POLICE VS BUNDHOO KARUNA 2017 INT 133 POLICE VS BUNDHOO KARUNA Cause Number: 737/15 IN THE INTERMEDIATE COURT OF MAURITIUS In the matter of:- POLICE VS BUNDHOO KARUNA Judgment INTRODUCTION The Accused stands charged under 2 Counts with the offence of using an information and communication service for the purpose of causing annoyance in breach of sections 46(h)(ii) and 47 of the Information and Communication Technologies Act. She pleaded not guilty to both Counts and was assisted by Counsel. The particulars of the charge against the Accused is that in the months of January and October 2012, she used her cellular phone with sim card number 783 8923 and sent unsolicited messages on cellular phone holding sim card number 757 4516 to Mr Emraj. THE FACTS The Accused was married to Mr Emraj. In the year 2012, they got separated but kept living under the same roof. Subsequently, Mr Emraj filed for divorce. Mr Emraj is the subscriber and user of sim card number 757 4516 with Orange. He testified that the Accused sent him many messages on his sim card number 757 4516 from different sim card numbers, causing him to feel stressed out, disturbed and humiliated.
The Accused declined to give a statement to the police when she was interviewed in relation to the present case and opted for her right of silence. OBSERVATIONS I have assessed the evidence on record. The Accused is charged under 46(h) (ii) of the Information and Communication Technologies Act which read as follows Any person who uses an information and communication service, including telecommunication service, - (i) (ii) for the transmission or reception of a message which is grossly offensive, or of an indecent, obscene or menacing character; or for the purpose of causing annoyance, inconvenience or needless anxiety to any person; shall commit an offence. The particulars of the charge against the Accused is in relation to messages allegedly sent by her from sim card number 783 8923 to sim card number 757 4516 belonging to Mr Emraj. The subscriber of phone number 783 8923 is Mrs Jugun. I have perused the itemized bill from Mauritius Telecom which has been produced in Court and which contains details of outgoing and incoming calls and messages to and from phone number 757 4516. The itemized bill reveals that there were incoming calls and messages on phone number 757 4516 from phone number 783 8923.
In the midst of the enquiry, PS Soomaroo examined phone number 757 4516 belonging to Mr Emraj and noted that it contained messages sent from phone number 783 8923. Who is the author of the impugned messages? The declarant, Mr Emraj, has alleged that the messages which he received on his phone number 757 4516 from phone number 783 8923 came from the Accused. He reached this conclusion basing himself on the tenure of the messages and the language used which allegedly correspond to that of the Accused. For a case of this nature, the identification of the Accused cannot be made directly since the offence is committed through a phone which is an information and communication service. Hence, it is important to look at all the evidential and circumstantial evidence for the commissioner of the offence to be identified. I find comfort in my reasoning from the case of DEW BOKHORY VS THE STATE (2010) SCJ 421 where the Appeal Court found that the trial Court was right in rejecting the Appellant s version that the latter did not call the declarant because he had lost his phone. The circumstances of the case made it clear that the Appellant was the one to use a mobile phone for the transmission of a message of menacing character. Further, the case of TATIAH V VS THE STATE (2010) SCJ 389 concerned an appeal where the inferences made by the Trial Court to the effect that the incriminating phone number from which the messages were sent belonged to the Appellant, were challenged. The Appeal Court found the Trial s Court conclusion that
the only strong and irresistible inference that the Appellant was the author of the impugned messages, was correct. In light of the cases mentioned above, I have deemed it fit to consider the evidential and circumstantial issues in this case. I have noted that sim card number 783 8923 was registered on the name of Mrs Jugun. Mrs Jugun is the grandmother of the Accused. She came to Court and confirmed that she bought sim card number 783 8923 but then lost same without having ever used the sim card in a phone. Given the proximity between Mrs Jugun and the Accused, I have considered the version of Mrs Jugun with care. Mrs Jugun is a lady of more than 60 years old who testified that she suffered from a bad health. She had difficulties remembering the events in the present case but she still deposed under oath to the best of her abilities. In this version of events, she never implicated the Accused, such that there is no evidence that the sim card number 783 8923 which was owned by Mrs Jugun and which got lost, was ever used by the Accused. I find that the conclusion reached by Mr Emraj that the impugned messages received on his phone came from the Accused to be too hasty and unsupported by evidence. The bad blood existing between Mr Emraj and the Accused in light of their marital relationship with turned sour, leaves the version of Mr Emraj, questionable. Given that Mrs Jugun never established that she remitted or gave the sim card number 783 8923 to the Accused, I find that there is no evidence that the sim card came in possession of the Accused. Given the numerous possibilities which could have occurred when Mrs Jugun lost her sim card, it would be most unsafe for this Court to conclude that the Accused was the one exclusive person who used sim card number 783 8923 to send messages to Mr Emraj. Did the messages cause annoyance to Mr Emraj? For a case of this nature, the Prosecution must prove all the elements of the offence. (RE: LOKEE VS THE STATE (2010) SCJ 378). Hence, it is not sufficient
that the Prosecution establishes that the Accused used an information and communication service. The Prosecution must also prove that annoyance was caused. On this score, I have considered the nature of the messages sent. I have noted that the Information did not particularise the impugned messages allegedly sent by the Accused to Mr Emraj. Nonetheless, the Court has been favoured with a report from PC Somaroo who examined the Mr Emraj s phone and who noted down the messages which he read on the phone, in the said report. Mr Emraj explained whilst he was under cross-examination that there were swear words used which caused him annoyance, namely the words macro, pilon, gogot. However, I find that the messages which PC Soomaroo read from Mr Emraj s phone do not contain the swear words as alleged by Mr Emraj, such that the Court is in the dark as to the exact messages which allegedly caused annoyance to Mr Emraj. The Information and Communication Technologies Act does not define the term annoyance. I have therefore applied the normal dictionary meaning to those terms. According to the Oxford dictionary, the term annoyance is defined as follows: Annoyance the feeling or state of being annoyed; irritation In the present case, in view of the lack of particulars and inconsistencies in relation to the impugned messages allegedly sent by the Accused to Mr Emraj, I cannot conclude that the messages, if they were sent, caused any irritation to Mr Emraj or caused him to be in a state of being annoyed. CONCLUSION In light of the above, I find that the Prosecution has failed to establish beyond reasonable doubt that the Accused is the author of the impugned messages and has also failed to prove the nature of the messages sent as well as any connotation of annoyance attached thereto.
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, Ag Magistrate, Intermediate Court Judgment delivered on: 10 th April 2017