Supreme Court of Mauritius, 17 avril 2026, 2026 FLQ 63 – Police v Ustima Aucharaz

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Police v Ustima Aucharaz

2026 FLQ 63

IN THE DISTRICT COURT OF FLACQ

Cause No: 2562/2024 In the matter of: POLICE V USTIMA AUCHARAZ JUDGMENT THE CHARGE

1. The accused has been charged with the offence of insult in breach of section 296(a) of the Criminal Code. She pleaded not guilty and was not legally represented.

THE PROSECUTION’S CASE

2. Witness no.1, PC 11218 Jeewooth, stated that he interviewed the accused on 10.02.2024 after the latter was duly informed of her constitutional rights, the charges against her and cautioned. The accused declined to give a defence statement and explained that she would state everything in court.

3. Witness no.2, Mrs. Karuna Boodhun explained that on 14.11.2023 at 17 30 hours, she was on the balcony of her house at Laventure. The accused, her neighbour, came in front of her door and uttered the following to her “makrel kifer to pas vin baigne touni lor chemin kifer ou al get la police”. She explained that the incident arose due to a broken pipe and she felt humiliated. She was duly cross-examined by the accused.

4. The prosecution did not call witness no.3 and closed its case.

THE CASE FOR THE DEFENCE

5. The accused deponed under solemn affirmation and explained that witness no.2, her neighbour, harasses her a lot. On the material date, her water pipe broke and water was leaking into her yard. She was talking to another neighbour at the material time and stated that she never swore at witness no.2. She was duly cross-examined and

admitted that she had an issue with witness no.2, but maintained that she never insulted her.

6. The accused called her neighbour, Mrs. Sathee Suya Maigha, as her defence witness. The latter stated that on the material day, a water pipe at the house of the accused broke and water was leaking. Witness no.2 got out of her house and insulted the accused. During cross-examination, she agreed that the accused had an issue with witness no.2, but never heard the accused swearing at the witness. She explained that she was in her kitchen at the material time and witnessed everything. She also stated that it is witness no.2 who harasses the whole neighborhood.

THE LAW

7. Section 296 (a) of the Criminal Code provides that:

“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 –. 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”

8. The constitutive elements of the offence of insult are that there must be an injurious expression; or a term of contempt; or invective; or abusive language addressed to some person or corporation by means of words, exclamations or threats. The words used must not carry with them the imputation of a fact (Bundhoo v The State ( 2001) SCJ 60). It was held in Coonjan v. The Queen (1978) MR 137 that “an ordinary sensible man knows an insult when he sees or hears it.” 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» ( Morel v. Couve 1912 MR 78).

ANALYSIS

9. I have duly considered all the evidence on record.

10. In the information in the present matter, it has been averred that the accused allegedly used invective words against witness no.2- to wit: “marcrel pitin kifaire to pas pe alle baigner touni enba sa dalo la”. In court, the witness explained that the accused told her “makrel kifer to pas vin baigne touni lor chemin kifer ou al get la police”.

11. There is a variance between what has been averred in the information and the testimony of witness no.2. The question is whether the variance in the present case is ‘slight’ or ‘substantial’. In comparing what has been averred in the information and what witness no.2 stated in court, I find that the variance is not substantial. I am satisfied that the words mentioned by witness no.2 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 (Rumjon M. R. V The State 2016 SCJ 315). Having observed witness no. 2 in court, I find that she deponed straightforwardly and confidently maintained her version during cross-examination. I found her to be a credible witness.

12. On the other hand, the accused as well deponed under solemn affirmation and struck me as a clear, straightforward, and truthful witness. She vehemently denied the allegations against her throughout the trial. Additionally, her version has been corroborated by her defence witness, whom I find credible.

13. Having seen and heard both witness no.2 and the version of the defence, I find their sworn evidence rebut each other. I, therefore, find the present matter to be a fit and proper case to apply the principle of the presumption of innocence as laid out in Goburdhun v The Queen 1956 MR 503, where it was held that:

“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. Hence, I give the accused the benefit of the doubt.

CONCLUSION

15. For all the reasons given in this judgment, I find that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I, therefore, dismiss the information against the accused.

Y. Ramsohok Senior District Magistrate Date: 17.04.2026