SAMPATH KUMARA WICKREMAPATHIRANA

SAMPATH KUMARA WICKREMAPATHIRANA

VS.

SUB INSPECTOR SALWATURE AND OTHERS

SUPREME COURT
S. EVA WANASUNDERA P.C., J.
UPALY ABEYRATHNE J.
H.N.J. PERERA.J.
SC FR APPLICATION No. 244/2010
06.03.2017.

Constitution Articles 11, 13(1) and 13(2)- Burglary - Arrest - Torture - Assault - Human Rights Commission - Medico legal report - Act No. 22 of 1994 (Section 12).

Petitioner a labourer, complains about his arrest, by the police as well as assault and torture, by the 1st to 5th Respondents. One Wanshawathie of Bandaragama complained to the police that her house had been burgled

during her absence from the house. As regards this burglary the police apprehended the Petitioner. No goods recovered from Petitioner except some pawning receipts. Two cases were filed in the Magistrate's Court against the Petitioner. He was acquitted, by the Magistrate's Court.

Petitioner states he was arrested on 20.05.2009 at 11.00 am, when he was returning home. He was taken to his house by the 2nd Respondent and other police officers and house was searched. Only pawn receipts were found. Thereafter he was taken to the police at 1.00 pm and later to the police barracks in which place he was assaulted by three police constables with clubs, hose pipes and forced to eat "Kochchi Miris" and later they poured crushed kochchi miris to his eyes. He had breathing difficulty and vision blurred. Several other inhuman acts against the Petitioner discussed in the body of the Judgment.

Held:

1. The medico legal report states that there were healing wounds at the wrists and the ankles. The history given is consistent with the wounds. At the inquiry by the ASP an identification parade was conducted to identify the police officers who had tortured him. The narration given to the Human Rights Commission and the ASP by the Petitioner is the same. The same words were repeated and the way he was tortured was told in the same manner.

2. The 1st to 5th Respondents have used "kochchi miris" as the substance used to torture the Petitioner firstly making him eat it which burns the tongue totally, for hours on end, if bitten bare. Thereafter they had poured the juice into the eyes and the nose which pain nobody would have experienced in normal life and the extent of the pain cannot be ever imagined by any human being. That kind of torture is unheard of, but for sure the said Respondents did not leave any marks of torture. That is the very reason they have used such an unusual kind of torture which the medical experts could not trace. The beating was done with a hose pipe, which once again, does not leave marks on the skin. The only marks which had left a trace by 29th May, were the marks on the wrists and the ankles of the Petitioner by which he was hung up on a "mol gaha" parallel to the ground and beaten. The fact that the Petitioner had gone to the hospital and was admitted to the hospital and was treated for the aches and pains of the body and kept in the hospital for three days itself speaks out to confirm the history given by him to the JMO who has written the MLR.

3. I hold that the torture done to the Petitioner by the 1st to the 5th Respondents fall within this definition. The evidence before us placed by the Petitioner and the evidence placed by the Respondents have been considered by this Court. This Court has analyzed the matters before us and has come to the conclusion that the 1st to the 5th Respondents have committed the act of torture on the Petitioner.

The Petitioner did not know why he was arrested at the time of arrest. His house was searched without a search warrant. The Respondents had failed to bring forth the so called "information" given to the Police to suspect the Petitioner to be the person who might have committed house breaking. The procedure of arrest is wrong.

APPLICATION for violation of Fundamental Rights.

Cases referred to:

1. Sudat

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