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Before H.D.J. Perera Judge of the High Court of Kalutara
Case No. 444/2005 (HC) Date 19.10.2006
DECISION
The Government of the Democratic Socialist Republic of Sri Lanka
Vs.
Havahandi Garwin Premalal Silva
The Attorney General has filed this case against the accused on the basis that on 3rd February 2004 to 6th February 2004 within the Wellipena police station situated within the jurisdiction of this court Korala Liyanage Palitha Thissa Kumara, who had been arrested on the suspicion of robbery of gold ornaments and money and for possession of a bomb was assaulted with a pole and by hand, torturing him for the purpose of obtaining information about the acts he was suspected to have committed and thereby the accused has committed an offense punishable under Section 2(4) of Act. 22 of 1994, The Torture, Cruel Inhuman Treatment or Punishment Convention Act, para 2. At the same time and at the same place during the same transaction in order to obtain information about the acts he was suspected to have committed the same through another suspect Thummaya Hakuru Sarath alias Banja who suffered from tuberculosis by putting saliva into the mouth of Korala Liyanage Palitha Thissa Kumara thereby causing torture under act punishable under Section 2 (4) of No. 22 of 1994 The Torture, Cruel Inhuman Treatment Or Punishment Convention Act.
The position of the prosecution in this case is that Korala Liyanage Palitha Thissa Kumara who is said to be the complainant in this case after being taken into custody on the 3rd February was assaulted causing injuries and further the accused through Thummaya Hakuru Sarath alias Banja, a person who gave evidence in this case who suffered from tuberculosis put saliva into his mouth thereby has committed offenses punishable under section 2 (4) of the Convention Act. Witnesses Palitha Thissa Kumara, Galatharade Don Santha Kumar, Thummaya Hakuru Sarath alias Banja, Asanga Lakmal Samaraweera, Pannivila Vithanalaga Radika, Dr. Ajith Samantha Jayasekara, Dr. Amitha Chananda Fernando, Assistant Superintendent of Police Patnasiri Munasinghe gave evidence on behalf of the prosecution. The accused made a statement from the dock.
The complainant who gave evidence in this case stated that on the 3rd February 2004 at about 8:30 to 9:00 a.m. he was in his house, that day his wife and two children were also in the house. While they were there a Pajero jeep came in which there were six police officers, one police officer got down from the jeep and came near him and stated that there is independence day celebration parade on the next day, February 4, and asked him to go with them make the police emblem. Then he said wait a little I will get dressed and come and it was the accused in this case who told him like that and then the accused with a nickel plated pistol kept on hitting his chin. After that he put him on the ground and kicked him, during that time blood came out of his chin. Later the accused kick at his buttocks. Due to this assault he was thrown close to the jeep and after that he was put in the jeep and the jeep went to Kalutara side while there was another jeep following it from behind and there was four police officers in that jeep. He further said he did not know the reason for the assault made by the accused. Further that before this he did not know the accused. That when he was assaulted his wife and children cried and came behind them and asked the accused as to what is the fault that has been done and told that my husband came home yesterday for the Independence Day and why is he being taken away and started crying aloud.
The witness showed a scar caused by a wound created when the accused hit him on the chin. There is a record in the case made by the court’s translator who examined the chin of the complainant to the effect that there is a healed scar. Thereafter the witness has said that while the jeep was taking him they went to the house of Santha which is situated about one and a half miles away and the accused hit his chin also with the pistol. The complainant has stated that near Santha’s house the accused put him and Santha into the other keep and thereafter they were all brought to the Wellipena Police Station. The complainant and Santha who were thus brought to the Wellipena police were taken from a back door and that door was not the door at the Wellipena Police Station which is open for the public. He and Santha were taken to a room behind the police station and the accused, Silva brought another batch of people to the police station. When they were brought to the room there was another person who was made to sit in the room. He was not a person who was brought together with them. This person was a person who came to crush cinnamon and as such he knew him and the name of this person was Sarath. After putting them in the room the accused asked to give the items that have been robbed and bombs and he was beaten. He said “I have not committed robbery and I have no bombs.” And then he was threatened with death and used filthy language which cannot be repeated in court and after that started beating. First he was beaten and questioned and after that questions were asked from Santha and he said that he did not know about robberies. He was beaten with a wicket pole and cannot remember the number of times he was beaten. Sometimes Santha may have a memory of that he said.
He further said that he was hit on both sides of his shoulders, waist, both legs and hands. While being beaten that as mentioned above he was questioned about bombs and robberies. The accused beat up Santha and Sarath, Santha even involuntarily urinated. While being beaten that way Mr. Weerakoon who was the second in command at the Wellipena Police Station and forcibly took the pole and asked “Yako (you devil) are you going to kill?” The witness stated further that the person who was at this right whom he did not know, that is Sarath, was a person suffering from tuberculosis. The accused said “In order to kill this fellow spit into his mouth and lick his lips.” After saying that Sarath spit into his mouth and licked his lips. It was this accused that told Sarath to spit into his mouth and later Weerakoon came and chased away the accused and gave him (the complainant) a bottle of water to wash his mouth. He does not know whether the spit put out by Sarath went (in) or not. The complainant said he closed his mouth. He had no escape from the accused. He was laid on the ground and Sarath got on him. The accused tried to beat up Sarath. At that point Sarath pulled his two lips. He further said, the accused threatened and told that TB disease will be made to spread so that he will die in three months. Then he was taken to the police cell. He could not stand. Blood was oozing from his ear, he could not turn his back, he was put inside the lockup and handcuffs were put. At that time he did not have a clear consciousness. However, ASP Munasinghe who conducted the inquiry had not mentioned that any inquiry from Weerakoon was made on this matter. In his evidence he (Weerakoon) does not mention about any inquiry into the matter. On the second day he was put on a bed at the house of the police force and was handcuffed. He was kept a further night at the police cell and was handcuffed. He further said that until the time he was sent to the remand prison he was in handcuffs. He said that he was taken to the hospital two times, which was done three days after he was arrested. He further said that the accused and some other officers took him to Ithepana Hospital. There a lady doctor examined him. During that time there was blood on his clothes. This doctor was the second lady (second in command) in the hospital. Later he was taken to the Chief medical officer but this officer was not present (at his post). A statement was taken from him that day. His wife was taken to a traffic office situated at the ground near the corridor of the police station. The accused on that occasion told his wife “bring a bomb or otherwise you husband will be sent to jail for ten year.” He threatened with a pole on his hand. However, he did not hit. He said on the fifth day he was made to sign some document. Then some object covered with paper looking like a fruit was brought and his finger was put in wax and (it) was put on that object. He said that this was done not by the accused but by some other officers.
On further examination in chief the state council asked more questions from this complainant. In considering these questions about the number of times he was taken to hospital it appears (state counsel) has put leading questions to the complainant. In answering these questions he has said that he was taken to hospital five times. He has said that for the third and fifth times he was taken to Waethawa hospital. The doctor at Waethawa hospital did not examine him. He (doctor) filled a paper standing closer to the witness. On the next occasion the accused was also there. However, in answering further questions in examination in chief he has further said, beside Ithepana Hospital he was also taken to Wellipena hospital and altogether he was taken to hospital five times. ASP Munasinghe had a very easy opportunity for verifying this. If there was spitting into the mouth as told by the complainant he had the possibility to tell the doctors at the hospital on the first occasion. However, the complainant has not told anything about this and that shows that the witness had told an untruth about taking him to the hospital. After that he has said he was produced at the courts. He has said that when he was produced at the Matugama Magistrate’s court he on that day showed the magistrate the wounds he had. He took away his shirt and showed the wounds. He had about seventy wounds. The complainant said when he was produced before the magistrate the magistrate said that it is tomorrow or some other day that you will have to show these (wounds). In answering questions from the counsel that is:
Q. Was it the magistrate that was there that day?
A. It should be like that.
Q. In answer to a question from the court, “were you produced directly before the magistrate? Or before the acting magistrate?
A. I am not certain that it was the acting magistrate.
Q. You do not know clearly?
A. I do not know.
Later he was sent to remand. While he was taking treatment from the remand hospital he was taken to Colombo General Hospital. There a doctor examined him. Then he told the doctor that he was wounded by being attacked with a pole. The doctor did not ask who hit with the pole. On further examination he has said that his wife, mother in law and two children had been taken to see him but they were not allowed to do so.
This complainant was cross examined lengthily. In answer to the cross examination he said he had robbery cases before. At Elpitiya magistrates court he was found guilty and he was subjected to a suspended sentence. Other than that he has a case a the magistrates court of Homagama for robbery and on that he had a warrant and when questioned about it during the case he said he was in the Galle remand prison for another case and due to that reason he could go to the court.
When questioned about the incident the complainant clearly said that on the day of the incident the accused came in a jeep as mentioned before called him to come to make a police emblem and hit the chin with the pistol and assaulted and took him away. However, when the defence questioned the complainant about the statement to the CID as to whether he had said in (that statement) that he was called to come to the police station and on the next day he went to the police station, he denied having made such a statement and stated that he was taken to the police station. That contradiction was marked P3 but it should have been V.1. The prosecution called the wife of the complainant Pannilage Vithanage Rajitha to give evidence. She said that the accused came to their house on the day of the incident put to a pistol to his chin, kicked him and took him away. But this witness made a bail application bearing number 79/04 and sought bail for this complainant. For that she had submitted an affidavit. In that affidavit at para 3 (e) it is stated that “I state that on 3rd February 2004 the accused arrested (my husband) on the request of the police officers my husband on the relevant date went to the police station. There without giving a justifiable reason or having such a reason he had been arrested. He had been inhumanely assaulted.” According to the statement of the complainant’s wife it clearly shows that on the day of the incident the complainant went to the police station and there he had been arrested and subjected to assault. When above mentioned matters are carefully considered it clearly appears that the complainant in this case and his wife Rajitha made false statements regarding the manner in which the complainant has been arrested. Further according to what he wife Rajitha says on the matter of the complainant being arrested in his house and assaulted they have made statements different to each other. But the wife of the complainant Rajitha at no stage has stated that this complainant on this occasion was put on the ground and assaulted. When considering that statements of the complainant and his wife about the assault on the first assault big doubt has arisen as to whether that assault happened in the manner described by them.
In order to give evidence in this case on the wounds caused to the complainant doctor Ajith Samantha Jayasekara was called by the prosecution. He has not given evidence that there was a wound on the complainant’s chin. He told in his evidence that he observed 32 external injuries in the body of the complainant. He observed that these injuries were caused by a blunt instrument. These injuries could have been caused by assault with a cricket pole. When the complainant in this case gave evidence he showed healed scar on his chin. Such a wound has not been mentioned in the evidence of the doctor. There arises a big doubt as to whether the wound relevant to this scar was caused when the accused hit him with a pistol.
The complainant in his examination in chief and cross examination has said that the accused after taking him into custody took him to the Wellipena police station. After taking him there he was taken to the back side of the station. There when he and Santha who came with him were taken to that place at that time a person called Santha was kept in custody in that place. He was assaulted. However, Sarath who gave evidence in this case said this accused took him to custody and brought him to the Wellipena police station and at the time he said that the complainant in this case was seated in front of the police cell. According to that as the complainant has said that when the complainant and Santha were brought to the room behind the police station the witness (Sarath) was there at the place. Accordingly these statements are contradictory to each other and cannot be accepted by the court.
Galathaga don Santha who was arrested together with the complainant was called as a witness for the prosecution stated that at no time did he see Sarath who gave evidence in this case at the police station. He has said that when he was taken to the police station he was put into a police cell and the complainant was not put to the police cell. Further the witness was treated as a hostile witness to the prosecution and cross examined. At that point the witness answered that he had given an affidavit to a lawyer relating to this case and that was given on the promise that he would be taken out on bail and released. He did not know the facts mentioned in that affidavit. Later he went to the Human Rights organization which took that affidavit and stated that he wanted to withdraw the affidavit. In giving evidence in this case he has said that on promise of giving bail he gave a false affidavit to the Supreme Court. This witness’s evidence also confirms that Sarath was not there in the room where he was kept after being taken into custody and that is confirmed by the evidence of Sarath mentioned before.
The complainant in this case stated that when he and Sarath were brought to the room as mentioned before there was another person there. He was Sarath. He had seen Sarath some years ago when he came to crush cinnamon and he got to know him there. However Sarath who gave evidence said he knew Suddha the brother in law of the complainant. He came to see Suddha at his house and as the complainant’s house is in the front of that house he knew (the complainant). From this it appears that the complainant has tried to hide something to this court about the manner he got to know Sarath. This complainant has tried to convince the court that he did not have a connection with witness Sarath and that he had seen him only once as he mentioned before. When cross examined by the counsel of the defense witness Sarath has stated that he and the complainant had met when they were in the custody of Galle Prison. From this it appears clearly that the complainant has given false evidence to this court about the manner in which he got to know witness Sarath.
The complainant stated in his evidence that when the accused took him to custody and brought him to the police station with Sarath and was taken to the room behind the police station, in front of the other person who was there as mentioned before asked them about items robbed and bombs he was hit with a cricket pole. This accused in order to cause TB to the complainant informed Sarath to lick the complainant's lips and spit into this mouth. According to that Sarath liked his lips and spit into the mouth. He further said that the accused told Sarath to do that and tried to assault Sarath. This complainant said that though he tried to stop Sarath licking his lips Sarath pulled his lips and licked. However, witness Sarath has not made a statement like that to court. He said he squeezed the mouth of the complainant and hawked and spat into the mouth of the complainant. Thus regarding this spitting incident the complainant and Sarath have given contradictory evidence in this court. The witness Sarath in examination in chief said that he told the accused when he was brought after the arrest that he had acquired TB. At that point the accused talked to him and told that it is necessary to cause TB to the complainant and his wife. However, this witness answering questions in the cross examination told this court that TB should be spread to the complainant and wife in the room behind the police station. He further said clearly that the accused said it only to be heard by him. About these matters there are a lot of contradictions in the evidence of the complainant and Sarath. The prosecution tried to prove that the accused knew that witness Sarath had TB. For that the prosecution has relied on the evidence of Sarath. This witness Sarath has told court initially as mentioned before that he has told the accused that he had TB when he was coming in the jeep. Later he has said that since he fled away from Welisara hospital everyone knew that he had TB. However, at no stage has the prosecution placed evidence about the accused knowing that the accused knew that had Welisara hospital. Further other than the evidence of Sarath prosecution has not placed any other evidence to prove that the witness had acquired TB. On that basis there is a reasonable doubt as to whether this witness Sarath had TB.
Further when considering the evidence of witness Palitha that there is a contradiction between the two about the place where the complainant's lips were licked. The complainant has said that the spitting had happened inside the room. But witness Sarath says it happened inside the police cell. On that basis a doubt arises as to whether this incidence in fact happened.
The suggestion made on behalf of the defense is that when this accused was serving at Urugasmanhandiya police station he has filed many cases against family members of Sarath. For that reason witness has developed unfriendliness towards the accused. Another important matter that must be considered at this point is that according to the evidence of the witness Sarath after he fled from the prison he stayed about six months in his house at Urugasmanhandiya. However, according to his evidence nothing has ever been done by an officer from Urugasmanhandiya police or any other police officer at any time. Until this accused took him to the custody no attempt has been made to arrest him. Accordingly it is possible to think that regarding the arrest of Sarath by this accused the witness had an unfriendly attitude towards the accused.
The position of the prosecution and the submission of the learned counsel for the prosecution and the submissions made on behalf of the aggrieved party attempted to convince court that the complainant and witness Sarath had at not stage any opportunity to discuss this incident of spitting. However, when examining the evidence in this case one of the facts that appears is that after this witness was sent to medical examination he was kept at Welisara remand prison. It has been revealed that witness Sarath was also n the same prison after he was arrested. On that basis even on that position the court cannot be satisfied. If some third party has interest t is possible to construct such a story even without a meeting between the complainant and Sarath. It clearly appears that external people have met the complainant and witnesses especially regarding the human rights violations case before the Supreme Court. Accordingly if there was a need there was a possibility to construct such a story. Witness Rajitha the wife of the complainant said in the evidence that the accused informed her about the assault and about the spitting to spread TB at the police station. However the complainant in his evidence has clearly stated that at the time he was kept at the Wellipena police station at no time were his wife and family members given permission to meet him. On that basis it is not possible for the court to accept the evidence of Rajitha. Therefore it appears that a big doubt appears about the evidence of Rajitha. This complainant sad that he was kept at the Wellipena police station and on the sixth day he was produce before the Matugama Magistrate's Court. However, ASP Munasinghe who conducted the inquiries in giving evidence in the court stated that after receiving the complainant he examined the records at the Matugama court regarding the case records about the remanding of the complainant. Accordingly it has been revealed that he had been produced before the magistrate by the Wellipena police on 6.2.2004. According to that it appears that witness Rajitha has given false evidence about the time the complainant was kept in remand. The accused n giving evidence has stated that the complainant and Sarath were taken into custody on 5.2.2004 on the information received by him. His statement has been proved by the statement of ASP Munasinghe who gave evidence in court. That is he stated that when examining the relevant records he found that the complainant was taken to custody on 5.2.2004 and produced in court on 6.2.2004. The complainant has said that when he was produced before the Magistrate's Court he told the Magistrate about the assault. However, he has not told in his evidence that he has told about the spiting incident to the Magistrate. He has mentioned that at the Magistrate' court a lawyer appeared for him. If as he says he was represented by a lawyer or as mentioned before he told the Magistrate about the assault and the spitting the learned Magistrate certainly would have recorded that. After he was produced before the Magistrate's Court on the first date he was again produced before the Magistrate though the remand prison. It has not been revealed that at that stage he or his lawyer had mentioned this to the learned Magistrate.
The second charge against the accused is that he committed an offense under Section 4 (2) of the Convention Act, Act No. 22 of 1994 by getting Thummaya Hakuru Sarath alias Banja who was suffering from TB to put spit to the mouth of the complainant. In order to prove this charge it is not absolutely necessary to prove that the complainant has caught TB. To prove the charge it is enough to prove if he had a strong fear that he might catch the disease. However, on the basis of the evidence placed before this court there is a big doubt as to whether this Sarath spit into the mouth of the complainant. I come to the conclusion that the prosecution has not proved this beyond reasonable doubt.
Asanka Lakmal Samaweera was called by the prosecution to give evidence in this case. In evidence he said that he was arrested by the Wellipena police one day that he has forgotten the date. He was arrested and put inside a jeep and at that time there were two or three persons in the jeep and among them there was Uncle Santha, Roshan, Gayante, Danusha and other unknown people were there. He said that he knows Palitha Thissa Kumara but he was not in that jeep on that day. He said that after arresting them they were taken and put in the police cell. In that cell there were those persons mentioned and others who were unknown to him. Further he said that he did not see the complainant Palitha Thissa Kumara that day at the police station and that he did not see him at the police cell. This evidence of his was not subjected to cross examination and an application was made on behalf of the aggrieved party to treat witness Asanka Lakmal as a witness hostile to the prosecution and to question him as a hostile witness. However, the state counsel has not agreed with that suggestion. When the evidence of this witness is considered with the evidence of Santha who was considered a hostile witness to the prosecution it can be accepted by this court that this witness's evidence is true because the complainant's evidence and Santha's evidence clearly proves that after arrest the complainant was not kept in the police cell they were kept in the back room of the police. Thus, from Asanka Lakmal's evidence, the evidence of Sarath who gave evidence in this court and said that when he was taken to the police station the complainant was seated in front of the police cell has been proved as a false statement.
The wife of the complainant Rajitha in giving evidence before this court stated that after the complainant was arrested she went with her children to see him at the Wellipena police station and she saw the complainant had fallen on the ground and was in severe pain, saw blood on the clothes. For reasons stated earlier it is not possible to accept that this witness saw the complainant on the first day. Because according to the complainant's evidence he was initially kept in custody in the back room of the police station. This witness further stated that she had informed the Assistant Superintendent of Police that the complainant was arrested by the Wellipena police and was assaulted and is kept in police custody. Further she gave evidence that a letter was given to be handed over to the Officer-in-Charge Wellipena police. However, her evidence has not been collaborated by other evidence and ASP Munasinghe who inquired into this incident has not mentioned in his evidence that such a thing has been revealed. Witness Rajitha further said that she made complaints to the Human Rights Commission and to other agencies. However, she had not presented any evidence to prove that. If her position on this is correct the copies of such complaint or complaints should have been produced and the failure of the prosecution to produce such complaints makes it appear that she had not made any such complaints. This witness Rajitha on behalf of this complainant has filed a case against the accused before the Supreme Court on the charge of violating the human rights of the complainant. In that case a decision has been given against this accused. On behalf of the defense lengthy questions in cross examination has been asked from this witness. Then as an answer to the questions in cross examination she has said that in the affidavit of the application to the Supreme Court and the application made to this court and the Court of Appeal in order to gain bail for the complainant she has said that there are no previous convictions against the complainant. However, in giving evidence before this court the complainant said he had previous convictions and he has a case before the Homagama Magistrate's Courts. Accordingly it has been clearly proved that false statements have been made in the affidavits given to the Supreme Court, Court of Appeal and this court by this witness Rajitha. Further in considering the evidence of Santha false affidavits have been obtained from Santha in order to get bail for the complainant. In considering these facts it has been clearly proved that Rajitha, the wife of the complainant has given knowingly or unknowingly false affidavits to the Supreme Court, the Court of Appeal and the High Court. These affidavits have been marked by the defense as V2. Accordingly it becomes clear that she is a person who will make any false statement against the accused and I conclude that the court cannot accept the evidence (given by her) before this court.
The complainant in this case giving evidence said that after arresting him the accused hit him with a cricket pole and the number of times he has hit was about 60 times. The Judicial Medical Officer, Dr. Ajith Samantha Jayasekara, who gave evidence in this case stated he examined the complainant in his body there were 31 injuries. Accordingly it appears that the complainant has given exaggerated evidence about the assault of the accused. Sarath who gave evidence in this case for the prosecution stated to this court that the accused hit the complainant with a cricket pole for thirty times. This complainant (should have been 'this witness') has given evidence which is completely tallying with the evidence of the doctor. A problem that arises from this is how this witness remembered the exact number of times the accused hit the complainant properly. It has been revealed that Dr. Ajith Samantha Jayasekara who gave evidence in this case has examined the complainant on 12.2.2004. When the case record is examined the statement of witness Sarath to the Criminal Investigation Unit has been recorded four months after the examination of the complainant by the doctor. That is on 9.6.2004. Accordingly it may be concluded that witness Sarath had an occasion to know the number of injuries on the complainant. From this it appears that this witness Sarath has made an attempt to give evidence in order to prove the manner in which the complainant was assaulted in a manner consisted with the evidence of the complainant. From that a big doubt arises as to whether this witness Sarath actually saw the accused hitting the complainant.
I conclude that other than the evidence of the complainant no other acceptable evidence had been given before this court about the accused in this court hitting the complainant with a cricket pole. The accused in this case has made a statement from the dock. In that statement he has said on information he has received of some robberies he went to investigate the information. He went to the house of the complainant of this case with other police officers in a jeep. When he went in front of the house he saw the complainant who was inside the house, coming out of the house. On that occasion an officer who was near him (the accused) told him that the person who is needed by them is the person who came out of the house. At that point the accused ran towards him and then the complainant raised the sarong he was wearing and tried to get something out of the trousers he was wearing. At that point the accused hit him with a police baton which was in his hand and then something that was in the hand of the complainant fell down. The accused understood that it was a bomb and when the complainant made an attempt to take that bomb the accused for the self defense and life protection of the accused and the officers who were with him he hit the complainant with the police baton that was in his hand. At that point because of the emotion that was in his mind he does not remember how many times he hit the complainant at that time. After that the officers who went with him subdued the complainant and arrested him and after reading the charge of possession of a bomb he was arrested and produced at the police station. After that he was produced before the police station and the relevant bomb was handed to the sub service of the police as a production for the case. After that the next day steps were taken to produce the complainant to Matugama Magistrate's Court.
He said after that he arrested Sarath alias Banja who gave evidence in this case. Banja is a person who escaped form the prison while serving a death sentence and other punishments. He (the accused) did not know at the time of arresting Banja that he suffered from tuberculosis. Further he has said that at no stage did get Sarath Alias Banja to spit into the mouth of the complainant. The facts stated by this accused in his statement has been confirmed by the evidence of ASP Munasinghe who gave evidence in this case. He said when he investigated this incident he examined the report books that were at the Wellipena Police Station. When examining the records it has been revealed that he (the accused) has arrested the complainant as the accused stated. As the accused has stated, he (the accused) arrested the complainant.
Although the ASP Munasinghe who gave evidence in this case has taken statements from other officers who have taken part in the arrest the prosecution did not call them to give evidence. Although it is not compulsory for the prosecution to call these people to give evidence in order to ensure justice to this accused they should have been called. It can be concluded that it appears that the failure to call these witnesses by the prosecution is because if these witnesses were called to give evidence on behalf of the prosecution they may have given adverse evidence. In considering the evidence of ASP Munasinghe it appears that a proper inquiry into this case has not been carried out because when grave charges are investigated further to recording of the statements of the witnesses and suspects the correctness of such statements should be examined and the court should be made aware of that. The two charges against this accused are very serious ones. If for some reason he is made guilty of these charges a jail term has to be imposed on him imperatively. Accordingly in cases like this the court should consider very carefully the evidence before it.
The burden of proving the charges against this accused beyond reasonable doubt lies with the prosecution. There is no need for the accused to prove his innocence. If the statement that is made from the dock by the accused causes some doubt about the stand of the prosecution even that is enough to acquit him of the charges. I conclude that by the statement made by the accused in this case from the dock he has created a doubt about the prosecution position. The position of the defence in this case is that the accused when he went to arrest the complainant for the self defence and the life protection of themselves have assaulted the complainant. However, when examining the number of injuries that is in the body of this accused (should have been the complainant) a big doubt arises as to the justifiability of the force the accused has used. Even though it appears that when considering the number of injuries the accused has used some force beyond that which was necessary that does not prove the charge against the accused in this case. Because charge No. 1 against this accused is that in order to gain some information regarding some act the complainant is suspected to have done the complainant was assaulted and tortured with a pole and with hands and thereby the accused committed an offense punishable under the Torture and other Cruel and Inhuman or degrading treatment Convention Act, Act No. 22 of 1994. On the basis of the facts mentioned above I conclude that the complainant has failed to prove this charge. Accordingly the two charges made out against the accused by the prosecution of this case, that is:
1.
During the period between February 3rd 2004 and Feb 06 at Wellipenna police station situated within the jurisdiction of this court you assaulted with a pole and with hand and tortured Korala Liyanage Pathitha Tissa Kumara who you have taken into custody under suspicion of robbery of golden ornaments and money and having in possession a bomb, for the purpose of obtaining some information from said Korala Liyanage Pathitha Tissa Kumara about the act he is suspected to have done, you have committed an offence punishable under section 2 (4) of Convention against Torture and cruel inhuman Degrading Treatment Act, Act No 22 of 1994
2.
At the same place and during the same transaction you have for the purpose of obtaining some information from said Korala Liyanage Pathitha Tissa Kumara about the act he is suspected to have done, you have got a another suspect named Thummaya Hakuru Sarath alias Banja who is suffering from tuberculosis to spit in to the mouth and tortured said Korala Liyanage Pathitha Tissa Kumara and there by committed an offence punishable under section 2 (4) of Convention against Torture and cruel inhuman Degrading Treatment Act, Act No 22 of 1994
I conclude that the charges have not been proved beyond reasonable doubt. Accordingly I acquit the accused of both the charges.
Signed
A.D.J. Perera the judge of the High Court of Kalutara
19.10.2006
Posted on 2008-04-14
remarks:4 |
