The Asian Human Rights Commission has learned that the accused police officer in the torture case of Palitha Thissa Kumara was acquitted by the judge of the High Court, Kalutara this morning (October 19, 2006). The judge stated that he is acquitting the accused as the charges have not been proved according to his view. (For evidence led in court please see: AS-257-2006).
The judge did not read the written judgement in the open court; nor has he given any reasons as to why he thought that the prosecution has failed to prove their case. The lawyer for the aggrieved party has asked, in open court, for a certified copy of the judgment and an appeal against the judgment will be filed soon.
Earlier in a fundamental rights application in which Palitha Thissa Kumara was the applicant, the Supreme Court of Sri Lanka held that the applicant, torture victim had proved that he had been tortured by the police officer. The court stating, “Accordingly it is clearly evident that the petitioner’s fundamental right guaranteed in terms of Article 11 of the Constitution was violated.” This is the first occasion in which the Supreme Court and the High Court has come to opposite conclusions on the incident.
The relevant portion of the Supreme Court judgment (SCFR211/2004, decided on 17.02.2006) reads as follows:
Article 11 of the Constitution deals with freedom from torture and reads as follows:
No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
It is to be noted that Article 11 refers to torture separately from cruel, inhuman or degrading treatment or punishment similarly to Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights as well as Article 3 of the European Convention which had referred to torture separately from inhuman, degrading treatment or punishment. The importance of the right to protection from torture has been further recognized and steps had been taken to give effect to the universally accepted safeguards by the convention against torture and other cruel, inhuman or degrading treatment or punishment signed in New York in 1984, which has been accepted in Sri Lanka by the enactment of Act. No, 22 of 1994 on convention against torture and other cruel, inhuman or degrading treatment or punishment.
Thus it is evident that notwithstanding the provision made in the Constitution regarding fundamental right on freedom from torture, in terms of Act, No. 22 of 1994, torture is to be an offence and any person who tortured any other person shall be guilty of an offence under the said Act.
The petitioner’s complaint was that the 1st respondent had assaulted him mercilessly using a wicket after he was brought to the Welipenna Police Station. The contention of the 1st respondent was that, at the time he had arrested the petitioner he had reached for a weapon and therefore he had dealt several blows to his arms with his baton. This had caused the object in his hand to fall to the ground. After seeing that it was a hand grenade and that the petitioner was trying to retrieve it the 1st respondent had continued to assault him with his baton on his hands and shoulders.
The contention of the 1st respondent is therefore that he had used ‘minimum force’ to apprehend the petitioner. It is not disputed that use of minimum force will be justified in the lawful exercise of police powers. However, the force used in effecting an arrest should be proportionate to the mischief present. Notwithstanding the aforementioned it would also consider the injuries sustained by the petitioner in comparison given by the 1st respondent.
The petitioner was examined by the Assistant Judicial Medical Officer of the General Hospital of Colombo on the orders made by the Magistrate. The Report of the Assistant Judicial Medical Officer dated 11.06.2004, contained 32 injuries which I reproduce below:
“2. Examination:
2.1 General examination:
He is conscious and rational, but looks anxious. He walked in to the examination room limping. His respiratory, cardiovascular and nervous systems are clinically normal.
2.2 Injuries:
2.2.1 Head and neck:
1. Healing laceration, liner, 2cm long, is situated in left ear lobe in its upper 1/3, involving the margin.
2. Resolving contusion, dark bluish purple in colour, 4×5.5cm, is situated in left side of the scalp, just behind the posterior attachment of ear lobe.
3. Tram line contusion, dark bluish purple in colour, 6x2cm size, is situated in the right side of the neck, in its lower 1/3 posterolaterally and obliquely.
4. Two healing split lacerations, each 2cm long, linear, are situated in right side of the jaw over its bony edge, in its front 1/3.
2,2.2 Chest and abdomen:
5. Resolving contusion, irregular shaped, 15xl0cm, is situated in left side of the shoulder.
6. Resolving contusion, irregular shaped, 12xl0cm, is situated in right side of the shoulder.
7. Tram line contusion, dark bluish purple in colour, 10x2cm size, is situated in the left side of the back, over the shoulder in its upper obliquely.
8. Tram line contusion, dark bluish purple in colour, 8x2cm size, is situated in the left side of the back, over the shoulder blade in its lower obliquely.
9. Tram line contusion, dark bluish purple in colour, 22×2.5cm size, is situated in the left side of the back, over the shoulder blade extending up to the midline obliquely.
10. Tram line contusion, dark bluish purple in colour, 15×2.5cm size, is situated in the left side of the back, over the shoulder blade extending up to the midline above the injury No. 09 obliquely.
11. Tram line contusion, dark bluish purple in colour, 15×2.5cm size is situated in the left side of the back, lateral to the shoulder blade extending downwards obliquely.
12, Tram line contusion, dark bluish purple in colour, 8×2.5cm size, is situated in the right side of the back, above the shoulder blade extending up to the midline, obliquely.
13. Two tram line contusions, dark bluish purple in colour, 10×2.5cm size, are situated in the right side of the back, on the shoulder blade extending parallel to each other, obliquely.
14. Two tramline contusions, dark bluish purple in colour, 8×2.5cm size, are situated in the right side of the~ back, on the shoulder blade crossing injuries No. 1 3, obliquely.
15. Tram line contusion, dark bluish purple in colour, i8x2cm size, i8 situated in the right side of the back, below the shoulder blade extending downwards from the lower ends of injuries No, 13, obliquely.
16. Tram line contusion, dark bluish purple in colour, 9×2.5cm size, is situated in the right side of the back, extending from the midline, obliquely. Its upper end is abraded and shows healing with pale scar.
17. Three healing abrasions, with dark scab formation and peripheral white margins, measuring 2x~.5cm, 2x1cm and lx1.5cm are situated in left side of the shoulder in its back.
18. Tram line contusion, dark bluish purple in colour, 5×2.5cm size, is situated in the left side of the chest, over the lower margin of rib cage, extending obliquely.
2.2.3 Upper limbs:
19. Resolving contusion, dark bluish purple in colour, i8x6cm, is situated in right forearm laterally in its upper 1/3.
20. Tram line contusion, dark bluish purple in colour, 4x2cm size, is situated in the right forearm, in its upper 1/3 posteromedialy and obliquely.
21. Seven tram line contusions, dark bluish purple in colour, each measuring 6×2.5cm size, are situated in left upper arm laterally, some of them are directed obliquely and some are horizontal.
22. Resolving contusion, dark bluish purple in colour, 18x6cm, is situated in right forearm laterally in its upper 1/3.
23. Resolving contusion, dark bluish purple in colour, 10x5cm is situated in right upper arm medially in its upper 1/3.
24. Tram line contusion, dark bluish purple in colour, 4x2cm size, is situated in the right upper arm, in its lower 1/3 medially and obliquely.
25. Resolving contusion, dark bluish purple in colour, 15x7cm, is situated in left forearm posteriorly in its lower 1/3.
26, Tram line contusion, dark bluish purple in colour, 1.5x2cm size, is situated in the right hand, in its back, obliquely.
27. Abraded contusion, 2x1cm, irregular shaped, is situated in right forearm, posteriorly, just above the wrist joint.
2.2.4 Lower limbs:
28. Tram line contusions, dark bluish purple in colour, 7×2.5cm size, is situated in the right thigh, laterally, in its middle 1/3, obliquely.
29. Tram line contusion, dark bluish purple in colour, 6.5×2.5cm size, is situated in the left thigh, laterally, in its middle 1/3, obliquely.
30. Tram line contusion, dark bluish purple in colour, 7.5×2.5cm size, is situated in the left leg, laterally, in its upper 1/3, obliquely.
31. Tram line contusion, dark bluish purple in colour, 8×2.5cm size, is situated in the left leg, laterally, in its middle 1/3, obliquely.
32. Split laceration, 1.5×0.5cm, irregular shaped, is situated in left ankle joint laterally, just above the outermost bony prominence. Underlying bone is fractured.
3. Investigations and referrals:
1. X-ray of the skull, chest and left ankle joint were taken and were referred to the Consultant Radiologist, National Hospital, Sri Lanka, Colombo (No. 4892).
Report revealed fracture in the lower end of the fibula bone. (Leg bone).
2. He was referred to the Consultant ENT Surgeon, National Hospital, Colombo to get his opinion regarding the tinnitus of his left ear.
Report revealed normal ear drum in left ear.
3. Further, he was referred to the Consultant Psychiatrist, .National Hospital, Colombo, to get his opinion regarding his mental state subsequent to the assault. Reports revealed that his mental state at the time of examination was normal.
4. Conclusions and opinions:
1. Injuries No. O1-31 are non grievous.
2. Injury No. 32 is grievous under limb g of Section 311 of the Penal Code.
3. All injuries have been caused by a blunt weapon/weapons.
4. They could have been sustained in the manner as described by the examinee in the history.
5. Since I have to review this patient to examine whether he has been infected with tuberculosis, due to the forceful ingestion of sputum of a person believed to be infected with tuberculosis, please send this victim to the Office of the J:M.A, Colombo.”
When one compares the version given by the petitioner as to what took place at the Police Station with the position taken by the 1st respondent in the backdrop of the contents of the Medico-Legal Report, it is my view that the petitioner’s version is more probable than the contention of the 1st respondent. If it was a mere assault to apprehend the petitioner with the minimum force used as described by the 1st respondent, there could not have been so many injuries on the petitioner. More importantly the A.J.M.O, had observed in his report that the petitioner could have sustained the injuries in the manner described by him. It is to be borne in mind that when the petitioner was arrested on 05.02.2004 as stated by the 1st respondent, he was not directly taken to the Magistrate, Mathugama. Firstly he was brought to the Welipenna Police Station. The petitioner had to spend that night in the Police Station and he was taken to the Magistrate, Mathugama only on the following day, that being, 06.02.2004, Therefore there was every possibility that the petitioner was assaulted in the way he had described at the Police Station not on 03.02.2004, but on 05.02.2004 and the position taken by the petitioner regarding the assault is thus substantiated and corroborated by medical evidence.
Assuming that the petitioner was carrying a hand grenade in his possession as contended by the 1st respondent, would it be possible for the 1st respondent to submit him to torture, infringing his fundamental right guaranteed in terms of Article 11 of the Constitution? Moreover, if the 1st respondent had to use ‘minimum force’ in order to apprehend the petitioner could that be used with such force to have caused 32 injuries including one grievous injury to the petitioner? My answers to these questions are in the negative as although it is necessary in certain instances to use minimum force in order to apprehend a suspect, such force has to be used with restraint, not subjecting the person in question to torture, or to cruel and inhuman treatment. This view is clearly supported by the decision of Atukorala, J, in Amal Sudath Silva v Kodituwakku ([1987] 2 Sri L.R. 119) where it was stated that,
“Article 11 of our Constitution mandates that no person shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. It prohibits every person from inflicting torture, cruel or inhuman treatment on another. It is an absolute fundamental right subject to no restrictions or limitation whatsoever. Every person in this country, he be a criminal or not, is entitled to this right to the fullest content of it guarantee…The petitioner may he a hard core criminal whose tribe deserves no sympathy, but if constitutional guarantees are to have any meaning or value in our democratic set-up, it is essential that he be not denied the protection guaranteed by our Constitution (emphasis added),”
Moreover, a comparison of the injuries suffered by the petitioner with the versions given by the petitioner and the 1st respondent, it is obvious that the probabilities are more in favour with the version given by the petitioner.
Accordingly it is clearly evident that the petitioner’s fundamental right guaranteed in terms of Article 11 of the Constitution was violated.
The appeal against the High Court judgement will be filed on the basis of errors of law and facts committed by the High Court judge in assessing the evidence placed before him at this trial.
