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SUB INSPECTOR WIJESINGHE AND OTHERSSUPREME COURT
J.A.N. DE SILVA, J.
FEBRUARY 5, 2002
MARCH 4, 21,2002
Fundamental rights – Constitution – Articles 11, 13 (2) – Torture – Proved by
medical reports? – The State responsible for the Law?
The petitioner complained of assault and torture by the Police.
The medical reports received in regard to the petitioner from the Nagodaand National Hospital, Colombo prove the case of torture as set out bythe petitioner.
The law is made for the protection of all citizens rich and poor alike; It istherefore the duty of the State to make its machinery work alike for therich and the poor.
Per J.A.N. de Silva, J.
“I am unable to accept the police version that the petitioner sustained allthe injuries complained of at the time of his arrest due to the resistanceoffered by the petitioner – It is prudent to infer that the petitioner hadbeen subjected to torture by the police after arrest – The police assaulthas rendered the petitioner an invalid”.
APPLICATION under Article 126 of the Constitution.
K.Thiranagama with M. J. A. Hassan, S. Kasturiarachchi for petitioner.
Saliya Peiris for 1 st respondent.
Riaz Hamza SC for 2-4 respondents.
qqSiripala v Sub Inspector Wijesinghe and Others283
(J.A.N. de Silva, J.)
May 30, 2002
J. A. N. DE SILVA, J.
The petitioner in this case has complained of infringements ofhis fundamental rights under Articles 11, 13(1) and 13(2) of theConstitution of the Democratic Socialist Republic of Sri Lanka.
The petitioner in his affidavit states that he is fifty-five years oldand a father of four children. Due to indigent circumstances he wasdealing in illicit liquor but gave up that trade three to four monthsprior to the incident complained of. According to him at the time ofthe alleged incident he had started working as a casual labourer.The petitioner further states that on 07.03.2001, at around 7 pm hewent to the edge of the forest situated behind his house, to relievehimself. When he was attending to his ablution a man armed witha pistol grabbed him from behind and demanded illicit liquor. Whenthe petitioner said he did not have any he was dragged towards theforest. Fearing that the man was going to kill him, the petitionershoved the man away and tried to escape but was caught again,whereupon the petitioner bit the man ran in to the forest and hidhimself.
After about half an hour he stepped out of the forest, a quarterof a mile away from his house, and on to the compound of oneSeeting whose dogs began to bark upon seeing the petitioner.When the petitioner tried to retreat to the forest, some men jumpedfrom a jeep, ran towards him and caught him.
The man who had questioned him earlier was also there andthat person shoved the petitioner into the jeep having punched himseveral times. The petitioner has identified him as the 1strespondent. When he was pushed in to the jeep there had beentwo more civilians in the jeep.
When the party arrived at the Matugama police station on thedirections of the first respondent, the petitioner was taken to thepolice quarters situated behind the police station. Thereafter 1strespondent had ordered the other police officers to remove thepetitioner’s sarong and blindfold him. Armed with an iron rod thefirst respondent along with some other police officers assaulted thepetitioner several times. The blows alighted below the elbow on his
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left arm, right thigh, ankle, left calf and on the ribs. Thereafter theright hand of the petitioner was kept on the bed head and on thedirections of the first respondent a mighty blow was given.According to the petitioner after this severe assault the 1strespondent offered him illicit liquor which he accepted. Thepetitioner had never been produced before a magistrate within thestipulated period or any time thereafter. He had been removed tothe Weththewa hospital immediately. The petitioner was transferredto the Nagoda hospital the same night and the following day to theNational Hospital in Colombo. Hospital records reveal that bothhands of the petitioner had sustained fractures.
In the Colombo National Hospital the petitioner had beenoperated on the 8th of March and his hands were fitted with plates.The petitioner had disclosed the circumstances under which hewas assaulted to the Hospital Police and the medical personnel.His wife too had made a complaint to the member of thePradeshiya Sabha and the ASP of the area. At that stage theAssistant Superintendent of Police had stated that the petitioner aswell as the 1 st respondent were in hospital and suggested that thematter be settled amicably.
The 1st respondent had filed affidavits together with documentsmarked 1R1 to 1R6. He denies the story of the petitioner. Accordingto the 1st respondent on 07.03.2001 at 15.00 hours a team of sixpolice officers led by SI Kariyawasam set out on a mission to raidillicit liquor.
The raid covered an area, which included Matugama,Agalawatta, Pinnagoda, Bopitiya, Yaladela and Nawunthuduwa.The IB “extracts” relevant to the above mentioned raid are markedas IR2. During the raid four persons, namely D. K. Nishantha, B.Don Sugath, Surendraarachchige Piyadasa and the petitioner hadbeen arrested at 15.40 hours, 16.35 hours, 18.05 hours and 19.10hours respectively and they were duly informed of the reasons fortheir arrest.
According to the 1st respondent when they came to raid thepetitioner’s residence, SI Kariyawasam and another officer stayedin the jeep, as there were three suspects in it. The 1st respondentand three other officers had gone to the petitioner’s house from two
sqSiripala v Sub Inspector Wijesinghe and Others 285
(J.A.N. de Silva, J.)
different directions. The first respondent had heard several personsspeaking in filthy language on a hillock. When he came to the placethree persons fled shouting, “police”. The petitioner who remainedthere was arrested with a can and d glass. Two empty bottles ofliquor were also found nearby. The 1st respondent claims that ashe was coming down the hill, the petitioner hit him with the can(which the 1st respondent got him to carry) and fought with him. Inthe ensuing struggle the petitioner had got the better of him whenthe petitioner got on top of the 1st respondent and that he had triedto kill him by squeezing his neck.
The 1st respondent had shouted out to his colleagues. At thatstage SI Kariyawasam who was nearby in the jeep came running tothe spot and saved him by assaulting the petitioner with a clubwhich he had found in the vicinity. Sub-Inspector of policeKariyawasam too in his affidavit marked 1R4 (C) admits that it washe who struck the petitioner on his hands with a club.
Notes made at or about the time of the incident by Sub-Inspector of police Kariyawasam have been submitted to the courtand they support the 1 st respondent’s version of the events.
The petitioner was arrested and having been brought to thepolice station was handed over to police constable Gunasinghe inthe reserve together with the productions. The arrest of thepetitioner was for being in possession of illicit liquor, assault andcausing hurt to the 1st respondent and for obstructing the 1strespondent from carrying out his official duty (vide 1R2 (b)).
The 1st respondent states that not only the petitioner, he toosustained injuries. He has obtained treatment at the Waththewagovernment hospital and thereafter at the police hospital where hewas warded from the 9th to the 16th of March. The diagnosis inrespect of the 1st respondent at 1R5 indicates that the 1strespondent was “assaulted by an accused” but the injuries foundon him are not indicated.
Police officers Kithsiri Gunaratna and Chaminda Seneviratnehave filed affidavits marked 1R4 B and 1R4 C to the effect that,when the petitioner was arrested and brought to the jeep theyobserved the torn clothes of the 1st respondent and blood on hisface. The Headquarters inspector, Mathugama Inspector of Police,
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Kasthuriarachchi, by affidavit marked 1R7 has sworn that the 1strespondent had handed over to him the clothes which were torn asa result of the incident.
The petitioner in his counter affidavit reaffirmed the positiontaken up by him in the original affidavit. It was his contention thatthe documents relied on by the respondents proves that he hasgiven up dealing in illicit liquor as his last date of arrest was06.08.2000. [The petitioner has had several convictions for exciseoffences in the year 2000 itself. This is evident from the documentsmarked 1R 1 A, 1R 1B, 1R 1C and 1 RID], There is evidence to showthat the police had been raiding his house for a very long period. In1997 police officers who had tried to raid the house of the petitionerwere attacked by the petitioner’s wife who tried to throw acid onthem.
According to document 1R6 she was convicted for the offenceby the Magistrate. In this backdrop it is difficult to accept that thepetitioner had given up his trade in 2001. The petitioner himselfsays he stopped dealing in illicit liquor three to four months prior tothe incident. The incident complained of was in March 2001. Thelast conviction was in August. This shows that even after his lastconviction he had been dealing in illicit liquor for sometime.
Apart from this there are certain averments in his affidavit whichcorroborates the police version to some extent. The petitionerstates that one person suddenly appeared from behind when hewas at the edge of the forest. The 1st respondent states that healone went in one direction while the other three officers took adifferent route when the raid was conducted. The petitioner statesthat as he feared for his life he fought with the stranger whodemanded liquor.
The 1st respondent had not admitted that he was armed [thepetitioner further states that when he reappeared from the forest hewas caught by some people, and after he was assaulted, put into ajeep where there were two persons one of whom he knew asPiyadasa. The respondent states that after several raids andarresting three persons including Piyadasa they came to thepetitioner's home for a search. In these circumstances it is possibleto draw an inference that some incident had taken place near the
SqSiripala v Sub Inspector Wijesinghe and Others287
(J.A.N. de Silva, J.)
petitioners house, but both parties are suppressing certain materialfacts.
The petitioner’s counsel states that the police have not filed acase in connection with the alleged raid upto the time of filing thefundamental rights case because there was no raid in fact.
At the stage of hearing, on a direction given by court the policeproduced a certified copy of the Magistrate’s Court proceedings. Itwas revealed that the proceedings had been immediately initiatedon the 27th March 2001. However the court record had beendestroyed by a fire in the Magistrates court, and the record had tobe reconstructed. Relevant documents were marked as 1R7. Thecourt queried as to the failure on the part of the police to prosecutethe petitioner in the Magistrates court with due diligence and for thereasons for the learned magistrate to have discharged theaccused.
Learned counsel for the respondents pointed out that thepetitioner had been discharged by the learned Magistrate on thevery first day the petitioner was present in court viz. 11 th December2001. This was not a trial date but a day on which the preliminaryevidence was to be recorded, in order to send the productions tothe Government Analyst.
The reason for the discharge it appears was, that theprosecution had failed to be present that day. Mr. Peiris whoappeared for the 1st respondent submitted that he is not in aposition to explain the conduct of the prosecuting police officers inthe Magistrate court of Matugama.
In the course of the argument it was observed that the originalInformation Book at paragraph 83 had indicated that there were fiveproductions. That is 41,42, 43, 44 and 45. The production registerhad erroneously referred to paragraph 82 whereas it shouldcorrectly be 83 as numbered in the Information Book. The 1strespondent conceded that it was a mistake and he had nothing todo with the maintaining of the said notes which had been done byother police officers. It is significant to note that in many cases filedagainst police officers relevant books are not maintained properly.
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Learned counsel for the petitioner contended that the petitionerwas a person who had been arrested several times previously.Therefore the petitioner would have no reason to resist arrest thistime as alleged by the 1 st respondent. It is safer to infer that thepetitioner resisted arrest because there was only one police officer.He admits fighting with the “stranger” and biting him to escape hisgrip. The question for determination is whether the petitioner wasassaulted in the manner described by the petitioner once he wasarrested and brought to the police station.
At the argument stage the court queried as to how both handsof the petitioner were fractured. It was suggested that the petitionerfell on the rocky ground when he fought with the 1 st respondentand that at that stage the left hand may have struck the ground insuch a way that it sustained a fracture.
As stated earlier Sub-Inspector Kariyawasam admitted that itwas he who gave a blow to the petitioner’s right hand, for thepurpose of preventing the petitioner from strangling the 1strespondent. The petitioner denies that he sustained any injuries atthe time of his arrest and further contends that if SI Kariyawasamwas the one who inflicted the injuries on him, he has no reason toshield Kariyawasam and implicate the 1st respondent.
The medical reports received in regard of the petitioner from theNagoda and National Hospital Colombo prove the case of tortureas set out by the petitioner. I’m unable to accept the police versionthat the petitioner sustained all the injuries complained of at thetime of his arrest due to the resistance offered by the petitioner. Inall the circumstances of the case it is prudent to infer that thepetitioner had been subjected to torture by the police after hisarrest. The police assault has rendered the petitioner an invalid. Heneeds assistance to lie down, to sit up, to be fed, helped with thetoilet etc. in his day to day life.
Having carefully considered all the circumstances of this case Iam of the view that the petitioner’s Fundamental Right guaranteedunder Article 11 and 13 (2) have been violated by state officers. Itherefore issue a declaration to that effect. The State is responsiblefor the law. The law is made for the protection of all citizens rich andpoor alike. It is therefore the duty of the State to make it's
Podi Menika v Heen Menike
machinery work alike for the rich and the poor. I direct the State topay the petitioner rupees fifty thousand (Rs.50,000) ascompensation. The petitioner is also entitled to rupees fivethousand (Rs.5000) as the cost of this application.
FERNANDO, J.I agree.
GUNASEKERA, J.- I agree.