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INDICTMENT AGAINST SRI LANKA

Sri Lanka's Genocidal War - '95 to '01

Torture of Yogalingam Vijitha - Supreme Court Finding

S.C. Application FR No. 186/2001 -

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

In the matter of an Application under Article 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Petitioner:
Yogalingam Vijitha of Paruthiyadaioppu, Kayts presently in Remand at Remand Prisons, Negombo.

Vs.

Respondents:
1. Mr Wijesekara, Reserve Sub Inspector of Police, Negombo Police Station
2. Head Quarters Inspector, Negombo Police Station
3. Mr Saman Karunaratne, Sub Inspector of Police, Terrorist Investigation Division, 101 Chaitiya Road, Colombo 1
4. Mr H.G. Wickremasinghe SSP, Director, Terrorist Investigation Division, 101 Chaitiya Road,
Colombo 1
5. Inspector General of Police, Police Headquarters, Colombo 1
6. The Superintendent of Police, Remand Prisons, Negombo
7. Hon. Attorney General, Colombo 12
8. Thurairatnam Maheswaran, alias Babu, Rita Road, Negombo
9. Solanga Arachige Mudith Nishantha, Inspector of Police, Negombo Police Station

Before:
Fernando J.
Gunasekera J.
Ismail J.

Councel:
V.S. Ganeshalingam with V Yogeswaran for Petitioner
Saliya Peiris with Upul Kumarapperuma for 1st, 2nd and 9th Respondents
M. Wijesundera S.C. for 4th, 5th, 6th and 7th Respondents
T.J.Zeinudeen for 3rd Respondent

Argued on: 24.08.2001
Decided on: 28.08.2002


Gunasekera J.

The petitioner seeks relief from this Court for the alleged infringement of her Fundamental Rights secured by Articles 11, 13 (1) and 13 (2) of the Constitution.

The facts relating to this application are as follows:

The petitioner is a 27 year old woman from Kayts whose family was displaced in 1990 and was living in Jaffna. Since she was displaced again in 1995 due to the military operations in Jaffna she had moved to Kilinochchi. The petitioner’s mother had gone abroad for employment in 1989 whereupon the petitioner’s father had deserted the family. Whilst in Kilinochchi, the petitioner had worked as a volunteer primary teacher at the Sivapathakalaiyakam Government school for a short period.

When she was in Kilinochchi, one of her aunts had arranged a marriage for her and had requested her to come to Negombo. She arrived in Negombo on 23.01.2000 and was staying with her aunt at No. 47, Sylvester Road, Negombo. On 09.02.2000, as arranged by her aunt, the marriage was registered at Vavuniya between her and Thurairatnam Maheswaran, alias Babu, who is named as the 8th respondent in this application.

However, she continued to stay with her aunt in Negombo as she subsequently learned that her husband was already married and had two children. She refused to go through the customary Hindu marriage and to live with him as husband and wife. The 8th respondent, on hearing of her refusal to live with him as husband and wife had started to harass her and threatened her to make her go through with the customary marriage ceremony. Out of harm that the 8th respondent might harm her, she left Negombo for Trincomalee around the 07.04.2000 and had taken refuge at her sister’s house at 46/2, Linganagar, Trincomalee.

Whilst at Trincomalee, the 8th respondent had telephoned her several times and threatened her that, unless she returns to Negombo and lives with him, he would use his influences with the Negombo Police and have her arrested as a member of the LTTE suicide squad and have her tortured.

On 21.06.2000, when she was at the People’s Bank in Trincomalee at about 11 a.m., a person called Sekar, whom she had known as a friend of the 8th respondent, came to the bank and requested her to come outside. As she walked out of the bank a group of policemen in civilian clothes, headed by the 1st respondent Mr Wijesekera, the Reserve Sub Inspector, had her arrested bad handcuffed and put her into a private Elf van that was parked there.

Inside the van, one of the occupants told her that they were from the Negombo Police Station and had come to arrest her in connection with some information given against her by the 8th respondent. In the van she had also found her brother handcuffed. The van had first been driven to her brother’s residence in Trincomalee and the Police Officers had ransacked her brother’s house and searched everywhere. Thereafter the van drove the brother to Negombo along with the petitioner and Sekar and the policemen.

They arrived in Negombo at 6.30 p.m. and she was put in a garage, handcuffed, where she was kept until about 10 p.m. While she was inside the garage, the police accused her of being a LTTE suicide bomber and assaulted her by hitting her with a club on the knees, chest, abdomen and back, which caused her unbearable pain.

After assaulting her she was put in a cell at the Negombo Police Station where she was detained until 26.06.2000 on a Detention Order R2, issued by Daya Jayasundera, D.I.G., Western Province (Northern Range), under regulation 19 (2) of the Emergency Regulation for 90 days.

Whilst in detention between 21.06.2000 and 26.06.2000 the petitioner was subjected to torture. She alleges that her ear-studs had been removed and she was slapped with force. Her face had been covered in with a shopping bag containing chili powder mixed with petrol, which led her to suffocate. On one occasion, she had been asked to remove all her clothes except her underwear and the brassier and her face was covered with a shopping bag with the petrol and chili powder. After this she experienced a burning sensation all over her body. She was asked to lie flat on a table and while four policemen held her down pressed to the table, four other policemen had pricked paper pins under the nails of her fingers and toes. She was also assaulted with a club and wires and when she fell down she was trampled by the policemen wearing boots. On another occasion she was hung up in the air and assaulted with a club all over her body.

On or around 25.06.2000, the policemen who were torturing her had asked her to write her signature on some statements prepared by them. When she refused to sign one policeman had shown her a plantain flower soaked in chili powder and said that it would be inserted into her vagina unless she signed the papers. When she still refused to sign she was asked to remove her blouse and cover her eyes with it and lie down on a table. On the table, four policemen held her hands down and pulled her legs apart and inserted the plantain flower into her vagina by force. The proceeded to pull it in and out for about 15 minutes. She experienced tremendous pain and a burning sensation until she fell unconscious for a few minutes and remained lying on the table until about 9.30 p.m.

After some time, some sheets of paper typed in Sinhala were brought in by the policemen and she was again asked to place her signature on them. Being unable to bear the torture any longer, she signed the papers. The contents of the papers had neither been read nor explained to her. Later she was placed in a cell with strict instructions that she was not allowed to wash her genital region. When she was crying in pain in the cell, one policeman on duty showed her some mercy and by about midnight she was permitted to use the toilet.

The acts of torture meted out to her as described above has affected her physically and psychologically and her matrimonial prospects have been shattered as a result of the mental and physical trauma that she experienced at the hands of the police. She states that she is suffering from depression, loss of sleep, loss of appetite, loss of concentration, fear and nervousness.

On 26.06.2000, a Police Officer from the Terrorist Investigation Division visited her and she pleaded with him to remove her from the Negombo Police Station. She was then transferred to the Terrorist Investigation Division in Colombo, where she was detained until 20.09.2000.

She states that, while in detention at the Terrorist Investigation Division (T.I.D.), she was mercilessly assaulted by Sub-inspector Saman Karunaratne, the 3rd respondent. He forced her to write in Tamil what was dictated to her, which included several admissions that she was a member of the LTTE. During her detention at the Terrorist Investigation Division she started bleeding and had to be taken to the National Hospital and treated for 11 days.

On 21.07.2000, she was taken from the T.I.D. to the Vavuniya ‘pass office’ by the 3rd respondent and the Superintendent of Police Gamini Dissanayake of the T.I.D. A bundle of applications made by Tamil persons for passes to travel to Colombo had been placed before her and she was asked to identify members of the LTTE. When she failed to identify any of them, she was mercilessly assaulted by S.I. Karunaratne, the 3rd respondent, in the presence of S.P. Dissanayake, who had advised her to pick some applications to avid getting assaulted further.

On 21.09.2000, she was produced before the Colombo Magistrate with strict instructions that she should not attempt to speak to the Magistrate. She was remanded under Section 7 (2) of the Prevention of Terrorism Act and was taken to the Negombo Remand Prison.

On 23.10.2000, she was produced before the Colombo Magistrate. Upon an application made by her Attorney at Law, the learned Magistrate ordered the Judicial Medical Officer in Colombo North to examine her and submit a report to Court. She was thus admitted to the Ragama Government Hospital and was warded for three days. At the Ragama Government Hospital she was examined by an Assistant Judicial Medical Officer, a Consultant Psychiatrist, a Consultant Obstetrician and Gynecologist and by a Consultant Radiologist. A report if Dr. Chandrapalan, the Assistant Judicial Medical Officer at the Teaching Hospital. Colombo North (Ragama), was produced (marked P2).

The petitioner further states that, while she was detained in the remand prison at Negombo, she came across a Tamil Daily newspaper dated January 18, 2001, in which a photograph appeared of some Police Officers of the Negombo Police Station who had recovered some articles from a group of robbers alleged to be headed by a person in the garb of a Buddhist monk. She stated that in that photograph she identified the policeman who had inserted the plantain flower into her vagina at the Negombo Police Station when she was being tortured. A copy of the scanned photograph with the encircled picture of the officer has been marked as ‘P1’.

When this application was taken up for support in Court, learned Counsel appearing for the petitioner had prayed for an Order directing the 2nd respondent, the Headquarter Inspector of the Negombo Police Station, to submit to Court the name and address of the Police Officer whose photograph is encircled in ‘P1’ and the name nad address of the Police Officers who arrested the petitioner at Trincomalee on 21.06.2000. Accordingly, this Court has directed the 2nd and 5th respondents viz. the Headquarter Inspector of the Negombo Police Station and the Inspector General of Police to submit affidavits to this Court in regard to the identity of the officer who is encircled in the photograph ‘P1’.

The Headquarter Inspector of the Negombo Police Station forwarded an affidavit dated 17.04.2001 through the Director of the Police Legal Division to this Court, in which he has identified the officer who is encircled in the photograph ‘P1’ as Police Inspector Solanga Aratchchige Mudith Nishantha, who is working under him as an Inspector in the Special Intelligence Detection Branch of the Negombo Police Station. After the receipt of the affidavit of the 2nd respondent identifying the officer whose photograph is encircled in the document produced as ‘P1’, the learned Counsel for the petitioner had by a motion made an application to obtain an Order from this Court to have the said Police Inspector Solanga Arachchige Mudith Nishantha added as a respondent to this application. On 18.05.2001, the said motion had been supported and the Court permitted the petitioner to add the aforesaid Police Inspector S.A.M. Nishantha as the 9th respondent in this application and notice was directed to be issued on him to file his objections.

The notice issued on the 8th respondent was returned undelivered with an endorsement “unable to deliver without a number”. By a motion dated 04.07.2001, the petitioner had submitted that she is unable to ascertain the address of the 8th respondent and therefore under the circumstances that she does not wish to proceed against the 8th respondent.

Only the 1st, 2nd, 3rd and 9th respondents have filed their objections. The 1st, 2nd and 9th respondents by way of a preliminary objection have stated that the petitioner’s application that was filed on March 19, 2001, is out of time since the petitioner had been visited by an Attorney at Law Mr C. Ganesharajah on September 14, 2000, when she was detained at the T.I.D. of the Criminal Investigation Department. The application should have been filed within one month of September 14, 2000. The 3rd respondent who has raised the same objection, however, has taken up the position that on her own admission in paragraph 24 of the petition and 25 of the affidavit, the petitioner has taken up the position that she was represented by an Attorney at Law when she was produced before the Magistrate on 23.10.2000. The application should have been filed within one month of that date.

In the counter affidavit of the petitioner she has stated that although an Attorney at Law visited her when she was in detention, she could not communicate with him freely or give instructions, for the reason that the officers of the Terrorist Investigation Division had warned her no to complain to him about the treatment meted out to her. If she did, she would be further tortured. Further, the communication with the Attorney at Law took place in the presence of four Police Officers. In addition, although an Attorney in Law appeared for her when she was produced in Court on 23.10.2000, a complaint of torture was made by way of an affidavit to the Magistrate, who whereupon made a direction to the Judicial Medical Officer to examine her. It was submitted by learned Counsel for the petitioner that the petitioner was under restraint from the date of her arrest and she was able to secure a copy of the medical examination report only on 12.03.2001.

In the case of Saman Vs. Leeladasa and another 1989 1 SLR Page 1. The petitioner had been arrested on 29.07.1987 and produced before the Elpitiya Magistrate in 18.10.1987 and remanded to the Galle Prison, on his orders made form time to time. While in custody on 01.12.1987, the petitioner was bathing at a water tank near the prison cell when the 1st respondent was alleged to have assaulted the petitioner saying that he was not entitled to bathe there at that time. Though the application was filed only on 07.01.1988, more than one month after the alleged infringement took place on 01.12.1987, it was held that “yet being a remand prisoner the petitioner’s lack of access to a lawyer and hospitalisation from 02.12.87 in remand prison till his release on 11.12.87 must be taken into account”.

It was observed by Fernando J at page 10 that “the period necessary would depend on the circumstances of each case. Here, the petitioner was hospitalised from 02.12.87 until his release and was thus prevented from taking immediate action to petition this Court for redress: an impediment to the exercise of his fundamental right under (Article 17) to apply to this Court caused by the very infringement complained of. Further, the fact that he had been assaulted, or that an injury had been inflicted on him, would not per se bring him under Article11: whether the treatment meted out to him would fall under Article 11 would depend on the nature and extent of the injury caused: until the petitioner had the petitioner had knowledge, or could with reasonable diligence have discovered, that an injury sufficient to bring him within article 11 had resulted, time did not begin to run. The principle lex non cogit ad impossibilia applied and the application was held to have been filed within the time.”

In the case of Namasivayam Vs. Gunavardena 1989 1 SLR 394 at 400, Sharvananda CJ observed that “to make the remedy under Article 126 meaningful to the applicant the one month prescribed by Article 126 (2) should be calculated from the time that he is under no restraint. If this liberal construction in not adopted for petitions under Article 126 (2), the petitioner’s right to his constitutional remedy under Article 126 can turn out to be illusory. It could be rendered nugatory or frustrated by continued detention.”

Having regard to the circumstances relating to this case, I hold that, although an Attorney at Law had visited the petitioner on 14.09.2000 when she was detained at the Terrorist Investigation Division, and although an Attorney at Law had appeared for her when she was produced in Court on 23.10.2000, that the petitioner was under restraint and that time did not begin to run until the petitioner was able to secure a copy of the Judicial Medical Officer’s report on 12.03.2001. The application filed on 19.03.2001 was filed within time. For the reasons stated, I overrule the preliminary objections raised by the respondents.

The 1st respondent admits that he and a party of Police Officers from the Negombo Police Station went and arrested the petitioner in Trincomalee on 21.06.2000 and searched the house in which she was residing at Trincomalee and brought her back to the Negombo Police Station at about 9 p.m. He denies that the petitioner was detained in a garage at the Negombo Police Station and tortured by stating that she as a LTTE suicide bomber. He further admits that the petitioner was detained in a police cell and kept there until 26.06.2000 under a Detention Order issued by Daya Jayasundera, Deputy Inspector General of Police, Western Province, (Northern Range). The 1st petitioner vehemently denies that the petitioner was assaulted by him or any other Police Officer attached to the Negombo Police Station whilst the petitioner was being detained at the said police station. The 1st respondent further states that the petitioner was produced before the Judicial Medical Officer of Colombo on 19.07.200 and the petitioner did not disclose to him a word about the alleged assault, torture and degrading treatment that she faced.

The medical report referred to by the 1st respondent was called from the Judicial Medical Officer of Colombo and the Consultant Judicial Medical Officer of Colombo has forwarded the report of Doctor M. Sivasubramaniam, Assistant Judicial Medical Officer of Colombo, who had examined the petitioner at about 2.30 p.m. on 18.09.2000. An examination of the said report reveals that the petitioner had complained to the Assistant Judicial Medical Officer that she had been arrested by the police at Trincomalee on 21.06.2000 and taken to the Negombo Police Station on the same day and kept there until 26.06.2000 and taken to the Negombo Police Station on the same day and kept there until 26.06.2000. She further complained that, during the said period, police had assaulted her with clubs, wires and her head and face had been covered with a shopping bag containing petrol and chili powder. Further, all her clothes, except the brassier had been removed and the tip of a plantain flower rubbed with chili powder had been inserted into her vagina, which had resulted in bleeding.

However, according to the report of the Assistant Judicial Medical Officer (A.J.M.O.) of Colombo, he found no injuries or scars of recent injuries on the petitioner’s head, face, chest, abdomen or on her upper and lower limbs. The A.J.M.O. states that her external genitalia were not examined as she refused to give her consent for any such examination. The A.J.M.O. concludes that there were no injuries or scars of recent injuries and that he can not give an opinion regarding the history of sexual assault.

It is to be noted that the history given by the petitioner to the A.J.M.O. of Colombo when he examined her on 18.09.2000 contradicts the assertion of the 1st respondent contained in paragraph 9 of his affidavit, where he states that when the petitioner was produced before the J.M.O. of Colombo she did not disclose a word to him about the alleged torture or degrading treatment inflicted on her.

The 3rd respondent admits that the petitioner was taken over by the Terrorist Investigation Unit on 26.06.2000 for further investigation but denies that the petitioner was assaulted or tortured as alleged by her. The 3rd respondent also admits that he and the Superintendent of Police, Gamini Dissanayake, accompanied the petitioner to Vavuniya but denies that he placed several applications of Tamil personnel who had obtained passes to travel to Colombo from Vavuniya and directed the petitioner to pick out passes of LTTE cadres and, when she failed to do so, he mercilessly assaulted the petitioner in the presence of Superintendent of Police, Gamini Dissanayake.

The 2nd respondent, the Headquarter Inspector of the Negombo Police Station, in his affidavit states that he was on leave between 21.06.2000 and 26.06.2000 and was away from the station at Dikwella and that one Inspector Rodrigo acted for him as the Headquarter Inspector at the relevant time. The 2nd respondent denies the petitioner’s allegations that she was tortured at the Negombo Police Station. Since on his own admission he was away at Dikwella on leave, during the relevant period he has chosen to base his objections relying on the notes of the 9th respondent. Hence, no reliance can be placed on the assertions in paragraph 3 to 13 of his affidavit as the assertions therein are based in hearsay material.

The 9th respondent in his affidavit admits that he along with some other officers attached to the Negombo Police Station arrested the petitioner and searched her house in Trincomalee. They brought the petitioner to the Negombo Police Station and detained her there until she was handed over to officers of the Terrorist Investigation Unit of the Criminal Investigation Department on 26.06.2000. This respondent denies that the petitioner was tortured by him or any other respondents attached to the Negombo Police Station. He further states that, although several relatives and the Attorney at Law of the petitioner visited her, that the petitioner did not complain of the alleged torture to them or to the A.J.M.O. before whom the petitioner was produced. This respondent has produced the notes relating to the arrest of the petitioner marked ‘R1’, the Detention Order upon which the petitioner was detained marked ‘R2’, the Medico Legal Examination form marked ‘R3’ and the statement of the petitioner and the notes of the Police Officers marked ‘R4’.

On a perusal of the notes of investigation relating to the arrest of the petitioner made by the 9th respondent, it appears that on 20.06.2000 he had left the Negombo Police Station at 5.45 p.m. with a party of Police Officers including the 1st respondent and an informant, probably Sekar referred to by the petitioner, in a private van driven by a police driver. They had arrived at 1 a.m. at the Habarana Police Station and spent the night there since it was not safe to proceed to Trincomalee at that time of the night. He had left the Habarana Police Station at 6 a.m. and reached the Trincomalee Police Station at 10 a.m. At the Trincomalee Police Station he had sought the assistance of the Headquarter Inspector of the Trincomalee Police Station and together with some Police Officers from Trincomalee proceeded to Linganagar. On learning that the petitioner had left for Trincomalee town, he had kept the Police Officer from Trincomalee at Linganagar and proceeded towards Trincomalee town. While patrolling the Trincomalee town near the People’s Bank, the private informant had pointed out the petitioner and she had been arrested by the 9th respondent. Thereafter, her house in Trincomalee had been searched and she had been brought to the Negombo Police Station at 8.50 p.m. on 21.06.2000.

The notes of investigation of the Police Officers R.S.I. Wijesekera, the 1st respondent, Police Sergeant 2714 Mahinda and that of Women Police Constables 1439 Gamlath, 1341 Rupasinghe and 1263 Samanti, all reveal that they had accompanied the 9th respondent to arrest the petitioner on information that the petitioner was a member of the LTTE Suicide Squad. But nowhere in their objections have the respondents claimed that at the time of arrest the petitioner was informed that she was being arrested for that reason. According to the petitioner, the reason was given only after she was arrested and put inside the van, when one of the Police Officers had informed her that they had come from the Negombo Police Station to arrest her in connection with information lodged against her by the 8th respondent.

However, it is to be observed that in the ‘B’ Report dated 21.07.2000, filed by the O.I.C. of the Terrorist Investigation Unit of the time the petitioner was produced before the learned Magistrate, it is stated that “the investigations reveal that the petitioner had received training in LTTE training camps and that she had failed to divulge that information to the police”.

It is also observed that in the Detention Order ‘R2’, issued by the D.I.G., the reason given for the detention of the petitioner for 90 days under Regulation 19 (2) of the Emergency Regulations is that there were reasonable grounds for suspecting the petitioner to be concerned in or to be committing or to have committed offences under Regulation 45 of the Emergency Regulations. Regulation 45 of the Emergency Regulations deals with attempts to commit offences and states that:

1. Any person who attempts to commit or does any act preparatory to the commission of; or
2. Aids or abets another person to commit and; or
3. Conspires with another person in the commission of an offence under any Emergency Regulation shall be guilty of that offence and shall accordingly be tried in the like manner and be punished with the same punishment as is provided for such offence under the Emergency Regulation.

Thus, it is seen that the respondents have given different reasons at different times in regard to the reasons for the arrest of the petitioner. Further, although in the affidavits of the respondents they claim that the petitioner was a member of the LTTE Suicide Squad, there is no tan iota of evidence to support that assertion. On the other hand, the record reveals that no proceedings had been instituted against the petitioner in any Court under any law and she has been discharged from custody.

The Detention Order ‘R2’, upon which the petitioner had been detained, specifies the place of detention as the police station Negombo. It is to be noted that the petitioner had been taken away to the Terrorist Investigation Unit from 26.06.2000 and detained there, from where she was produced before the Magistrate and remanded.

Although the 9th respondent has produced the Detention Order marked ‘P2’, issued by the D.I.G., ordering the detention of the petitioner for 90 days at the Negombo Police Station, the D.I.G. has chosen not to adduce any material relating to the circumstances under which he formed the opinion that he had reasonable grounds to suspect that the petitioner was concerned in committing offences under Regulation 45 of the Emergency Regulations. Further, no explanation has been adduced by the respondents as to why she was detained at the T.I.D. from 26.06.2000 unto she was remanded by the Magistrate.

In my view, the respondents have failed to establish any acceptable or plausible reason upon which the petitioner was arrested and detained at the Negombo Police Station and the T.I.D. I hold that the detention of the petitioner at the T.I.D. from 26.06.2000 was unauthorised and unlawful.

For the reasons stated, I hold that the arrest and detention of the petitioner was unlawful and that the 1st to 5th and the 9th respondents have violated the petitioner’s fundamental rights guaranteed under Article 13 (1) and 13 (2) of the Constitution.

The respondents in their objections have denied that the petitioner was assaulted and tortured at the Negombo Police Station, as well as in the Terrorist Investigation Unit in the Criminal Investigation Department and tendered the Medico Legal Form ‘R3’ and the report of Dr. Sivasubramaniam, the A.J.M.O. of Colombo, which state that the petitioner has no injuries. However, they had been obtained while the petitioner was in custody of the police and no reliance can be placed on them.

An examination of the report of the Assistant Judicial Medical Officer at the Teaching Hospital in Colombo North, Ragama ‘P2’ reveals that the petitioner had been examined on 04.11.2000 as directed by the learned Magistrate. She had given a long history to the Judicial Medical Officer in regard to the acs of torture and assault by the Police Officers of the Negombo Police Station and also at the Terrorist Investigation Unit.

Upon examination, the Doctor had found the following injuries:

Scars on the anterior aspects of the body.
1. Somewhat oval shaped, hypopigmented, depressed scar, x (cm?) in size, placed on the left front of the chest 3 cm above and 3. cm medially to the breast.
2. Brown irregular shaped scar, 2cm x 1.5 cm in size, placed on the right lower abdomen 3 cm below and laterally to the umbilicus.
3. Brown linear thin scar, 3 cm long, somewhat horizontally placed in the left lower abdomen. Its medial end was 5 cm below and 3 cm laterally to the umbilicus.
4. Brown somewhat circular shaped scar, 2 cm in diameter, placed in the front of the upper forearm, 3.5 cm below the mid of the cubical fossa.
5. Two irregular shaped, brownish, somewhat thickened scars in varying sizes (2.5 cm –2 cm X 1.5 cm), placed in front of the left knee.
6. Hypopigmented, circular somewhat depressed scar, 2 cm in diameter, placed in the front lower leg, 5 cm above the ankle.
7. Two hypopigmented, rectangular shaped, somewhat depressed scars in varying sizes (2.5 cm –2 cm x 2 cm –1.5 cm) placed in the dorsum of the left foot.
8. Brown, irregular shaped, somewhat depressed scar, 2 cm x 1.5 cm is size and placed on the front of the right mid thigh 6 (cm?) above the knee.
9. An oval shaped, hypopigmented, somewhat depressed scar, 1.5 cm x 5 cm in size, placed on the front of the right lower thigh, 3 cm above the knee.
10. Two irregular shaped hypopigmented thickened scars, each measuring 1.5 cm x 1 cm and 1 cm x 5 cm in size, placed on the front of the right knee.
11. About four somewhat circular brown scars, 2 cm in diameter, placed on the dorsum of the right foot.

Scars on the posterior aspect of the body.
1. A ‘Y’ shaped 0.5 cm x 0.5 cm x 1 cm in size, hypopigmented scar placed on the back of the upper
arm, 3.5 cm below the shoulder tip.
2. An oval shaped, hypopigmented scar, 1.5 cm x 5 cm in size, placed on the lateral aspect of the left elbow.
3. An oval shaped, somewhat depressed black scar, 2 cm x 1 cm in size, placed on the back of the right upper forearm, 4.5 cm below the elbow.
4. An irregular linear hypopigmented scar, with the weave margin 4.5 cm long and placed obliquely towards the mid line, just medially to the medial border of the right scapula.

Vulvo vaginal examination.
1. Sexual organs and para sexual organs developed well.
2. Little whitish discharge was present in vulva.
3. Labia covered the vaginal orifice and there were no scars of injuries on the labia.
4. Clinically there were no signs of venereal diseases.
5. Two old tears on the 6 o’clock and 3 o’clock positions on the annular deeply seated hymen with multiple folds.
6. Introits (vaginal orifice) admitted the index finger with moderate resistance and painful discomfort.
7. Pain on the lower abdomen (suprapubically) noted while performing the bimanual vaginal examination.

Systematic examination.
1. Respiratory and central nervous systems were clinically normal.
2. Lower abdominal pains (tenderness) noted on the palpation of abdomen.

According to the report of the Assistant Judicial Medical Officer ‘P2’, the petitioner had been examined by the Consultant Psychiatrist Dr P.N.L. Fernando who had reported that she has suggestive features (symptoms) of post traumatic disorder with depressive features.

Upon examination by the Consultant Obstetrician and Gynecologist Dr Agitha Wijesundara, he reported that there were two old tears at the 3 o’clock and 6 o’clock positions on the hymen with admission of the index finger.

The Consultant Radiologist Dr K.G. Krishanthi Pathirana performed an ultrasound examination on the pelvis and reported as follows: “Bulky uterus with thickened endometrium and cyctic left adnexal mass with the moderate amount of fluid in the pouch of douglas. The cause of the thickened endometrium and pelvic sepsis may be on account of insertion of the plantain flower being introduced.”

By way of conclusion, the Assistant Judicial Medical Officer found that:
a. There is positive medical evidence of vaginal penetration.
b. There is positive evidence of pelvic sepsis with endometriosis.
c. She has many scars on her limbs and torso.
d. She has features of post traumatic disorder.
a. Vaginal penetration by the insertion of plantain flower is possible.
b. Pelvic sepsis with endometriosis could have followed by the insertion of the plantain flower as conclusively suggested by the Consultant Radiologist. The frequency of urination and irregular menstrual period could have been the result of the physical, psychological and sexual violence that she underwent while in custody.
c. The symptoms of post traumatic disorder and depression could have resulted from physical and mental trauma that she underwent while in custody.
d. The causation of the original injuries and resultant scars could have been sustained in the manner described in the history given by the prisoner.

The medical opinion, in my view, amply corroborates the petitioner’s version in regard to the injuries caused and their causation. As Athukorala J in Sudath Silva Vs. Kodituwakku 1987 2 SLR 119 observed, “the facts of this case has revealed disturbing features regarding third degree methods adopted by certain Police Officers on suspects held in police custody. Such methods can only be described as barbaric, savage and inhuman. They are most revolting and offends one’s sense of human decency and dignity, particularly at the present time when every endeavor is being made to promote and protect human rights”.

For the reasons stated, I hold that the 1st to 5th and 9th respondents have violated the petitioner’s fundamental rights guaranteed under Article 11 of the Constitution.

I order that Rs. 250,000/- be paid as compensation and costs to the petitioner out of which Rs. 150,000/- be paid personally by the 1st, 3rd, and 9th respondents in equal shares and the balance, Rs. 100,000/-, by the State.

I further direct the Attorney General to consider taking steps, under the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994, against the respondent and any others who are responsible for the acts of torture perpetrated on the petitioner.

Judge of the Supreme Court

Fernando J. I agree
Judge of the Supreme Court

Ismail J. I agree
Judge of the Supreme Court

continued 

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