Supreme Court of Mauritius, 15 avril 2026, 2026 RDR 89 – Police v Jaunky and Anor

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Police v Jaunky and Anor

2026 RDR 89

IN THE DISTRICT COURT OF RIVIÈRE DU REMPART (Criminal Jurisdiction) In the matter of: CN: 1818/25 Police v 1. Vaughan JAUNKY 2. Lutchmee JAUNKY

JUDGMENT Both Accused parties are charged with the offence of “Insult” in breach of Section 296(a) of the Criminal Code Act. Accused No.2 is also charged with the offence of “damaging property” in breach of Section 369 of the Criminal Code Act. Both Accused parties pleaded not guilty and they were legally represented by Counsel Mr. A.Juwaheer. Prosecution’s case was conducted by Police Prosecutor and proceedings were in English. CASE FOR THE PROSECUTION Prosecution called Witness No.1, WPC Mungur who solemnly affirmed that on the 04.10.2024, she met with Accused No.1 and recorded his defence statement after Accused No.1 was informed of the charge against him and his constitutional rights. She also stated under oath that on the same day she met with Accused No. 2 and recorded her defence statement after she was informed of the charge against her and her constitutional rights. Both statements were produced and marked as Document A and B respectively.

Counsel cross examined Witness No.1 and the following were elicited: – Witness No.1 is the main enquiring officer and the complainant (Witness No.3) made the complaint to the police on the 16.09.2024 when the offence was allegedly committed on the 15.09.2024; – Witness No.1 confirmed that as per the complainant, the issue arose due to an incident regarding a fire started by Accused No.2; – Further to investigation, no ash, dust or smoke was found by the police; – Witness No.2 did not go to the yard of Accused No.2; – As per Accused No.2, complainant himself took a stick and pushed the flower pots thus breaking them; – Witness No.1 could not answer whether there was any stick in the yard of Accused No.2; – Witness No.1 confirmed that he did not verify the version of the Accused parties because complainant refused to give any further statement to the police; – He confirmed that Accused parties and the complainant are not in good terms; – Although Witness No.3 stated that the incident happened in front of neighbours, no independent witness came forward and; – Both Accused parties fully cooperated with the police. Witness No.1 was not re-examined and Prosecution moved to call Witness No.2 – PC Bholah. PC Bholah solemnly affirmed that on the 16.09.2024 at around 17.45 hours, he proceeded to Ramasamy Road, Goodlands together with Witness No.3. PC Bholah explained that Witness No.3 showed him the place where he usually keeps his flower pots and same were in the neighbour’s yard. Complainant told him that the flower pots in the neighbour’s yard belong to him. Complainant told Witness No.2 that Accused parties took a stick and damaged the flower pots and they fell in their yard. Witness No.2 was cross examined by Counsel and he stated that: – He proceeded to the locus at around 17.45 hours; – The flower pots were found in Accused’s yard;

– As per Complainant’s version, Accused No.2 took a stick and pulled the pots towards her yard; – He could not remember if the version of Complainant was borne on his statement; – Around 5-6 pots were found in the yard but Witness No.2 did not mention that in his statement; – There is no sketch of the locus and no photos were taken; Witness No.2 was not re-examined and Prosecution moved to call Witness No.3 – Mr Satianand Nuckcheddy, the Complainant. He solemnly affirmed that on the 15.09.2024 at around 10.45 hours, he saw fire smoke coming in his house and it was the neighbours who started the fire by burning scrap waste. Police came and they talked to the neighbour (Accused No.2). Witness No.3 positively identified both Accused parties as his neighbours. Witness No.3 also stated that Accused No. 2 swore at him and told him “lais mo missier vini to pu conner macro”. Witness No.3 could not remember what else Accused No.2 allegedly told him but he stated that Accused No.2 took a “racklet” used for cleaning purposes and damaged his flower pots. Accused No.1 was also present and he insulted him by saying “macro mo pou cass to fesse”. Witness No. 3 stated that he felt humiliated and it was not the first time that his neighbours put the fire. No one else was present except the Accused parties and the flower pots were his. Witness No.3 was cross examined by Counsel and he stated that: – He made the complaint the next day; – He made complaint because of the damaged pots and the swearing and does not know what police saw when they came to the locus regarding the fire; – The police came on the same day to extinguish fire within 15 minutes and he made his complaint the next day; – As per his version, there were other people when Accused No.2 swore at him but he did not wish to involve them; – When police contacted him, he told police that he will tell everything in Court; – He maintained that Accused No.2 took a stick/“racklet delo” to damage the flower pots;

– He did not tell the police that Accused No.2 told him that the wall is hers and he should not put any pots on the wall. Prosecution did not re-examine Witness No.3 and closed its case. CASE FOR THE DEFENCE Counsel closed case for the defence. SUBMISSIONS Learned Counsel submitted that there are two counts in the Information and each element of the offence needs to be proved. Regarding the first and second count for insult, Counsel submitted that no evidence of insult as averred in the Information has been proved. There is variance in the evidence and counts of insult should be dismissed as the Prosecution failed to prove the exact words. Counsel further submitted that the credibility of Witness No. 3 has been severely undermined. Counsel submitted that the version of Witness No.3 in Court and in his out of court statement are different. Police enquiry revealed no independent witness and Witness No.3 stated that he did not want to involve any neighbours. While Witness No.1 stated under oath that she interviewed Witness No.3, the latter stated that Witness No.1 never came to see him. Counsel highlighted the discrepancy between the word “stick” and “racklet delo” used by witnesses. He further pointed out that while the Witness No.2 stated that the pots were in the yard, Witness No.3 stated that the pots were in the dustbin. Counsel stated that in light of the bad blood between Witness No.3 and the Accused parties and the version of Accused No.2 who stated in her out of court statement that Witness No.3 in fact broke his own pots, the case should be dismissed against both Accused parties. ANALYSIS I have considered all the evidence on record. Accused No.1 stands charged with the offence of insult. The alleged insulting words which Accused No.1 said to Witness No.3 are as follows: “to ene noir, touni ki pena nannien dans to fess, ki mari to pe declarer, demain mo pou fair kraz to fess”. Now, as per the testimony of Witness No.3, he stated that Accused No.1 told him “macro mo pou cass to fesse”. It is noteworthy to set out the conditions under which

the alleged offence happened. There was a fire allegedly started by both Accused parties and when Complainant called the police, Accused parties insulted him and broke his pots. Witness No.3 made his declaration the next day of incident. Police came when the fire started. There is no doubt that should Witness No.3 have felt insulted and humiliated, he could have easily called the police again. As for the words uttered, I am fully alive to the fact that not the exact words need to be mentioned by the witness and the Court needs only to be satisfied that the words mentioned by the witness in court are essentially to the same effect and convey the same idea and expression of abuse as the words set out in the information. (vide Rumjon v State [2016 SCJ 315]) However, in the present case, I find that a material part of the phrase which formed part of the insult could not be repeated by Witness No.3. I have had the opportunity to assess the demeanour of Witness No.3. He remembered details of the material day. However, he could not state the part “to ene noir touni ki pena nannien dan to fess […]” Court finds that the words uttered by Witness No.3 in Court and that mentioned in the information do not convey the same idea and expression of abuse as the words set out in the Information. In light of the bad blood between the parties and in the absence of independent witnesses, it is unsafe to convict Accused No.1. Accused No.2 is charged with the offence of insult and damaging property. With regards to insult, Witness No.3 stated that she told him “lais mo missier vini to pu conner macro”. However in the information, the insulting words are “mo pou kass to fess macro ek mo pou fair mo missier vine kass to fess kan li vini”. As per the testimony given under oath by Witness No3., I do not find that the words uttered by Accused No.2 are elements of the offence of insult. Court also considers testimony of Witness No. 1 who stated that there was no ash or smoke. As per Accused No2’s out of court statement, police did not find any smoke, dust or ash in her yard when they came to talk to her. Also she stated in her statement to the police that since police did not find anything, Witness No.3 got angry and he threatened her. Therefore, in light of the bad blood between the parties, it is also unsafe to convict Accused No.2 for insult. As for the charge of damaging property, the Court has carefully considered the evidence. Witness No.3 avers that Accused No.2 struck his flower pots with a stick/”racket delo”, causing them to fall into the yard of the Accused parties. However,

this version raises significant doubts. Given that a boundary wall separates the properties of the parties, it appears improbable that, had Accused No.2 struck the pots from her side, the pots would have fallen into her own yard rather than remaining on or falling back into the Witness No.3’s premises. The natural and probable consequence of such an act would have been for the pots to fall within the Witness No.3’s yard. Accused No.2’s version in her out of court statement, namely that the Witness No.3 himself, in a state of anger, struck the pots causing them to fall into her yard, is more consistent with the physical layout described by Witness No.2. Witness No.2 tried to contact Witness No.3 to have a statement from him after Accused No.2 denied damaging the pots. However, Witness No.3 refused to give any further statement. In light of all the evidence on record and after witnessing the demeanour of Witness No3, a concoction against both Accused parties cannot be ignored. CONCLUSION In light of all the above, Courts finds that Accused parties should be given the benefit of doubt and accordingly, I find Accused No.1 not guilty under Count 1. I also find Accused No.2 not guilty under Counts 2 and 3. Case is dismissed against both Accused parties.

Ms O.LUCHOO Temporary District Magistrate 15.04.2026