022-SLLR-SLLR-1998-1-SISIRA-KUMARA-v.-SERGEANT-PERERA-AND-OTHERS.pdf
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SISIRA KUMARA
v.SERGEANT PERERA AND OTHERS
SUPREME COURTG. P. S. DE SILVA. CJ..
PERERA, J. AND
SHIRANI BANDARANAYAKE, J.
S.C. APPLICATION NO. 258/94DECEMBER 3RD, 9TH, 1997.
Fundamental Rights – Articlel 1 of the Constitution – Assault on a person in policecustody .
The petitioner was arrested by the 2nd respondent a police officer and taken tothe Wellawatte Police Station, another Police Officer, the 3rd respondent orderedthe petitioner to sit on a bench, abused him and struck his face thrice. The medicalevidence supported the allegation of assault.
Held:
The assault to which the petitioner was subjected amounted to torture0 violativeof his rights guaranteed by Article 11 of the Constitution.
Case referred to:
1. Wijayasiriwardene v. Kumara, Inspector of Police, Kandy and two others(1989) 2 Sri LR 312.
sc
Sisira Kumara v. Sergeant Perera and Others
(Shirani Bandaranayake, J.)
163
APPLICATION for relief for infringement of fundamental rights.
Gamini Perera for the petitioner.
L C. M. Swarnadhipathi for the 3rd respondent.
Cur. adv. vult.
December 19, 1997.
SHIRANI BANDARANAYAKE, J.
According to the petitioner, on 10.09.1994, while he was washing hisclothes at a public water tap close to his house, one Somapala, hadabused him. Later, Somapala had come armed with a knife and astone and had started chasing the petitioner. The petitioner had goneinside his house and closed the door. He had heard a commotionoutside his house, and the petitioner had wanted to go to the PoliceStation to make an entry. However, his wife prevented him fromdoing so as Somapala was his neighbour. The same evening around9.45 p.m. the 2nd respondent took the petitioner to the WellawattePolice Station. At the Police Station, the 3rd respondent had orderedthe petitioner to sit on a bench and while abusing him had hit himhard thrice, on his face. The petitioner was kept in the cell until11.09.1994 and around 4 p.m. on the 11th September he was takento the Magistrate's bungalow and he was told that he could be bailedout on Rs. 1,000 security or would be remanded until 15.09.1994.Thereafter he was taken to the Mahara Remand Prison and on the12th September he was released on bail. The petitioner was askedto appear before the Magistrate's Court of Mount Lavinia on 15.09.1994and on the 15th September, the case was postponed to 23.03.1995.
The petitioner claimed that his fundamental rights guaranteed underArticles 11 and 13 (1) of the Constitution were violated by the actionsof the respondents. This court granted leave to proceed only in respectof the alleged violation of Article 11 of the Constitution.
The respondents do not dispute the fact that the petitioner wasarrested around 9.15 p.m. on 10.09.1994. The 2nd respondent in hisaffidavit gives the reasons for arresting the petitioner. His position isthat while he was on mobile duty, he received instructions from thePolice Station to proceed to premises No. 80/9, Peterson Road,Wellawatte immediately as there had been some incident. On hisarrival he received information that one Somapala had been assaultedby the petitioner and that the said Somapala had been admitted tothe hospital. The petitioner was arrested by the 2nd respondent and
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was brought to the Police Station where he was detained until hewas produced before the Magistrate on the following day. Therespondents position is that the 3rd respondent was not involved inthe arrest of the petitioner. The petitioner concedes this position.However, the petitioner's complaint is that the 3rd respondent hit himthrice on his face, and this is completely denied by the 3rd respondent.
In support of his contention, the petitioner has produced affidavits,from his wife, S. Priyanthi Fernando (P1) and father-in-law, S. WilfredFernando (P2). Both aver that the 3rd respondent hit the petitioneron his face. The 3rd respondent, on the other hand, relies on anaffidavit of the Sub Inspector, who recorded the statement of thepetitioner (3R1) and he avers that the 3rd respondent did not assaultthe petitioner as alleged by him.
The petitioner was referred to the Eye Surgeon (P3) and the ENTSurgeon (P4) of the General Hospital by the JMO, Colombo on 16thSeptember 1994. The “history" as given in the medical reports andthe observations as set out in the Consultant's reports read thus:
History :Assault in Police custody on 10.09.1994
night. Treated by GP for pain on 13.09.1994.Pain . . . Rt. eye.
Consultant's Report :
Traumatic Uveitrs . . .
History :Assault in Police custody on 10.09.94
night. Treated by GP on 13.09.94 for pain.
c/o noise in the Rt. ear-pain.
Consultant's Report : R/ear drum intact.
Mild hearing loss 30db.
R/ear joint tender.
Review in 3 weeks.
The 3rd respondent's position is that the medical report does notreveal any serious injuries on the petitioner. I cannot agree. Thepetitioner's position is that the 3rd respondent hit him on his face thriceand in my view the medical reports (P3 and P4) corroborate theassault.
sc
Sisira Kumara v. Sergeant Perera and Others
(Shirani Bandaranayake, J.)
165
The learned Counsel for the 3rd respondent submitted that evenif the 3rd respondent hit him thrice on the petitioner's face that wouldnot amount to “torture". The learned Counsel’s submission is that 'allacts of assault do not amount to torture just because there is somephysical element involved. There must be a minimum level of severity1.In support of his argument he has cited Wijayasiriwardene v. Kumara,Inspector of Police, Kandy and two others 0), where it was held thatthe use of force does not per se amount to cruel, inhuman or degradingtreatment. While agreeing with the view expressed in Wijayasiriwardene'scase, I cannot agree with the submission that the petitioner's allegationis far short of the required minimum level of severity and thereforedoes not amount to "torture".
There is no evidence before this Court to show that there wasany need for the Police Officers to use 'minimum force' to keep thepetitioner under control. According to the material placed before us,the petitioner was taken to the Police Station and he was seated ona bench, when the assault took place. The medical evidence providesstrong corroboration of the petitioner's version of the assault.
In the circumstances, I hold that the petitioner has succeeded inestablishing the infringement of his fundamental right guaranteed underArticle 11 of the Constitution.
The petitioner in his petition avers that Sergeant Rahjan (3rdrespondent) made him sit on the bench in front of the Crimes Divisionand thereafter hit him hard thrice on his face. This had happenedafter waiting for 1 1/2 to 2 hours at the Police Station. The petitioner'swife (PI) and father-in-law (P2) who had seen this incident havesubmitted affidavits to this Court in support of the petitioner's case.
According to the 1B extracts of 10.09.1994, the petitioner was takeninto custody at 20.15 hrs. and was handed over to Police SergeantChandana Kapila Kumara at 21.35 hrs. Sergeant Chandana KapilaKumara in his affidavit avers that the 2nd respondent brought thepetitioner to the Police Station at about 21 hrs and handed him overat 21.35 hrs (3R2). Accordingly the assault should have taken placebetween 10.30 – 11.00 p.m. on 10th September 1994. The 3rdrespondent avers that on 10.09.1994 he returned to the Police Stationat 19.30 hrs and went out on patrol at 23.15 hrs. The 3rd respondent,therefore, was at the Police Station during the time of the assault
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and the petitioner had identified the 3rd respondent as the personwho assaulted him. On a consideration of the totality of the facts andcircumstances of this case I direct the 3rd respondent to pay thepetitioner a sum of Rs. 5,000 as compensation and Rs. 1,000 as costs.I also direct the State to pay the petitioner a sum of Rs. 1,000 ascompensation.
The Registrar is directed to forward a copy of this judgment toInspector General of Police.
G. P. S. DE SILVA, CJ. – I agree.
PERERA, J. – I agree.
Relief granted.