Supreme Court of Mauritius, 16 avril 2026, 2026 FLQ 59 – Police v D Nunhuck

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Police v D Nunhuck

2026 FLQ 59

IN THE DISTRICT COURT OF FLACQ Cause No:6402/2024 In the matter of: POLICE V

DHARMAHATMA NUNHUCK JUDGMENT

1. The accused has been charged with assault in breach of sections 228 and 230(1) of the Criminal Code. He pleaded not guilty and was not represented by counsel during the trial.

THE PROSECUTION’S CASE

2. The prosecutor produced a medical examination certificate with respect to witness no.3 dated 03.06.22, signed by witness no.4.

3. Witness no.1, PS 6838 Augnoo, identified, read and produced a defence statement, which he recorded from the accused on 04.06.2022, wherein the latter denied the charges against him.

4. Witness no.3, Mrs. Ooma Devi Nunhuck, explained that on 03.06.2022 at 19 00 hours, she was at her house in Mont Ida. Whilst cleaning her yard, the accused, her brother- in-law, was getting into her entrance and swearing. Upon querying the latter, the accused hit her, pulled her hair and knocked her head against a glass pane in a door. She got injured and attended the hospital. The accused duly cross-examined witness no.3.

5. The prosecution did not call witness no.2 and closed its case.

THE CASE FOR THE DEFENCE

6. The accused deponed under solemn affirmation, explaining that he was old and never hit witness no.3. He explained that on the material date and time, witness no.3 was burning rubbish and threw her mobile phone at a glass pane. During cross- examination, the accused clarified that he queried witness no.3 on what she was doing and denied ever swearing at or assaulting her. ANALYSIS

7. Section 228(1) of the Criminal Code provides: “Any person who wilfully inflicts any wound or blow, or is the author of any other violence or assault shall if such act of violence has caused any sickness or incapacity for personal labour for more than 20 days, be punished by imprisonment and a fine not exceeding 100,000 rupees”.

8. Section 230 of the Criminal Code, on the other hand, provides: “(1) Where such wound, blow or other violence or assault has not caused any sickness or incapacity from personal labour of the description mentioned in section 228 the offender shall be punished by imprisonment for a term not exceeding 2 years, and by a fine not exceeding 50,000 rupees”

9. I have perused all the evidence on record. I note that as per DOC A, witness no.3 was observed to have minor abrasions on her right hand, tenderness at the nape of her neck and occiput when she was medically examined on 03.06.2022. However, this in itself is not conclusive that it is the accused who caused this condition.

10. The court needs to assess whether it can safely rely on the version of witness no.3 in court. I bear in mind that the testimony of a witness should not be construed as one single block [monolithic]. The Court should determine which part can be believed safely and which part should be disregarded as doubtful (see Ramcharran v The Queen 1977 MR 226). I am also aware that inconsistencies are to be measured by the yardstick of seriousness and materiality, which must be linked with the overall issue of truthfulness (Saman v The State supra).

11. However, having seen and heard witness no. 3 depose, I am not convinced by her testimony for the reasons discussed further.

Firstly, in a criminal case, it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made

by the victim (Marday v The State 2000 SCJ 225). I note that it has been put to the accused in his defence statement that he allegedly got hold of the hair of witness no.3 with his left hand, punched her several times on her back, then got hold of her hair with both hands and pushed her against a glass pane, which broke. In court, witness no.3 merely stated that the accused pulled her hair and knocked her head against a glass pane. She never mentioned anything about being punched several times on her back or a glass pane being broken. It would have been reasonably expected that the witness would remember such important facts. Furthermore, there is no independent evidence adduced by the prosecution with respect to a broken glass pane which could have given credence to the version of the witness.

Secondly, I am alive that is a trite principle that the court is entitled to rely on the sole testimony of a witness found to be credible (vide Paruit v R 1968 MR 37). I am aware that this is not a case where corroboration is needed as a matter of law or practice. In this matter, witness no.3 stated that her mother and brother came out when the incident allegedly occurred. She even stated her sister-in-law video recorded the assault. However, at no point in time was any witness called to support her version in court. The court has been left in the dark as to whether she even mentioned these facts to the police during the enquiry or whether this was a recent fabrication to bolster her version in court.

Thirdly, I observed the demeanour of witness no.3 in court. During examination-in- chief, she gave a very selective and brief version as to how she was allegedly assaulted by the accused. During cross-examination, she appeared very resentful and showed disdain towards the accused. I have not been impressed by her demeanour overall.

12. On the other hand, the accused deponed convincingly and denied the allegations against him throughout. His version in his defence statement is consistent with his testimony under solemn affirmation. He withstood the test of cross-examination. Having seen and heard him depone before me, I have no difficulty believing him.

CONCLUSION

13. In the given circumstances, I find that the prosecution has not proved its case beyond reasonable doubt against the accused and I accordingly dismiss the charge against him.

Y. Ramsohok Senior District Magistrate Date: 16.04.26