POLICE VS VARMA YATINDRA NATH
10 July 2014 - lexpress.mu
The Accused stands charged with the offence of assault upon the person of Mr Jean
Florent Joseph Jeannot (hereinafter referred to as “Mr Jeannot”), in breach of section 230(1) of the Criminal Code. He pleaded not guilty and was assisted by Counsel. The Prosecution was also assisted by Counsel.
FACTS OF THE CASE
Mr Jeannot is a student who lives in Flic en Flac. He testified that on the 4th May 2013, he was driving his car on Avenue Trianon II and was proceeding from Quatre Bornes to Curepipe when an accident occurred between his car and the car driven by the Accused.
According to Mr Jeannot, the Accused alighted his car after the accident to come in the direction of Mr Jeannot. He was angry and swearing. When the Accused reached Mr Jeannot, he started to punch him on his face and body with his right hand. He was shouting at the same time. Mr Jeannot contended that the Accused tried to extract him from the car but since he had his seat belt on, Mr Jeannot unfastened same and the Accused dragged him out of the car before hitting him on the cheeks and lips.
Mr Jeannot also added that the Accused’s father punched him on the face. All the time, Mr Jeannot apologized. At the same time, a passer-by came and intervened to stop and separate the parties from the fight. This passer-by is Mr Seenundun.
In this lapse of time whilst Mr Seenundun intervened, Mr Jeannot grabbed his phone to try to call his father but according to Mr Jeannot, the Accused grabbed same and threw it away. Nonetheless, Mr Seenundun lent his phone to Mr Jeannot who managed to call his father. Mr Seenundun left his card with Mr Jeannot so that the latter could contact him to be his witness to the present case.
Subsequently, the police arrived on the spot and Mr Jeannot was conveyed to the police station. As a result of the alleged numerous hits by the Accused on his face, Mr Jeannot averred that his face was swollen and his lips bled. There was blood in his mouth. Mr Jeannot attended the police station before proceeding to hospital and was then conveyed back to the police station to give his declaration.
Mr Jeannot explained that he had been at the spot of the accident a few times before the material day to drop his girlfriend. He agreed that his car was heavily damaged after the violent impact with the Accused’s car. Mr Jeannot contended that when the Accused alighted his car to come towards him, he was behind the wheels of his own car some ten metres away. When the Accused tried to extract him from his car, he removed his seat belt to be able to defend himself.
According to Mr Jeannot, the Accused hit him on his right shoulder and on his body. He also contended that the Accused hit him on his right cheek causing same to be swollen. The Accused used his right hand to hit Mr Jeannot. However, he never told the police that he had to remove his seat belt nor that he received many blows on his shoulder or his body. In addition, Mr Jeannot told the police that the Accused hit him on the face with both hands. Upon being confronted with his version in his statement given to the police that his left cheek was swollen,
Mr Jeannot averred that his left cheek was more swollen than his right cheek.
In a second statement given to the police on the 17th June 2013, Mr Jeannot added that the Accused’s father also assaulted him. He did not mention same in his first statement because he was in shock and was not in a position to explain everything. In Court, he could not tell where the Accused’s father was seated in the Accused’s car and did not know how the latter got out of the car. However, he did mention in his second statement given to the police that the Accused’s father was seated in the passenger seat.
At the time of the alleged incident, the Accused was the Attorney General in Mauritius. His version in relation to the incident is contained in his statements given to the police and to which he solemnly affirmed as being true in Court.
In a statement given to PS Ramracheea, the Accused averred that on the material day, he was driving Government vehicle AG 1123 along Rosier avenue when he met with an accident with the car driven by Mr Jeannot. In the Accused’s car, his father then aged 84 years old and his son aged 5 years old were seated in the rear of his car. His daughter aged 7 months was in his father’s lap. As a result of the violent impact between the vehicles, the Accused’s car was projected to the right side of the road. The Accused averred that his right hand slipped off the steering wheel and the dorsal part of his right hand knocked against the upper part of the dashboard, causing the Accused to feel an immediate pain in his hand. When he looked at the rear, he saw that his father and his son were in a state of shock and his daughter had fallen on the floor of the car.
The Accused alighted the car and went to attend to his father and his children who were in the rear seat of the car. It was then that he realized that he was severely injured at his hand. Whilst calling his bodyguard, he walked towards Mr Jeannot and severely reproached the latter about his recklessness. He noted that Mr Jeannot did not have his seat belt fastened and the door of his car was open. In the meantime, the Accused’s bodyguard answered his call and he instructed the latter to call the police who came on the spot shortly after the accident.
The Accused mentioned in his statement that Mr Jeannot remained seated in a state of daze when he talked to him. He appeared to be injured in his face. The Accused was made aware of the eye witness to the incident and he confirmed that he knew the eye witness, Mr Seenundun who had reproached him in the past during the electoral campaign. Both in his statement and through his testimony in Court, the Accused denied the charge against him. He maintained that he did not assault Mr Jeannot and explained that he could not possibly have done so since he was injured.
He denied that he acted in the heat of the moment and lost control of himself. He used his right hand to get out of the car but had to use his left hand to unfasten his seat belt and to open the rear door of his car. He also used his left hand to use his mobile phone to call his bodyguard. He explained that the impact between the vehicles was considerably violent but could not tell why the airbag did not come out in his car. According to the Accused, Mr Jeannot leveled a false allegation against him because he was at fault in the accident and there was some strong political motivation behind what happened. He maintained under oath that his fifth metacarpal got injured in the face of the violent impact.
Mr Seenundun testified that he heard the accident between the Accused’s and Mr Jeannot’s cars whilst he was in front of his house at the material time. He averred that he saw the Accused get out of his car and went up to Mr Jeannot to beat him up. He intervened to separate the parties.
Mr Seenundun gave a statement in relation to what he saw on the 4th May 2013 at about 14 00 hours in presence of his Counsel. He came to know Mr Jeannot on the day of the accident. According to Mr Seenundun, he went to give a statement in his capacity as a citizen. On the spot of the accident, he saw three policemen but did not tell them about the alleged assault by the Accused on Mr Jeannot. He denied that he mentioned in his statement that he left to go home when he saw the police on the spot of the accident. He also denied that he told the police about the registration plate number of Mr Jeannot’s car. He maintained that he told the police that the Accused hit Mr Jeannot before dragging him out of the car but the police omitted to note same.
He explained that the Accused hit Mr Jeannot by holding him with his left hand and punching him with his right hand on his face, belly and stomach. He contended that the
Accused’s father also beat up Mr Jeannot by punching the latter with his right hand. He confirmed that he told so to the police but when his statement was shown to him, Mr Seenundun conceded that there is no mention in his statement that the Accused’s father hit Mr Jeannot. He averred that he has never spoken to the Accused in the past. He confirmed that he gave his card so that Mr Jeannot could contact him to stand as his witness but then elected to give a statement by himself.
PS Ramracheea is the main enquiring officer in the case. He testified that the road traffic accident occurred on the 4th May 2013 at about 07 30 hours and according to the version of Mr Jeannot, the alleged assault took place shortly after. He produced in Court a PF 58 which was issued to the Accused between 08 00 and 08 30 hours. According to PS Ramracheea, he reached the spot of the accident shortly after the accident. The Accused had stopped on Avenue des Rosiers in a slanted position. The car of Mr Jeannot was heavily damaged and the car of the Accused sustained damages on the front nearside. PS Ramracheea did not witness any assault nor any threats being uttered by the Accused.
On the spot of the incident, Mr Jeannot never complained of having been assaulted nor did any witness come forward. At about 09 30 hours, Mr Jeannot mentioned the assault and was given the opportunity to contact his family and legal representative.
On the 4th May 2013 at about 07 30 hours, PC Parusram was the station orderly in Sodnac police. He received a phone call to the effect that an accident occurred in Sodnac. He therefore directed a mobile patrol on the spot. At 13 30 hours, Mr Jeannot called at Sodnac police to give a declaration and PC Parusram recorded same. He testified that he issued a PF 58 to Mr Jeannot but stated under oath that the PF 58 which he issued to Mr Jeannot was not the one which was produced in Court by Dr Joomaye who examined Mr Jeannot.
According to PC Parusram, Mr Jeannot was conveyed to hospital in a van. He was aware that in some cases, police officers issue a PF 58 to victims at the hospital. There can be a Chief Inspector in charge of the supervision of Sodnac without being posted at Sodnac police station. PC Parusram confirmed that he mentioned in his statement which he put up at 13 35 that Mr Jeannot bears “swollen at upper and lower lips, his left cheek and bears bruises on the left side of his face near his lobes”. These injuries are consistent with the injuries mentioned in the PF 58 produced in Court by Dr Joomaye. Mr Parusram contended that there could be a possibility that the PF 58 which he issued to Mr Jeannot remained with him and Mr Jeannot was issued another one at the hospital.
After the accident, Mr Jeannot was examined by Dr Joomaye who produced the PF 58 of Mr Jeannot in Court. He confirmed that the injuries sustained by Mr Jeannot were not of a serious nature and could be consistent with a road traffic accident, depending on the violence of the impact. He also clarified that the injuries could result in the event of a sudden braking and impact with the steering wheel.
Dr Surnam is a medical practitioner who has been practising since the year 1975. He did not examine Mr Jeannot nor the Accused but came to Court to give expert independent medical evidence. He explained that the left zygoma is the left prominent cheek bone. According to the PF 58 of Mr Jeannot, there was a swelling of the zygoma, there was tenderness and a restriction in the mouth movement. According to Dr Surnam, this happens when there is contact with an object which has crushed the skin and the tissue and the muscles underneath the skin. The upper swollen lip means that there was pressure on the lip against the teeth with each tooth causing a bruise.
As an expert, Dr Surnam explained that if there is an impact and the car comes to a standstill, the driver will move forward and the face of the driver will come into contact with the steering wheel. The injuries on the PF 58 of Mr Jeannot are consistent with an impact when the driver is not wearing his seat belt.
The PF 58 of the Accused was also produced in Court and the contents thereof have not been disputed. It shows a fracture of the metacarpal which is a bone in the dorsal part of the hand. According to Dr Surnam, a fracture of the metacarpal will definitely cause acute pain. This fracture is compatible with the hand hitting a hard object. It is consistent with the Accused’s hand slipping from the steering wheel and hitting the dashboard.
He explained that in a road accident, the prominent part of the body will be projected first. On a frontal contact, the head and the nose will go first. On a side contact, the zygoma will impact. On a side contact, there will be a primary contact with the zygoma which will absorb the impact. The rest of the face will meet the object with a reduced force.
Dr Surnam was aware of a boxer’s injury which is normally an injury of the fifth finger. Such an injury is seen on people who push their hands on an object. However, he maintained that the fracture sustained by the Accused is consistent with an impact. With such a fracture, it would not be consistent with the idea of the Accused hitting someone.
I have assessed the evidence on record. The Accused is charged in the heading of the Information with the offence of assault upon Mr Jeannot. The body of the Information particularizes that the Accused inflicted blows upon the person of Mr Jeannot. In the case of BAYJOO VS R (1992) SCJ 9, the Court laid down the legal distinction between an offence of ‘assault’ and an offence of ‘wounds and blows’.
In French Law, an assault is defined as “voies de fait”. The legal characteristics of “voies de fait” are set out in Encyclopédie Dalloz, Droit Pénal Vo Coups et blessures, as follows: “Les voies de fait ont été incriminées par la loi du 13 mai 1863 pour réprimer les violences volontaires qui ne constituaient techniquement ni des coups ni des blessures (GARCON, sous art. 309 à 311, no.11). Ces agissements, qui s’apparentent aux coups, s’en distinguent surtout par le peu de gravite de l’acte lui-même et par les conséquences réduites qu’il a produites. Les voies de fait peuvent ne pas laisser de trace sur le corps de l’individu. Ainsi, constituent de simples voies de fait le fait de bousculer intentionnellement quelqu’un, de le jeter a terre, de lui fermer brutalement la porte au nez, de lui cracher au visage »
In the case of BAYJOO VS R (SUPRA), the Accused was charged in the heading of the Information with the offence of assault. However, the body of the Information read that the Accused willfully and unlawfully inflicted wounds and blows. The Trial Court found the Accused guilty as charged for the offence of assault. The Court of Appeal substituted the conviction for assault as one of wounds and blows and found that the offence of assault was descriptive of an offence with clearly defined legal elements. However, when the term “assault” is used in its generic or wider sense, it could cover: “inter alia, the offence of simple wounds and blows expressly spelled out in the body of the information”.
Hence, the term “assault”, if used in its generic sense, means to “aggress” (RE: BICKRAMSING O & ANOR VS THE STATE (2009) SCJ 159). For the purposes of the present case, the Prosecution must there fore prove beyond reasonable doubt that the Accused aggressed Mr Jeannot.
In order to determine whether the Accused assaulted Mr Jeannot, I have deemed it fit to consider the version of each party in the case. I shall deal with the version of Mr Jeannot, the version of Mr Seenundun and the version of the Accused, in turn, bearing in mind the medical expert evidence which has been adduced in this case.
THE VERSION OF MR JEANNOT
Mr Jeannot has testified that after the violent impact with the Accused’s car, the latter alighted his car, came towards him, punched him on his face and body with his right hand. The Accused then allegedly dragged Mr Jeannot out of the car and continued to hit him on his cheeks and lips.
In cross-examination, Mr Jeannot averred that the Accused hit him on his right cheek, on his right shoulder and on his belly. However, the version put to the Accused, when he gave his statement to the police, is that he gave fisticuff blows on Mr Jeannot’s face. In the case of MARDAY VS THE STATE (2000) SCJ 225, it has been laid down that: “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”
In Court, Mr Jeannot conceded that he did not tell the police that the Accused hit him on his shoulder and his body. Hence, I find that Mr Jeannot tried to add more dimension to his case whilst he was testifying in Court. In Court, under cross-examination, he maintained that the Accused hit him on his right cheek. However, upon being confronted by the fact that the medical practitioner who examined him never saw any injury on his right cheek and he never mentioned any swelling on the right side of his face to the police, Mr Jeannot conveniently explained that the right side of his face was less swollen than the left side of his face which was also swollen.
I find that Mr Jeannot made a desperate attempt to describe the alleged injuries which he sustained but his version lacked the credibility and consistency of a witness of truth.
Moreover, I have noted that Mr Jeannot confidently explained in Court that the Accused hit him with his right hand but in his statement, he never mentioned which specific hand was used. To make matters worse, in a second statement which Mr Jeannot gave on the 17th June 2013, he brought forward a totally new element to the incident by saying that the Accused’s father also assaulted him. If same was true, I consider that Mr Jeannot would have revealed same to the police at the earliest opportunity, the moreso that Mr Jeannot was assisted by Counsel when he gave his statements.
I find that the version of Mr Jeannot is riddled with inconsistencies which go to the root of the present case since it directly pertains to the alleged assault by the Accused on Mr Jeannot. I am fully aware that: “cross-examination of a witness in Court is not a memory test which the witness must pass before his evidence can be accepted and relied upon” (RE: DHUNNY V R [1991) SCJ 145 ) .
However, the variance between the version of a party in his statement to the police and his testimony in Court must not be such as to affect his credibility. In the present case, I find that Mr Jeannot added some new dimensions to his case, he conveniently put forward the version of events which suited his purpose and the inconsistencies in his version fail to portray Mr Jeannot as a credible, reliable and consistent witness, which are the characteristics of a witness of truth.
THE VERSION OF MR SEENUNDUN
I shall now deal with the version of Mr Seenundun. Mr Seenundun contended that he came forward to give his version of events in his capacity as a dutiful citizen. However, I fail to see why Mr Seenundun never told the police about the alleged assault when the police officers reached the spot of the accident. On the contrary, he elected to leave the spot of the offence to go home before going to the station at about 14 00 hours.
I have found Mr Seenundun to be a most unreliable witness since he could not confirm the material parts of his statement given to the police although he conceded that the statement was read over to him in presence of his Counsel. Indeed, he maintained, in Court, that he told the police that he saw the Accused hitting Mr Jeannot whilst the latter was still in his car but upon being confronted with his own statement given to the police, he could not tell how same never figured in his statement. Similarly, he never told the police that the Accused hit Mr Jeannot on the belly although he mentioned same in cross-examination in Court. Finally, he gave a full description of the assault by the Accused’s father on Mr Jeannot in Court, namely that the Accused’s father punched Mr Jeannot with his right hand but in truth and in fact, he never mentioned any assault by the Accused’s father to the police.
Given the inconsistencies in the version of Mr Seenundun, I find that I cannot rely on his version as being true. I find it most peculiar that both Mr Jeannot and Mr Seenundun failed to reveal the alleged assault by the Accused’s father on Mr Jeannot at the earliest opportunity. I find that Mr Seenundun could not give a precise and accurate account of events and hence, I cannot rely on his version.
THE VERSION OF THE ACCUSED
I shall now turn to the version of the Accused. I have noted that the Accused deposed well in Court. He addressed the Court in a clear, straightforward and confident manner. His demeanour was calm and serene and he adamantly maintained that he never committed the present offence. He categorically denied that he ever lost his calm and he responded to all questions put to him in cross-examination without waver. He credibly explained his injury after the accident and how he subsequently had to use his left hand. He testified about the injury on the fifth metacarpal. Although the medical practitioner who examined the Accused was not called, the main enquiring officer produced the PF 58 of the Accused, the contents thereof have remained undisputed and consistent with the version of the Accused. I find no reason to doubt the version of the Accused. I have noted the defence version that Mr Jeannot was not wearing his seat belt at the time the Accused came up to Mr Jeannot. However, Mr Jeannot’s version is that he was wearing his seat belt but then elected to unfasten same when the Accused started hitting him and dragging him out of his car. I find that if Mr Jeannot underwent a whole gesture of unfastening his seat belt at the time of a fight, he would have mentioned same to the police since the issue of the seat belt describes the manner in which the alleged assault was taking place. But he never did, therefore shedding doubt as to his version. In the circumstances, I find credence in the version of the Accused that when he went to see Mr Jeannot in his car, the latter was not wearing his seat belt and had sustained injuries on his face, which leads me to assess the version of the medical practitioners in relation to this case.
MEDICAL EVIDENCE AND EXPERTISE
Two medical practitioners deposed in Court. One is Dr Joomaye who examined Mr Jeannot and the other is Dr Surnam who did not examine either Mr Jeannot or the Accused but who gave evidence in his capacity as an expert.
At one point, Learned Counsel holding a watching brief for Mr Jeannot contested the validity of the PF 58 bearing number 197902 produced in Court by Dr Joomaye on the ground that another PF 58 bearing number 42236 was issued by the police to Mr Jeannot. In Court, PC Parusram was shown PF 58 number 197902 but he categorically denied having issued the PF 58 bearing number 197902 to Mr Jeannot, alleging that he issued another PF 58 to Mr Jeannot.
According to Learned Counsel holding a watching brief for Mr Jeannot, the two PF 58 were allegedly issued on the same day, at the same time, and bore the signature of a medical practitioner. However, in the PF 58 bearing number 197902, the following words have been added : “RTA followed by assault as alleged by patient”. These words do not figure on the PF 58 number 42236 issued to Mr Jeannot by the police, presumably by PC Parusram.
I have taken into account that the issue in question is that there are two PF 58. PF 58 number 42236 has not been produced in Court. I find that the relevant PF 58 in relation to the present case is PF 58 number 197902. I say so because Dr Joomaye was called as a Prosecution witness and he testified that he examined Mr Jeannot and noted the injuries sustained by Mr Jeannot on the PF 58 number 197902. He identified PF 58 number 197902 in Court. His testimony was straightforward and credible and he was duly subjected to crossexamination.
At no point during his testimony or during the time that he was cross-examined,was the issue of the validity of the PF 58 raised.
The PF 58 197902 does not bear the stamp of the police station but bears the stamp of Victoria hospital. PC Parusram has conceded that a PF 58 can be issued at the hospital. Hence, Mr Jeannot could well have been granted another PF 58, other that PF 58 number 42236, at the hospital which was duly signed by Dr Joomaye. Therefore, the PF 58 issued by Dr Joomaye constitutes reliable evidence.
In relation to the statement of Learned Counsel holding a watching brief for Mr Jeannot, I have borne in mind the purpose of the PF 58 which is “an important piece of evidence against which the complainant’s version can be tested.”
( RE: JUNGAL V THE STATE [2006 SCJ 71]
In the present case, I have taken note that when Mr Jeannot reported to Sodnac police station at 13 30 hours, after he had attended Victoria hospital, PC Parusram recorded in the OB of the police station that Mr Jeannot was injured on his upper and lower lips and the left handside of his cheek. He put up a statement in which he noted the injuries on Mr Jeannot as follows: “bears swollen at upper and lower lips, his left cheek and bears bruises on the left side of his face near his lobes”.
In view of the above, I find that the contents of the PF 58 bearing number 197902 produced by Dr Joomaye are similar to the observations of PC Parusram when he saw Mr Jeannot. The PF 58 is also in line with the version of Mr Jeannot to the effect that he sustained injuries on his face. Therefore, the same injuries were noted on Mr Jeannot by a medical practitioner and a police officer. Hence, the contents of the PF 58 with regard the injuries sustained by Mr Jeannot are not disputed. In fact, Learned Counsel assisting the Prosecution has not disputed the injuries which Dr Joomaye noted on the PF 58 number 197902. What is in dispute is that in the PF 58 issued by Dr Joomaye, the words “RTA followed by assault as alleged by patient” figure. Given that the purpose of the PF 58 is to describe the injuries sustained by a party, I find that the additional words : “RTA followed by assault as alleged by patient” have no bearing on the validity and admissibility of the PF 58, the purpose of which is to evidence the injuries on a party.
I have borne in mind that the PF 58 number 197902 was referred to Dr Joomaye by a Chief Inspector. However, there is no Chief Inspector at Sodnac police station. Nonetheless, PC Parusram has conceded that although there is no Chief Inspector posted at Sodnac police station, there could be a Chief Inspector responsible for the supervision of the area. Be that as it may, I am satisfied that the PF 58 bearing number 197902 was duly referred to Dr Joomaye for 12 the examination of Mr Jeannot. Dr Joomaye credibly deposed in Court as to the injuries which he noted on the PF 58 after having examined Mr Jeannot. I find no reason to doubt the word of Dr Joomaye who deposed in his professional capacity. I therefore find that the contents of the PF 58 197902 are admissible and reliable to establish the undisputed injuries on Mr Jeannot on the 4th May 2013 when he was examined by Dr Joomaye.
Having found that the injuries on Mr Jeannot are not disputed, I have borne in mind that what is in dispute is how the injuries occurred. According to the medical expertise of Dr Joomaye, the injuries on the PF 58 of Mr Jeannot could be consistent with a road accident. Dr Surnam explained in detail that the injuries on the PF 58 of Mr Jeannot are consistent with an impact where the driver is not wearing a seat belt such that if the car came to a stand still, the driver will come into contact with the steering wheel, with the primary contact being the zygoma and a reduced impact with the rest of the face.
Given the credible and reliable evidence of the Accused, I find credence in his version that Mr Jeannot was not wearing his seat belt at the material time. Consequently, if Mr Jeannot was not wearing his seat belt, the injuries which he sustained on his face are a likely result of the impact of the zygoma and the rest of his face on the wheel of the car.
In addition, I have taken into account the medical evidence offered by Dr Surnam concerning the injuries sustained by the Accused. He confirmed that the Accused sustained a fracture of the metacarpal. According to medical expertise, such a fracture would definitely cause acute pain in the Accused’s hand and would not be consistent with the Accused assaulting Mr Jeannot.
Hence, given the injuries sustained by Mr Jeannot and the Accused, I find that the medical evidence cannot conclude that the Accused assaulted Mr Jeannot since a fracture resulting in the impact between the Accused’s hand and the dashboard of his car would have led to serious pain and would not have made possible the assault by the Accused on Mr Jeannot. I have also borne in mind that PS Ramracheea reached the spot of the accident shortly after the said accident. He found no evidence of any assault on Mr Jeannot and no one came forward to report an assault case to him. I consider that should there have been an assault on any party, the party himself or a reasonable witness would have informed PS Ramracheea in his capacity as the main enquiring officer, at the earliest opportunity, on the spot of the alleged incident.
In view of the above, in view of the inconsistencies in the version of the Prosecution and in view of the credible version of the defence, as well as the medical evidence which do not conclude that the injuries on Mr Jeannot are the result of an assault by the Accused, I find that the Prosecution has failed to establish beyond reasonable doubt that the Accused assaulted Mr Jeannot.
I find that the Prosecution has failed to prove its case beyond reasonable doubt. I dismiss the case against the Accused.
Judgment delivered by: M.GAYAN-JAULIMSING, Senior District Magistrate
Judgment delivered on: 10th July 2014