Supreme Court of Mauritius, 22 mai 2020, 2020 INT 57 – POLICE v M.A.S. GOOLJANEE

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POLICE v M.A.S. GOOLJANEE

2020 INT 57

POLICE v M.A.S. GOOLJANEE

CN: 847/18

THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

In the matter of:-

Police

v/s

Mohammad Adil Shameer GOOLJANEE, also called Gros Adil

JUDGMENT: The accused stands charged with the offence of:- Arson, in breach of Section 346 (1) of the Criminal Code. He has pleaded Not Guilty to the present charge and he was assisted by learned Counsel, Mr. S. Bundhoo. Ms. Callychurn, learned State Counsel, appeared for the prosecution.

The Prosecution’s case: At the outset, the following documents were filed by the prosecution:

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– A Medico-Legal-Report with regard to the examination of the accused (vide: Doc A); – Two FSL Reports (vide: Docs B & B1). PC Ramroch, who proceeded to Clairfonds No.3, Vacoas, took eight photographs at the spot (vide: Docs C, C1 to C8). He was not cross-examined by learned Counsel for the defence. CPL Appadoo produced a plan of the locus, as well as a Reference table (vide: Docs D & D1). Mr. Sanjay Summun, Area Manager at CEB (South Region), testified as follows: Subsequent to a fire outbreak on 22/08/14 at Clairfonds, Vacoas, he informed the police by way of a letter, dated 23/08/14, that the cause of fire was not due to any fault on the part of the CEB (vide: Doc E). During cross-examination, he could not say what was the cause of the fire. PC Iyasamy read and produced two statements of the accused (vide: Docs F & F1). In cross-examination, he answered the following: He is one of the enquiring officers in this case. During an identification exercise, one Nasreen Sheik Heerah stated, “non pas sa dimoune là sa.” Another person, namely, one Tasleema Goodur declared that she would not be able to identify the culprit. Mrs. Fazeela Kurmallee informed the police that the gas shower also was damaged in the fire. PC Durgahed read and produced one statement of the accused (vide: Doc F2). No question was put to this witness by learned Counsel for the defence. WCI Jaunky testified as follows: On 25/08/14, a screen identification was carried out, whereby one Saveena Thaugaully positively identified the accused, following which she put up a statement (vide: Doc G). Mr. Bundhoo chose not to cross- examine this witness. Inspector Nundoo identified Docs C, C1 to C8, D and D1, and produced his statement (vide: Doc H), in which he has explained the photographs. In the course of cross-examination, he replied as follows: During an identification exercise, Ms. Nasreen Sheik Heerah, that is the mother of Miss Saveena Thaugaully, stated that she did not see the accused at the locus. According to Doc H, at Point ‘K’ Miss Saveena Thaugaully was on the left side of the house when she allegedly saw the accused proceeding towards the rear of the house and heard the noise of broken glass. Ms. Taslima Goodur, whose name does not appear on the list of witnesses, was also at Point ‘K’. The fact that CPL Appadoo has mentioned the sole presence of Miss Saveena Thaugaully at Point ‘K’, this means that the former could have made a mistake. According to his statement, nobody showed Point ‘L’, but as per CPL Appadoo, the only Point shown by Ms. Taslima Goodur is Point ‘L’. There is a confusion as regard the plan. Mrs. Fazeela Kurmallee stated the following under solemn affirmation: On 22/08/14, she proceeded to work and, at about 14.30 hours, she learnt that her house, situated at Clairfonds No.3, Vacoas, was on fire. When she returned, she saw the firefighters on the spot and they managed to extinguish the fire. She does not know how fire

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broke out in her house and who set the fire. The fire caused damage to her property, to the tune of Rs.75,000. In cross-examination, she answered as follows: There are three exit doors in her house and the main door is a wooden one. The door on the left side is made of glass and metal. The house is not enclosed. Mr. Mohammad Fawzi Chutoo testified as follows: On 22/08/14, fire broke out at the locus and he heard people shouting. He helped in putting out the fire, but he is not aware how the fire broke out. The house which was on fire belongs to his neighbour, namely, Mrs. Fazeela Kurmallee. He does not know the accused. He was outside before the fire broke out, when an unknown person approached him and asked him where Mr. Ziyaad Kurmallee, that is the son of Mrs. Fazeela Kurmallee, resides. Then, he entered his house and he cannot say where that unknown person headed. Under cross-examination, he confirmed that he could not see the unknown person in Court. Miss Shaheena Thaugaully stated the following under solemn affirmation: On 22/08/14, whilst she was standing outside, she saw a boy entering a corridor, at the place of Mrs. Fazeela Kurmallee and when that person left, fire broke out. The said boy did not talk to her and she cannot recall his identity.

The case for the defence: After the case for the prosecution was closed, the defence did not adduce any evidence. In short, in his out-of-Court statement, dated 25/08/14 (Doc F), the accused has mentioned the following: On 22/08/14, at about 14.15 hours, he went to the house of one Zyad Karmally, at Clairfond No.3, Vacoas, as the latter owed to the former the sum of Rs.12,000. At that time, he proceeded there alone on his motorcycle. He requested somebody at the spot to call the said Zyad, but nobody opened the door. Thereafter, he went to the rear of the house in order to ascertain that Zyad did not run away. He returned to the front part of the house; but he never opened the door. Then, he went to a shop and returned to the spot, where he saw the fire brigade. He enquired from a fireman what was happening and he learnt that fire had broken out in a house. He noticed that black smoke was escaping near Zyad’s house. He does not know how the fire broke out and who set fire to the house. There was no fire at the time he left the spot. For the purposes of the enquiry, he gave voluntarily to the police a pair of blue jean trousers and a jacket, of colour dark blue. He maintains that he never set fire to the house. In his statement given to the police on 24/01/18 (Doc F2), the accused has denied the present charge and again maintained that he did not put fire to the house.

ANALYSIS: To start with, Section 346 (1) of the Criminal Code stipulates that,

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“Any person who wilfully sets fire to any building, ship, boat, storehouse, timber- yard or any other place when they are inhabited or in use as residence or as a place of meeting, whether same belongs to him or not, shall be liable to penal servitude.” [Emphasis added] In the present case, the prosecution bears the burden of proving beyond reasonable doubt that, on 22 nd of August 2014, the accused wilfully and unlawfully set fire to a house, belonging to Mrs. Fazeela Kurmallee. The Court shall now thrash out the following issues: (1).Was fire set to the house belonging to Mrs. F. Kurmallee: It is not disputed that fire was set to a place in use as residence, which is the house of Mrs. F. Kurmallee. Ms. S. Kisoona, Senior Forensic Scientist, carried out a locus examination and her Findings featuring in the FSL Report (Doc B1) reads as follows: “Fire was confined to a shoe rack found in a corridor where the wooden shoe rack with several pairs of shoes kept thereon were completely burnt. The concrete ceiling plastering in that area was cracked and broken into several pieces. No evidence of accelerant was detected from the debris collected on site. Interpretation/Opinion In the absence of any fire hazard on the site, I found this case to be suspicious…” Hence, it is apparent from Ms. S. Kisoona’s Findings that a malicious act is not excluded. Consequently, the only issue which remains to be determined by the Court is whether the accused set fire to the house.

(2).Did the accused set fire to the house? The Prosecution has the burden of proving that it is the accused, who perpetrated the present offence. The accused does not dispute that he went to the spot before the fire broke out, but his contention is that he did not put fire to the house. As far as the FSL Reports are concerned, there is nothing to link the accused to the cause of the fire. Moreover, Mrs. Kurmallee, the owner of the house testified that she does not know how fire broke out in her house and who had set the fire. Even her neighbour, that is, Mr Chutoo did not identify in Court the unknown person who, on the material day, asked him where Mr. Ziyaad Kurmallee resides. As regards the eye-witness, Miss Shaheena Thaugaully, she could not recall the identity of the boy, who allegedly left the locus immediately before the fire broke out. Worse, she contradicted the content of her statement when she testified that at the material time she was outside the house and not inside. In brief, she could not identify the accused as being the person she had seen at that time. Therefore, there is no cogent evidence to prove that it is the accused who set fire to the house.

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CONCLUSION: In the light of the foregoing observations, the Court finds that the prosecution has failed to adduce sufficient evidence to establish its case against the accused beyond reasonable doubt. The Court is of the considered view that the accused is, at least, entitled to the benefit of the doubt and the Court, therefore, grants to the accused the benefit of the doubt. The Court, accordingly, dismisses the present case against the accused.

Mr. P. SEWPAL Ag. Vice-President Intermediate Court Date: 22/05/20