Supreme Court of Mauritius, 2 avril 2026, 2026 SAV 56 – POLICE v C DHUNPUTH

Page 1 POLICE v C DHUNPUTH

2026 SAV 56

IN THE DISTRICT COURT OF SAVANNE

Cause No.: 779/21 Police

v/s

Charanjeetsing Dhunputh

Judgment

The accused stands charged with the offence of « Unlawful removal of boundary stone » in breach of Section 362 of the Criminal Code. As per the information dated 1st March 2021, the accused stands charged with having on or about the 29th July 2020, wilfully and unlawfully taken away a cornerstone known as establishing the boundaries between different properties.

The accused pleaded not guilty and was represented by Me Varma of Counsel. The case for the Prosecution was conducted by Inspector Dwarka.

Case for the Prosecution

Four witnesses deponed on behalf of the Prosecution, namely the recording officer PC Banarsee, PC Ramdoye, Mr R Rambhujun and Mr P Allan.

Witness no. 1, PC Banarsee, was the recording officer and he gave evidence to the effect that on the 5th August 2020 at 12.30 hours, he had recorded a statement from the accused at Chemin Grenier Police Station (Doc A). He was duly cross-examined and revealed that no surveyor’s report regarding the demarcation of the property was produced to the police.

Witness no. 2, PC Ramdoye, gave evidence to the effect that on the material date, he had examined the locus where the complainant had shown to him the place where he

Page 2 had planted a cornerstone. Witness no. 2 stated that he had observed a hole in the ground from which he cornerstone had been removed and displaced to another spot some three metres away. Witness no. 2 produced two photographs which he had taken on the locus (Doc B and Doc B1).

Witness no. 2 was duly cross-examined and could not say whether the spot, where there was the hole, established the boundary between two properties.

Witness no. 3, Mr R Rambhujun, is the complainant and he gave evidence to the effect that in the year 2012, he had bought a property from the accused’s late brother who had shown to him the spots where his boundary stones were. The complainant stated that on the material date, while he was cleaning his property, the accused had told him that his cornerstone was not at the right place and the accused took out the cornerstone and threw it away.

The complainant was duly cross-examined and revealed that he had not produced his title deed nor any surveyor’s report to the police. He maintained having personally seen the accused removing the cornerstone.

Witness no. 4, Mr P Allan, gave evidence to the effect that he works as gardener for the complainant and on the material date, he had seen the accused removing the cornerstone and throw it away. Witness no. 4 stated that he called his employer and informed him of same.

Witness no. 4 was duly cross-examined and agreed that the complainant was not present at the time of the occurrence and he is the one who saw the occurrence.

Case for the Defence

No evidence was adduced on behalf of the accused nor has he made any statement in Court.

In his out of court statement (Doc A), the accused had denied the evidence against him.

The Law

Page 3 Section 362 of the Criminal Code provides that

Any person who, whether in whole or in part, fills up any ditch, destroys any enclosure made of any materials, cuts or tears up any hedge, whether quick or dead, or displaces or takes away any landmark, cornerstone or tree, planted or known as establishing the boundaries between different properties, shall be punished by imprisonment for a term not exceeding 2 years, and by a fine not exceeding 100,000 rupees.

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 .

I find that the evidence of witness no. 2 in respect of the hole in the ground and the piece of concrete with metal pipe which he had observed on the locus on the material date at 09.50 hours has been sufficiently substantiated and has remained unrebutted. I however find that the evidence adduced by the Prosecution, even if taken at its best is insufficient to establish beyond reasonable doubt that the piece of concrete with metal pipe which witness no. 2 had seen displaced on the locus is indeed a cornerstone which establishes the boundary between different properties.

Witness no. 1 has conceded that the complainant has not produced any surveyor’s report showing the demarcation of his property. The complainant has also conceded that he has not produced to the police his title deed nor any surveyor’s report showing the boundaries of his property. He has in fact stated that it is the previous owner who had shown him where his boundary stones are when he had bought the property and he had relied on same. Most importantly neither the complainant's title deed nor any

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

Page 4 memorandum of survey or surveyor’s report showing the demarcations of his property from that of adjoining properties were produced in Court. In addition, despite having examined the spot in the present matter, no measurements were taken by witness no. 2 to establish that the spot where he had seen that a piece of concrete had been displaced is indeed found at the boundary of the complainant’s property.

In light of the above, I find that the Prosecution has failed to establish a material element of the offence namely that the piece of concrete with metal pipe which witness no. 2 had seen displaced on the locus established the boundary between the complainant’s property and adjoining properties.

Conclusion

In light of all that precedes, I find that the evidence adduced by the Prosecution fails to establish a prima facie case against the accused in respect of the offence with which he presently stands charged. The charge against the accused is therefore dismissed.

A Dhunnoo (Miss) District Magistrate This 2nd April 2026