Supreme Court of Mauritius, 31 mars 2026, 2026 INT 72 – Police v Poornanundsing JAGESSUR

Police v Poornanundsing JAGESSUR

2026 INT 72

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause No.: 307/2022 Police v Poornanundsing JAGESSUR JUDGMENT Accused stands charged with arson, in breach of s. 346(5) of the Criminal Code. It is averred that on 13th February 2019, at Trois Boutiques, he wilfully and unlawfully set fire to a motor vehicle not belonging to him and bearing registration no. 4577 ZN 00. Accused was represented by Mrs. N. Ramsaran-Jogeea, of counsel. Case for prosecution The police prosecutor produced: (a) An FSL report dated 08.05.19 drawn up by Miss K. Reddi (W1), Forensic Scientist (Document A), (b) A certificate from the National Transport Authority (W2) dated 22.06.22 for car registration no. 4577 ZN 00 (the car) (Document B), and (c) A medico-legal report dated 26.06.29 drawn up by Dr. S. K. Gungadin (W20), Chief Police Medical Officer (Document C). PS 5918 Ramroch (W13) produced a booklet of 2 photographs (Documents D (D1 and D2) which he took on 17.07.19 at 14.00hrs at Royal Road, Trois Boutiques, under the instructions of Inspector Lachumun (W5), in presence of Accused. Under cross-examination, he stated that the Enquiring Officer (EO) would have to confirm whether the spot shown by Accused in Document D1 is where Accused showed as spot where he went to the pee. He was not re-examined. PC 7339 Luchman (W12) produced a booklet of 17 photographs (Documents E (E1 to E17) which he took on 14.12.19 at 13.20hrs at Royal Road, Trois Boutiques

under the instructions of WPS Etwar (W6) and in presence of declarant (W18). Under cross-examination, he stated that W6 would be able to explain the photographs. He was not re-examined. PC 9759 Rajjoo (W14) produced a plan (Document F) which he drew up after having taken notes and measurements under the instructions of W6 and upon the indications of W18 on 14.02.19 at 13.20hrs at Royal Road Trois Boutiques. Under cross-examination, he explained that yellow tape was put to surround the burnt car and surrounding the two trees on each side of it. The yellow tape is not indicated on the plan. People had access to the other two trees not cordoned off. Accused did not have to go through the yellow tape to go to pee at Spot C. Spot B, where there was a windowpane, was not cordoned off. The van close to the burnt car was not cordoned off and had also sustained damages. Under re-examination, W14 confirmed that he drew up a plan under instructions of the EO. He was not aware whether the main EO had placed sentries at the locus to prevent people from accessing the cordoned off area. PS 8338 Monogee (W15), scene of crime officer, attended the locus on 14.02.19 and examined the car which was completely burnt with only its frame remaining. A windowpane of the burnt car was found about 10-15 meters from the said car. He examined the said windowpane, and three fingerprints were obtained therefrom by powdering and same were developed for examination. The fingerprints were secured, put on a piece of cobex (plastic sheet), labelled PM1, PM2 and PM3 and left at the Crime Records Office. Under cross-examination, he stated that it was the owner of the car who identified the windowpane. It was a full front offside window of the car. W15 was not re-examined. Former PS 4088 Suttroogun (W17) was posted at the Crime Records Office in 2019, and his job consisted of comparing of fingerprints. On 15.02.19, he received 3 cobex sheets with fingerprints dated 14.02.19 marked PM1, PM2 and PM3 respectively, lifted by W15. It was found, as per report dated 11.08.20 (Document G), that PM 2 is the middle finger and PM 3 is the right fore finger of Poornanundsing Jagessur (Accused). Under cross-examination, he stated that he examined PM 1 as well. He was not re-examined.

PS 9380 Ramchurn (W16), examined Accused’s mobile phone on 12.09.12 at 11.13hrs at Police IT Unit with the latter’s consent. He put up a report (Document H) of what he found during his examination. At the request of the EO, he retrieved four photographs of a burnt car therefrom. They were taken on 13.02.19 at 23.12.22 hrs, 23.12.18hrs, 23.13.59hrs and 23.14.05hrs. Under cross examination, W16 stated that photos which PS Lachuman did not find material on Accused’s mobile phone, were not retrieved. He was not re-examined. CPL 5397 Kanhiya (W3) produced a defence statement which he recorded from Accused in presence of defence counsel on 26.03.19 at 13.40hrs at Plaine Magnien CID Office (Document J), after the latter had been duly cautioned and informed of his constitutional rights. He confirmed that Accused denied the charge under cross- examination. He was not re-examined. PS 6202 Momus (W4) produced 2 defence statements which he recorded from Accused after the latter had been duly cautioned and informed of his constitutional rights on 15.05.19 at 10.40hrs and 30.06.20 at 10.50hrs, at Plaine Magnien CID Office (Documents J1 and J2). In connection with the present matter, a glass pane of the car was secured at Royal Road, Trois Boutiques on an unoccupied land. Officers of Plaine Magnien police station attended to the case first saw the glass pane. After SOCO personnel lifted the fingerprints thereon, he secured the glass pane. On 17.05.19 at 17.30hrs at Plaine Magnien CID Office, he put up a statement whereby he stated that Mr. Jandath Goburdhun, declarant, handed over to the police the car’s front offside windowpane. He explained that he secured it from declarant. Under cross-examination, he agreed that the glass pane was handled by declarant after the alleged offence and it was remitted to police. When put to him that the exhibit was contaminated, W4 explained that officers of Plaine Magnien police station attended to the case first and SOCO lifted the prints for comparison but did not secure the pane. He went to the locus well after when the case was referred to CID, one to two weeks after. Declarant was on the spot and handed the pane over to him. SOCO had left the glass pane on the spot. When he secured it he kept it at Plaine Magnien exhibit room. It can happen that exhibits are left at a locus after SOCO has done their job. W4 was not re-examined.

PS 5603 Lachumun (W5) identified Documents D (D1 and D2) as being two photographs which he instructed W13 to take. He put up a statement on 09.03.20 at 11.00hrs at Plaine Magnien CID (Document K) explaining the 2 photographs. At Plaine Magnien CID Office, on 17.07.19 at 13.15hrs, 17.07.19 at 15.10hrs and 11.02.20 at 11.25hrs, he recorded 3 defence statements (Documents J3, J4 and J5) from Accused after the latter was duly cautioned and informed of his constitutional rights. Under cross-examination, he confirmed that Accused denied the charge in all three statements. He agreed that in the statement recorded from Accused on the day after the incident, 14.02.19, Accused stated that he went to catch the bus to go to work and he met with declarant (W18) and talked to the latter. Accused did state that at some point he went to attend to a call of nature behind trees found behind the crime scene. Accused stated that when he came back, he saw the glass pane and lifted it to see what it was. W5 confirmed that he recorded a ‘further’ witness statement from W18 on 17.07.19 whereby Declarant stated that he met Accused at 6.45hrs when Accused came to catch the bus. He also stated that Accused took pictures of his car. W5 confirmed that he accompanied Accused to the police IT unit where he gave instructions to PC Ramchurn (W16) to retrieve photographs from Accused’s phone, not only on the day of the incident but also 14.02.19. He confirmed from Document F that the windowpane was found at Spot B, 5 metres from the burnt car at Spot A. W5 was not re-examined. WPSI Etwar (W6) stated that on 13.02.19 at 22.49hrs, she attended to the present case at Royal Road, Trois Boutiques, accompanied by PC Chamrah (W8) and WPC Digpaul (W7). Fire services, under the supervision of Mr. Rajooappadoo (W19) were putting out the fire on private car 4577 ZN 00, make Hyundai, colour metallic grey. She approached the locus after the fire had been put out and effected a search in the vicinity. There was a glass pane of a car about four to five meters from the burnt car. As it appeared suspicious, it was left on spot and the area was cordoned off with police yellow tape. W8 was left as sentry on spot with instructions to prevent unauthorised persons from accessing the spot. Nobody was injured in the fire. As per Mr. Jandath Goburdhun (W18), owner of the car, who is a “marchand ambulant”, the car contained his articles. On 14.02.19, she proceeded to the locus anew and thereat in presence of W18. She gave instructions to W12 to take 17 photographs which the latter bound in a booklet. She also gave instructions to W14 to take notes and

measurements in the light of which latter drew up a plan. W6 identified Documents E (E1 to E17) and Document F as being the said photographs and plan. She put up a statement on 16.05.19 (Document L) where she explained the plan and photographs. Under cross-examination, W6 explained that if PC Chamrah (W8) stated that he came across the windowpane on attending the locus and he drew W6’s attention to it as they were all together to attend the spot. It was suspicious because it seemed to emanate from the burnt car. She did not inspect the red van next to the burnt car for missing windowpanes and she could not confirm whether the windowpane was from the burnt car or the van. She did not give instructions to the police photographer to take pictures of the van to see whether it had missing windowpanes. She confirmed that it was a windowpane of a driver’s door on the right. W6 further confirmed that the yellow tape was put at the back of the burnt car to prevent access beyond it. She disagreed that the public could have access to the burnt car from the side as PC Chamrah was on sentry duty. No yellow tape was put around the windowpane as no one could get access to the other side. It was a bare land, where nobody could access the car and the glass pane. She disagreed that public could have access from the Royal Road Trois Boutiques to Spot B where there is the yellow tape. She was not re-examined. PC Chamrah (W8) stated that on 13.02.19 at 22.49hrs he went to Royal Road, Trois Boutiques together with W6 and W7. Under the instructions of W6, he performed sentry duty on a burnt car registration no. 4577 ZN 00. Fire services were already on spot when he arrived and there was a big crowd. Under the instructions of W6, the crowd was dispersed from the scene of crime to facilitate fire services’ task, and the scene was secured using yellow tape. Some 4 to 5 meters from the burnt car, W6 showed him a windowpane, and she gave instructions to him not to allow anyone to approach that spot. During his tour of duty, no unauthorised person accessed the spot. Round 00.30hrs, he was relieved by PC Armoogum (W9), to whom he gave the same instructions. Under cross-examination, he stated that it would be inaccurate to say that bystanders had access to the scene of crime before police arrived. They were standing at a certain distance. He could not confirm whether bystanders had access

to the scene before the arrival of the police. Both W6 and himself found the glass pane at the same time. He was not re-examined. PC 3393 Ramlugun (W10), on 14.02.19, relieved PC Armoogum on sentry duty on burnt car registration no. 4577 ZN 00 which had been cordoned off with yellow tape and no unauthorised person had access to it. SOCO and forensic personnel were allowed access for lifting of prints and evidence. This was done on a windowpane, which according to the instructions he received, was found some 5 meters from the car. During his tour of duty, no unauthorised person had access to the scene. At 15.35 hrs, PC Boodhoo (W11) took over sentry duty from him. Under cross-examination, he confirmed that the yellow tape was around, and it covered the burnt car. On the plan, at the right side, there was a wall made of rocks and on the left side the land is rough and bushy. He confirmed that the area was mostly bushy and Point C in Document F was not cordoned off and public could have access to it. He was not present when SOCO personnel completed their duty. During his tour of duty, no unauthorised person had access to the locus. SOCO personnel performed their duties under the instructions of WPS Etwar. Under re-examination, he stated that public could have access to the bushy area at Point C which is much further than the cordoned off area. Public could not access the area where the car was. PC 120 Boodhoo (W11) took over sentry duties from W10 on 14.02.19 at 15.35hrs at Royal Road, Trois Boutiques on a spot where there was a burnt car. SOCO personnel were working there when he took over from W10. He had learnt from W10 that they were examining a windowpane which had been found some 4 to 5 meters from the car. No one was allowed access as it was a scene of crime. He had to be present because SOCO had not completed its job yet and he had to preserve the scene of crime. It is usually secured with a yellow tape. During his tour of duty, no unauthorised person had access to the scene, and he did not see anything abnormal. At 18.40hrs, he left the scene as instructed by CPL Baboolall, who oversaw shifts. Under cross-examination, he recalled there were two persons of personnel of the forensic science laboratory who attended to the locus. The scene of crime consisted of the area where the burnt car was. He confirmed that the windowpane was lying on soil, “lor la terre”, 4 -5 metres away near the banana trees. He was not re-examined.

WPC 990 Digpaul (W7) stated that on 13.02.19, she was on mobile patrol with WPS Etwar (W6) and PS Chamrah (W8) in police van 152 RM 18. At around 22.49hrs, they received a request from Rose Bella Ops room to attend to a case of fire in motor vehicle along Royal Road, Trois Boutiques. They immediately went there. In an abandoned land, the car was in flames and heavy smoke was coming out of it. It belonged to W18 who was present at the material time. There were several persons gathered on the road watching the fire. There was a private van colour red about 5 metres from the burning car. She approached the onlookers and told them to move back some 50 meters for safety. There was no light thereat and the vicinity was searched with the help of a torch light. PC Chamrah (W8) came across a car windowpane which was tampered and left it at its original location at 5 metres for the car. She could not say who removed it but it had been removed from the burning car. The other vehicle had all its windowpanes, and she assumed that the windowpane had been removed to set fire to the burning car. Police cordoned off the area with yellow tape to prevent unauthorised access pending examination by SOCO personnel and FSL personnel. The weather was dry and fine on that day. Under cross-examination, she confirmed not having verified whether there was any missing windowpane in the burning car. Not the whole part of the abandoned land was cordoned off. Public could have access to some part of the abandoned land. Under re-examination, she stated that even if public could have access to some part of the abandoned land, they could not however access the windowpane. The part with the burnt car and the windowpane was cordoned off. Mr. Jandath Goburdhun (W18) stated that on 13.02.19 at round 21.00hrs to 22.00hrs, friends and cousins called him to tell him that his car registration no.: 4577 ZN 00 caught fire. He stood and watched his car on fire; he could not do anything. The car was about 30 metres from where he lives, in an abandoned land in Trois Boutiques. In the car, there were “tapis, taies d’oreiller, t-shirts and dresses”; articles which he sells. Fire services put out the fire. Police enquired as to who was the owner of the car and they left a police officer at the place where the burnt car was. In the morning, he went to see his car, and he saw that his car was completely ‘carbonisé’ and there was a police officer on the spot. When SOCO inspected the car, they told him that everything that was in his car was burnt. Even though he stated that he saw a ‘vitre’ some 4 to 5 meters from the car in his statement, he stated that it was police

who saw same, and he saw it ‘ensam’. He never gave Accused a lift. He could not say how his car caught fire. Under cross-examination, he confirmed having stated in his statement that he purchased the car from a lady in Curepipe. On 13.02.19, he had not yet transferred the said car to his name. He could not say who put fire to his car; he does not have any enemy and has never had any problem with anyone. On the next day, police looked for ‘indices’ and they were scattered everywhere. He was standing by his car. He was not re-examined. PC 10871 Armoogum (W9) stated that on 13.02.19 at 23.52 hrs he proceeded to Royal Road, Trois Boutiques, where he relieved PC Chamrah (W8) on sentry duty. The locus, with a burnt car and a windowpane, was cordoned off with police yellow tape. The windowpane was about 4 metres from the burnt car in the cordoned area. On 14.02.19 at around 9.50hrs, by relieved on sentry duty by PC Ramlugun (W10). During his tour of duty, no person got access to the scene. Under cross-examination, he agreed that normally there is an entry in the diary book in relation to a sentry duty. He did not insert any diary book entry as upon arrival at the police station, it is the station orderly who inserts his diary book entry. He put up his statement on 16.05.19, one day after Accused gave his statement on 15.05.19, because he was on vacation before. From 13.02.19 at 23.52hrs to 14.02.19 at 9.50hrs, he was on duty standing by a mango tree. W9 was not re-examined. Mr. Ajay Rajooappadoo (W19), Fire Officer, stated that on the material date he was working, and he got a call from Mahebourg police station about a car on fire. He attended to same with his team. Thereat, the fire was put out using water. Mr. Goburdhun, owner of the car was present, and no one was injured. Under cross- examination, he stated that the flames were coming out of the car, there was no glass pane. It is correct that in his statement he stated that his team had to force open the doors to be able to put out the fire. It is possible that some windowpanes break when the doors are forced open. It is also possible that windowpanes get broken because of the heat. He could not say which windowpane of the car was broken. Fire services reached the spot before the police. There were no articles such as clothes/garments inside the burning car or in the boot. He was not re-examined. Case for defence

Accused, after having been explained his rights, opted to remain silent and no witness was called for the defence.

Analysis This Court has given due consideration to all evidence adduced and written submissions of both prosecution and defence. S. 346 of the Criminal Code states that any person who wilfully sets fire to any motor vehicle, whether it belongs to him or not, shall be liable to penal servitude. In the present matter, it is averred that the car did not belong to Accused. This Court is sceptical at the submissions of learned counsel for Accused that it is incumbent on prosecution to prove that on the material date, the car belonged to W18. Clearly there is no such element to be proved by prosecution. In establishing its case, there is undisputed evidence that fire was set to the car, which belonged to someone else, one Sooklall (Document B) and which was in the custody of W18 at the material time of the fire. Ownership of the car is irrelevant to this Court, which must determine whether Accused is guilty of having set fire to the said car. It is undisputed that: (a) The car was burnt during the night of 13.02.19 to 14.02.19. (b) W1 examined the car and found that the passenger compartment was damaged, and the front offside windowpane was missing (Document A). A complete glass window lying in an abandoned land nearby was found to physically fit on the front offside window of the passenger compartment of the car. (c) The said windowpane was found some 4 to 5 metres from the car. (d) W17 concluded that the prints of Accused’s middle finger and right forefinger were found on the said windowpane. Prosecution’s sworn evidence against Accused which rests solely on the fact that the latter’s fingerprints were found on the windowpane. Accused’s unsworn evidence pertains to explanations as to how his fingerprints may have been on the windowpane. The defence, in the cross-examination of

prosecution’s witnesses has also sought to persuade the Court that the windowpane was not properly secured and tampered with. The windowpane was found some 4 to 5 metres from the burnt car on the night of 13.02.19, when the police, namely WPS Etwar (W6), PC Chamrah (W8) and PC Digpaul (W7) arrived on the spot at 22.49hrs. Much ado was made in their cross- examination as to who saw the windowpane first. From their evidence, this Court accepts that all three of them attended the case together and found the window at the same time. It is undisputed that PC Chamrah was placed on sentry on the scene which included the burnt car and the window pane, immediately. He was relieved at 23.52hrs by PC Armoogum (W9) who was relieved on the next day 14.02.19 by PC Ramlugun (W10) at 09.50 hrs. PC Ramlugun was relieved by PC Boodhoo (W11) at 15.35hrs and latter in turn left the scene at 18.40hrs as instructed by CPL Baboolall. The cross-examination of these four sentries has remained unshaken as to the fact that no unauthorised person tampered with the scene although the yellow tape was only places behind the burnt car. Even W18 confirmed the presence of police as sentry in his testimony. This Court further accepts the evidence of W6 who stated that even if there was no tape around the windowpane, no one could access it, where it was lying. W7 in her testimony stated that the windowpane had been tampered with. This Court finds that ‘tampering’ in her testimony is the fact that the windowpane had been removed from its place in the car. Further, even if she stated that public could have access to a part of the abandoned land, she clearly stated that no one could have access to where the windowpane was lying. Considering above findings, this Court finds that the windowpane after it was found by police lying at Spot B in the plan was not tampered with. Accused’s version in his unsworn defence statements can be summed up as follows chronologically: (a) Document J dated 26.03.19 in presence of counsel, where Accused stated that W18 is his cousin and on 14.02.19 in the morning he walked by the burnt car and asked W18 what happened. He stated that some 6 to 7 months earlier, W18 had given him a lift.

(b) Document J1 dated 15.05.19 in presence of counsel, where he was confronted with Document G and he agreed that the fingerprints were his. Accused went on to explain that he went to pee a bit further from the burnt car when he was on his way to work and he saw the windowpane. He held it and put it back. He was not aware of clothes which W18 had in the car for sale. (c) In Document J3 dated 17.07.19 in presence of counsel, Accused maintained that he went to pee in the abandoned land, despite the presence of people around as the land is in a slope. He did not see any sentry on the spot. Accused also agreed to have his mobile phone examined. He also stated that W18 is lying when W18 stated in his statement to the police that he never gave a lift to Accused. (d) In Document J4 also dated 17.07.19 (later), he indicated to police where he went to pee and photos of the spot were taken. (e) In Document J5 dated 11.02.20, he kept his right to silence pertaining to photographs retrieved from his mobile phone by the police IT Unit. (f) In Document J2 dated 30.06.20, it was put to him that since there had been clothes in the car which were not found after, it was believed that the clothes had been stolen and fire put to the car. Accused stated that he knew nothing about it. In W18’s cross-examination, it was not even put to him that on 14.02.19, Accused came to talk to him, or that Accused went to pee in the abandoned land where the car was. Accused’s presence at the scene on 14.02.19 in the morning asking W18 about what happened to the car and going to pee on that very plot of land where the car was with the dismantled windowpane, in a cordoned off area with police sentry is doubtful. Accused’s versions are not believed by this Court. Further, although Accused stated that he went to the scene and asked about the burnt car on the morning of 14.02.19, there is no explanation provided for photos of the car found on his mobile phone taken on 13.02.19 at 23.12.22 hrs, 23.12.18hrs, 23.13.59hrs and 23.14.05hrs. Accused kept his right to silence when confronted to same. The first two photographs in Document H are unclear, but the 3 rd and 4 th

photographs are back angle photographs of the burnt car. The photographs retrieved from Accused’s mobile phone indicate his presence on the scene in the evening of 13.02.19, after the fire.

From W18’s testimony, there were articles, such as “tapis, taies d’oreiller, t- shirts and dresses” which he sells, in the car when he left it in the abandoned land. In Document E8, burnt hangers can be seen but not clothes or articles in the car’s boot, supporting W18’s version of the presence of clothes and other articles. W19’s testimony as the fire officer who attended the fire, confirms that there was no such article in the burning car. It can therefore safely be concluded that W18’s articles had been removed from the car before it being set ablaze. However, this is not prosecution’s case theory in the written submissions submitted despite this version being put to Accused at enquiry stage. This Court must determine whether the fingerprints of Accused being found on the windowpane, coupled with circumstantial evidence of the photographs on his phone, as well as Accused’s different explanation for the presence of his fingerprints on the windowpane, are sufficient for this Court to draw an irresistible and reasonable inference that Accused committed the arson of the car. A doubt arises as to the involvement of Accused for larceny or arson. Save for concluding that “Taking into account the time lapse between parking and out-break of fire (one week) and removal of glass pane, this would denote a malicious act”, Document A does not provide any further enlightenment on the origin of the fire. Considering all the above findings and the presence of an unidentified fingerprint (PM1) on the windowpane, this Court finds that prosecution has failed to establish its case beyond reasonable doubt, and it would be unsafe to convict Accused. The information against Accused is therefore dismissed.

K. Poollay Mootien Magistrate 31 st March 2026