SRI LANKA: Negombo High Court case No.HC326/2003

Case against Makavitage Suresh Gunasena and five others vs. The State 
We wish to bring to your notice that in the aforementioned case the High Court judge of Negombo acquitted the six accused in this case blaming the failed prosecution on the Attorney General’s department.

We believe the judgment to be clearly wrong in law and urge you to take immediate action to file an appeal against this judgment. We wish also to inform you that regarding the Kalutara High Court case relating to the torture of Palitha Thissa Kumara by a Sub Inspector of the Welippena Police, No. HC 444/05/CA(PHC)APN214/06, filed by the aggrieved party and CA(PHC)APN212/06 the appeal court granted leave to appeal on 31st March 2008.  Similarly, in this case the aggrieved party will file appeal and we also urge you to appeal in this case because among other things the High Court judgment challenges the very integrity of the Attorney General’s Department itself in the conduct of the prosecution in this case.

The gist of the case pursued by Deputy Solicitor General Shaveendra Fernando in this case

1. That the complainant Gerald Perera was tortured by the accused on the 3rd of June, 2002 inside the police station.
2. That Gerald Perera was completely in the custody and the control of the six accused during this period.
3. That on the basis the Ellenborough principle the accused had to give a plausible explanation as to how the victim came about the injuries which proves their innocence.
4. The accused have failed to give such explanation and therefore they are guilty as charged.

The court’s assessment of the Deputy Solicitor General’s argument:

1. That the complainant Gerald Perera was tortured by the accused on the 3rd of June, 2002 inside the police station.
The court held with the solicitor general on this point particularly that the injuries had occurred after the arrest when Gerald Perera was inside the police station.
2. That Gerald Perera was completely in the custody and the control of the six accused during this period.
The court fails to come to any finding on this matter.
3. That on the basis of the Ellenborough principle the accused had to give a plausible explanation as to how the victim Gerald Perera came about the injuries which proves the innocence of the accused.
The court does not refer to this issue at all
4. The accused have failed to give such explanation and therefore they are guilty as charged. 
As the court does not deal with the legal issue raised by the Solicitor General on the basis of liability of the accused the court also does not draw any conclusion on the issue.

The basis on which the accused were acquitted by the High Court
1. The action on the part of the Attorney General’s department to remove the name Sena Suraweera who was the OIC of the police station at the time of the offence. The court expressed shock as to the removal of the name of this officer from the list of accused.
2. Lack of direct evidence of witnesses regarding the torture by the accused of Gerald Perera.
3. Adverse inference drawn by the court from the Deputy Solicitor General in not calling two witnesses who may have given some evidence regarding injuries.

Comments on these issues:

1. While withdrawal of the name of Sena Suriweeera from the accused list was a wrong decision on the part of the Attorney General’s Department that does not in any way go to lessen the liability of the six accused under whose custody and control the victim Gerald Perera was kept.
2. The question of direct evidence does not arise at all as their liability has to be based purely on their ability or inability to give a plausible explanation of the manner in which the injuries came about on the victim Gerald Perera which proves their innocence. The high court judge has clearly misunderstood the burden of proof in a case where the prosecution relies on the operation of the Ellenborough principle which reads as follows:
   “……No person accused of crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attach to him, but nevertheless, if he refused to do so where a strong prima facie case has been made out and when it is in his power to offer evidence, if such exist in explanation of such suspicious appearances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or not adduced would operate adversely to his interest.”
   Lord Ellenborough, in Rex V Cochrane (1814 Gurneys Report 499)
3. The question of the non calling of these two witnesses does not in any way go to address the key issues of liability as pursued by the Deputy Solicitor General in this case and their evidence is not relevant to the material issues raised by the prosecution.

We are well aware that you as the Attorney General are quite aware of the Ellenborough principle as you have yourself prosecuted cases on this basis and obtained convictions.  We also refer to you the Indian judgment in the case of Nilabati Behera alias Lalit Behera vs. State of Orissa and others, (Case No. 1993 AIR 1960 1993 SCR (2) 581. 1993 SCC (2) 746 JT 1993 (2) 503, 1993 SCALE (2)309 24.3.1993, date of judgement 24/03/1993).
“ … The admitted facts are, that Suman Behera was taken in police custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the railway track near the Police Outpost Jeraikela, without being released from custody, and his death was unnatural caused by multiple injuries sustained by him.  The burden is, therefore, clearly on the respondents to explain how Suman Behera sustained those injuries which caused his death.  Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted to Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable…”

In this case, the court also stated: “If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem.  It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time,” said Abraham Lincoln.  This Court in Raghubir Singh vs. State of Haryana (AIR 1980 SC 1087) and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Another (2003 (7) SCC 749), took note of these immortal observations while deprecating custodial torture by the police.

…… The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lockup because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the Worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in Khaki to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to cheek the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for anyone to reckon with.

Conclusion: 
The basis on which the Deputy Solicitor General Shaweendra Fernando proceeded in this case has been completely rejected by the High Court judge.  The difference between the prosecution position and the judgment is one about law.  Therefore, the issue in this case is a legal matter and not about facts.  It is therefore the duty of your department to re-assert the principle on which the prosecution was based and to do that by way of an appeal.  The judgment and also the failure to appeal will amount to a serious miscarriage of justice on the basis of error of law.

Thank you

Yours sincerely,

MOON Jeong Ho
Programme Officer
Asian Human Rights Commission

cc: Mr. Shaweendra Fernando Deputy Solicitor General
Prof. Nowak, Special Rapporteur on the Question of Torture