL : Mr.A.S.M.Perera PC with Ms.Prabothini Kumarawadu for the1^st Accused-Appellant. Mr.Yalith Wijesurendra for the 2^nd Accused- Appellant.

Mr.Sudharshana de Silva DSG for the Respondent.

ARGUED ON : 15/11/2021 DECIDED ON : 06/12/2021

JUDGMENT

P. Kumararatnam J The above-named Accused-Appellants (hereinafter referred to as the Appellants) were indicted jointly in the High Court of Kalutara under Section 296 of the Penal Code for committing the murder of Jayasuriya Madugodaralalage Saman Gunaratna on or about 30^th May 2004.

The trial commenced before the High Court Judge of Kalutara as the Appellants had opted for a non-jury trial. After the conclusion of the prosecution case, the learned High Court Judge had called for the defence and the Appellants had given evidence from the witness box. After considering the evidence presented by both parties, the learned High Court Judge had convicted the Appellants under section 297 of Penal code and sentenced them for 30 months rigorous imprisonment with a fine of Rs.10000/= each on 02/07/2020.In default 06 months simple imprisonment imposed.

Being aggrieved by the aforesaid conviction and sentence the Appellants preferred this appeal to this court.

The Learned Counsel for the Appellants informed this court that the Appellants have given consent to argue this matter in their absence due to the Covid 19 pandemic. Also, at the time of argument the Appellants were connected via Zoom from prison.

The Appellants jointly contend that the Learned High Court Judge has erred in his judgement that the 2^nd Appellant exceeded the limits of the power vested in him as a police officer in the incident which led to the death of the deceased.

Further they contend that when considering the circumstances of this case, which concerns an act committed in the course their duties by the Appellants, the Learned High Court Judge ought not to have come to a finding of guilt against either of the Appellants.

Background of the Case On the 15th of May 2004 around 9.30 p.m., PW01 Anagipura Gnanaratna who is the Grama Sevaka of the area having heard a sound similar to crackers had travelled half a Km towards the area where the sound came from. He had reached the place of incident in ten minutes and observed a Canter lorry which had fallen in to a ditch and had seen blood splatters near the driving seat. He had seen a motor bike bearing No.141-9152 was parked behind the lorry. He had not witnessed the incident but made a formal complaint to the police. He admitted that he knew of a person called Odiris Mudalali residing in his village who grows Teak trees on his land.

PW02 Rapial Fernando hearing a report of a gun at about 9.pm had come out from his house and had seen a Canter lorry which had tilted on its side about 50 meters away from his house. As a person under the lorry was seen to be injured seriously, with help of others he had been extracted from under the lorry and sent to the hospital. He had seen the Appellants at the scene and a gun was in the possession of the 1^st Appellant. He too had not witnessed the shooting.

On the day of the incident at about 8.30pm when PW03 Kamal Gamini was going to his mother’s place he was stopped by two police officers at Indigasthuduwa junction. One officer was in police uniform while the other was in civil with a gun. Then both officers had gone towards the place of incident. After about 15 minutes he had heard gunshots. When he proceeded towards that direction had seen a lorry toppled in front of PW02’s house. He had seen the deceased under the v