Intermediate Court of Mauritius Decisions

POLICE v RAMPHUL TANOORAJ

2006 INT 213

CN: 738/ 2004

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF:

Police

V.

Tanooraj Ramphul

JUDGMENT

Accused stands charged for having on 10 April 2002 willfully inflicted wounds and blows upon the person of Devina Ramphul causing her death but without intention of killing her in breach of Section 228 (3) of the Criminal Code. He entered a plea of not guilty and was duly assisted by counsel.

The prosecution produced two medico legal reports of Dr. Boolell (W1) in respect of the examination of some human remains (Doc. A) and the examination of the accused (Doc. B). Were also produced, two forensic reports drawn up by W2 (Doc. C1 and C2), and two certificates issued by Dr. Boolell to the Civil Status Office and to the Registrar General (Doc. D and E) commonly known as a PF60 and a PF61 respectively issued in conformity with a. 94 and a.100 of Ordinance 26 of 1890 (now Section 45 of the Civil Status Act).

PS Anthony (W9) produced two sets of photographs which he took on two different occasions (Doc. F, F1 to F7) (Doc. G, G1 to G5) whereas PS Bholah (W8) produced a plan with an annexed reference table (Doc. H and H1). PS Ragavan (W5) secured on the spot where the human remains were found 10 items of exhibits which he marked as RJI to RJX and which he handed over to W7 to be conveyed to the FSL for examination. PC Ragoonath (W7) confirmed that W5 remitted to him the 10 items of exhibits which he conveyed to the Forensic Office for examination.

Inspector Domun (W3) attended the locus when the case was reported by W13. He placed W4 on sentry and gave instructions to take photographs and to carry out measurements. He produced a statement (Doc. J) explaining certain spots on the plan and the photographs taken under his instructions. PS Jeetoo (W6) who also attended to the present case collected certain human remains after their examination by Dr. Baichoo, the Police Medical Officer. He has further secured four items of exhibits which he coded JBI to JBIV and which he left at FSL for examination. He has further taken 6 photographs which were bound in a booklet (Doc. K, K1 to K6) together with an explanation of those photographs.

Witness Rambeerich (W11) stated that while he was working at Mont Choisy on 2 September 2002 he came across certain human remains consisting of a skull and bones. He informed his Sirdar (W12) who then informed the person in charge (W13).

Witness de Commarmond (W13) confirmed that he was informed by W12 of the discovery of human remains in a sugarcane field falling under his responsibility. He attended the spot and called Trou aux Biches Police which started an enquiry.

Witness Sooknauth (W15) deposed to the effect that accused is her son in law and her daughter was separated from the accused. They have a child. In April 2002 her daughter was residing at her place with her child. On 10 April 2002 her daughter left home for work and she was never to be found again. She then reported a case of missing person to the police. In September 2002 she was contacted by the police and was brought to Mont Choisy where she identified certain items of clothing, a bag and a pair of sandals as those of her daughter and which her said daughter were using on the 10 April 2002, the last time she saw her. W15 added that there is a Kovil in the vicinity where her daughter used to pray.

Inspector Monvoisin (W10) produced the three statements in defence given by the accused and which were recorded under caution (Doc. L1 to L3). He has further produced a statement (Doc. M) explaining certain spots and the photographs taken in the course of a reconstruction attended by the accused. He confirmed that W15 has identified the personal belongings of the deceased. Under cross-examination W10 stated that the accused gave his statement a day after the discovery of the human remains. He has admitted the facts and has expressed regrets. W10 added that the accused was weeping and was sorrowful for what took place.

The accused chose to depose. He stated that the contents of his statements are correct. He added that in fact he had sex with his wife and the latter wanted to have sexual intercourse a second time. As he was tired he did not agree. His wife started saying many things to him and provoked him. He got confused and had some “visions”. At that same time he was pressing on his wife’s neck out of anger. He added that he is still in love with his wife and is worried of the future of his daughter who lives with him.

In his statement to the police he made a direct and clear confession. He explained that on two occasions he came to know that his wife was having extra marital affairs. He got upset and their relationships started to worsen. One day when coming back home he witnessed his wife having a conversation with another man. He quarreled with his wife and they separated. However his wife and him were trying to reconcile. On 10 April 2002, he met his wife at the bus stand so as to go to a Kalimaye at Mont Choisy for some prayers. His wife accepted. They did their prayers. On their way back his wife wanted to have intercourse with him and which they had in the sugarcane field. He was having intercourse with his wife a second time when he had some “visions” of his wife having sexual intercourse with other men. At that moment he was filled with anger. He closed his eyes and got hold of the deceased by her neck. He added that he did not strangle his wife but that he pressed his wife’s neck with his hands. He went on pressing until he felt that his wife had stopped moving. When he opened his eyes he found that his wife was dead. He then went away leaving the body on the site. He maintained that he had no intention of killing his wife

The bulk of the evidence adduced by the prosecution has remained unrebutted and unchallenged. The only evidence which the prosecution has against the accused is his own unchallenged confession. It is common ground that the cause of death of the deceased has remained undetermined as only her remains have been found. She was identified both by her personal belongings found on the site by her mother and the accused who has admitted that he left the deceased at that spot. I am satisfied that the human remains found in a sugarcane field at Mont Choisy is indeed that of the daughter of W15, one Devina Sooknauth. As there is no any independent evidence to explain the cause of death of the deceased, there is no alternative than to rely on the explanations given by the accused both in his statements to the police and under oath in court. In his statement the accused has explained the circumstances in which his wife lost her life. He has stated that he was pressing his wife’s neck causing her to lose her life.

In D.P.P. V. J.P. Aumont   [ 1989 SCJ 338 ] the Supreme Court reiterated the principle that a “voluntary confession by an accused party that was direct and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution against the accused.” On the own version given by the accused, I find that he had wilfully assaulted his wife by forcibly pressing her neck with his hands that he unintentionally caused her death. There is thus a direct causal link between the physical assault of the deceased by the accused and the death of the deceased. The accused has thus made a clear confession, that is, both direct and positive and which has been satisfactorily proved to be voluntary. It is common ground also that the accused is not relying on the defence of insanity or having had an impaired mental state. His defence is that he was so overwhelmed by anger caused by the taunting words and comments of his wife combined with him having the sight of his wife (visions) having intercourse with other men that caused him to lose his self control. In other words his defence is that he acted under provocation.

On this score it would be pertinent to refer to what the law governing the issue.   Section 240 of the Criminal Code provides that “Le meurtre ainsi que les blessures et les coups sont excusables…s’ils ont été provoques par des coups ou violences graves envers les personnes.” Our Section 240 of the Criminal Code has been borrowed from article 321 of the French Penal Code so that the authorities in France on this issue would have strong persuasive authority. In this regard, there are four conditions that should exist before the excuse of provocation can be successfully entertained. In Garçon, Code Pénal Annoté , note 16 , one can read the following “Les éléments constitutifs de la provocation sont: 1º. une agression manifestée par des coups et violences graves; 2º. le fait que cette agression est dirigée contre une personne; 3º. le fait que cette agression est injuste; 4º. une certaine simultanéité entre la provocation et le meurtre ou les coups et blessures dont l'agent s'est rendu coupable.”

Unlike in UK, where it is now established that the test to decide whether there has been provocation is that of the reasonable man, that is an objective test ( D.P.P V. Camplin [1978 AC 705 ], in Mauritius the test is the one that obtains in France, that is the subjective test. This issue was fully discussed in the case of R V. Maloo Dhondee [ 1958 MR 165 ] , in which the Supreme Court reviewed the elements of the excuse of provocation and it was also held that the seriousness of the assault has be considered subjectively and not objectively. It referred to   Garçon, Code Pénal Annoté, note 29, which is as follows “Ce qu'il est très important de ne pas perdre de vue, c'est que la gravité des coups et des violences doit s'appr cier non pas objectivement, mais subjectivement. Il faut moins s'attacher à leur résultat matériel qu'à l'impression qu'elles ont produite sur la personne attaquée. Si, en fait, elles ont occasionné chez elle une vive irritation, une colère impulsive, le crime doit être légalement excusé…l'atténuation de la peine est fondée sur une sorte de contrainte morale imparfaite qui a altéré la volont de l'agent, théorie qui oblige à rechercher, en pénétrant dans sa conscience, quel était son degré de liberté morale et partant de responsabilité au moment de l'action.”

The main issue of concern is in relation to the definition given to “coups et violences graves” in Section 240 Criminal Code. In R V. Maloo Dhondee [ 1958 MR 165 ] itself the court was faced with a similar difficulty and it relied heavily on the French authorities on this issue, namely Garraud, Droit Pénal Français, 3rd edition, Vol. 2, § 825 “Cette excuse ne peut être admise que si les conditions suivantes se rencontrent: 1º. La première, c'est que l'attaque ait consist en violences physiques. Ainsi l'injure par paroles, par gestes, par écrits, l'imputation calomnieuse ne pourraient être prise en considération comme causes d'excuses légales…Mais il est possible que les menaces soient accompagnées de circonstances, et notamment de gestes, qui puissent faire craindre leur exécution immédiate: ainsi, par exemple, un individu s'avance vers un autre en le mena ant de le frapper, et, en même temps, il lève sa canne comme pour mettre sa menace à exécution: bien qu'il n'y ait pas eu de coup porté, comment ne pas voir dans ce fait une provocation véritable? Cette interprétation a été adoptée par la jurisprudence, qui a décidé, dans plusieurs arrêts, que la provocation, cause d'excuse du meurtre, peut exister, sans qu'il y ait eu blessures, par la seule menace, avec une arme, rapprochée du corps…”

In Garçon, Code Pénal Annoté, note 21, “Il est clair que la qualification légale des coups portés par le provocateur pourra être prise en considération; mais ce critérium n'a rien d'absolu. Sans doute, les coups prévus et punis par l'article 309 seront ordinairement très graves. Mais on se tromperait en décidant que ceux qui sont réprimés par l'art. 311, ou bien sont toujours graves parce qu'ils constituent un délit correctionnel ou bien ne le sont jamais parce que, n'étant accompagnés d'aucune circonstance aggravante, la peine est relativement légère. Tout dépend des circonstances, la loi veut que des blessures aient été faites. Le fait de pousser une personne n'excuserait un meurtre que dans des cas exceptionnels, et, au contraire, un soufflet devra presque toujours être considéré comme une violente provocation”

In addition to the above authorities relied upon by the Supreme Court, we find that the French jurisprudence on the issue is consistent. The same view was indeed held by other learned authors and the following can be found in Dalloz, Répertoire Pratique, V° Responsabilité pénale, note 75 “Les faits de provocation auxquels la loi, en matière d’homicide, coups et blessures, castration, attache le caractère d’excuse sont au nombre de quatre :…les coups ou violences graves envers les personnes ;…la violation, à l’aide d’escalade ou d’effraction, du domicile pendant le jour ;…le flagrant délit d’adultère ;…un outrage violent à la pudeur pour le crime de castration. Les autres faits de provocation, comme les injures, les menaces, les paroles, les gestes, qui ne sont pas prévus par le Code, ne sont pas des causes d’excuse légale …” (emphasis added).

Dalloz, Répertoire Pratique, V° Responsabilité pénale, note 76 “Coups et violences graves envers les personnes-   cette excuse suppose des violences :…physiques, par exemple, même le fait de poursuivre avec un couteau diverses personnes en les menaçant de mort. Des injures, quelque outrageantes qu’elles soient, des imputations calomnieuses ou des menaces verbales ne sauraient donc constituer l’excuse de la provocation…Graves ; cette gravite doit être suffisante pour avoir enlevé au coupable, au moment du crime ou du délit, toute liberté d’esprit nécessaire pour agir avec mûre réflexion…”

In the present case the accused has stated in his statement that “Mo fine recommence faire et en même temps mo fine gagne ene vision qui coume ca même li fine faire avec les autres zommes.mo fine senti moi commence nerveux, gagne la rage et dans sa moment la mo deux la main ti acotte so li cou…”. In Court he stated that his wife uttered certain taunting words at him when he refused to have intercourse with her for a second time. He was angry and he pressed on the victim’s neck. Firstly, there is a departure from what he originally said in his statement in which he said that he was in the process of having intercourse a second time when he had the sight of other men having intercourse with his wife. Secondly it is only in court that he stated that his wife used taunting words at him. Even if that were the case, the abusive words were not accompanied by any violence or threats of violence. There has not been any ‘blessures’   or ‘menace avec une arme rapprochée du corps’ but merely ‘les injures, les menaces, les paroles…’ and not even ‘les gestes’.

There is no doubt that anger is one of the factors to be considered when assessing the state of mind of the accused. Indeed in Dalloz, Répertoire Pratique, V° Responsabilité pénale, note 42 the following extract could be found “les passions, comme la vengeance, l’amour, la jalousie, la cupidité, ne peuvent être qu’une cause d’atténuation, dont le juge tiendra compte en accordant les circonstances atténuantes…la colère est une excuse atténuante dans les cas des art. 321, 324, 325 C. pén.” (art. 240, 241, 242 and 243 of the Criminal Code). On the issue of anger itself; and even if that caused the accused to run amok, whether as a result of the taunting words used by his wife or the “visions” he was having, that would only be material in assessing the mental state of the accused if he had been subjected to “coups et violences graves” including “voies de fait” from the victim. In the present case and in spite of the hurting words used by the victim, the accused has not been either threatened with a weapon or has not been under the risk of being subjected to some kind of voies de fait. The feeling of anger which has not been the result of severe blows, violence or assault cannot amount to provocation although that could be considered to be a mitigating circumstance to be taken into account at the sentencing stage.

The accused has emphasized on the fact that he had the sight of his wife having intercourse with other men (which he termed as ‘visions’) which caused him to enter in a fit of anger. It would appear that he was referring to the previous acts of adultery committed by his wife and which also contributed to the provocation. However on this score the law specifically provides that, in order to constitute an excuse, a person has to catch his spouse red handed in the act of adultery with the other accomplice in the conjugal roof (see Section 242 of the Criminal Code). For all the reasons given and in the light of abundant authorities referred to above and in the circumstances of the present case, I find that the four conditions for the excuse of provocation to succeed do not exist. The accused may have been provoked in the literal sense of the word but surely not in its legal sense.

Even on the assumption that the accused was to succeed in invoking the excuse of provocation, which has not been the case presently, Section 231 of the Criminal Code provides that “Dans les cas prévus par les sections 228 et 229, si le coupable a commis le crime envers ses père et mère légitimes, naturels ou adoptés ou encore envers son époux ou tout autre personne avec qui il vit ou a vécu maritalement ou un enfant de cette personne, il sera puni de la peine le plus sévère prononcée par les sections, selon les distinctions qui y sont établies.” This section has been analysed by the French authors and the following can be found in Dalloz, Répertoire Pratique, V° Responsabilité pénale, note 77, where it has been held that   “Par exception à l’art. 321 C. pén., (Section 240 of the Criminal Code) le parricide n’est jamais excusable (C.pén. art. 323), et le meurtre d’un conjoint par son conjoint n’est pas excusable , sauf le cas d’adultère (C.pén. art, 325)…” (emphasis added) On the own version of the accused in his statement to the police, I find that the accused and the deceased got married civilly in 1999 and they were living together as husband and wife. He has lived a marital life with the deceased and he falls within the categories of persons listed in Section 231 of the Criminal Code so that even if there had been provocation, he would not and could not get the benefit of that excuse by application of Section 231 Criminal Code which provides that the severest penalty should be applied.

For all the reasons given, I find established beyond reasonable doubt that the accused has wilfully inflicted wounds and blows upon the person of his wife, one Devina Sooknauth, as a result of which he unintentionally caused her death. I therefore find him guilty as charged.

P.M.T.Kam Sing

May 02, 2006