Supreme Court of Mauritius, 1 avril 2026, 2026 SAV 53 – POLICE v N MATOO & ANOR

Page 1 POLICE v N MATOO & ANOR

2026 SAV 53

IN THE DISTRICT COURT OF SAVANNE

Cause No.: 2907/19 Police

v/s

1. Nassirvad Matoo 2. Anisha Matoo

Judgment

Both accused stand charged with the offence of « Insult » in breach of Section 296(b) of the Criminal Code. Under count I of the information dated 2nd September 2019, accused no. 1 stands charged with having on or about the 22nd July 2018, willfully and unlawfully insulted one Mrs Rita Devi Namah, in public, by using abusive words, not carrying with them the imputation of fact, to wit « Eta pitin arrest pass par ici ». Under count II of the same information, accused no. 2 stands charged with having on the same date, willfully and unlawfully insulted the same Mrs Namah, in public, by using abusive words, not carrying with them the imputation of fact, to wit « Eta pitin arret pass par ici ».

Accused no. 1 pleaded not guilty to count I of the information and accused no. 2 pleaded not guilty to count II thereof. They were inops consilii. The case for the Prosecution was conducted by PS Mattan.

Case for the Prosecution

Two witnesses deponed on behalf of the Prosecution, namely the recording officer PS Ramsamy and the complainant Mrs R D Namah.

Page 2 Witness no. 1, PS Ramsamy, was the recording officer and he gave evidence to the effect that on the 23rd July 2018 at 19.45 hours and at 21.30 hours respectively, he had recorded a statement from respectively accused nos. 1 and 2 (Doc A and Doc B respectively). He was not cross-examined.

Witness no. 3, Mrs R D Namah, is the complainant and she gave evidence to the effect that on the material date, she was going to her brother’s place and when she reached Matoo Lane, La Flora, accused no. 1 told her « Pitin pas pass la ». According to the complainant, accused no. 2 told her « to éne pitin, arret met dézord ».

The complainant was duly cross-examined.

Case for the Defence

Both accused, from the dock, stated that the complainant has lied and has levelled a false allegation against them. Accused no. 1 further stated that at that time the complainant was inebriated and was not in her senses.

In their respective out of court statements, both accused had denied the evidence against them.

The Law

The offence of insult is defined in Section 296 of the Criminal Code in the following terms:

Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (‘injure’) and any person who is guilty of the offence shall be liable to the following penalties – (a) where the offence is committed by means of words, exclamations or threats not made use of in public, a fine not exceeding 50,000 rupees; (b) where the offence is committed by means of words, exclamations or threats made use of in public, a fine not exceeding 100,000 rupees;

Page 3 (c) where the offence is committed by means of any written or printed matter, drawing, picture, emblem or image, imprisonment for a term not exceeding 2 years and a fine not exceeding 100,000 rupees.

The charge which has been preferred against both accused is under Section 296(b) of the Criminal Code.

Analysis

The presumption of innocence established by Section 10(2)(a) of the Constitution places a burden upon the Prosecution to prove each element of the offence with which the accused has been charged. In fact, the burden rests on the Prosecution to prove all the elements of the offence beyond reasonable doubt 1 . When at the close of the case for the Prosecution, a prima facie case has been clearly established against the accused, the burden then shifts on him to satisfy the Court why it should not act on the evidence adduced by the Prosecution 2 .

It was therefore incumbent upon the Prosecution to prove that on the material date, each accused insulted the complainant in the manner as described in the information.

The complainant was the main witness for the Prosecution and the only witness who deponed in respect of the incident which had occurred on the material date. Having had the opportunity of seeing her depone under oath, I have accordingly assessed her evidence and demeanour.

The complainant, I find, has been able to answer questions put to her coherently and depone in a fairly clear and straightforward manner. She has been able to repeat the same invective as averred in the particulars under both counts of the information and the accompanying words which she has repeated in respect of accused no. 1 have the same effect and convey the same idea as the accompanying words mentioned under count I of the information. I however find that the complainant’s evidence of the words accompanying the invective as allegedly mentioned by accused no. 2 is materially inconsistent with what she had stated in her complaint to the police. In fact, the

1 Boodhoo A. v The State [2004 SCJ 235] 2 Andoo M vs The Queen [1989 SCJ 257]

Page 4 complainant initially stated that accused no. 2 has not said anything to her and when her memory was refreshed, the complainant came up with certain words which are inconsistent with her version to the police.

I additionally note that the complainant’s testimony is materially inconsistent with her version to the police in respect of the locus of the alleged incident. While in her complaint to the police, the complainant had stated that the incident had occurred at School Lane, La Flora near the place of residence of the accused parties, in Court she stated that the incident had occurred at Matoo Lane, La Flora where her brother resides. I find that in so doing, the complainant has buttressed the version of the accused parties who have mentioned that at Matoo Lane, La Flora they had indeed met with the complainant who at that time was inebriated and was preventing them from entering their relative’s yard.

I do bear in mind that the complainant has deponed in Court more then seven years after the material date and was not being called upon to undergo a memory test. She had also claimed that her memory was failing her in respect of the words which accused no. 2 had said to her at the material time. I also find it apposite to refer to the following pronouncement made by the Supreme Court in the case of Rumjon M. R. v The State [2016 SCJ 315]:

« Indeed it is not uncommon for complainants in cases of insult not to be able to repeat in Court the exact words averred in the information, but the conviction for the offence of ‘insult ’is nevertheless upheld where the Court is satisfied that the words mentioned by the witness in Court are essentially to the same effect and convey the same idea and expression of abuse as the words set out in the information (see Mohamedally v The State [2016 SCJ 218], Doorgaparsad v The State [2015 SCJ 273] and Goolamallee v The State and DPP [2015 SCJ 237]). We find that the learned Magistrate was entitled to act on the evidence of the main prosecution witness despite the variance between the words set out in the information and those mentioned in Court. »

I however consider that the inconsistencies in the complainant’s testimony which lend credence to the version of the accused parties, on the other hand, shed doubt over her testimony. I further consider that any such doubt goes in favour of the accused parties.

Conclusion

Page 5

In light of the above, I find give both accused parties the benefit of the doubt. The charge against accused no. 1 under count I of the information and the charge against accused no. 2 under count II of the information are accordingly dismissed.

A Dhunnoo (Miss) District Magistrate This 1st April 2026