Supreme Court of Mauritius, 31 mars 2026, 2026 SAV 47 – Police v SEWRAJ HAMJARY

1 Police v SEWRAJ HAMJARY

2026 SAV 47

IN THE DISTRICT COURT OF SAVANNE

In the matter of: Cause Number: 1198/25 POLICE v SEWRAJ HANJARY JUDGMENT 1. The Accused stands charged with the offence of Insult in breach of Section 296 (b) of the Criminal Code for having on the 2 nd of February 2023, wilfully and unlawfully made use of abusive words in public, not carrying with them the imputation of fact, to the address of one Mrs Marie Jennifer Monnero, Witness No.2 by stating the following words “ale lave to liki, to liki sale, mo pou vine lave li are karcher”.

2. He pleaded not guilty and was inops consilii at trial stage.

3. The case for the prosecution was conducted by PS Mattan.

CASE FOR THE PROSECUTION 4. In furtherance of its case, the prosecution called two witnesses under oath. Witness No. 1, PS 2289 Chootoo, stated that the Accused refused to give a written statement after he was duly cautioned and explained of the allegations against him as well as his constitutional rights. He was not cross examined.

5. Witness No. 2 explained that on the material day she was in her yard and she noticed same to be wet. The Accused, whom she identified in Court, was on the road with a water pressure cleaner, commonly known as Karcher. She told him that he had no right to clean her gate to which

2 the Accused replied “to liki sale, mo pou lave li are karcher”. She felt hurt and humiliated and two ladies were passing by at the material time. She then proceeded to the police station to make a complaint. The witness was not cross examined. CASE FOR THE DEFENCE 6. The Accused testified under oath and stated that he was washing on the material day but there was no water in the yard of Witness No.2. The witness threatened him that she will enter a false case against him. There is a land dispute between them. She has entered several cases against members of his family.

7. During cross examination, he agreed that he did not put any question to Witness No.2 as he wanted to express himself under oath. He denied the allegations against him.

THE LAW 8. Section 296 of the Criminal Code reads as follows: 296. Insult Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (injure) and any person who is guilty of the offence shall be liable to the following penalties – (a) where the offence is committed by means of words, exclamations or threats not made use of in public, a fine not exceeding 50,000 rupees; (b)where the offence is committed by means of words, exclamations or threats made use of in public, a fine not exceeding 100,000 rupees;

ANALYSIS 9. The principle of the presumption of innocence is enshrined in Section 10(2) of our Constitution. This concept is further embedded in our criminal law through the ‘Golden Thread’ principle which essentially confirms that the burden is on the prosecution to prove its case beyond

3 any reasonable doubt- Woolmington v Director of Public Prosecutions [1935] AC 462 (HL).

10. In the present matter, the Prosecution had to prove beyond any reasonable doubt that the Accused made use abusive language not carrying with it an imputation of fact to the address of Witness No.2 in public. The malicious intent which is the required mens rea in the present matter is inferred through the injurious character of the impugned words – MOREL vs COUVE 1912 MR 78

11. The case for the prosecution rests upon the testimony of Witness No.2. She explained that she was in her yard when the Accused, from the road, uttered the impugned words to her address. While the words she reproduced in Court are not an exact replica as those contained in the information, I am satisfied that they convey substantially the same message and the same expression of abuse – Rumjon M.R. v The State [2016 SCJ 315]. I also find that the words are abusive in nature and do not carry an imputation of fact. As for the demeanour of the witness, I have observed that she generally had a nonchalant attitude to the proceedings.

12. On the other hand, the Accused testified under oath and denied the allegations against him. He explained that Witness No.2 threatened him and there is a history of bad blood between them. Contrary to the Witness No.2, the Accused maintained a calm composure throughout the trial and was confident in his answers. In view of the issue of bad blood raised by the Accused, this Court has to treat the testimony of Witness No.2 with caution. As stated in the case of Jeeha v The State 2019 SCJ 133, the argument of bad blood is a double-edged sword. Consequently, if it was easy for Witness No.2 to level a false charge against the Accused, it was equally easy for the Accused to commit the present offence and claim bad blood as a defence.

4 13. This being said, at the end of the day, this Court is faced with two equally plausible versions, albeit that of Witness No.2 is less plausible in light of her demeanour, and consequently, the presumption of innocence should prevail in favour of the Accused. It is apposite to refer to the following extract from Goburdhun v Queen [1956 MR 503] wherein the Supreme Court made the following observations: “when therefore, the sum total of the evidence in the case is taken into account, there was, in effect, the word of the victim as against the denial of the appellant. It is in such a case, particularly, that the principle of the presumption of innocence comes into operation. The application of that principle in every criminal case is the foundation of the right of the accused person to insist that the prosecution should discharge the onus that rests upon it to prove that he is guilty.”

14. In light of the above, it would be most unsafe to convict the Accused and I therefore dismiss the case against the Accused.

BFS PAUROBALLY Acting District Magistrate This 20 th March 2026