Sri Lanka Law Reports
 3 Sri L.R
LIYANAGE AND OTHERSSUPREME COURTAMERASINGHE, J.
SEPTEMBER 6, 2001
Fundamental Rights – Articles 11, 13, 126 – Violation – Is it safe to accept acertified copy of any statement or notes recorded by the police withoutcomparing it with the original ? Quis custodiet ipsos custodies ?
The petitioner who was taking a person one LF who had been injured in amotor vehicle mishap was prevented from proceeding by one ZF, the said ZFhad assaulted and stabbed him with a knife and driven away, and when thepetitioner went to the police station to lodge a complaint ZF was already there,and he was once again assaulted by ZF and the police. The three persons whocame with the petitioner too were assaulted by the police. Later when thepetitioner was taking the injured to the Ragama Hospital in a van, they wereshot at by the police, and when the van stopped • the police had dragged allthe passengers out and assaulted them. The petitioner also complains that hewas kicked several times in his stomach and the sides of his abdomen by thepolice officers. The respondents were fired at by the persons in the van.
Caldera v Liyanage and others
The manner in which the GCIB and RIBs etc have been altered withimpunity and utter disregard of the law makes one wonder whether thesupervising ASPs and SPs are derelict in the discharge of their duties orin the alternative condone such acts.
Per Edussuriya, J.
"In my view it is unsafe for a Court to accept a certified copy of anystatement and notes recorded by the police without comparing it with theoriginal”.
The petitioner's fundamental rights guaranteed under Article 11 havebeen violated by subjecting the petitioner to cruel and inhumantreatment.
There are contradictions, falsification and fabrication of documents bythe respondents – the petitioner's story according to the material beforeCourt has to be believed.
Per Edussuriya, J.
"It is a lamentable fact that the police who are supposed to protect theordinary citizen of this country have become violators of the law. We mayask with Juvenal 'quis cutodiet ipsos custodes' who is to guard the guardsthemselves."
APPLICATION under Art 126.
Romesh de Silva PC with Palitha Kumarasinghe for petitioner.
Ranjan Gunaratne for 1 – 4 respondents.
Nerin Pulle SC for 5th, 6th respondents.
November 6, 2001EDUSSURIYA, J.
The petitioner claims that in the afternoon of 25th December 011998 when he and three others were taking a person who had beeninjured in a motor vehicle mishap one Lakshman Fernando thedriver of a Benz car had sounded the horn for the purpose ofovertaking the vehicle driven by the petitioner, and the petitionerhad allowed the Benz car to pass when there was sufficient spaceto do so, and that after overtaking the vehicle driven by thepetitioner the Benz car had moved on at a snail's pace therebyobstructing the movement of the vehicle driven by the petitioner
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and therefore the petitioner had overtaken the Benz car. Thereafterthe said Lakshman Fernando had once again overtaken the vehicledriven by the petitioner and stopped the Benz car preventing thevan driven by the petitioner from proceeding. Thereafter LakshmanFernando had got down from the car, walked up to the petitionerand having dealt the petitioner a few slaps, pulled the petitioner outand stabbed him twice with a knife on the right side of thepetitioner's chest. At that time the petitioner's brother Nalaka andone Rasanga who were in the vehicle driven by the petitioner hadcome to the petitioners assistance and the said LakshmanFernando had driven away. The petitioner's brother Chaminda hadthen taken the wheel and driven to the Seeduwa police station onthe way to the Ragama Hospital. By the time they reached theSeeduwa police station, the said Lakshman Fernando was alreadythere and the petitioner's brother had got down from the van andwas proceeding to the police station when he was set upon byLakshman Fernando at first and thereafter assaulted by the 1strespondent as well. Then, several police officers had come to thevan and dragged out the others in the van except the petitioner andassaulted them. In the meantime the petitioner had got down fromthe vehicle and gone into the police station and asked an officerthere to record his statement and send him to the hospital fortreatment, but his pleas had fallen on deaf ears as the policeofficers were busy assaulting the others who has come in the van.The petitioner on realising that his statement would not be recordedhad got into the van and driven out of the police station premisesand proceeded towards Negombo and then having decided to goto Ragama Hospital turned the vehicle round and proceeded in thatdirection and whilst so proceeding heard a sound similar to that ofa gunshot and at the same time heard a sound of the rear glass ofthe vehicle being damaged and on seeing from the side mirror, apolice van coming after him and some persons firing at his van bygetting themselves "half out" of the police vehicle the petitionerclaims that he dropped speed and stopped the vehicle and as soonas he stopped the vehicle he felt something piercing his back andalso heard gun shots. The petitioner has gone on to state in hisaffidavit that within a moment he saw a few police officers firingaround the vehicle and one of them namely the 3rd respondent(P.S. 4509) pointed a gun and shot at him over the windscreen from
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the front while the petitioner was still seated in the driving seat andthat he at the time closed his eyes and lowered his head and thatthe shot caused no harm to him. Thereafter he was dragged out ofthe van and one of them had said "This fellow is still not dead" andattacked him, with a blunt weapon on his back and as he fell heidentified the 2nd respondent as the person who dealt that blowwith a gun. The petitioner had then pleaded "will you at least nowtake me to the hospital?" whereupon all the police officers whowere there kicked him several times on his stomach and the sidesof his abdomen, The petitioner has stated that he thereafter lostconsciousness.
The 1st respondent in his affidavit and objections has statedthat the said Lakshman Fernando came to the police station withbleeding injuries on his face and when he was with the saidLakshman Fernando in his office he had seen a van entering thepolice station with its passengers shouting obscenities in Sinhalaand as he walked out "some of the occupants of the van" hadrushed out and pulled Fernando onto the compound and assaultedhim. That on his orders the offenders had been arrested, and thatthere had been in all four persons who had assaulted Fernando onthe police station compound. The 1st respondent has denied thatthe petitioner came into the police station and stated that at thetime the four persons were being arrested the others who camealong with them "made a quick getaway", and that he ordered the2nd respondent to give chase and to arrest all the offenders, andthat P. C. Sunil, P. C. Kumarasiri and the 2nd respondent left invehicle bearing No. 61 – 2273 and as they were leaving SecurityAssistants 397 and 390 also got into the vehicle. The 1strespondent has further stated that he came to know later that onsomeone in the van firing at the police vehicle, the fire had beenreturned and on the tyres of the van being deflated the van hadcome to a halt and at that point the police officers had seen aperson running away from the van, and that a person who hadreceived injuries had been taken to the Negombo Base Hospital.
From the 1st respondent's affidavit, paragraph 23 it is clear thatif at all only four persons assaulted Fernando on the compound ofthe police station since the 1st respondent has stated therein thathe ordered the arrest of the offenders and in consequence four
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It is appropriate to mention at this juncture that all statementsproduced by the 1st and 2nd respondents which refer to twopersons getting into the van and driving out of the police stationcompound have been recorded after S. I. Aththanayake's entry inthe RIB at 18.00 hours on 25th December 1998, and after theshooting took place. I may also add at this point that the statementof the security guard at the entrance to the police station compoundR13b as well as R4 contradict the 1st respondent's notes R13 andhis affidavit that Lucky Fernando was assaulted when he was in the1st respondent's office. It must also be mentioned that as stated bythe 1st and 2nd respondents in their affidavits, if a person ran awayfrom the van as it was brought to a halt, according to the 2ndrespondent's notes R28 only a single police officer was despatchedto arrest the man who took to his heels who was the one who isalleged to have fired at the police vehicle, although there were in allfive officers at the spot according to 1st and 2nd respondents evenleaving out P. S. 4509 the 3rd respondent. Further nothing more ismentioned thereafter of the one who allegedly took to his heels inanyone of the documents that have been filed by the 1 st and 2ndrespondents. So that we are to understand that he was "The onethat got away". Not even a note made by the police officer whoallegedly gave chase to the "one that got away" has beenproduced.
It must also be mentioned at this point that the statement of theReserve Sub Inspector Malindasiri who is alleged to haveattempted to stop the van driven by the petitioner near a checkpoint must be rejected as being false as he says in his statement,which said statement also has been made after 25th December1998 that a man riding a bicycle escaped being knocked down bythe van by jumping off the bicycle and that the van thereafter ranover the bicycle, in view of the bicycle owner's statement (R21) thatthe van ran over his bicycle which he had parked outside aboutique. It is also significant that the owner of the bicycle hasstated that he did not see anyone running away.
So that it is established beyond any manner of doubt that allstatements and notes relating to a second person other than thepetitioner getting into the van and driving out of the police stationcompound and then a person firing at the police vehicle which gave
SCCaldera v Liyanage and others
chase and the police vehicle 61 – 2273 being used in the chase andbeing hit by a shot fired by a person in the van have all beenfabricated by the 1 st and 2nd respondents to cover up their (police)firing at the van driven by the petitioner without any causewhatsoever.
I will next deal with the damage caused to the van driven by thepetitioner by firing.
In this connection we have before us a report (R27) of theAdditional Government Analyst made after examination of the saidvehicle at the instance of the 1st respondent as-well as the report 210of the retired senior Assistant Government Analyst prepared at therequest of the petitioner's Attorneys-at-Law.
It must be stated at the very outset that R27 is a very skimpyreport which does not even give the trajectory of the bullets whichhad entered the rear of the said van or even the heights from theground at which they have entered. According to both reports therewere 9 bullet entries from the rear with one of them being on therear buffer.
The report marked X2 of the retired Senior AssistantGovernment Analyst gives the height (measured from the ground) 220at which these bullets have entered the rear of the van. The highestpoint of entry is at a height of 107 cms from the ground, that is 42inches from the ground, at 2.54 cms per inch (B in report X2). B hashad an upward trajectory. The bullet which had entered at C at aheight of 95 cms (73.4 inches) had travelled at a horizontaltrajectory parallel to the ground. The bullet which had entered at Dat a height of 71 cms (27.9 inches) from the ground had alsotravelled horizontally. The bullet which had entered at E at a heightof 80 cms (31.4 inches) had also travelled horizontally. The bulletwhich had entered at F at a height of 75 cms (29.5 inches) from the 230ground had also travelled horizontally. The bullet which had enteredat G at a height of 44 cms (17.3 inches) from the ground had adownward trajectory. The bullet which had entered at H at a heightof 100 cms (39.3 inches) had also had a horizontal; trajectory andthe bullet which had entered at I at a height of 98 cms (38.5 inches)from the ground had also had a horizontal trajectory.
Sri Lanka Law Reports
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On this available material it is clear as day light that the bulletwhich entered through B which had travelled in an upward directionafter entry and C, D, E, F, H and I which had travelled horizontallyafter entry through the rear of the van driven by the petitioner, couldnot have been fired from the police vehicle by a policeman seatedon the left window sill of the vehicle with the upper part of his bodyoutside the vehicle and the gun almost resting on the roof of thevehicle, as the respondents claimed and as also shown in thephotographs produced by the respondents. Any bullets fired fromsuch a position must necessarily travel in a downward direction tohave penetrated the rear of the van at B, C, D, E, F, G, H and I andmust continue along the same downward trajectory unlessdeflected since the highest point of entry of C, D, E, F, H and I is107 cms (42 inches) from the ground. Therefore this leads me tothe irresistible inference that these shots were fired by a person orpersons standing on the ground. This corroborates the petitioner'sstatement in his affidavit that as he brought the van to a halt he feltsomething piercing his back and several shots were fired thereaftertoo. The bullet that entered through I at a height of 98 cms (38.5inches) from the ground had travelled horizontally and passedthrough the back rest of the off side rear seat, through the back restof the middle seat, got deflected towards the off side and passedthrough the back rest of the driver's seat and this is the bullet whichundoubtedly caused the injury to the petitioner.
This firing by the police without any rhyme or reason even afterthe van was brought to a stop and the assault that followed withhands, feet and gun was cruel and inhuman treatment meted out tothe petitioner undoubtedly intended to punish the petitioner whohad left the police station with a stab injury to seek treatment as thepolice did not record his statement or issue a Medico LegalExamination Form.
Further, some of the statements filed by the respondentsdisclose that they were aware of the fact that the petitioner had aninjury at the time he came to the Police Station.
The 3rd respondent has denied having accompanied the 2ndrespondent in the "chase” and claims that he was at the relevanttime off duty and in the barracks. However, although in R14 a copyof the 1st Respondent's notes allegedly made at 17.30 hours (5.30
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p.m.) on 25th December 1998 and filed in this Court by the 1strespondent with his affidavit, S. I. Aththanayake, S. I. Mahinda (2ndrespondent), P. C. 10109, 5945, P. C. 6750, P C. 30220, 31558,26486, 10730, Security Assistants 390, 1127, 397 and 384 arementioned as those who assisted him to bring the incident whichallegedly took place on the compound of the police station under 280control, the original of R14at page 390 ■ paragraph 2195 of the RIBshows that P S. 4509 is also mentioned as one of those whoassisted him, but later the numerals 4509 have been scored offalong with R. P S. 2227 with a lighter red ink than the red ink withwhich the entry had been made and bracketed with the samelighter red ink. However, whoever did this had forgotten to score offthe letters "P S.", so that after the mention of S. I. Aththanayake,the original now reads P S. P C. 10109. Thus it appears that atsome point of time probably after this petition was filed wherein thepetitioner had identified the 3rd respondent as the officer who fired 290towards him after the van was brought to a halt the 1st respondenthad made a most maladroit attempt to cast doubt on the allegationscontained in the Petition and Affidavit.
Although the 3rd respondent claims that he returned to thepolice station at 3.55 am on 25th December 1998, he has in factreturned at 23.55 (11.55 p.m.) on 24th December 1998 and thetime has later been altered to “03.55“ by writing the "O" over thenumeral "2". Further the first entry of 25th December under the date“25.12.98“ has been entered at 08.00 hours (paragraph 199). Latersomeone has scored off "25.12.98“ and written “25.12.98'' on the 300line above the line on which the altered “03.55" has been written.
The 3rd respondent has also claimed in his affidavit that, having leftthe police station at 08.00 hours returned at 16.00 hours. However,once again “11.00" has been altered to read 16.00 hours(paragraph 200). This is obvious from the entry which follows (page396) where the time reads 12.30 hours and the next entry has beenmade at 16.25 hours. I may also add that in both entries namely theone made at 08.00 hours (exit) and the one made at the altered“16.00" hours (in-entry) the number of the vehicle has been alteredfrom 61 – 2273 to read 61 – 2477.310
On a balance of probabilities I therefore accept the averments inthe amended petition relating to the 3rd respondent.
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In the circumstances I have no doubt whatsoever in acceptingthe allegations in the petition and affidavit, and holding that theentire story of an attack on the said Lucky Fernando and the policeofficers who attempted to prevent it as being a total fabrication bythe 1st and 2nd respondents. Can it be believed that the 1stpetitioner and those who accompanied him had the audacity toassault the said Lucky Fernando whilst he was in the 1strespondent's office ? I have already referred to the contradictionsrelating to the place where the said Lucky Fernando was at the timeof the alleged assault. I have also referred to the other infirmities inthe 1 st to 3rd respondents, affidavits.
It must be also stated that although the 1st respondent claimsthat the said Lucky Fernando came to the police station withbleeding injuries on his face and was issued a Medico LegalExamination Form on 25th December 1998 he had been examinedonly on 28th December 1998, and at that time the only injury hehad was a contusion (R4A) which was non grievous. So that theassertions by the 1st and 2nd respondents that the said LuckyFernando came to the police station with bleeding injuries on hisface are not borne out. For there to be bleeding injuries on his facethere should be lacerations.
The 2nd and 3rd respondents have been identified as those whoassaulted and kicked the petitioner after he was pulled out of thevan, that is after the petitioner had been injured as a result of theshooting by the police.
The question also arises whether there was a need to carry firearms since it has been established beyond doubt that only thepetitioner who had an injury on the right side of his chest left thepolice station in the van, and the story of a person seated on theleft side of the van firing at the police vehicle is a fabrication by thepolice. Then, was there any need for the 1 st respondent to issue anorder to carry firearms or the 2nd respondent to give an order to fireat the van ? The petitioner has been granted leave to proceedunder Articles 11 and 13 of the Constitution. This Court thereforeholds that the 2nd and 3rd respondents have violated thefundamental rights guaranteed to the petitioner by Article 11, bysubjecting the petitioner to cruel and inhuman treatment.
Caldera v Liyanage and others
The injury caused to the petitioner as a result of the 350indiscriminate firing by the police on the orders of the 2ndrespondent had left the petitioner bedridden for around one and ahalf years and after several surgical operations the petitioner nowfinds himself having to use a catheter for the rest of his life to passurine, impotent and therefore with no hope of entering intomatrimony, and unable to lead a normal life, by engaging in sportsetc. and is presently on a colostomy. The petitioner who was amusician and earned his living as a musician claims that he is nownot in a position to do so.
This court therefore orders the 2nd respondent and the 3rd 360respondent each to personally pay a sum of Rs. 100,000/- to thepetitioner. The State shall pay the petitioner a sum of Rs. 500,000/-as compensation and costs. All sums ordered shall be paid withinthree months of this judgment.
I may add that the manner in which the GCIBs, RIBs etc. havebeen altered with impunity and utter disregard of the law makesone wonder whether the supervising ASPs and SP s are derelict inthe discharge of their duties or in the alternative condone such acts.
In a case in which I pronounced judgment a few days ago too, Ifound that the GCIB had been altered, and therefore it appears 370that, that was not an isolated instance. Thus, the police forceappears to be full of such errant officers. The question is what is the5th respondent Inspector General of Police doing about it ? In myview, it is unsafe for a Court to accept a certified copy of anystatement or notes recorded by the police without comparing it withthe original. It is a lamentable fact that the police who are supposedto protect the ordinary citizens of this country have becomeviolators of the law; we may ask with Juvenal, quis custodiet ipsoscustodes? who is to guard the guards themselves ?
AMERASINGHE, J.-I agree.
WADUGODAPITIYA, J.-I agree.
CALDERA v. LIYANAGE AND OTHERS