Supreme Court of Mauritius, 9 juin 2020, 2020 PL2 47 – Pce v Joomrally and Anor

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Pce v Joomrally and Anor

2020 PL2 47

POLICE v JOOMRALLY and Anor

CN:6974/18 IN THE DISTRICT COURT OF PORT LOUIS (2nd Division) In the matter of:

POLICE V 1. JOOMRALLY Muhammad Yusuf 2. JOOMRALLY Zahir-Udin JUDGMENT

Both Accused stand charged with the offence of Insult in breach of section 296 (b) of the Criminal Code. Accused no/1 has been charged under count I and accused no.2 has been charged under count II. Both Accused pleaded not guilty to the charge and were not represented at trial stage. Prosecution called witness no.1, PS Samsanrooah, who read and produced defence statement of accused no.1, marked as Doc A. The witness stated that accused no.2 declined to provide a statement in writing. Prosecution then called witness no.2, Mr Mahmad Sidik Najurally, the complainant in the case, who related that om 07/06/16 at 15.20 hrs, whilst on his motorcycle, he came to a stop in order to supervise works at the level of the Mosque, in his capacity as committee member. Thereafter, accused no,1 came towards him in a violent manner but someone prevented the latter from approaching him. He further explained that accused no.2 came out of a shop, following which he left on his motorcycle. Initially, the complainant stated that this was what happened. However, the Prosecutor put the version contained to

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him and after being fed the facts to be found in his statement, he simply said that the parties were threatening and that they insulted him because of the administration of the Mosque. The witness was cross-examined by accused no.1. Prosecution closed its case. Both accused were informed of their Constitutional rights in creole and elected to make a statement from the dock. Both accused stated that the complainant is lying. The case was then closed for the Defence. The case of Carpen v. The State (2010) SCJ 105 quoted with approval the case of Morel v. Couve (1912) MR 78, in which it was stated that the mens rea of the present offence is presumed in the content of the injurious expressions 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»

This is what « Encyclopédie Dalloz Penal Verbo Injure » has to say on the subject:

Note 27 «Constitue une injure, l'expression par elle-même outrageante comportant une intention perfide et un dessein de malveillance: »

The Court is of the view that the complainant cut a poor figure in Court. He was unable to relate the situation whereby the insulting words were stated and he merely agreed to the version put to him as contained in his statement. This is enough for the Court to conclude that his version is far from credible.

Accordingly, Court finds that the Prosecution has failed to prove its case beyond reasonable doubt and the case is accordingly dismissed under both counts.

Mrs Manjum la Kumari Boojharut (District Magistrate) Delivered on 09 June 2020