Supreme Court of Mauritius, 9 avril 2026, 2026 FLQ 55 – Police vs Allybaccus & Anor

Police vs Allybaccus & Anor

2026 FLQ 55

IN THE DISTRICT COURT OF FLACQ In the matter of: CN: 10380/22 Police Vs 1. Zaide ALLYBACCUS 2. Saood ALLYBACCUS JUDGMENT A. Introduction

1. Accused No.1 stands charged with the offence of insult under 2 Counts in breach of Sections 228 and 230 (1) of the Criminal Code, as amended by SCHEDULE (Section 8) of Act 36/2008.

2. Under Count I, it is averred that on 22.05.2019 at Royal Road Bel Air R/Seche, Accused No.1 did wilfully and unlawfully use injurious words, to wit: “Move Falourmama depi hier mo pe guette to role, pas gagne traka kot mo pou gagne toi lor coltar mo pou pik toi”, made use of in public to the address of Mohamad Hafshar Ramjaun, not carrying with it the imputation of a fact.

3. Under Count II, it is averred that on the same day and place, Accused No.1 used the following injurious words, to wit: “Bous to liki aller falourmama bisin faire bour toi”, made use of in public to the address of Mrs Bibi Mouniza Ramjaun, not carrying with it the imputation of a fact.

4. On the other hand, Accused No.2 stands charged for the offence of insult under Count III for having wilfully and unlawfully used injurious words, to wit: “Si to ene bon mal vini, mo pou casse to liki move pilon”, made use of in public to the address to the address of Mohamad Hafshar Ramjaun, not carrying with it the imputation of a fact.

5. Accused No.1 pleaded not guilty to Counts I and II, and Accused No.2 pleaded not guilty to Count III. They were both inops consilii.

6. On 15.10.24, the IC for Witness No.2 (Mr Mohamad Hafshar Ramjaun), stated under oath that Witness No.2 has passed away and filed a death certificate, following which the Prosecution moved to take a stand. The stand was for the case to proceed.

B. The Case for the Prosecution

7. On the day of the trial, the Prosecution proceeded by calling Witness No.1, PC Parmessur, who stated under oath that – (i) he is the Enquiring Officer in this case and examined the spot on 22.05.2019 after the alleged incident was reported by Witnesses No.2 and 3, in the presence of Mrs Bibi Mouniza Ramjaun (Witness No.3); (ii) he explained that the spot is a private road which is in the direction of the garage of both Accused and is accessible to the public; (iii) whatever happens can be seen by the public; (iv) he interviewed Accused No.1 on 25.06.2020 at 06.25 a.m and Accused No.2 on 26.06.2020 at 10.30hrs, both at Bel Air Riviere Seche, after they were duly cautioned and given the usual warning. Both declined to give a written and signed statement. (v) Accused No.1 verbally stated: “Mo pas zoure sa garson ni so mama. Zot pe cause menti. Mo pas pu donne l’enquête. Mo pu dire tout dans la cour” and when informed that he may be prosecuted for insult against both Witnesses 2 and 3, he stated: “Mo pas d’accord avec sa” (vi) Accused No.2, on the other hand, stated: “Tout ceki li pé dire fausse sa. Mo pas pu donne l’enquête. Mo pu dire tout dans la cour par mo même.” 8. Both Accused had no cross-examination for Witness No.1.

9. The Prosecution then proceeded to call Witness No.3, Mrs Bibi Mouniza Ramjaun, its main witness being given that Witness No.2 had passed away. Mrs Ramjaun confirmed that she did give a statement to the police at Bel Air Riviere Seche on 26.06.2020 at 09.50hrs, regarding an incident which took place on 22.05.2019 at around 16.00hrs.

10. However, she stated right at the outset that she does not remember exactly what happened and expressed the wish to read part of her enquiry. She further pointed out that she did not have any issues with both Accused, however, they have blocked her access. She then reiterated that she cannot remember what happened on that day but also pointed out that till date, they still have issues as the Accused parties block her access.

11. After successfully laying down the foundations for the refreshing of her memory, the Prosecution read part of her statement which is reproduced as follows:

“Mo bien rappel ki ene mercredi date le 22.05.2019 vers les 4 heures tantot, mo ti pe travaille dans mo la boutique ki trouve à Route Royale, Bel Air, quand ene moment donné, deux garson ki mo kne banela très bien, ene appel Saood Allybaccus ene appel Zaide Allybaccus ki res même l’addresse avec moi ti vine devant mo la boutique et fine commence la guerre avec mo garson ki appel Mohamad Hafshar Ramjaun”

12. Witness No.3 then stated that she knows there was a dispute with her son and “they” were not letting her son park his vehicle on that road and alleged that “they” took out iron bars to fight with her son. However, she could not remember what insults “they” used. She then explained that she is referring to both Accused, whom she positively identified in Court.

13. Despite several laborious efforts of the Prosecution to evoke her memory, Witness No.3 could not state anything with regards to the alleged insults. She merely stated: “sa l’heure là, mpa pé rappel ditout”.

14. She then stated that there have been several fights in the past and contended that the Accused parties have tortured them and blocked their access. She also pointed out that they uttered swear words, especially Mr Saood (Accused No.2) and up to today, whenever they see him, they have to go fearing that he may drive over them as he says: “Avancé, sinon mo coince toi la même”.

15. When the Prosecutor asked her whether one of the two Accused parties addressed her something in relation to this particular case, she merely stated that both of them were swearing but was unable to remember the insults. She stated that she felt humiliated and maintained that both Accused swore at her.

16. Witness No.3 was not cross-examined and the Prosecution closed its case.

C. The case for the Defence

17. Both Accused were inops consili and were duly explained their constitutional rights and they both elected to depose under oath.

18. Accused No.1 gave evidence that – (i) They have been having issues since 2019 regarding the entrance, who he claims is theirs;

(ii) He emphasized that his neighbour has been putting false allegations on numerous occasions and he even had to pay a fine in the past as he had allegedly “tappe dans tôle”; (iii) He nonetheless maintained his innocence and stated that he cannot keep on like this and denied the charges against him.

19. Accused No.2, on the other hand, testified that all the allegations are false and they have a dispute over land. He even claimed that the Complainants have encroached on his land and erected a fence, for which he is suing them. He further contended that they have made a lot of false allegations against him in order to harass him.

20. Both Accused parties were duly cross-examined by the Prosecution.

D. The Legal Principles

21. Section 296 of the Criminal Code (as amended) 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; (c) where the offence is committed by means of any written or printed matter, drawing, picture, emblem or image, imprisonment for a term not exceeding 2 years and a fine not exceeding 100,000 rupees.” 22. The Prosecution who has the burden of proving its case beyond reasonable doubt, has to establish that –

(i) The Accused made use of “an injurious expression” or a “term of contempt” or invective or abusive language by means of words, exclamations or threats; In Coonjan v. The Queen [1978 MR 137], it

was held that “an ordinary sensible man knows an insult when he sees or hears it.”

(ii) the words used must not carry with them the imputation of a fact (vide Bundhoo v The State [2001 SCJ 60]) in the form of an “articulation précise de fait de nature à être sans difficulté l’objet d’une preuve et d’un débat contradictoire” (D.P. 66.1.48, quoted in Atchia v R [1955 MR 21])

(iii) the Accused willfully and unlawfully made use of such words, threats or exclamations. The requisite mens rea is a malicious intent which is however presumed in expressions which are injurious or offensive per se «jusqu’à ce que l’auteur du propos eût prouvé qu’il ne voulait pas injurier la personne à laquelle il l’a adressée» (vide Morel v. Couve [1912 MR 78]), in which case, the burden shifts onto the Accused to prove the contrary.

23. In DPP vs Ramful [2018 SCJ 82], the Supreme Court held that publicity does not form part of the constitutive elements of the offence of insult but is merely an aggravating circumstance which will impact on the penalty to be imposed.

E. Analysis

24. I have duly considered the evidence on record and I shall now set out my observations.

Counts I and III

25. In view of the demise of Witness No.2, I have no qualms in finding that no evidence has been adduced by the Prosecution in relation to Counts I and III. It was only during cross-examination of both Accused parties that the Prosecution put its case to both Accused under these Counts. Nonetheless, both Accused, who elected to depose under oath, did so confidently and denied all the allegations against them. They also withstood the test of cross- examination. I therefore find that the Prosecution has been unable to prove its case beyond reasonable doubt under Counts I and III.

Count II

26. With regards to Count II, Witness No.3, despite the memory refreshing exercise, was unable to remember the insults to her address. I am alive to the fact that the deposition of a witness is not a memory test, but one of whether the latter is telling the truth.

27. It is trite law that a witness does not need to state verbatim what was allegedly said to him, especially when taking into account the time that has lapsed between the commission of the alleged offence and the time that a witness deposes in court. In the present matter, I note that the alleged offence took place in 2019 and Witness No.3 was being called to depone in 2026, almost 7 years later.

28. Be that as it may, in the present case, the testimony of Witness No.3 could barely be relied on as she never stated in Court what words were used to her address for the Court to be able to determine firstly whether the said words were indeed injurious in nature, and secondly to determine whether they convey the same idea and expression of abuse as the words set out in the information (vide Rumjon v The State [2016 SCJ 315]) and/or whether the variance, if any, is material.

29. Moreover, as per Count II of the information, only Accused No.1 stands charged for having allegedly insulted Mrs Ramjaun (Witness No.3). However, when she deponed, she stated that both Accused parties had sworn at her and even emphasized that Accused No.2 in particular, threatens to drive over them ever time he sees them.

30. It was incumbent upon the Prosecution to prove its case beyond reasonable doubt. However, in this particular case, Witness No.3 could not say what swearwords were used to her address and it is also possible that she may have been referring to other incidents (for example when she pointed out that the Accused had pulled out iron bars). In view of her testimony, which is severely lacking, as opposed to the sworn testimony of both Accused, who deposed confidently, and taking into account the existing dispute between the neighbours, I find that the Prosecution has not discharged its burden of proving its case beyond reasonable doubt under Count II and it would be most unsafe to convict Accused No.1.

F. Conclusion

31. In light of the above, I accordingly have no alternative than to dismiss Counts I and II against Accused No.1 and Count III against Accused No.2.

A. K. Nundloll Acting District Magistrate

09 April 2026