Supreme Court of Mauritius, 30 avril 2026, 2026 INT 108 – Police v M Kutwaroo

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Police v M Kutwaroo

2026 INT 108

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause number: 77/2016

In the matter of: – Police

v/s

Moti KUTWAROO

JUDGMENT

1. Accused stands charged under 3 counts for the offence of attempt upon chastity upon a child under the age of 12 in breach of section 249(3) of the Criminal Code.

2. It is particularised in the information under each count, that-

Under Count 1: – That on a day in the year 2002, at Floreal in the district of Plaines Wilhems, one MOTI KUTWAROO, also called Ashok, 55 years, Gardener, residing at Dhunputh lane, Floreal did, wilfully and unlawfully, commit an indecent act “attentat a la pudeur” upon a child under the age of 12, to wit: Miss Marie Chloe Aurelie Chlevan, then 5 years born on 01/05/1997.

Under Count 2: – That on another day in the year and at the place aforesaid, on a second occasion the said MOTI KUTWAROO did wilfully and unlawfully commit an indecent act “attentat a la pudeur” upon a child under the age of 12, to wit: Miss Marie Chloe Aurelie Chlevan born on 01/05/1997.

Under Count 3: – That on another day in the year and at the place aforesaid, on a third occasion the said MOTI KUTWAROO did wilfully and unlawfully commit an indecent act “attentat a la pudeur” upon a child under the age of 12, to wit: Miss Marie Chloe Aurelie Chlevan born on 01/05/1997.

3. Accused pleaded not guilty to the information and is represented by Counsel.

4. The evidence on record reveals the following: –

5. Miss Marie Chloe Aurelie Chelvan (“Complainant”) was born on 01/05/1997.

6. PS Sairally (“Witness No 5”), partly enquired in this case and stated that on 03 May 2015, Complainant in company of her mother Mrs Marie Desiree Mireille Chelvan (“Witness No 7”), gave a statement and reported this matter to the police. Complainant in that statement also stated she would not participate in any reconstruction exercise, would not give any DNA sample and did not wish to be medically examined by a doctor. In another statement dated 03 July 2015, Complainant stated that the incident occurred in the year 2002 or 2003, she could not confirm or recollect exactly when the alleged incident occurred. On 13 June 2015, a statement was also recorded from Complainant`s father who stated that in the year 2011, Complainant, a minor at that time, was in a relationship and was sexually active. Complainant`s father did not report the matter as he did not want the police to get involved. No identification exercise was carried out between Complainant and Accused during the enquiry.

7. On 10 June 2014, Complainant was medically examined by Dr P. Chamane Police medical officer (“Witness No 1”). Following the examination, he drew up a report which he produced in Court, (Document BB). At the time of examination, Complainant was 17 years old and was sexually active.

8. Late PS Vencatachellum (“Witness No 4”), recorded three statements from Accused under caution and was the main enquiring officer in this matter. Due to his demise, the statements recorded by him were read and produced by the witnessing officers, PC Seebingum, PC Dhudee and PC Ramdharshan,

(“Witnesses 8,9 and 10”). However, the said witnesses could not enlighten the court any aspects of the enquiry in this matter.

9. On 19 July 2014, Dr P. M. Monvoisin Principal Police Medical Officer (“Witness No.2”) had medically examined Accused in connection with this case and drew up a report which he produced in Court (“Document DD”). He confirmed that in the said document, it is not mentioned whether Accused is capable or incapable of sexual intercourse, but it is mentioned that Accused has a past medical history of Epilepsy. According to him, there is a possibility for a person who is epileptic, to suffer from a decrease in sexual desire.

10. Complainant testified that on 15 April 2014, at the Child Protection Service, she levelled a complaint concerning an incident which occurred in the year 2002. Prior to reporting the matter at the Child Protection Office, she narrated to her parents about the incident which occurred, during her childhood, when she was five years old, at a place where they were all living at that time. That place was in Floreal and there and then, her mother was a maid for the Batfeild family and one Mr Ashok Kutwaroo was the gardener. She has been abused by Mr Kutwaroo during her childhood on many occasions. She could not state how many times she was abused but could recollect that the incident happened in an abandoned garage where her father and even members of the Batfeild family were storing loads of stuffs. She used to play in the yard and Mr Kutwaroo who was close to her family and used to speak to her. There was a point in time where she was talking to Mr Kutwaroo, and Mr Kutwaroo encouraged her to follow him in the abandoned garage. After she followed Mr Kutwaroo in the garage, the latter closed the door and started abusing her. They were close to the door of the garage but inside. Mr Kutwaroo inserted his hand in her underwear and played with her private parts. Mr Kutwaroo also opened his trousers, placed her hand into his underwear, made her touch his penis and told her to masturbate him. This occurred on many occasions and there were also instances which she could not recall exactly, where Mr Kutwaroo inserted his penis in her mouth for a long period of time. This happened twice or thrice in the garage. She was never consenting to those acts and even pushed Mr Kutwaroo by stating “mo pas envie faire sa”.

11. At that time, she was 5 years old and those incidents lasted till she was 7 years old. Although she was not understanding what was happening, she was shocked because she saw the sex of Mr Kutwaroo in front of her and Mr Kutwaroo was touching her private parts. She took time to report the matter because she could not figure out what was happening then. When she reached the age of 8 years, her family left the place in Floreal and she was living her life normally. Reaching the age of 12, she learnt about sexual abuse. In fact at the age of 10 to 12, she had realised what she went through but never revealed the incidents to anyone. She was having emotional problems, went through disturbing dreams and was not performing well at school. After several years, that is at the age of 14 or 15, she decided to talk to her mother first. She was then encouraged by her parents, together with a psychologist in the name of Amelie Saulnier (“Witness No 3”) to level a complaint in this matter. She had several sessions with Witness No.3 which lasted for a period of one year and during the therapy, she was helped to voice out the incident. After those incidents, she never met Mr Kutwaroo again and also never met the latter during the enquiry.

12. Following an objection taken by learned defence counsel, Complainant in the course of examination in chief could not identify Accused from the dock. The matter was then fixed for Arguments and in a Ruling delivered on 5 September 2025, the said objection was set aside. The operative part of the ruling reads as follows “the absence of any identification parade or exercise per se, is unlikely to cause any unfairness to Accused at trial or cause prejudice to his defence inasmuch as the circumstances pertaining to the identification of Accused by Complainant at the time of the alleged offence and the circumstances in which Complainant is identifying Accused at trial in the dock can always be tested by way of cross examination by learned defence Counsel and left to the appreciation of the Court concerning its reliability, quality and the relevant weight (if any) that need to be attributed to same.”

13. Following the said ruling, the matter was fixed for Continuation on 24 October 2025, for Complainant to complete her testimony. On that day, Complainant stated under oath (without pointing to Accused who was in the dock, as the perpetrator of the said offences), that whatever she had stated so far was the truth. The case was taking too long and thought that justice was not being done to her in this matter. She stated that she had other commitments, she was expecting a child and would rather focus on her child. She stated that she would not proceed with this case and was stating same voluntarily. In view of that statement made by Complainant under oath, learned Counsel for the prosecution moved to take a stand. On the 27 November 2025, the prosecution informed that its stand was to proceed with the case and the matter was again fixed on 03 February 2026 for Continuation, for Complainant to complete her testimony.

14. On 03 February 2026, Complainant again, without pointing to Accused as the perpetrator of the alleged offences, stated that she did not wish to proceed with this case. Learned Counsel for the prosecution did not put any further questions to her in examination in chief, and after that Defence counsel stated that he had no questions to put to Complainant in cross examination, the case for the prosecution was closed.

15. Accused did not adduce any evidence. He gave three statements in defence to the police (“Documents CC, CC1 and CC2”). In Document CC1, Accused stated that Complainant is known to him as her family used to reside in a small building belonging to the Batfield family in Floreal. He also stated that Complainant`s mother used to work as maid servant for that family. He denied when the Complainant`s version was put to him to the effect that at the material time when Complainant was about five or six years old, for approximately three times, when Complainant was playing in the garage belonging to the Batfeild family, he came, closed the door of the garage and brought Complainant by the door. Whilst he was still standing, he told Complainant to hold his penis and then inserted his penis into her mouth for a period of time. For him this was a false allegation that Complainant was levelling against him. He emphasised that

he used to work for the Batfeild family as gardener for twenty five years and knew Complainant who was born and even grew up there.

16. I have duly considered the whole evidence on record and the submissions of counsel on both sides. Learned counsel for the prosecution left matters in the hands of the court where as Learned defence counsel submitted in essence that since the main enquiring officer, Witness No 4 passed away, the court was enlightened as to any aspects of the police enquiry in this matter. Furthermore, Accused was not identified by Complainant and hence the prosecution has not been able to prove its case beyond reasonable doubt.

17. On the issue of Identification, evidence on record shows that the offence allegedly occurred in the year 2002. Complainant stated in evidence that after the incidents, she never saw Mr Kutwaroo again, she also never met the said Mr Kutwaroo during the enquiry. Witness No 5 also confirmed that no identification exercise was carried out between Complainant and Accused during the enquiry. Irrespective of the objection of Defence counsel pertaining to, Complainant identifying Accused from the dock was set aside, Complainant (even though she had the opportunity to do so) did not identify Accused as the perpetrator of the said offences in court, nor was she (after the said Ruling was delivered), invited by the prosecution to do so. I am alive that Accused stated in his statement that he knew Complainant a child when he was working as gardener for the Batfeild family and Complainant, on her part stated in evidence that the perpetrator of the offence was one Ashok Kutawaroo who was at that time working as gardener for the Batfeild family. However, evidence on record does not establish that Accused who stands prosecuted in this case, is the very Ashok Kutwaroo whom Complainant was referring to in evidence as the perpetrator of the offences.

18. This in my view adversely affects the case for the prosecution being given the specific circumstances of this case where the alleged offences occurred about twenty-four years ago and since then Complainant did not see the perpetrator at all after that.

19. The alleged offence occurred according to Complainant in the year 2002 or 2003 when Complainant was approximately 5 to 6 years. The matter was reported to the police by her on 3 May 2015, about twelve to thirteen years later (i.e when Complainant had reached the age about 17 years). In evidence, Complainant stated that Mr Kutwaroo abused her on several occasions during her childhood. She described that had to masturbate him on many occasions and was even repelling Mr Kutwaroo by stating “mo pas envie faire sa”. It was when she had reached the age of 10 to 12 years that she realised what she went through and also learnt about sexual abuse. She further added that due to those incidents, she was suffering from insomnia and was not performing well at school.

20. I am of the view that had those incidents really impacted her emotionally as she claimed, then it is odd and even unclear, as to why she waited till the age of 14 to 15 years to relate to her mother or anyone close to her about same, and opted to remain silent although at the age of 12 she had realised that she had been abused. The more so that from her own explanations, it cannot be said that she had no opportunity or was in one way or the other being hindered from revealing those depressing experiences to her parents or to someone close to her. Not only, the explanations given by her as to why she waited for time to pass to report the matter to her mother, is not plausible but also there is no evidence from her mother Mrs Marie Desiree Mireille Chelvan (“Witness No. 7”), as to how, when, in what circumstances and which period of time were those incidents reported to her by Complainant and more importantly the tenor of what Complainant reported to her.

21. It is also noted that although Complainant revealed those incidents to her mother when she was 14 to 15 years old, the matter was reported to the police when Complainant had reached the age of 17 years. Although Complainant stated that her parents encouraged her together with a psychologist to level a complaint in this matter and she followed several sessions with the said psychologist for a period of one year, it is still in my view unclear, unexplained and odd as to why the matter was not reported to the police promptly but reported two or three years after Complainant had informed her mother about

same. Furthermore, the psychologist, Witness No 7 was not called to adduce any evidence whether or not Complainant was at a point in time, her patient, when the therapy started, when was it completed and the object, purport of the therapy given, following to what was reported to her by Complainant.

22. Although Complainant portrayed that those incidents had really affected her especially on her performance at school and even caused her to suffer from insomnia, she omitted to reveal in evidence that at the age of 14 when she allegedly reported those incidents to her mother, she had a boyfriend and even had sexual intercourse with the latter at that time. There are no explanations offered by Complainant as to how come despite being distressed and emotionally affected by those incidents, she was still, as a minor, capable of (i) having sexual intercourse and (ii) entertaining a relationship with another person.

23. Complainant stated that the incidents occurred by the door of an abandoned garage. She emphasised that she stood inside by the door which was closed when Mr Kutwaroo abused her on many occasions thereat. Given that Complainant refused to participate in an reconstruction exercise, this Court is left to wonder as to whether that door even exists, and in case does, whether it is a door which one could fully or partly see through it, whether it could be fully closed or partly closed, whether it could be locked and also its dimension. Complainant did not even describe the said door in evidence and did not provide any explanation as to why she refused to participate in a reconstruction exercise. This in my view raises doubts as to the veracity of her version.

24. The version of Complainant which was put to Accused in Document CC, contains major inconsistencies when compared to her version in Court. It is not unusual to assume that the version of Complainant that was put to Accused in his statement in defence, is the very complaint made by Complainant ( vide P Marday v The State [2000 SCJ 225]). It is observed that at no point time was it mentioned by Complainant in her complaint to the police that Mr Kutwaroo, (i) inserted his hand in her underwear and touched her private parts(ii) took her hand and put it into his underwear,(iii) made her touch his sex

and (iv) made her to masturbate him. She also never mentioned therein that same occurred on many occasions. In her complaint to the police, Complainant barely made mention of three occasions where Mr Kutwaroo made her hold his penis before inserting his penis inside her mouth. She also never stated in her complaint to the police that she repelled Mr Kutwaroo by stating “mo pas envie faire sa” and never consented to those acts.

25. I bear in mind that the incident occurred when Complainant was about 5 years old and now she is an adult who is testifying after more than 20 years from the occurrence of the alleged incidents. As aptly pointed out Vythilingum M v The State [2017 SCJ 379] “Giving evidence in Court is not a memory test and failure to recollect with precision all the circumstances and details of an incident is understandable. What is important is for the Court to be satisfied that a witness is speaking the truth in substance.

26. I am also alive to the fact that, in the case of Neeroo H v The State [2023 SCJ 116], it was clearly emphasised that “such principles should not be used as a blank cheque. Inconsistencies of any kind or departures from the original complaint cannot invariably be placed on account of the fact that deposing in court is not an exercise of memory test and to simply brush them aside”. ( emphasis added).

27. It is remarked that when Complainant levelled her complaint to the police, she was approximately 17 years old. When she testified in Court on 14 March 2025, she was about 27 years old. I find it odd and even suspicious as to how come she omitted to mention essential details which goes to the core of the complaint, the “attentat a la pudeur” itself in her complainant made by the police when she was 17 years old but came up confidently with all those crucial details regarding the acts perpetrated upon her by Mr Kutwaroo when she testified in court, ten years later. Although she was not cross examined on her version, those inconsistences on the alleged acts perpetrated on her arising in her version given to the police and her testimony in court are in my view glaring and cannot be overlooked. Furthermore, the “add on” details meaning the new facts

surrounding the alleged offence which came up only in Complainant`s evidence in court more than 20 years after the offence, in my view tends to indicate the possibility of a concoction or fabrication on the part of Complainant (vide Mungar v The State of Mauritius [2020 SCJ 125])

28. The above inconsistencies are not in my view peripherical matters, but they are an integral part of the actus reus of the offence which Complainant alleges was perpetrated on her. Therefore, the above inconsistences are in my view goes to the core and constitute material departures to original complaint initially made by Complainant and also it essentially shows that Complainant was not consistent and coherent in the manner in which the offence was committed against her person. This in my view materially affects the credibility and trustworthiness of Complainant`s version.

29. In addition to Complainant`s version not being credible and reliable, I also note that her version is not corroborated. Although a Magistrate can act on the sole testimony of a complainant in a sexual offence case, this has to be subject to the condition that the complainant is a credible witness, (vide Teeluck v State [2014 SCJ 398]). In this particular case, given the state of Complainant`s evidence who is the sole material witness, the absence of any evidence corroborating in my view adversely affects the case for the prosecution.

30. After due consideration of the reliability and trustworthiness of Complainant`s evidence as whole, coupled her insistence that she does not wish to proceed with this matter. I find, in light of the above analysis, that the prosecution has not been able to prove its case beyond reasonable doubt.

31. I therefore grant Accused the benefit of doubt and dismiss the information against him.

P. Balluck (Mr)

Magistrate Intermediate Court

30 April 2026