016-SLLR-SLLR-1998-1-WEERASINGHE-v.-PREMARATNE-POLICE-SERGEANT-AND-OTHERS.pdf
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Weerasinghe v. Premaratne, Police Sergeant and Others
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WEERASINGHE
v.PREMARATNE, POLICE SERGEANT AND OTHERS
SUPREME COURTDHEERARATNE, J.,
ANANDACOOMARASWAMY, J. ANDGUNAWARDENA, J.
S.C. (F.R) APPLICATION NO. 477/96SEPTEMBER, 2, 1997OCTOBER 16, 31, 1997.
Fundamental Rights – Articles 11 and 13 (2) of the Constitution – Detention atPolice Station for over 24 hours – Torture by Police Officers.
The petitioner was arrested by police officers of the Pannala Police, for allegedburglary and theft of jewellery. He was taken to the Police Station and detainedthere for over 24 hours. Whilst the petitioner was in police custody, he was strippedon the orders of the 7th respondent, a Sub Inspector of Police. The petitioner'shands were tied together and on to his legs below knees, keeping him in a squattingposition; a rice pounder was sent through under the knees and above forearms;the two ends of the rice pounder were then kept on the top of two boxes thusmaking the petitioner's body to suspend on the rice pounder. He was assaultedwhilst he remained so suspended.
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Held:
The petitioner had been illegally detained at the Police Station in violation of his
rights under Article 13 (2) of the Constitution. He was also subjected to torture
by Police Officers in violation of his rights under Article 11.
Per Dheeraratne, J.
This court has time and again emphasized that, not only those whoserecords are not particularly meritorious, but even hard-core criminalsare entitled to enjoy the constitutional guarantee of their fundamentalrights".
". . . depending on the circumstances, an allegation of a violationof Article 11 could be proved even in the absence of medicallysupported injuries".
Cases referred to:
Senthilnayagam v. Seneviratne (1981) 2 Sri LR 187.
Amal Sudath Silva v. Kodituwakku (1987) 2 Sri LR 119.
Sudath Peiris v. Adikari and others S.C. (F.R.) 94/93 S.C. minutes7th March 1995.
Re. Dr. S. Abeykoon, SC Application 454/93 S.C. Minutes14th June 1995.
Ansalim Fernando v. Sarath Perera and others (1992) 1Sri LR 411.
APPLICATION for relief for infringement of fundamental rights.
A. A. de Silva with M. C. Jayaratne and Kithsiri Jayalath for petitioner.
Dr. Jayampathy Wickramaratne for 1st to 8th respondents.
Dilan Perera SC for AG.
Cur. adv. vult.
31st October, 1997
DHEERARATNE, J.
The petitioner, a young man aged 20 years, complained that hisfundamental rights guaranteed under Articles 11, 13 (1) and 13 (2)of the Constitution were violated by the 1st to 8th respondents, whoat the material time, were attached to the Pannala police station. Hestated that on 7.5.96, about 8.30 a.m. his neighbour one MehuranNissa informed him that her house had been burgled and sought his
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Weerasinghe v. Premaratne, Police Sergeant and Others
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assistance to search for her missing jewellery. The petitioner advisedNissa to make a complaint to the police. Nissa made a statementthat very morning at the Pannala police station which is situated about1.5 km from her house. He stated that about 10 a.m. the same daythe 1 st and the 5th respondent police officers came to Nissa's houseand with the assistance of some villagers made a search for the stolenarticles. The petitioner saw two pplice officers who came on inquirythat morning, talking to some people who were antagonistic towardshim on account of politics. After some time, the 1st respondent, sayingthat the petitioner is the person whom they wanted, arrested him andtook him to the police station. A fellow villager named M. MohamedSiyam too stated that the petitioner was so taken away by the policeon that day. The petitioner stated that Nissa questioned the policemenas to why they were taking an innocent man to custody on whomshe had no suspicion. The petitioner further stated that he was unableto obtain an affidavit from Nissa to speak to that fact, as the 1st and3rd respondents have prevented her from giving an affidavit underintimidation.
The petitioner stated he was taken to the 7th respondent sub-inspector who asked him to remove his clothes. On the petitionerrefusing to do so, the 1st respondent forcibly removed his colthes.The 7th respondent thereafter hit the petitioner with a club severaltimes on his hands and legs. Thereafter the 1st respondent tooassaulted him on his buttocks with the same club. The petitioner, stillnaked, was then put inside the cell at the police station witnessedby several persons, petitioner's mother and father both saw thepetitioner in the cell in that state, sans clothes. That was about5 p.m. on 7.5.96. petitioner's mother having returned home, sent someclothes to the petitioner. As to what happened to the clothes thepetitioner wore at the time of his arrest, probably gets clarified later,in the narration of the respondents' version of the events.
On 8.5.96, in the morning, petitioner's father went to the policestation with one Padmini Ariyawansa to secure the release of thepetitioner, but he failed. The petitioner recounted that on that day hewas taken upstairs of the police station by the 1st, 2nd, 3rd and 7threspondents, where his clothes were forcibly removed. His hands weretied together and on to his legs below knees, keeping him in asquatting position; a rice pounder was sent through under the kneesand above the foreams; the two ends of the rice pounder were thenkept on top of two boxes thus making the petitioner's body to suspend
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on the rice pounder. The 4th respondent hit the swinging buttocksof the petitioner with a hose-pipe. The petitioner's father having heardhis screams of pain, went upstairs and pleaded with the respondentsto release the petitioner, only to be abused in filth and chased away.
On 9.5.96, petitioner's father, mother and elder brother Ruwan,went to the police station and pleaded with the 1st, 7th and 8threspondents to release the petitioner, but without any success. About2 pm on 10.5.96 stated the petitioner, he was taken to theKandanegedara government hospital by the 8th and 3rd respondentsand shown to a lady medical officer to whom he complained thathe was tortured by the police and he showed the marks on his wrists.About 3.30 pm on the same day, the police purported to record astatement from him and obtained his signature by force without readingits contents to him. About 5.30 pm he was produced before theMagistrate, Kuliyapitiya at his residence. Although the Magistrateordered bail, it was not until the 11th about 9.30 am, that he couldsecure his release from remand custody on depositing cash bail. Aperson called H. M. Gunawardena, by his affidavit filed with thecounter affidavit of the petitioner, stated that he was taken into custodyby some police officers of the Pannala police station, about midnighton 8.5.96 when he was at his residence. At the time he was putinto the cell at the Pannala police station about 1 am on the 9th,the petitioner was already in that cell.
On his release from the remand prison Kuliyapitiya, the petitioneradmitted himself to the district hospital Dambadeniya, where he waswarded for six days from 11.5.96. The affidavits of the petitioner'sfather and mother are corroborative, at least, of the fact that thepetitioner was arrested on 7.5.96 and kept at the police station tillthe 10th. The petitioner's father stated that on the 8th he telephonedthe DIG North Western Province Mr. Jeganathan, and gave him alldetails about his son's arrest. When the petitioner's mother went tothe police station that evening, she was abused by a police officerfor complaining to the DIG. On 9.5.96, the elder brother of thepetitioner had telephoned the IGP but one Mr. Wegodapola SP hasanswered the phone, to whom he complained about the arrest of thepetitioner. Mr. Wegodapola SP had promised to speak to some officerat the Pannala police. On 19.5.96, petitioner's father wrote the letterP7 to HE the President complaining of the treatment meted out tothe petitioner. In that letter, pointed reference was made by him, interalia, to the following:
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That the petitioner was taken to custody by the Pannala policeon the morning of 7.5.96.
His vists to the police station on 7.5.96 and 8.5.96 with a viewto obtain the release of the petitioner.
His telephoning Mr. Jeganathan DIG on 8.5.96 who promisedto speak to the OIC Pannala.
On 9.5.96 his elder son telephoning the IGP and speaking toMr. Wegodapola SP in connection with the petitioner. It issignificant to note that this letter to HE, which is a contempo-raneous document, was copied to the IGP and to the DIG (NWP)among several others.
The respondent police officers denied that the petitioner was arrestedon 7.5.96 as alleged by him. They contended that he was arrestedonly on 10.5.96. Those respondents stated that the petitioner is nota person of good character as there was a case against him forstealing two sarongs from a garment factory where he was employed;that case was compounded but the petitioner was dismissed fromservice. This court has time and again emphasized that, not only thosewhose records are not particularly meritorious, but even hard-corecriminals are entitled to enjoy the constitutional guarantee of theirfundamental rights, (see Senthilnayagam v. Seneviratnef1); SudathSilva v. Kodituwakku®)
The respondent police officers admitted that Nissa, the petitioner'sneighbour, made a statement to the police in the morning of 7.5.96regarding the burglary of her house. They stated that the 1st and7th respondents and a PC went to the house of Nissa on the morningof the 7th for investigation. It was observed that the thief had enteredthe house through the roof and marks on the wall showed that thethief had slid down along it. The 7th respondent made a note of thisfact. The 1st respondent stated that, on 10.5.96, when he proceededwith some police officers to the village where Nissa resided, toinvestigate some other complaint, one of his private informants in-formed him that on 7.5.96 about 9.30 am, he saw the petitioner andanother person getting on to the road from the compound of the houseof Nissa. The informant had observed that the trouser the petitionerwore at that time was smeared with a substance looking like slakedlime. The 1st respondent stated, that on the reasonable suspicion heentertained regarding the complicity of the petitioner with the crime,he arrested him at a nearby junction about 11.15 am on 10.5.96,
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having explained the charge to him. The petitioner informed the 1strespondent that he repaired the roof of his aunt's house on the morningof 7.5.96. The 1st respondent then took the petitioner to his houseand the petitioner produced the trouser he wore on the 7th morning.That trouser had traces of slaked lime. I may pause here to statethat the police did not bother to check whether the story of thepetitioner having repaired the roof of his aunt's house on the morningof the 7th was correct or not. She has however sworn an affidavitaffirming to that fact thereby explaining how traces of lime could haveprobably appeared on the petitioner's trouser.
Let me now turn to the medical evidence in this case. Accordingto the medico-legal report dated 12.7.96 issued by the medical officerin charge of the government hospital Kandanegedara, the petitionerwas produced by the Pannala police on 10.5.96 at 3.30 pm. Onewonders why the police took the trouble to produce, a man who wasin their custody only for about four hours, before a medical officerand obtain a clean bill of health. No history had been given by thepetitioner and he had no injuries on him whatsoever. The medico-legal report issued to this court by the medical officer of the Districthospital Dambadeniya, where the petitioner was warded from 11.5.96to 16.5.96, after he was discharged from the remand jail, shows thatthe petitioner gave a history of having been assaulted by the Pannalapolice on 8.5.96. The petitioner was examined by the medical officeron 12.5.96 at 8.30 am; he had three injuries. The first was a contusionon the left scapular region, 1 1/2 inches by 1 1/2 inches in size, whichcould have been caused either by a fall on a hard object or by ablow with a blunt object. The medical officer states that he is unableto comment on the probable date of the receipt of that injury becausethe petitioner is dark in complexion. In any event that injury cannotcorroborate the petitioner's version of assault because he did not saythat he was assaulted in the region of his shoulder blade. The secondinjury found on the petitioner was an abrasion 1/2 an inch by 1 inchin size at the back of the right forearm 2 inches above the wrist.The third injury found on the petitioner too was an abrasion, 1/2 aninch by 1 inch, at the back of the right forearm, 3 inches abovethe wrist. The medical officer states the probable time of receipt ofthe 2nd and 3rd injuries was not more than 24 hours before hisexamination. He fixed that time, because the abrasions were red incolour and there were no scab formations. In the result, one findsno corroboration of torture on the petitioner coming from medicaltestimony.
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Mr. de Silva for the petitioner submitted that both medical reportsare false and that an attempt has been made by the medical officersto protect the police officers. This court no doubt, has come acrossseveral cases where medical officers have submitted such false medicalcertificates acting perhaps in an esprit de corps among servants ofthe state, [for eg. see Amal Sudath Silva v. Kodituwakku & others(Supra); Sudath Pieris v. Adikari & othersand Re Dr. S. Abeykoon(4,.In the absence of more positive material I am unable to state thatthe medical reports produced in this case are false. However,depending on the circumstances, an allegation of a violation of article11 could be proved even in the abence of medically supported injuries.[See Ansalin Fernando v. Sarath Perera and othersf51]
Was the petitioner arrested on the 7th or the 10th of May? Thiscourt has often expressed the unreliability of police records whendealing with violations of fundamental rights. According to the counteraffidavit of the 1st respondent, deponent H. M. Gunawardena wasbrought to the police station and put in the cell at 1 am on 11.5.96;by that time the petitioner was no more in the cell but was in remandcustody. It is strange that yet H. M. Gunawardena brazenly sworean affidavit to state that when he was put in the police cell in theearly hours of the morning on the 8th, the petitioner was there. Itis equally strange as to why the respondents failed to file affidavitsfrom Mr. Jeganathan DIG that no one telephoned regarding thepetitioner on the 8th and from Mr. Wegodapola SP of the IGP's officeto say that no one telephoned to him on the 9th to intervene on behalfof the petitioner. If the respondents are to be believed, the petitioner'sfather wrote an utterly fictitious letter to HE the President on 19.5.96,with copies both to the IGP and to the DIG (NWP), making specificreferences to them. I hold that the petitioner has proved that he wasarrested on the 7th and not on the 10th. I hold that by illegally keepingthe petitioner in custody from 7.5.96 to 10.5.96, the 1st respondentand the 8th respondent OIC have violated the rights of the petitionerguaranteed under article 13 (2) of the Constitution.
What did some of the respondent police officers do with the haplesspetitioner from the 7th to the 10th? The trouser the petitioner woreon the 7th, when he was taken into custody, was forcibly removedby the 1st respondent at the police station and it was in that stateof nudity his parents saw him. The petitioner's mother had to go homeand send some clothes as the trouser the petitioner wore at the time
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of his arrest was considered a vital production for the proof of thecrime he was alleged to have committed !! The petitioner has produceda drawing to indicate how his body was made to suspend from arice pounder which was inserted through his arms and legs whichwere tied together. One does not require medical evidence to provethe intensity of the pain which would have been caused to the bodyof a person on being forcibly made to perform such a robust 'acrobatic'feat. That probably explains why the petitioner was kept at thedistrict hospital Dambadeniya for six days without being discharged.I hold that the 1st, 2nd, 3rd and 7th respondents have violated thepetitioner's rights enshrined in article 11 of the Constitution. I
I direct the 1st, 7th and 8th respondents to pay the petitioner asum of Rs. 5,000 each as compensation and Rs. 1,500 each as costs;the 2nd and 3rd respondents to pay the petitioner a sum of Rs. 2,500each as compensation and a sum of Rs. 750 each as costs. Thepetitioner will thus be entitiled to Rs. 20,000 as compensation andRs. 6,000 as costs.
ANANDACOOMARASWAMY, J. – I agree.
GUNAWARDANA, J. – I agree.
Relief granted.