S. C. (F.R.). Application No. 343/99 - Case of Kemasiri Kumara Caldera

S. C. (F.R.). Application No. 343/99

In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

Colombo 12.

In the matter of an application Under Article 126 of the Constition of the Democratic Socialst Republic of Sri Lanka.

Petitioner:
Kemasiri Kumara Caldera,
No. 265/1, Munidasa Cumaratunga
Mawatha,
Seeduwa and presently warded in
Ward 32 of the National Hospital,
Colombo.

Vs.

Respondents:
1. Somasiri Liyanage Inspector of Police Officer-in-Charge, Police Station, Seeduwa
2. Mahinda Pathirana, Sub Inspector of Police, Police Station, Seeduwa.
3. Jayasinghe, No. 4509, Police Sergeant, Police Station, Seeduwa.
4. H. A. K. Nanayakkara, Asst. Superintendent of Police Negombo.
5. Lucky Kodituwakku, Inspector General of Police, Police Headquarters, Colombo 01.
6. The Hon. Attorney General Attorney General's Department, Colombo 12.

Before:
Amerasinghe, J.
Wadugodapitiya, J, &
Edussuriya, J.

Counsel:
Romesh de Silva, PC with Palitha Kumara-singhe for Petitioner.
Ranjan Gunaratne for 1st - 4th Respondents.
N. Pulle, SC for 5th and 6th Respondents.

Argued on:
6th September 2001

Decided on:
6th November 2001

Edussuriya, J.

The Petitioner claims that in the afternoon of 25th December 1998 when he and three others were taking a person who had been injured in a motor vehicle mishap one Lakshman Fernando the driver of a Benz car had sounded the Horn for the purpose of overtaking the vehicle driven by the Petitioner, and the Petitioner had allowed the Benz car to Pass when there was sufficient space to do so, and that

After overtaking the vehicle driven by the petitioner the Benz car had moved on at a snail's pace thereby obstructing The movement of the vehicle driven by the Petitioner and Therefore the Petitioner had overtaken the Benz car. Thereafter the said Lakshman Fernando had once again Overtaken the vehicle driven by the Petitioner and stopped The Benz car preventing the van driven by the Petitioner From proceeding. Thereafter Lakshman Fernando had got down From the car, walked up to the Petitioner and having dealt The Petitioner a few slaps, pulled the Petitioner out and Stabbed him twice with a knife on the right side of the Petitioner's chest. At that time the petitioner's brother Nalaka and one Rasanga who were in the vehicle driven by The petitioner had come to the petitioner's assistance and The sad Lakshman Fernando had driven away. The Petitioner's brother Chaminda had then taken the wheel and Driver to the seeduwa police station on the way to the Ragama Hospital. By the time they reached the seeduwa Police station, the said Lakshman Fernando was already there And the petitioner's brother had got down from the van and Was proceeding to the police station when he was sat upon By Lakshman Fernando at first and thereafter assaulted by The 1st Respondent as well. Then, several police officers Had come to the van and dragged out the others in the van Except the petitioner had got down from the vehicle and gone into The police station and asked an officer there to record his Statement and send him to the hospital for treatment, but his pleas had fallen on deaf ears as the police officers Were busy assaulting the others who had come in the van.

The petitioner on realizing that his statement would not be Recorded had got into the van and driven out of the police Station premises and proceeded towards negombo and then Having decided to go to Ragama Hospital turned the vehicle Round and proceeded in that direction and whilst so Proceeding heard a sound similar to that of a gunshot and at The same time heard a sound of the rear glass of the vehicle Being damaged and on seeing from the side mirror, a police van coming after him and some persons firing at his van by Getting themselves "half out" of the police vehicle the Petitioner claims that he dropped speed and stopped the Vehicle and as soon as he stopped the vehicle he felt Something piercing his back and also heard gun shots. The Petitioner has gone on to state in his affidavit that within A moment he saw a few police officers firing around the Vehicle and one of them namely the 3rd Respondent (p.s. 4509) pointed a gun and shot at him over the windscreen from the front while petitioner was still seated in the driving seat and that he at that time closed his eyes and lowered his head that the shot caused no harm to him. Thereafter he was dragged out of the van and one of them had Said "this fellow is still not dead" and attacked him with a Blunt weapon on his back and as he fell he identified the Blunt weapon on his back and as he fell he identified the 2nd Respondent as the person who dealt that blow with a gun. the petitioner had then pleaded "will you at least now take me to the hospital?" whereupon all he police officers who were. There kicked him several times on his stomach and the sides of his abdomen. The petitioner has stated that he thereafter lost conciousness.

The 1st Respondent in his affidavit and objections Has stated that the said Lakshman Fernando came to the Police station with bleeding injuries on his face and when He was with the said Lakshman Fernando in his office he had Seen van entering the Police Station with its passengers Shouting obscenities in Sinhala and as he walked out "some Of thje occupants of the van" had rushed out and pulled Fernando onto the compound and assaulted him. That on his Orders the offenders had been arrested, and that there had Been in all four persons who had assaulted Fernando on the Police Station compound. The 1st Respondent has denied that The Petitioner came into the Police Station and stated that At the time the four persons were being arrested the others who came along with them "made a quick getaway", and that he ordered the 2nd Respondent to give chase and to arrest all the offenders, and that P.C. Sunil, P.C. Kumarasiri and the 2nd respondent left in vehicle bearing No. 61-2273 and as they were leaving Security Assistants 397 and 390 also got into the vehicle. The 1st Respondent has further stated that he came to know later that on someone in the van firing at the police vehicle, the fire had been returned and on the tyres of the van being deflated the van had come to a halt and at that point the police officers and........a person running away from the van, and that a person who had received injuries had been taken to the Negombo Base Hospital.

From the 1st Respondent's affidavit, paragraph 23 It is clear that if at all only four persons assaulted Fernando on the compound of the Police Station since the 1st Respondent has stated therein that he ordered the arrest of The offenders and in consequence four persons were arrested And in paragraph 26 he has stated that the offenders were Produced before the Medical Officer of the Negombo Hospital On 25th December itself. The 1st Respondent has not Stated that they arrested only four of the offenders.

Further, the 1st Respondent has stated that whilst the four Persons were being arrested, the other persons who came Along with them made a quick getaway. Once again there is a Distinction drawn between the offenders and the others. But Then, in paragraph 33 the 1st Respondent has attempted for The first time to rope in others also into the category of Offenders. However no where prior to paragraph 33 has the 1st Respondent stated that anyone other than the four persons named in paragraph 23 had assaulted or even attempted to assault Fernando. However it is interesting to note that in his notes allegedly made at 17.30 hours (5.30 p.m.) on 25th December 1998 the 1st Respondent has only stated that as this scuffle took place the van had reversed and set off, whereas S.I. Mahinda (2nd Respondent) in his notes (X31) made allegedly at 02.05 hours (2.05 a.m.) on 26th December 1998 has stated that two others having assaulted "us" threatened to kill them, got into the van and that the person in the driving seat who was bleeding having turned the vehicle several times as if to run over the police officers, took off from the compound of the Police Station. On the other hand the 1st Respondent in his Inquiry notes allegedly pasted at 06.00 hours (6.00 a.m.) on 26th December 1998 in the R.I.B. at page 22 - paragraph 209 has stated that whilst the scuffle was, going on a person who started the van, reversed it and fled although he and others attempted stop it. So once again the 1st Respondent refers to the van only being reversed and driven out. There is no mention of the van being turned several times in the compound of the Police Station in an attempt to run over police officers and also as important, is the fact of the 1st Respondent not stating that anyone or more persons who got away having been involved in the scuffle or their threatening the police officers.

In this connection it is also interesting to note that although according to the statement of S.I. Aththanayake dated 27th December 1998 (R13A) filed by the 1st Respondent with his affidavit two persons got into the Serena van and drove out of the Police Station as four Persons were being arrested, according to the note made by The same officer in the R.I.B. at 18.00 hours (6.00 p.m.) on 25th December 1998 (at page 393 - paragraph 2198), shortly after the alleged scuffle took place on the compound of the Police Station, as those who were involved in the scuffle Were arrested "one person had got into the Serena van, Turned the van around once and at once went towards the Road".

This is consistent with, and corroborates the Petitioner's story that when he drove out of the Police Station to go to the hospital there were no other persons in The van and also corroborates the Petitioner's story that, Since the police did not record his statement and issue a Medico Legal Form to go to the hospital he came out of the Police Station, got into the van with the intention of going To hospital for treatment. This statement of S.I. Aththanayake also confirms that the Petitioner on his way out did Not attempt to run over any police officers. According to The 1st and 2nd Respondents the Police party gave chase to The Petitioner in vehicle number 61-2273.

In this connection it is very significant that at Page 389 entry 2194 of the R.I.B. there is an entry which Relates to an Inspector whose name is not clear, P.S. 7594, And P.S. Driver 14845 having come back to the Police Station At 18.05 hours in vehicle number 61-2273. The time has Been altered to read 17.06. Even the time of the previous Entry has been altered from 18.00 to 17.05. These Alterations have been clumsily made and are visible to the Naked-eye. Those alterations have been made in an attempt To show that the police party which gave chase to the van Driven by the Petitioner used vehicle bearing number 61-2273 And to fall in line with entry 2196 in the R.I.B. at page 393 according to which police vehicle bearing number 61-2273 which allegedly gave chase to the van driven by the Petitioner had allegedly left the Police Station at 17.50. Thus it is clear that vehicle 61-2273 could not have been Used in the chase since it returned to the Police Station Only at 18.05 according to entry 2194, which has later been Altered to read 17.06 hours. So that any dents on the front Buffer of vehicle 61-2273 were certainly not caused by Anyone during the chase. After the shooting incident it is Clear that the police in an attempt to cover up their Shooting claimed that vehicle 61-2273 was used obviously Because the front buffer of 61-2273 already had bullet Marks.

It is appropriate to mention at this juncture that All statements produced by the 1st and 2nd Respondents which Refer to two persons getting into the van and driving out of The Police Station compound have been recorded after S.I. Aththanayake's entry in the R.I.B. at 18.00 hours on 25th December 1998, and after the shooting took place. I may Also add at this point that the statement of the security Guard at the entrane to the Police Station compound R13b as Well as R4 contradict the 1st Respondent's notes R13 Affidavit that Lucky Fernando was assaulted when he was in The 1st Respondent's office. It must also be mentioned that As stated by the 1st and 2nd Respondents in their Affidavits, if a person ran away from the van as it was Brought to a halt, according to the 2nd Respondent's notes R28 only a single police officer was dispatched to arrest The man who took to his heels who was the one who is alleged To have fired at the police vehicle, although thee were in All five officers at the spot according to 1st and 2nd Respondents even leaving out P.S. 4509 the 3rd Respondent. Further, nothing more is mentioned thereafter of the one who Allegedly took to his heels in anyone of the documents that Have been filed by the 1st and 2nd Respondents. So that we Are to understand that he was "The one that got away". Not Even a note made by the police officer who allegedly gave Chase to the "one that got away" has been produced.

It must also be mentioned at this point that the Statement of the Reserve Sub Inspector Mahindasiri who is Alleged to have attempted to stop the van driven by the Petitioner near a check point must be rejected as being false as he says it his statement, which said statement also has been made after 25th December 1998 that a man riding a bicycle escaped being knocked down by the van by jumping off the bicycle and that the van thereafter ran over the bicycle, in view of the bicycle owner's statement (R21) that the van ran over his bicycle which he had parked outside a boutique. It is also significant that the owner of the bicycle has stated that he did not see anyone running away.

So that it is established beyond any manner of doubt that all statements and notes relating to a second person other than the Petitioner getting into the van and driving out of the Police Station compound and then a person
firing at the police vehicle which gave chase and the police vehicle 61-2271 being used in the chase and being hit by a shot fired by a person in the van have all been fabricated by the 1st and 2nd Respondents to cover up their (police) firing at the van driven by the Petitioner without any cause whatsoever.

I will next deal with the damage caused to the van Driven by the Petitioner by firing.

In this connection we have before us a report (R27) of the Additional Government Analyst made after examination of the said vehicle at the instance of the 1st Respondent as well as the report of the retired Senior Assistant Government Analyst prepared at the request of the Petitioner's Attorneys- at-law.

It must be stated at the very outset that R27 is a Very skimpy report which does not even give the trajectory Of the bullets which had entered the rear of the said van or Even the heights from the ground at which they have entered.

According to both reports there were 9 bullet entries from The rear with one of them being on the rear buffer.

The report marked X2 of the retired Senior Assistant Government Analyst gives the height (measured from The ground) at which these bullets have entered the rear of The van. The highest point of entry is at a height of 107 cms. From the ground, that is 42 inches from the ground, at 2.54 cms. Per inch (B in report X2). B has had an upward trajectory. The bullet which had entered at C at a height of 95 cms. (37.4 inches) had traveled at a horizontal trajectory parallel to the ground. The bullet which had entered at D at a height of 71 cms. (27.9 inches) from the ground had also traveled horizontally. The bullet which had entered at E at a height of 80 cms. (31.4 inches) had also traveled horizontally. The bullet which had entered at F at a height of 75 cms. (29.5 inches) from the ground had also traveled horizontally. The bullet which had entered at B at a height of 44 cms. (17.3 inches) from the ground had a downward trajectory. The bullet which had entered at H at a height of 100 cms. (39.3 inches) had also had a horizontal trajectory and the bullet which had entered at I at a height of 98 cms. (38.5 inches) from the ground had also had a horizontal trajectory.

On this available material it is clear as day Light that the bullet which entered through B which had Traveled in an upward direction after entry and C, D, E, F, H and I which had traveled horizontally after entry Through the rear of the van driven by the Petitioner, could Not have been fired from the police vehicle by a policeman Seated on the left window sill of the vehicle with the upper Part of his body outside the vehicle and the gun almost Resting on the roof of the vehicle, as the Respondents Claimed and as also shown in the photographs produced by the Respondents. Any bullets fired from such a position must Necessarily travel in a downward direction to have Penetrated the rear of the van at B. C, D, E, F, G, H, And I is 107 cms. (42 inches) from the ground. Therefore This leads me to the irresistible inference that these shots Were fired by a person or persons standing on the ground. This corroborates the Petitioner's statement in his Affidavit that as he brought the van to a halt he felt Something piercing his back and several shots were fired Thereafter too. The bullet that entered through I at a height of 98 cms. (38.5 inches) from the ground had Traveled horizontally and passed through the back rest of The off side rear seat, through the back rest of the middle Seat, got deflected towards the off side and passed through The back rest of the driver's seat and this is the bullet Which undoubtedly caused the injury to the Petitioner.

This firing by the .............without any rhyme or Reason even after the van was brought to a stop and the Assault that followed with hands, feet and gun was cruel and Inhuman treatment meted out to the Petitioner undoubtedly Intended to punish the Petitioner who had left the Police Station with a stab injury to seek treatment as the police Did not record his statement or issue a Medico Legal Examination Form.

Further, some of the statements filed by the Respondents disclose that they were aware of the fact that The Petitioner had an injury at the time he came to the Police Station.

The 3rd Respondent has denied having accompanied The 2nd Respondent in the "chase" and claims that he was at The relevant time off duty and in the barracks. However, Although in R14 a copy of the 1st Respondent's notes Allegedly made at 17.30 hours (5.30 p.m.) on 25th December 1998 and filed in this Court by the 1st Resondent with his affidavit, S.I. Aththanayake, S.I. Mahinda (2nd Respondent), P.C. 10109, 5945, P.C. 6750, P.C. 30220, 31558, 26486, 10730, Security Assistants 390, 1127, 397 and 384 are mentioned as those who assisted him to bring the incident which allegedly took place on the compound of the police Station under control, the original of R14 at page 390 - Paragraph 2195 of the R.I.B. shows that P.S. 4509 is also Mentioned as one of those who assisted him, but later the Numerals 4509 have been scored off along with R.P.S. 2227 With a lighter red ink than the red ink with which the entry Had been made and bracketed with the same lighter red ink. However, whoever did this had forgotten to score off the 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 at some point of time probably after this Petition was filed wherein the Petitioner had identified The 3rd Respondent as the officer who fired towards him After the van was brought to a halt the 1st Respondent had Made a most maladroit attempt to cast doubt on the Allegations contained in the Petition and Affidavit.

Although the 3rd Resondent claims that he Returned to the Police Station at 3.55 a.m. on 25th December 1998, he has in fact returned at 23.55 (11.55 p.m.) on 24th December 1998 and the time has later been altered to "03.55" By writing the "0" over the numeral "2". Further the first Entry on 25th December under the date "25.12.98" has been Entered at 08.00 hours (paragraph 199). Later someone has Scored off "25.12.98" and written "25.12.98" on the line Above the line on which the altered "03.55" has been Written. The 3rd Respondent has also claimed in his Affidavit that, having left the 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 (page 396) where the Time reads 12.30 hours and the next entry has been made at 16.25 hours. I may also add that in both entries namely the one 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 altered from 61-2273 to read 61-2477.

On a balance of probabilities I therefore accept The averments in the amended petition relating to the 3rd Respondent.

In the circumstances I have no doubt whatsoever in Accepting the allegations in the petition and affidavit, and Holding that the entire story of an attack on the said Lucky Fernando had the police officers who attempted to prevent it As being a total fabrication by the 1st and 2nd Respondents. Can it be believed that the 1st Petitioner and those who Accompanied him had the audacity to assault the said Lucky Fernando whilst he was in the 1st Respondent's office? I Have already referred to the contradictions relating to the Place where the said Lucky Fernando was at the time of the Alleged assault. I have also referred to the other Infirmities in the 1st to 3rd Respondents' affidavits.

It must be also stated that although the 1st Respondent claims that the said Lucky Fernando came to the Police Station with bleeding injuries on his face and was Issued a Medico Legal Examination Form on 25th December 1998 He had been examined only on 28th December 1998, and at that Time the only injury he had was a contusion (R4A) which was Non grievous. So that the assertions by the 1st and 2nd Respondents that the said Lucky Fernando came to the Police Station with bleeding injuries on his face are not borne Out. For there to be bleeding injuries on his face there should be lacerations.

The 2nd and 3rd Respondents have been identified As those who assaulted and kicked the Petitioner after he Was pulled out of the van, that is after the Petitioner had Been injured as a result of the shooting by the police.

The question also arises whether there was a need To carry fire arms since it has been established beyond Doubt that only the Petitioner who had an injury on the Right side of his chest left the Police Station in the van, And the story of a person seated on the left side of the van Firing at the police vehicle is a fabrication by the police. Then, was there any need for the 1st Respondent to issue an Order to carry firearms or the 2nd Respondent to give an Order to fire at the van? The Petitioner has been granted leave to proceed under Articles 11 and 13 of the Constitution. This Court therefore holds that the 2nd and 3rd Respondents have violated the fundamental rights guaranteed to the Petitioner by Article 11, by subjecting the Petitioner to cruel and inhuman treatment.

The injury caused to the Petitioner as a result of The indiscriminate firing by the police on the orders of the
2nd Respondent had left the Petitioner bedridden for around one and a half years and after several surgical operations the Petitioner now finds himself having to use a catheter for the rest of his life to pass urine, impotent and therefore with no hope of entering into matrimony, and unable to lead a normal life, by engaging in sports etc. and is presently on a colostomy. The Petitioner who was a musician and earned his living as a musician claims that he is now not in a position to do so.

This Court therefore orders the 2nd Respondent and the 3rd Respondent each to personally pay a sum of Rs 100,000/- to the Petitioner. The State shall pay the Petitioner a sum of Rs 500,000/- as compensation and costs. All sums ordered shall be paid within three months of this Judgment.

I may add that the manner in which the B.C.I.B.s, R.I.B.s etc. have been altered with impunity and utter disregard of the law makes one wonder whether the supervising A.S.P.s and S.P.s are derelict in the discharge of their duties or in the alternative condone such acts.

In a case in which I pronounced judgment a few days ago too, I found that the B.C.I.B.had been altered, and therefore itappears that, that was not an isolated instance. Thus, the police force appears to be full of such errant officers. The question is what is the 5th Respondent Inspector General of Police doing about it? In my view, it is unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original. It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law, We may ask with Juvenal, quis custodiet ipsos custodies? Who is to guard the guards themselves?

JUDGE OF THE SUPREME COURT

Amarasinghe J.
I agree
JUDGE OF THE SUPREME COURT

Wadugodapitiya, J.
I agree
JUDGE OF THE SUPREME COURT