Supreme Court of Mauritius, 25 février 2020, 2020 INT 31 – POLICE v (1) CHUNDAN SOOMIRTEE (2) PRAKASH SOOMIRTEE

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POLICE v (1) CHUNDAN SOOMIRTEE (2) PRAKASH SOOMIRTEE

2020 INT 31

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number: 442/2017

In the matter of: POLICE v (1) CHUNDAN SOOMIRTEE (2) PRAKASH SOOMIRTEE

Judgment 1. Chundan Soomirtee (accused no.1) and Prakash Soomirtee (accused no.2) are two brothers who occupy different storeys of the same house together with their parents, along Charbon Road, Montagne Blanche. Their next-door neighbor, whose house, is found in front of theirs, is one Sahass Baldee (the complainant), a fire fighter, in his sixties. The Soomirtee family, including the two accused parties, and the complainant are not on good terms and they have been having recurrent disputes over the past decade which led to several declarations being given to the police against each other.

2. The complainant has reported a case to the police implicating the two accused parties and a third member of their family as the perpetrators of an arson, in the course of which, fire was set to a car in the garage of the complainant, during the late hours of the night of 05 June 2014.

3. The two accused parties have denied the charge levelled against them and they both pleaded that they were sleeping at their place of residence at the material time.

4. It is against this background that both accused parties have pleaded not guilty to a charge of having willfully and unlawfully set fire to a motor vehicle belonging to the son of the complainant, in breach of Section 346(5) of the Criminal Code. They were

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represented by counsel during the proceedings and the case for the prosecution was conducted by State Counsel.

5. It is not disputed that forensic examination of the car belonging to the son of the complainant (the car), on the morning of 06 June 2014, revealed fire damage at its front and rear together with an oily substance and soot deposit over the car; and the conclusion reached that it was the result of a malicious act.

6. The only eye witness in the present matter is the complainant, who, although did not see who had actually set fire to the car, claims to have seen the two accused parties running away from his premises. There is no independent evidence to otherwise link the two accused parties to the arson in any manner whatsoever. A plastic bottle found to contain a certain amount of thinner was secured along the alley bordering the house of the complainant and leading to the house of the Soomirtee but there is no credible evidence to connect it with any one of the two accused parties or the fire itself.

6.1. Hence, this case depends wholly on (a) circumstantial evidence and (b) the correctness of the identification of the two accused parties, which the latter allege to be mistaken. Indeed, the accused parties have indirectly raised the defence of mistaken identification given that they have both denied being at the material place at the material time 1 .

6.2. As far as the establishing the identification of the accused as the perpetrators of the offence is concerned, the prosecution has in the case in hand relied on the testimony of the complainant who purports to have seen both of them running away from his premises; the dock identification of the accused parties made by the complainant; and the pre-trial identification made during a confrontation exercise following the declaration made by the complainant.

7. The evidence led by the prosecution regarding the circumstances in which the two accused parties were identified and suspected to be the perpetrators of the present offence is substantially to the effect that the complainant was watching television on the material night in his terrace which is found just above the garage where the car was kept, when he heard what he described as ‘enn ti tapaz bruler’ (sic) which he further defined as the sound of fire sparks and he got the smell of something burning in the garage. As

1 Ponnoo v The Queen [1990 SCJ 28]

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he climbed down the stairs to look into the matter, the smell became stronger; flames were coming from the car; and he saw the two accused parties running away; one through a corridor and the other from the main entrance of the garage.

7.1. As far as the surrounding conditions in which the complainant identified the two parties are concerned, the evidence on record reveals that the lights in the garage were off at the material time and the complainant claims to have seen the two accused parties through the light emitted by the flames and a nearby street lighting. Furthermore, he alleged that one of the accused parties passed in front him whilst running away.

7.2. The police officer who attended the spot after the alleged incident deposed to the effect that the alley leading to the house of the accused parties and along which the complainant had allegedly seen them run away, was dark. He further added that the garage was quite obscure. It however appears that has departed from the previous statement he had put up in the present matter, wherein he had inter alia explained that the spot was well lit and visibility was clear.

7.3. It is undisputed that the entrance to the garage bordered the public road and it was an open one with no enclosures restricting access to the same.

8. The version of the complainant in Court is silent on certain essential facts that were put to the accused when recording their respective out of court statements and which presumably reflected the very version of the complainant to the police. Indeed, in assessing the weight to be attached to the testimony of the complainant, the Court finds that he has without any justification departed on material aspects from his previous version to the police in order to come up with an improved and different version in Court.

8.1. The complainant has given contradictory versions on the following important aspects, namely, (a) the manner his attention was caught that there was something going wrong downstairs; (b) who he had actually seen doing what; (c) the number of persons who were present in the surroundings when he discovered the fire; and (d) how the alleged perpetrators of the arson went away. The complainant remained evasive as to whom between the two accused parties he had seen doing what. His testimony on that score is terse.

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8.2. Indeed, his initial version to the police indicates that (a) he was in his living room at the material time and no evidence was led as to whether the terrace and the living room referred to one and same room; (b) he came downstairs to look into the matter when he heard his dog barking and no mention is made about his intervention emanating from a crackling fire sound and/or a burning smell; (c) he saw accused no.1 coming out from the garage and accused no.2 was running behind accused no.1; (d) he had seen a third person with them called ‘Mookesh Soomirtee’ who was in his van which was parked in the alley and the three offenders went away in the van; and (e) he had seen accused no.2 carrying what looked like a plastic bottle and which fell along the alley whilst he was running away.

8.3. The unrebutted version of the two accused parties found in their respective out of court statements show that the said ‘Mookesh Soomirtee’ was their paternal uncle. The evidence led in Court however refers to one ‘Bupendra Soomirtee’, who is allegedly the cousin of the two accused, as being the third person present and who drove away the van. The latter deposed in Court and it transpired that he was arrested in connection with the present matter; he was bailed out; and he had a sprained left ankle which was plastered at the material time; hence the implausibility of his driving a manual transmission van at the material time. The complainant remained totally silent about the presence of a third person and a van during his narration of events in examination in chief and he did not mention the accused parties going away in a van either. The issue was raised in cross examination and his explanation was that he had never mentioned that Mookesh Soomirtee was in his garage, given that he was in the van. I have however not been impressed by such unsatisfactory explanation in an attempt to deflect from the inconsistency between his two versions. Furthermore, the Court was left in the dark regarding (a) the relationship between Mookesh Soomirtee and Bupendra Soomirtee in the light of the tenor of the version of the two accused parties suggesting they are two different persons and (b) the reason the latter was arrested instead of the latter.

9. Against such evidence is the testimony of the two accused parties under solemn affirmation coupled with those of (a) their cousin Bupendra Soomirtee, (b) their father to confirm the alibi of accused no.1, and (c) the wife of accused no.2 to support the

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version of the latter that he was indeed sleeping at his place of residence on the material night.

9.1. Accused no.1 has on the whole maintained his version from the beginning that he was sleeping at the time the incident is alleged to have occurred and although he did hear some noise of people talking, he did not wake up to look into the matter.

9.2. Accused no.2 has for his part remained silent in Court regarding that part of his previous statement to the police to the effect that his wife woke him up on that night at about 23 30 hrs when she heard a loud noise; he looked through the window; saw several persons armed with tools in his yard; and he had asked his wife to call the police. Whilst his wife supported such version when it was put to her, she was confronted with the evidence of her husband to the effect that the latter stated in Court he was sleeping and it was only in the morning that he became aware of the alleged incident; and when the veracity of her testimony and that of her husband were questioned on that aspect, she remained mute.

9.3. The Court observes that, that part of his previous statement to the police with which his wife was confronted, was never put to accused no.2 in the course of his testimony. Furthermore, he never mentioned in his out of court statement that the alleged incident was brought to his notice on that very night. The reason the police was called by the Soomirtee does not intrinsically render implausible the version of accused no.2 that he only came to know about the incident when he had gone to the police station to report another matter the following morning. Hence, when the evidence of accused no.2 and that of his wife is considered as a whole, I am satisfied that the shortcoming highlighted above is more apparent than real. The gist of the version of accused no.2 tends to suggest that he did not go out from his house on that night as alleged by the complainant but he was sleeping in his room with his wife and child.

10. It is well established that the Court will not outright reject the evidence of a deponent merely because it contains inconsistencies. In that respect, the Court has analyzed the testimony of the complainant as a whole taking into consideration, inter alia, the lapse of time between the alleged offence and the time he gave evidence in Court and his demeanour in Court.

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10.1. This being said, the cumulative effect of the shortcomings enumerated above in the evidence of the complainant, when taken in their entirety coupled with the unrebutted evidence that the parties on not on good terms, make the possibility of a malicious accusation being levelled against the accused parties a real one. I have therefore not been impressed by the evidence led by the prosecution and I find that serious doubts have been raised on the veracity of the complainant’s version. 10.2. Furthermore, I find that the quality of the evidence on record regarding the identification of the two accused is poor, bearing in mind the given conditions of light in which such identification was made. The complainant has made a general statement as to place he had seen the two accused parties when they were allegedly going away from his premises but he has utterly failed to identify who of the two was coming out from the garage near the staircase where he was and who was following behind from the main entrance door. He has also remained silent as to the length of time he had observed the accused parties.

10.3. In the light of the tenuous evidence regarding the identification of accused parties and in the absence of any other evidence to corroborate the version of the complainant, I find that it would be unsafe for this court to rely solely thereon as regards the correctness of the identification of the accused parties.

10.4. Having discarded the evidence of the complainant as being unworthy of belief, I also find that the prosecution has failed to negative the alibi raised.

11. In the light of the evidence on record, I find that the evidence led by the prosecution has not satisfied the degree of proof required in a criminal case. In the absence of any credible evidence to link the accused parties to the fire damage caused to the car, the charge against both accused is accordingly dismissed.

A. HAMUTH (Miss) [Delivered by: A.HAMUTH (Miss), Magistrate Intermediate Court] [Delivered on: 25 February 2020]

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