Supreme Court of Mauritius, 21 janvier 2020, 2020 INT 10 – POLICE v B.K. RAGHOONATH

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POLICE v B.K. RAGHOONATH

2020 INT 10

POLICE v B.K. RAGHOONATH

CN: 630/14

THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

In the matter of:-

Police

v/s

Balraj Kumar RAGHOONATH

JUDGMENT: The accused stands charged with the offence of:- Involuntary homicide by imprudence, in breach of Section 239 (1) of the Criminal Code, coupled with Sections 52, Second Schedule and 133 of the Road Traffic Act. The accused has pleaded Not Guilty to the present charge. He was assisted by learned Senior Counsel, Mr. G. Glover, learned counsel, Mr. I. Mamoojee, Mr. L. Balancy and Mr. D. Hatier. Mr. R. Tajoodeen, learned Senior State Counsel, led the evidence for the Prosecution.

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The Prosecution’s case: The following documents were produced by the Prosecution: -The certified extract of death certificate of the deceased, one Goindamah Ramsamy, who passed away on 21/03/12 (vide: Doc A); -One Medico-Legal Report, dated 01/07/17, in which the Police Medical Officer attributed the cause of death of the said deceased as ‘CRUSHED CHEST ’ (vide: Doc B); -Two FSL Reports (vide: Docs C & D). PC Jeewooth produced a booklet containing three photographs (vide: Docs E, E1 to E3). PC Hurgobin produced a plan of the locus and a reference table (vide: Docs F& F1). He stated that the width of the road, at the spot of the accident, is 7.5 metres and the distance between points A and C is 31.1 or 31.2 metres. Inspector Jeetoo produced a booklet containing one photograph (vide: Docs G & G1) and his statement (vide: Doc H). Then, he read and produced two statements recorded from the accused (vide: Docs J & J1). He testified the following: The Royal Road Terre Rouge is straight, it is found along a very well frequented area and the speed limit at the locus is 60 kms/hr. In cross-examination, he answered as follows: The Royal Road has a pavement on each side and there are no handrails at the spot. When going towards Port Louis, there is a pedestrian crossing 75 to 80 metres further down the road. The accident occurred because a pedestrian crossed the road in front of a vehicle lawfully driving along. The vehicle of the accused was found on the extreme right of the road after the accident when looking towards Port Louis. There was a brake impression which he did not put on the plan. The brake mark going to the left was not that of the accused’s bus. PC Veerasamy, who had examined taxi bus, bearing registration No.4671 AG 08, put up a Crime Scene Examination Report (vide: Doc K), in which he has mentioned that upon examination of that vehicle, apparent blood stains were found on the front offside flank as well as on the front offside door. PS Sookur testified that he performed sentry over the dead body of the deceased and during his duty nobody tampered with the body. CPL Shiboo, who examined the motorbus, bearing registration No.4671 AG 08, produced a Road Accident Report (vide: Doc L). Mr. Krishna Amirthasawmy Pather, the deceased’s son, stated under solemn affirmation that at the time of the accident his mother was 80 years old. Mr. Vichal Badeecanah testified as follows: In the month of March 2012, he was working as bus driver. On 21/03/12, at about 08.15 hours, he was driving a bus, bearing registration No. 1747 AP 09. He was coming from the direction of Grand Gaube and he was proceeding towards Port Louis. At about 09.30 hours, when he reached Le Hochet, Terre Rouge, he pulled up at a bus stop, which is at point A on the plan. There were passengers alighting from the bus. He saw a lady on his left

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side, trying to cross the road and she was looking at one direction only. When he looked at the mirror, he noticed that a bus was coming from behind, on his right side. He hooted so as to alert her of the bus which was approaching. But, she did not pay heed and continued to cross the road. That bus overtook his vehicle and knocked against the lady. The road is straight. In the course of cross-examination, he replied, inter alia, that it is normal for a driver to move to the left lane after having overtaken a vehicle. During re-examination, he stated the following: At the material time, the lady was looking only in the direction of Port Louis. He was watching her all the time. Had she taken precaution, for instance, waiting for him to drive away from the bus stop, she would have seen the traffic on both sides of the road and she would not have met with the accident.

The case for the defence: After the case for the prosecution was closed, the defence chose not to adduce any evidence. In his out-of-Court statement, dated 21 st March 2012, the accused has mentioned the following: On 21 st of March 2012, at about 9.30 hours, he was driving a bus, bearing registration No.4671 AG 08, along the left side of the Royal Road, Le Hochet, Terre Rouge, at the speed of 40 kms/hr. He was coming from the direction of Pamplemousses and he was proceeding towards Port Louis. Reaching near the Social Security of Terre Rouge, there was a bus, bearing registration No.1747 AP 09, which had stopped in front of his bus. As there was no passenger who would have alighted at the bus stop, he decided to overtake the bus which was in front of him. He switched on the flasher to the right. When he reached at the level of the front part of the stationary bus, suddenly, he saw an old lady in front of his bus. That lady came from the left side of the road when facing the direction of Port Louis. Then, he hooted and applied the brake in order to avoid an accident. Unfortunately, his bus knocked against the lady in view of the fact that she was too close. He stopped the bus and when he alighted from it, he noticed that the lady had passed away. In his statement given to the police on 22 nd March 2012, he pointed out the following: When he saw the lady for the first time, she was at a distance of about two and a half metres from his bus. In order to avoid hitting against her, he swerved to the right and applied the brake. He did not have time to hoot. At that moment, the lady continued her way towards the right and she hit against the front nearside part of his bus. She fell at the front offside part of his bus.

ANALYSIS: After taking due consideration of the whole evidence on record, the Court has noted the following: To start with, Section 239 (1) of the Criminal Code stipulates that, ‘Any person who, by unskilfulness, imprudence, want of caution, negligence or non- observance of regulations, involuntarily commits homicide, or is the unwilling cause

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of homicide shall be punished by imprisonment and by a fine not exceeding 150,000 rupees.’ Hence, in the case-in-hand, it is incumbent on the prosecution to prove beyond reasonable doubt the following: (i) The death of the victim; (ii) The accused drove his vehicle in an imprudent manner; and (iii) The causal link between the accused’s imprudent driving and the death of the deceased (vide: A. Lowtun v The State [2005 SCJ 133). The Court shall now thrash out each constitutive element of the offence: (1).The death of the victim: First of all, the certified extract of the death certificate of the deceased has been produced. The content of the Medico-Legal Report and that of the Crime Scene Examination Report have established that there has been a homicide and the injuries sustained by the victim were as a result of the present road accident. Thus, the prosecution has established the first element of the offence.

(2).Did the accused drive the motor bus in an imprudent manner? Turning to the issue of imprudence, an explanation as to what constitutes same was considered in the case of Ramburn v The State [2013 SCJ 472], where the Supreme Court, cited Note 21 of Code Pénal, Garçon, Livre III, Art. 319 et 320 (Garçon Code Pénal Annoté, Art 319 à 320, note 25 which reads as follows: “L’imprudence, la négligence et l’inattention sont des fautes de meme nature, qui échappent à toute définition précise. Ces expressions, très compréhensives, embrassent toutes les fautes que leur auteur pouvait éviter avec plus de prévoyance, de soins, de diligence. L’agent est responsable parce qu’il aurait pu empêcher l’accident de se produire en agissant avec plus de prudence…” Equally of relevance is the following passage in the case of Chaddee v The State [2011 SCJ 149]: “On a charge of imprudence, the focus should not be on the choice of versions between that of the prosecution and the defence but whether objectively speaking the driver in question may be stated to have driven his motor vehicle with the standard required in the given conditions of light, weather, time and traffic as revealed generally by the particular facts and circumstances of the case of which the trial court is the sovereign judge. The test is an objective one as decided in McCrone v Riding [1938] 1 All ER 157. What the prosecution have to prove is “that the defendant has departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case.” (see also Walker v Talhurst [1976] 1 RTR 513; R v Lawrence 1981 RTR 217; Marot v R [1990 SCJ 17]; Ramloll v R [1990 SCJ 237]; Affoque v State [2005 SCJ 108].” In the present matter, the road where the accident occurred is a straight one and this is not disputed by the defence. In that respect, Mr. Tajoodeen contended that there

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is nothing at the spot blocking the view of drivers. However, one cannot lose sight of the particular circumstances of the present case: (1) The lady was crossing the road, although not very close, but in front of a stationary bus. (2) She looked only in the direction towards Port Louis. That is plainly imprudent on her part. Had she paid heed to traffic on her right side, she would have seen the accused’s bus approaching. Thus, she did not ascertain that the road was clear in the other direction prior to crossing. (3) She could have waited for the stationary bus to pull out of the bus stop before trying to cross the road. (4) Moreover, as a prudent pedestrian, she should have elected to cross the road at the pedestrian crossing, which was 75 to 80 metres further down the road. (5) Worse, although Mr. Badeecanah blew the horn, she failed to pay attention and continued to cross the road. She was clearly careless of her own safety. Hence, not only she failed to take the necessary precautions before crossing the road, she also disregarded Mr. Badeecanah’s signal. As a result, it is abundantly clear that she has been utterly reckless. (6) Her appearance at point C in front of the accused’s bus on the road had, undoubtedly, taken the accused by surprise. It is well settled that in cases where an accident is caused by the fault of more than one person, “la faute de l`une ne peut excuser la faute de l`autre”, unless the fault is “si grossière qu`elle fait disparaître, en réalité, toute faute de la part de l`auteur matériel” of the accident (vide: Sham v The Queen [1982 MR 224]). Those facts, which have been enumerated above, are glaringly indicative that the ‘faute’ of the deceased is “si grossière qu`elle fait disparaître, en réalité, toute faute de la part de l`auteur matériel” of the accident. Mr. Mamoojee quite correctly submitted that the accident occurred due to the ‘faute grossière de la victime’. As far as the accused is concerned, the following facts have to be borne in mind: (1) There was a stationary bus in front of him and, therefore, he was perfectly entitled to overtake that bus. (2) He was in the process of overtaking the stationary bus before the impact. (3) Before overtaking the vehicle, he could not have seen the lady crossing the road. (4) He acted prudently by taking the necessary steps when faced with the unforeseen circumstances: he swerved to the right and applied the brake. (5) At the short distance between point B and point C, he could not have had enough time to avert the impact. Mr. Tajoodeen submitted that at point A the accused should have seen the lady. However, the type of vehicle driven by the accused must be taken into account. He was driving a bus, which is 10.30 metres and it would have taken a greater distance than a car to come to a halt. Indeed, in Wilkinson’s Road Traffic Offences, Volume 1, Rule 105 of the Highway Code has been cited, the relevant extract of which reads as follows: ‘remember, large vehicles and motorcycles need a greater distance to stop.’

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Even if the accused would have seen the lady when he was at point A, it would have been difficult for him to stop before the point of impact, especially when considering the type of vehicle he was driving, the length of the bus and the guidelines with regard to stopping distances as mentioned in Wilkinson’s Road Traffic Offences, Volume 1. All in all, it is apparent that the deceased has been quite imprudent, inasmuch as she did not properly ascertain that the road was clear of vehicles before crossing in that she looked in only one direction at the material time, she crossed the road in the vicinity of a stationary bus instead of using the pedestrian crossing, coupled with the fact that she completely ignored the warning given by Mr. Badeecanah. It is conspicuous that the accident occurred due to the failure of the deceased to ensure properly that there was no oncoming vehicle on her right side before crossing the road. Her “faute était si grossière” that it absolved the accused of any responsibility for the accident, the more so as, it cannot be said that he has departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case.

(3).The causal link: In view of the fact that the accident occurred due to the ‘faute grossière de la victime’, the causal link issue does not arise.

CONCLUSION: In light of the above observations, the Prosecution has failed to establish its case against the accused beyond reasonable doubt. The Court, accordingly, dismisses the present case against the accused.

Mr. P. SEWPAL Ag. Vice-President Intermediate Court Date: 21/01/20