Korala Liyanage Palitha Thissa Kumara’s complaint of torture against a Sub Inspector of Police attached to the Wellipena Police Station received local and international publicity due, among other reasons, to the allegation that the police officer forced a tuberculosis patient to spit into his mouth. During the trial the tuberculosis patient confirmed the allegations and stated that he was forced by the said police officer to spit into Thissa Kumara’s mouth, and that he did so out of fear.
This witness also confirmed that he had acquired tuberculosis many years ago while he was in prison and that the police officer was aware of his condition. There was also overwhelming evidence in support of the allegation that Thissa Kumara was beaten with a cricket pole and the evidence included a medical report which outlined over 30 tramline injuries. The incidents of torture took place between the 3rd to the 6th February 2004 while Thissa Kumara was held in police custody.
We give below the details of the case including the summary of evidence:
Thissa Kumara was the complainant and the aggrieved party in an incident where he was beaten many times with a cricket pole and was subjected to being spat upon by a tuberculosis patient due to the pressure exercised by accused police officer who was attached to the Wellipena police at the time of the incident. The police officer in question was charged in the High Court of Kalutara on an indictment dated 9.12.2004, and prosecuted by the Attorney General’s Department.
The indictment contained two charges under the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, (Act No. 22 of 1994) for subjecting Thissa Kumara on or about 3.2.2004 to 6.2.2004 to torture in order to extract information and/or confession regarding suspected robbery incidents that the accused claimed that he was associated with.
The trial commenced on 13.7.2005 and was continued on several dates through one year and two months. The entirety of the evidence was lead before a single judge who, at the end of written submissions being made by all parties, was promoted to the Court of Appeal. Thereafter the case came before the succeeding judge who did not have any opportunity for hearing any evidence or listening to the counsel for the parties to the case.
At the trial before the preceding judge the following evidence was lead by the prosecution. The first witness was Thissa Kumara who narrated the details of the manner in which he was invited to attend the Wellipena police station to create an emblem for the Independence Day ceremony by the accused and several other officers, how he was harassed while being pushed into a police vehicle, how he was brought to the Wellipena Police station and was assaulted with a cricket pole many dozens of times and finally how a tuberculosis patient was forced by the accused to spit into his mouth. Thissa Kumara further said that the accused asked for information about robberies and asked him to produce a bomb that he was suspected to be in possession of. He further explained the injuries and the pain he had suffered, how he made complaints at the Magistrate’s court and how he was examined by the Judicial Medical Officer. When cross examined by the defense Thissa Kumara denied all the suggestions put to him and consistently affirmed the evidence given in the examination in chief.
Thissa Kumara’s wife gave evidence collaborating his version of the events regarding the date and manner of arrest, regarding her visits to the police station where she saw Thissa Kumara being taken to a room by the accused, hearing cries from the room, and of seeing on the next day Thissa Kumara being seriously wounded over his body, of her attempts to get outside help, of being told the next day by her husband about the manner in which he came about his injuries and the subsequent events. When cross examined by the defense she denied all the suggestions put to her and consistently affirmed her evidence.
The third witness was treated as a hostile witness and the fourth witnesses’ evidence relates only to the arrest. The fifth witness, Thummaya Hakuru Sarath Alias Banja of Kapilawatta, Kooragasmanhandiya, (the tuberculosis patient) giving evidence in court collaborated Thissa Kumara’s version of the events regarding the arrest and the beatings which he had witnessed and stated how he was forced by the accused to spit into Thissa Kumara’s mouth. He further stated that he had been a tuberculosis patient for a long time and that the accused was aware of his condition. When cross examined by the defense he denied all the suggestions put to him and consistently affirmed the evidence given in the examination in chief.
The medical evidence was given by Dr. Viliyapurage Amitha Chandana Fernando and Dr. Ajith Jayasena. Dr. Fernando detailed the injuries found on the body of the victim which were 32 tramline injuries which he testified as being compatible with the narrative given to him by Thissa Kumara. He also stated that Thissa Kumara narrated as to how he was spat upon by a tuberculosis patient on the instructions of a police officer. On this basis Dr. Fernando ordered Thissa Kumara to be produced before other medical experts for examination regarding the possibility of being infected with tuberculosis. In answering questions from the defense Dr. Fernando completely excluded the possibility that any of the injuries might have been caused by a fall and reaffirmed that the injuries could have been caused in the manner described by the Thissa Kumara. Dr. Jayasena testified that he conducted the medical tests on Thissa Kumara regarding tuberculosis and excluded him from having acquired the disease.
The police inquiring officer gave evidence regarding the manner in which the investigations into the allegations of Thissa Kumara were investigated. The judge then called for a defense. However, the accused did not give evidence nor did he produce any other witness to give evidence on his behalf, instead he made a statement from the dock.
Consequently oral submissions were made by the counsel for the prosecution, counsel for the defense and counsel for the aggrieved party. Written submissions were submitted on behalf of the defense and aggrieved party.
Subsequent to this the judge who had presided over the case was transferred to the Court of Appeal and the judge who succeeded him at the Kalutara High Court took over the proceedings. In view of this the counsel for the prosecution pointed to the desirability of recalling some witnesses so that the judge could familiarize himself with the case. However, the judge made an order that if need be, only Thissa Kumara and Thummaya Hakuru Sarath Alias Banja of Kapilawatta, Kooragasmanhandiya, (the tuberculosis patient) would be recalled. The defense moved to adopt the proceedings and the case was fixed for decision subject to the witnesses being recalled if needed.
Subsequently an application was made on behalf of Thissa Kumara that as no formal adoption of the earlier proceedings had been made, such an order for adoption should be made by the judge and that it would be appropriate to allow the counsel for all the parties in the case to be given an opportunity to address the judge as he had taken over the case after all the proceedings in the case had been concluded. The judge allowed the counsel for Thissa Kumara to address the court and the address was made and recorded, thereafter the case was fixed for decision on 19.10.2006.
The Asian Human Rights Commission has noted the systematic corruption entering into many courts leading to judgments which are based, not on merit and on the evidence but on extraneous grounds. Despite of research reports being filed on this issue and constant public complaints, nothing has been done to bring corrupt judicial officers to book.
Even countries like China are adopting stricter rules regarding the control of corruption in the judiciary. The reports of senior judicial figures being detained for allegedly accepting bribes and more people being investigated regarding judicial graft have appeared recently. However, despite of wide public criticism of corruption in the judiciary no judicial officer has yet been brought to justice on corruption charges in Sri Lanka.
The apprehension that cases may be decided on extraneous grounds rather than law and evidence weighs heavily against human rights groups who work to bring perpetrators of torture and other gross human rights abuses to justice.
