Supreme Court of Mauritius, 14 décembre 2023, 2023 LPW 162 – Police v Muhammad Bashir Uddeen Maudarbocus

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Police v Muhammad Bashir Uddeen Maudarbocus

2023 LPW 162

CN: 917/23

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

In the matter of –

Police

v/s

Muhammad Bashir Uddeen Maudarbocus

JUDGMENT

The charge

The Accused stands charged with having, on or about 30 November 2020, wilfully and unlawfully made use of abusive language, in public, to the address of one Doshini Lutchmun, not carrying with it the imputation of a fact, in breach of section 296(b) of the Criminal Code.

The Accused pleaded not guilty and was inops consilii.

The case for the Prosecution

The prosecution case relied, inter alia, on the testimonies under oath of three witnesses.

Cpl Juglall (Witness 1) produced the unsworn statement of the Accused.

Then came the turn of Mrs Doshini Lutchmun (Witness 2), the complainant in the present matter. She explained that, on 30 November 2020, she went to her shop called ‘LB Automotive Paint’ which is found in Palma. As soon as she entered, she saw the Accused, a long-time client, inside.

Witness 2 queried the Accused about money he owed. The latter grew excited and told her “si to ti lor chemin mo ti pou defiguire toi”. He exited the shop briefly but then came back and insulted her anew, the exact words she could not recall. He was shouting with other businesses around. Witness 2 felt humiliated.

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Mrs Yeshna Mandhini Lutchmun (Witness 3) then took to the stand. On 30 November 2020 she was working in a shop at Palma when the Accused, a client, came in. An argument arose between her sister and the Accused during which the latter insulted her sister saying “pitin”, “falourmama” and “si mo trouve ou lor chemin mo pou defiguire ou”. Several clients were present there at the time. The case for the Defence

When explained his rights, the Accused elected to make a statement from the dock.

He explained that he was a client of the said shop for a long time. He was extended a credit facility by the father of the two witnesses. He had always been paying whatever he owed even if some payments were made late. Witness 2 reproached him for late payment on the material day, was disrespectful towards him and insulted him which is why he said to her address “si ou ti ene zom mo ti pou fini craze ou laguele”.

In his defence statement, the Accused denied whatever was being reproached of him.

Analysis

I have considered the evidence on both sides.

I am convinced, beyond reasonable doubt, of the truthfulness of the account of Witness 2. Her testimony in Court was truthful and sincere. I believe her.

The account of Witness 2 has also been corroborated to a great extent in Court by Witness 3 whom I also believe.

On the other hand, I have not been impressed by the Accused. What baffles me is that, after having pleaded not guilty thereby denying having insulted Witness 2, the Accused confirmed having done so in his address to Court even though the words employed, according to him, were somewhat different.

I am satisfied that the words uttered by the Accused (“pitin” and “falourmama”) were offensive per se and, as such, guilty intent is presumed – Morel v Couve (1912 MR 78).

Even though there appears to be a slight variance between, on one hand, the words uttered by the Accused as per the account of Witness 2 and Witness 3 in Court and, on the other, the words reproduced in the body of the Information, I am of the opinion that, when viewed holistically, they both convey the same idea and expression of abuse – Carpen v State (2010 SCJ 105).

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After having carefully assessed the words uttered by the Accused (“pitin” and “falourmama”) objectively, I have come to the conclusion that those words did not carry with them the imputation of any fact – Bundhoo v State (2001 MR 21).

It is a matter of regret that, in the light of a prima facie case having been established against him by the prosecution, the Accused simply chose to make a statement from the dock, thereby precluding the prosecution to test whatever was being said by him.

I am of the opinion that the prosecution has been able to establish a prima facie case against the Accused which the latter has been unable to impeach.

Conclusion

For the reasons mentioned above, given that the prosecution has proved its case beyond reasonable doubt, I find the Accused guilty as charged.

H. H. A. Rohamally Ag Senior District Magistrate

14 December 2023