Supreme Court of Mauritius, 22 mars 2020, 2020 UPW 1 – police v. ameer

police v. ameer

2020 UPW 1

IN THE DISTRICT COURT OF UPPER PLAINES WILHEMS , (MAURITIUS)

Cause Number: 3757/19

In the matter of:

POLICE

V/S

NOOR MOHAMMUD AMEER

JUDGMENT

The Accused stands charged with the offence of “Knowingly receiving articles abstracted by means of a crime” in breach of Section 40 and 301(1) and 309 (1) of the Criminal Code. Accused pleaded not guilty and was not represented by counsel but the prosecution’s case was conducted by counsel.

The prosecution’s case was that in or about the month of August 2011, Accused did wilfully, unlawfully and knowingly receive a laptop and a golden chain abstracted by means of larceny with external breaking to the prejudice of Witness No.2.

The latter deposed first and she mentioned that on the 8 th September 2011, she made a declaration for a case of larceny at her place where several articles were stolen. She also found that her door and window were forced opened. Among a lot of articles which were stolen, a golden chain and a laptop were also included.

Witness No.1, PS Ahamudally recorded two defence statement of Accused which were duly read and produced in Court.

Mr Joypaul, Witness No.3 deposed to the effect that he pleaded guilty to the charge of larceny of several items, including a laptop and a golden chain, committed at the place

of Witness No. 2. At the beginning of the examination-in-chief, he was a bit reluctant but later he agreed having sold the laptop and the golden chain to the Accused.

Mr Mustun, Witness No.4 agreed that part of his statement where he mentioned the name of Accused was true after being reluctant. However, he went on to say that he did not say these things.

At the close of the prosecution’s case, Accused was explained of his constitutional rights and he chose to depone under solemn affirmation. He averred that he never bought anything from the two prosecution witnesses and that their versions do not correspond and that the counsel for the prosecution has used tricky words to frame Witness No.3. In his first statement, Accused had denied the charge levelled against him and the second statement concerns the identification parade where both Witnesses positively identified Accused but where Accused came with ridiculous versions denying same.

I have assessed the evidence which is on record.

Section 40 of the Criminal Code reads as follows:

“Any person who knowingly receives, in whole or in part, or who without sufficient excuse or justification, is found to have in his possession, articles carried off, abstracted or obtained by means of a crime or misdemeanour shall be deemed to be an accomplice in the crime or misdemeanour.

The Accused is charged with the offence of knowingly receiving a laptop and a golden chain which had been abstracted from the house of Witness No.2 by means of larceny.

I find it apt to refer to the case of DPP VS KHADAROO R (2011) SCJ 33, where the Court made reference to the case of PRAYAG VS THE STATE (2004) SCJ 29, in relation to section 40 of the Criminal Code and stated as follows:

“This section contemplates two distinct cases which ought not to be confused: the first one is when an accused party “knowingly receives articles obtained by means of a crime or misdemeanour”, which is an extension of the offence of “recel” borrowed from the French Penal Code, and the second, peculiar to our Mauritian law, is when he is “found in possession of such articles without sufficient excuse or justification”. It is well established that where the charge is “knowingly receiving”, the onus of proving guilty knowledge rests upon the prosecution. Where the charge is “possession without sufficient excuse or justification”, once the prosecution has established the possession, the onus of proving that such possession is justified or sufficiently excused shifts on to the accused party : Vide Calteaux v The King [1909 MR 16], Toofany v The Queen [1957 MR 186], Wong Kwock Yow v R [1935 MR 171] and Seeneevassen v R [1974 MR 225]”.

Hence, in relation to the present case, it is incumbent on the Prosecution to prove that the Accused had guilty knowledge that the articles were stolen.

On this score, I have taken note of the testimony of both Witnesses No.3 and No. 4 and I have given myself the warning to treat their evidence with caution since they are self-confessed accomplices. (RE: SUDDASON B VS THE STATE (2011) SCJ 206).

As far as Witness No.3 is concerned, he admitted having sold these items to Accused in examination-in-chief and so did he in cross-examination. Moreover, it was only after Accused asked him in cross-examination about police brutality, that he said so. . As far as Witness No.4 is concerned, he mentioned in Court that he did not involve Accused but admitted having signed the statements. But I had the chance to assess his demeanour in Court and I can say that he was only trying to save Accused.

In the actual case, Witness No.1 deposed well. Accused came up with the version that Witness No.1 asked him to bring a chain in order to be granted bail. However, it is only during trial that he came up with that version. It is to be noted that Accused himself is a police officer and must be aware of the basic procedures. Had Witness

No.1 really asked him to bring same, he should have made a declaration to the police but he never did so. Thus, I find that Witness No.1 remained a credible witness.

Accused on the other hand despite the fact that he came under solemn affirmation, his version did not seem to be genuine. He did not stand the test of cross-examination.

I therefore find that the constitutive elements of the offence have been proved by the prosecution.

Hence I find Accused guilty as charged as prosecution has proved its case beyond reasonable doubt.

D. Mooloo (Mrs)

Acting Senior District Magistrate

18 th March 2020