Supreme Court of Mauritius, 30 avril 2026, 2026 INT 106 – Police v Kaviraj Ballchand

1

Police v Kaviraj Ballchand

2026 INT 106

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause number: 91/2023

In the matter of: – Police

v/s

Kaviraj BALLCHAND

JUDGMENT

1. Accused, stands charged under the offence of wounds and blows causing death without intention to kill in breach of section 228(1) & (3) of the Criminal Code.

2. It is mentioned in the information that on or about the 01 st day of December in the year 2005 at La Rosa, in the district of Grand Port, Accused, a bar man , did wilfully and unlawfully inflict wounds and blows in and upon the person of one Shamy KANDAN, without intention to kill but the wounds and blows so inflicted had nevertheless caused the death of the said Shamy KANDAN.

3. Accused pleaded not guilty to the charge and was represented by counsel at Trial.

4. As per the evidence on record, there was a preliminary enquiry held in this matter against Accused before the District Court of Grand Port, where the latter was committed to the assizes. However, there is no confirmation as to whether the file concerning the said preliminary enquiry was thereafter sent to the office of the Director of Public Prosecutions 1 .

5. So far exhibits are concerned 2 , eight exhibits in all were secured in this matter, (exhibits 1 to 8). Exhibits 6 and 8 were sold in auction on 29 July 2016 and the remaining exhibits were destroyed upon advice of the Office of the Director of Public Prosecutions.

6. Mr Tecknarain Chummun, ex police officer (“Witness No 6”), repaired on the locus (Bois Doiseau Road, La Rosa) on numerous occasions and took photos in the presence of witnesses. The booklet containing the said photos were produced during the said preliminary enquiry but could not be produced before this court as same were no more in his possession.

7. Late Shamy Kandan(“Deceased”), passed away on 22 December 2005 at 1630 hours at Jawaharlall Nehru hospital and was 32 years at that time 3 . On that day at 2000 hours, an autopsy was performed (nineteen days after Deceased was admitted to the hospital), following which a Medico-Legal Report (“MLR”) was drawn up 4 . The cause of death was due to septicaemia and Dr S.K. Gungadin (“Witness No 1”), who performed the said autopsy testified that there were 3 to 4 wounds on Deceased body, some were surgical wounds whilst others were inflicted on Deceased. One of the wounds at the abdomen got infected and since Deceased was admitted and treated at the hospital, the infection might have spread throughout the body during his stay at the hospital. Witness no1 revealed that he testified in a criminal case concerning the same Deceased where another Accused party was being prosecuted.

1 Evidence of Court manager of Grand Port District Court (“Witness 34”). 2 Ibid 1 3 Document B 4 Document C

8. No defence statement, recorded from Accused was produced by the prosecution but on the other hand, on 9 December 2005, about nine days after the alleged offence, a statement was recorded from Accused as a witness 5 . In that statement, Accused stated that he saw a person which he later came to know as Ashvin Kisnah stabbing Deceased in the abdomen. He recognised the said person during a confrontation exercise and showed the police, during a reconstruction exercise, the spot where Deceased was stabbed in the abdomen by the said Ashvin Kisnah, that is by the counter inside “Ti piment” snack at La Rosa. He had also given a witness statement on 01 December 2005 where he explained what he saw on that day whilst working on the counter of that snack. When he saw Deceased was injured, he immediately sought help from the owner of the snack one Mr Dabee. In Document E, the version of the said Ashvin Kishnah was put to him stating that on the material date, he had a discussion with Ashvin Kishna and they started fighting. In the course of the said fight, Ashvin Kishna was about to stab him with a knife but stabbed Deceased who interveaned in the middle of that fight. He denied that version.

9. Inspector Cudian (“Witness No 19”), enquired in this matter. He confirmed that several persons were interviewed in this matter and a reconstruction exercise was carried out on 29 December 2005. A search was carried out at “Ti piment” snack at La Rosa and a stainless metal tube measuring 68 cm was secured. The said item was not produced as exhibit, despite the fact that it was sent to the FSL for examination. He could not enlighten the court as to why this item had to be secured. He confirmed that when the enquiry started, Accused was a witness as there was a person who had confessed having assaulted and injured Deceased who then passed away. Thereafter, that person changed his version.

10. Mrs Taramatee Ramsurrun (“Witness No 23”) testified that on 01 December 2005, there were constructions works that had to be done at her place. Her son in law, Mr Ashvin Kishna (“Witness No 33”) undertook the works and was helped

5 Document E

by Deceased. Afterwards, they went out and her son in law returned home at night. He appeared normal and did not say anything to her. On the following day that is 02 December 2005, she heard “Cunden” meaning Deceased passed away but her son in law never told her what happened. She agreed with the contents of her statement wherein she stated that 02 December 2005, in the morning, one Satyam who is the owner of a restaurant in La Rosa came at her place and threatened to kill her son in law as the latter had assaulted him. She was not aware of Satyam`s full name but knew that he does not live in the vicinity.

11. Mr Sravan Kumar Hamur (“Witness No 25”), another material witness called by the prosecution gave evidence that He sold a vehicle to one Sanjeev Balchand who later became his friend. On 1 December 2005, in the afternoon, Sanjeev Balchand came to meet him at home. Then they went to “Ti piment” restaurant at La Rosa for some drinks, He knows that the owner of the said restaurant is the brother of Sanjeev Balchand. He recalled that when they went to the restaurant on that day, there were many persons inside and were given a small room in a corner. On the next day, he learnt on the radio that there was an homicide in that restaurant but there was no mention as to who was killed. However, he noticed that there was an incident by the counter of the restaurant on that day, he saw persons unknown to him were talking loudly to the owner of the restaurant. He was aware that the owner was renting the restaurant to Accused. He disagreed with the contents of his statement given to the police where he stated that that on that day he saw Ashvin Kishna partaking drinks with Deceased and Deceased was arguing with one Balloo on the counter.

12. Mr Appalasamy Butchanah (“Witness No 28”) the third material witness for the prosecution briefly stated that on 1 December 2005, he went to “Ti Piment” restaurant with his family. On that day he met with Accused and was having dinner with his family in a room. At a point in time, they heard a loud noise and his daughter was scared. He left the restaurant with his family and on the way, he met the owner and told the owner that he will settle the bill the following day. He came to know that due to the incident in the restaurant, someone passed away. He could not say who was making noise in the restaurant but only heard

a lady shouting “ena couteau dans so la main.” He could not say in what context and to whom that lady was referring to when she shouted those words and made it clear that he did not see that lady and those who were making noise in the restaurant.

13. Ms Neelum Mohinee Dookhurun (“Witness No 26”), was at “Ti piment” restaurant on the material date. She was an employee of one Mr S. Daby the owner of the said restaurant and Mr S. Dabee had rented that restaurant to a person in the name of Ballchand. She could not remember what took place in that restaurant on that day as it was quite a long time ago. However, she stated that she was in the kitchen with Ballchand and his wife and did not witness any incident but only saw someone getting injured.

14. Mr Somduth Ramsurun (“Witness No 31”) gave evidence that on 1 December 2005, there were construction works to be done at his mother`s place, Witness No 23. Deceased and two other persons undertook those works with his brother in law, named Ashvin Kishna Witness No 33. After the works were completed, Witness No 33, Deceased and the others went out for drinks at “Ti Piment” restaurant. He joined them after with Mr Poobarlen Masilamani (“Witness 30”). He emphasised that the restaurant (at that point in time) was being rented to Accused by its owner one Mr Satyam Dabee. When he reached there, he saw his brother in law, Witness No 33 with Deceased arguing with Mr Dabee, then Accused barged in the argument whilst Mr Dabee left. They were arguing in front of the restaurant and they were rude and drunk. Accused got furious, he went at the back by the kitchen, came with a small bread knife in his hands, and struck Deceased on his neck with that knife. He specified that at the moment when Accused injured Deceased with that knife, Witness No 33 had already left the restaurant. It was the first time that he saw Accused on that day. He recalled also having seen, Mr Dabee using a gun and shooting in the air. He

showed to the police various spots during the enquiry following which notes and measurements were taken.

15. In cross examination, he confirmed that when he went to the restaurant on that day, Deceased and Witness No 33 were already there and there was no argument between them. He saw Deceased arguing and swearing to the owner, Mr Dabee. He agreed that in his statement given to the police, he stated that Witness no 33 had already left when there were arguments in the restaurant. He also confirmed that at the time Accused injured Deceased, there were many persons in the restaurant who could have seen the incident. When he saw what happened, he left the spot as he was panicked. Although he learned on the following day that Deceased was at the hospital, he did not go to the police on the day but went to the police on 22 December 2025, when Deceased passed away. He was not aware if Witness No 33 (his brother in law) had, by then, already accepted to the police that he injured Deceased but was aware that Witness No 33 was arrested by the police at that time for this case. He could not explain why he went to the police on 22 December 2005 and not earlier. He could not recall when for the first time he saw Accused holding a knife but stated that the knife held by Accused had dents and measured about 30 cm. He conceded that in his statement given to the police, he mentioned that he did not see the knife which Accused was holding but only saw Accused with a knife when he injured Deceased. He disagreed with the contents of his statement given to the police where he stated that when Accused left, he was still with “Barlen” in the restaurant and maintained that when he left the restaurant with “Barlen”, he was panicked. He agreed that Deceased passed away much after but was only injured on that day. He could not explain why in his statement to the police he stated “mo pas fine faire nanien pou sappe so la vie”, but it is possible that later he realised that he should have helped Deceased. He maintained that he saw Accused injured Deceased on that day and denied that he gave a statement to disculpate Witness No 33 (his brother in law) who was already under arrest for this case.

16. Mr Poobarlen Masilamani (“Witness No 30”) is a friend to Witness No 31 and knows that Witness 33 is the brother in law of Witness no 31. Deceased was

also known to him. On 1 December 2005, he went to “Ti piment” restaurant with Witness no 31 to partake drinks. Thereat, he saw Witness 33 and Deceased inside who were drunk and fighting between them by kicking and punching each other. He was sacred. He knew the owner of the restaurant as one Mr Dabee who was renting same to Accused. He went on to state that he saw Accused on that day assaulting Deceased and struck the latter with a knife on his neck. He explained that Deceased and Witness 33 were causing havoc in the restaurant and waiters could not work, hence Accused intervened and assaulted Deceased who leaving by the entrance door of the restaurant. The knife held by Deceased was big and thin. When he saw this incident, he was with Witness No 31but gave no assistance to Deceased. According to him, Accused assaulted Deceased because the latter was causing havoc in the restaurant and also disturbing waiters. He confirmed that he did not see any discussion or arguments between Deceased and Accused prior to that but then became aware that Deceased passed away. On that day, he saw Mr Dabee shooting with a gun in the air and Witness No 33 was seated on a table at the time when Accused assaulted Deceased. He did not see Witness No 33 after.

17. In cross examination, he clarified that when Deceased and Witness 33 were fighting, he left but saw by the door a fight between Deceased and Accused. He left the restaurant and waited for Witness No 31 on the road as at that point in time, Witness No 31 was still inside. It is when he was entering the restaurant that he saw and stood by the door that Accused and Deceased fighting. He mentioned that after Witness No 33 fought with Deceased, the latter went to sit. He gave a statement to the police days after Deceased passed away. He knows Witness 31 well. Witness no 31 met him after Deceased had passed away and told him to give a statement to the police. Witness No 33 told him that Witness No 33 (his brother in law) has been arrested in this matter and has not been released on bail. Witness No 31 told him that he needs to help Witness No 33 and also told him that Accused was not one of their friends. Between 01 December 2025 to 20 December 2025, before he gave his statement, Witness No 31 met him on several occasions and they agreed to give a statement to disculpate Witness 33 who was also arrested in this case. Hence, after Deceased had passed away, he went with Witness 31 to give a statement to

disculpate Witness No 33. He first went to CID Curepipe and was reffered to CID Rose Belle. Witness No 31 told him that he really need to help Witness No 33. He clarified that when he heard Witness 33 was arrested, Witness 31 and himself gave statements to help Witness No 33.

18. He added that on that day, Accused was talking to Deceased by the door of the restaurant however, he agreed that in his statement to the police, he stated that when Deceased was swearing to Accused, he was infront of Deceased and Accused was in the kitchen, it was then that Accused came and fought with Deceased. He could not recall where Witness No 31 was at that point in time. He stated that he saw Accused and Deceased swearing and hitting each other but could not say who started the fight. He could not recall whether Deceased was already injured when he fought with Witness No 33, he then saw Accused picking a long and thin knife from the counter nearby and injured Deceased on his neck, Accused was next to Deceased, holding the knife in his right hand and struck Deceased only once. He could not state exactly where Deceased was struck with the said knife. He agreed that in his statement, he stated that he saw Accused taking the knife from the kitchen. On that score, he could not say which version is the truth. He conceded that in his statement, he stated that he saw Accused came from behind and assaulted Deceased, at that time, he was 3 metres from Deceased. He maintained that the version contained in his statement was correct and could not recall what he stated earlier in court. He agreed in his statement he said that after Accused assaulted Deceased, he was still there and Deceased was in a standing position when he was injured. He candidly agreed that he invented a version to help Witness No 33 and stated that he could not recall if Accused had assaulted Deceased on that day. Finally,he stated that although he helped Witness No 33 in his statement, he saw what happened as he was present when the incident occurred.

19. Mrs Maraiaye Kandan (“Witness No 37”) is the mother of Deceased and at the material time, they were living together at la Rosa. Deceased worked as a stone mason. On 01 December 2005, Deceased got injured, was admitted to Rose Belle hospital and passed away on 22 December 2005. She met Deceased when the latter was still admitted and saw that he was seriously

injured. Deceased spoke to her for eight days but was speaking slowly as he was wearing an oxygen mask. At that time when Deceased was admitted at the Intensive Care Unit, he told her that a person called Ballchand assaulted him. Deceased also told her that he was in the community centre with a friend before going to a restaurant. She could not say what happened in that restaurant.

20. In cross examination, she could not say for how many days Deceased was admitted at the Intensive Care Unit but reiterated that Deceased spoke to her for eight days. She agreed that Deceased remained in the Intensive Care Unit until he passed away and although Deceased was not supposed to talk in the Intensive Care Unit, he did speak to her. She stated that Deceased did not give any statement to the police as to who assaulted him. When Deceased was at the hospital, the police arrested Witness No 33. She agreed that she did not inform the police about what Deceased told her,that is one Ballchand assaulted him and not Witness No 33. In fact the wife of Witness No 33 told her that it was not her husband who assaulted Deceased and according to her, it was not Witness No 33 who assaulted Deceased. Although she went to the police after Deceased passed away, she was aware that when Deceased was admitted, Witness No 33 was arrested for assaulting him. She confirmed that prior to the demise of her son and as soon as the incident occurred, she was called by the Curepipe CID and at that time, Deceased was still alive and admitted and Witness No 33 was under arrest for this case. She agreed that she did not give any statement as to what Deceased revealed to her. She reiterated that after Deceased passed away, the wife of Witness 33 came to see her again and told her that her husband is still under arrest and it was two months after Deceased had passed away that she went to the police. Also, in her statement she only stated that a man stabbed her son, she never mentioned the name of Ballchand or Kishnah. She did not mention the name of Ballchand in her statement because it was when Mr Ballchand came to court that she knew it was him. She conceded that she was told by other persons to cite the name of Ballchand. Although same is not mentioned in her statement, she maintained that Deceased told her that the person who assaulted him wore an earing and that person was Ballchand who had taken over the restaurant. Lastly, she

disagreed that this was never mentioned to her by Deceased and she was told by other persons to state this in court.

21. Accused adduced evidence. He denied having committed the offence. He was arrested in this matter on 22 December 2005, gave a statement to the police prior to his arrest and was duly questioned on the occurrence of the incident upon arrest. A statement was recorded from him on the material date as he was in the restaurant. On that day there were about seven persons including the staff and he recalled that he never had any problems with anyone. However, there were issues between Ashvin Kishna, Witness No 33 and Deceased. He saw that there was an argument between them and Witness No 33 stabbed Deceased in the abdomen, consequently Deceased fell inside the restaurant and Witness No 33 fled. He alerted Mr S. Dabee, the owner of the restaurant and Samu was called. He remained inside the restaurant till Deceased was taken by SAMU. The police then came on spot by 1900 hours. He never stabbed Deceased.

22. In cross examination, he stated that due to the argument in the restaurant on that day, other persons were being disturbed. He did not intervene as he was not aware what caused that argument. Then he stated that it is possible that he intervened on those who were arguing as they were also misbehaving and were drunk. He confirmed that Deceased did not swear to him and neither did Witness No 33 push him. He disagreed that he took a knife from the kitchen and stabbed Deceased and the latter, following admission to the hospital, passed away.

Analysis

23. I have given due consideration to the whole evidence on record and paid attention to the demeanour of those who testified in court. I have also considered the submission of counsel on both sides, and do not find it useful to recite and replicate the submissions offered but shall eventually address the relevant points raised therein wherever I find applicable.

24. First and foremost, evidence on record shows that a preliminary enquiry was held against Accused in this matter and several documents were produced in the course of that preliminary enquiry 6 . However, it is unclear whether proceedings concerning the said preliminary enquiry were forwarded to the office of the Director of Public Prosecutions. As such, before this Court, no photos or plan(s) showing the locus in quo were produced by the prosecution to support its case

25. In addition to that, there is no evidence of any reconstruction exercise carried out by any witnesses or even Accused and the outcome thereof. Surprisingly, exhibits secured in the matter could not be produced before this court as same had already been destroyed or sold in auction. It can also be gathered from the evidence of Witness No 19 that a stainless metal tube measuring 68 cm was secured during the enquiry and that metal tube was even brought to the FSL for examination. But the fact remains that this metal tube was never produced in court, the outcome of its examination by the FSL is also unknown and there is no explanation as to why that metal tube even had to be secured. Furthermore, the prosecution did not produce any offensive weapon or any items of any kind apparently used to injure Deceased on that day. Hence I am of the view that the real evidence on record and even the enquiry in this matter fall short in establishing that Deceased was wounded with knife of 01 December 2005.

26. When the enquiry started, Accused was a witness and at a point in time that is on 22 December 2005, he was arrested and became a suspect. There was another person who was arrested in this case and who even confessed having injured Deceased 7 . That person at a point in time, changed his version. It remains unexplained by the prosecution, from the evidence adduced by it, as to how, when and what manner Accused who initially was a witness, thereafter became a suspect.

6 Page 33 of the Proceedings, evidence of Witness 34. 7 Page 81 of the proceedings, evidence of Witness No 19

27. Although it is on record that a preliminary enquiry was held in this matter where Accused was committed to the assizes 8 , I find it ludicrous as how come the prosecution merely produced a statement recorded from Accused as witness as to what he saw on the day of the incident in the restaurant instead of producing, before this court, a defence statement from Accused recorded from him under caution, after he has been explained of the charge and his rights.

28. Therefore ex facie the evidence on record, not only the precise charge was never put to Accused during the enquiry, but also the facts and evidence against him for example, the MLR or version of any witnesses or other incriminating evidence, where he is given the opportunity, in all fairness, to rebut same or put forward his version after being informed of his rights, were never revealed to him at enquiry stage.

29. In Director of Public Prosecutions v TPJM Lagesse & Ors [2018 SCJ 257] it was emphasised that “The baseline is therefore that the accused must be made aware of the case against him. What effectively does that imply? Quite clearly this will depend on the particular circumstances of each case, but evidently cannot mean the “charges as per the information lodged before the trial court” be put to him at the stage of enquiry. Where there is a complaint, it would de facto imply that the suspect has to be confronted with that complaint; and if there were additional incriminating evidence gathered during the course of the enquiry those should be put to the suspect. Obviously, if the police as part of their enquiry do have incriminating evidence, the suspect has to be cautioned and informed of his right to be legally assisted, i.e. right against self- incrimination and right to be legally assisted. Here, it is good to highlight that if the two rights referred to above are to have any meaning, they have to be imparted to the suspect in a language which he understands.” (emphasis added)

30. The Privy Council in Kanda v Government of Malaya [1962] AC 322, 337 laid emphasis on that principle and reiterated that “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused

8 Page 38 of the proceedings, evidence of Witness No 34

man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.” (emphasis added)

31. Secondly, the evidence of Witness nos 23, 25, 26 and 28 called by the prosecution does not even make mention of Accused assaulting Deceased on that day and also from their evidence, it is not known whether they have ever said so in statements given by them to the police. Hence no weight can be attributed to the evidence of these witnesses.

32. So far, Witness No 37 is concerned, she did not identify Accused in court although she stated that Deceased revealed to her whilst he was admitted at the Intensive Care Unit, that one Ballchand who took over the restaurant and who wore an earing, assaulted him. Irrespective of the fact that Deceased was wearing an oxygen mask at that time and could not give any statement to the police, he supposedly spoke to her slowly for eight days about that Ballchand. Yet, Witness 37 made no mention of the said Ballchand who assaulted Deceased in her statement given to police and did not explain why she omitted to mention this important fact there and then. She also gave no explanation why, despite what Deceased told her at the hospital, she went to the police two months after Deceased passed away. I am of the view that had Witness No 37 informed the police that Deceased told her one Ballchand assaulted him, the police would have been in a position to enquire as to the real identity of the said Ballchand and also the allegations of Witness No 37 and Deceased would have been put to that person in the course of enquiry. However this course of action was not possible due to the fact that it is only in court that Witness No 37 made this revelation. Witness No 37 candidly conceded that when Deceased passed away, and the wife of Witness No 33 came to see her and stated that it was not Witness No 33 who stabbed her son. Even though, she stated that she knew that it was not Witness No 33 who stabbed her son, she did not state how and on what basis she came to know same. Clearly from the above, the evidence of Witness No 37 is biased, is not reliable and devoid of any credibility. I am also of the view, that the manner she testified in court shows that she has

been coached or even influenced to state in court that one Ballchand assaulted her son on the material date. Hence. her evidence is unworthy of belief.

33. The case for the prosecution therefore rests on two eye witnesses,( Witness Nos 30 and 31) who went and were together in the restaurant when the incident occurred on that day. Before analysing the evidence of the said witnesses, it apposite to bear in mind that a credible witness as defined in Joomer v The State 2013 SCJ 413 is “one who demonstrates by his testimony that he has: (1) knowledge of the facts to which he is testifying; (2) he is a disinterested party on the facts to which he is testifying; (3) he shows integrity in his deposition; (4) there is veracity in his statements; and (5) he feels bound to speak the truth following the oath or solemn affirmation he has taken before starting to testify.” (emphasis added).

34. A close comparison of the evidence of Witness 31 and 30 shows the following-

(i) Witness No 31 said that there were no arguments between Witness No 33, his brother in law and Deceased on that day whereas Witness No 30 stated that Witness No 33 and Deceased were fighting and even hitting each other.

(ii) Witness No 31 said at the time that Accused injured Deceased with a knife, Witness No 33 had already left the restaurant. However, Witness No 30 stated that at the time when Accused assaulted Deceased, Witness No 33 was seated on a table in the restaurant.

(iii) Although Witness No 31 stated in his statement that he did not see the knife which Accused held when assaulting Deceased, in court he described the knife was a bread knife, small, with dents and measuring about 30 cm. But Witness No 30 gave a different description of that knife, he said it was a big, thin and long knife.

(iv) Witness no 31 stated that Accused was furious, went at the back of the kitchen and came with a knife which he used to assault Deceased. Witness No 30, on his part stated that Accused took the knife which he assaulted Deceased from a nearby counter.

(v) Witness 31 stated that at the time when Accused assaulted Deceased, he was panicked and went out with “Barlen” meaning Witness No 30. However, Witness No 30 stated that he saw Accused and Deceased fighting each other by the entrance door of the restaurant and could not recall where Witness No 31 was at the material time.

(vi) Witness no 31 stated on the occurrence of the incident that he saw Deceased and Witness No 33 arguing with the owner of the restaurant Mr S Dabee and then after Mr S Dabee and Witness No 33 had left, Accused came with a knife and injured Deceased. However Witness No 30 gave a different account of the events by stating that he saw Deceased and Witness No 33 fighting each other and since they were causing trouble in the restaurant and waiters could not work, Accused intervened and assaulted Deceased on the neck with a knife.

35. I bear in mind that Witness Nos 30 and 31 are testifying almost twenty years after the events and that “Giving evidence in Court is not a memory test and failure to recollect with precision all the circumstances and details of an incident is understandable.”, vide Vythilingum M v The State [2017 SCJ 379]. However, “such principles should not be used as a blank cheque. Inconsistencies of any kind or departures from the original complaint cannot invariably be placed on account of the fact that deposing in court is not an exercise of memory test and to simply brush them aside”. , vide Neeroo H v The State [2023 SCJ 116],

36. I am unable to agree with the submissions of learned counsel for the prosecution that the inconsistences are not material and do not affect the credibility of the said prosecution witnesses. In my view, the contradictions

listed above in the version of Witness No 30 and 31 who allegedly saw the incident together, are major, material, stark, predominant and goes to essence of their respective version as to occurrence of the incident on that day.

37. Furthermore, although Witness No 31 claimed that he saw Accused injuring Deceased , he gave no explanation as to why he did not go to the police at the very first opportunity but waited till the 22 December 2025 when Deceased passed away, to report the matter, especially when he knew that Witness No 33, his brother in law had already been arrested for this case. Although Witness No 31 contends that many persons in the restaurant could have seen this incident, it is unclear as to how come the sole eye witnesses in this matter for the prosecution are Witnesses 30 and himself, (two friends).

38. Also, the version of Witness No 33 that was put to Accused in Document E, during the enquiry is that, following a fight between Accused and Witness No 33, the latter stabbed Deceased accidently. It is worth noting that this version is ex facie materially different from the version of Witness Nos 30 and 31 in court and in the same breath, it is not known why Witness No 33, although on the list of witnesses for the prosecution, was not called to give evidence as to his version of the events.

39. Evidence on record shows that Witness Nos 30 and 31 are friends. Witness No 33 is the brother in law of Witness No 31 and is known to Witness No 30. After the incident, before Deceased passed away, Witness No 33 was arrested in this matter. Although Witness 30 stated that he saw Accused assaulting Deceased with a knife on the material date, he conceded that he gave a statement to the police days after Deceased passed away.

40. Witness No 30 candidly revealed that after Deceased passed away, Witness No 31, his friend, approached him and stated that Witness No 33 is still being detained for this case and that he has to give a statement to help Witness No 33. Witness No 30 described the circumstances that led him to give a statement to the police in this case, being that from 01 December 2025 to 20 December 2025, Witness No 31 met him on several occasions and they agreed to give a

statement to disculpate and to help Witness No 33 who was being detained by the police.

41. The above astounding revelation by Witness No 30 in cross examination, in my view shows that-

(i) the evidence of Witness No 30 and 31 which were arranged or concocted to disculpate a third party are unlikely to contain any veracity and integrity, and

(ii) Witnesses No 30 and 31 due to their proximity with Witness No 33 are not disinterested parties to the facts which they are testifying.

42. In addition to the above, I have not been impressed by the demeanour of Witnesses 30 and 31 in court. They were respectively thoughtful in examination in chief, evasive in cross examination and unconvincing in the manner in which they testified. They did not strike me as truthful witnesses.

43. Therefore, in light of the above, I find that the Witnesses 30 and 31 (the sole eye witnesses for the prosecution) are not credible. Not only, their respective version was never put to Accused in the course of enquiry, but their evidence are unimpressive, inherently unreliable and unworthy of belief.

44. On a further note, on teeth of the evidence of Witnesses No 30 and 31, Accused allegedly assaulted Deceased with a knife on his neck. However according to Document C, the cause of death is septicaemia cause by one of the wounds sustained by Deceased in the abdomen which got infected 9 . Evidence adduced by the prosecution, thus fall short in establishing how Deceased sustained that wound in the abdomen.

Conclusion

9 Page 62 of the proceedings, evidence of Witness No 1.

45. For all the above reasons, I find that the prosecution has not been able to establish its case beyond reasonable doubt, I therefore grant Accused the benefit of doubt and dismiss the information against him.

P. Balluck (Mr) Magistrate Intermediate Court

30 April 2026