Supreme Court of Mauritius, 8 avril 2026, 2026 CCT 5 – Police v Abdool Azam Rengony

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Police v Abdool Azam Rengony

2026 CCT 5

CN 09/25 The Children’s Court of Mauritius (Criminal Division)

In the matter of: Police v Abdool Azam Rengony

JUDGMENT 1. Accused stands charged with the offence of ‘Causing a Child to be Sexually Abused in breach of sections 14(1)(a) and 18 (5)(b) of the Child Protection Act 1 .

2. Accused pleaded not guilty and was inops consilii.

3. The case for the prosecution essentially rests on the following:

1. 1 It is to be noted that when the present matter came for trial, the Child Protection Act was already repealed by the Children’s Act 2020. However, in view of section 17(3)(e) of the Interpretation and General Clauses Act, this court can still hear a case which has been lodged under the Child Protection Act as if the enactment has not been repealed. It is also worth noting that it is still an offence under section 19 of the repealing enactment to cause a child to be sexually abused.

(a) The oral testimony of Witness 7, the complainant,

(b) The Medico Legal Report of the examination of Witness 7 under the hand of Witness 1, Dr Monvoisin (Doc D)

(c) The birth certificate of Witness 7, which shows that the complainant was born on 24.11.2007 (Doc B)

(d) Two out of Court statements of Accused (Doc H and Doc H1)

4. In his initial out-of-court statement (Doc H1), the production of which was contested and which was ultimately ruled admissible, the Accused admitted to the allegations made by Witness 7. He acknowledged that during an unspecified month in the year 2021, while both parties were in Alma, a sexual encounter occurred, namely that he removed his shorts and the knickers of Witness 7, then he made her lie on him, then he closed her mouth with his hand, after which he inserted his private parts into hers The Accused further stated he was aware that Witness 7 was a minor at the time, though he maintained the encounter was consensual. He also expressed his willingness to cooperate with the police in their enquiry

5. Witness 7 testified that she reported a rape case to the police, she was 14 years old and, on the day of the incident, she was staying at her aunt’s residence in Alma. Her aunt lived there with her husband and three children, and it was there, on the day of the incident, that she met the Accused for the first time. She explained that they had no prior acquaintance and she could not recall how they were introduced on that day. She noted that nothing

happened upon their initial meeting; however, they later began talking without sharing personal details.

6. That night, her aunt placed a mattress on the floor for the children, while the Accused slept on a nearby sofa. The Accused later moved to the mattress and began to remove her clothing. He covered her mouth with his hand and proceeded to sexually assault her by inserting his private parts into hers.To prevent her from shouting, he placed her undergarments in her mouth and he also touched her. Following the incident, the Accused left when her uncle woke up. Witness 7 stated that she did not consent to the intercourse and did not initially confide in anyone. She eventually informed a friend and, upon realising she was pregnant, informed her mother.

7. Under cross-examination, Witness 7 maintained that the incident occurred at her aunt's residence while three other persons were sleeping on the mattress next to her. When questioned about her lack of resistance, she clarified that she did struggle. When questioned as to why she and her mother stated that they will not let Accused live in peace, she replied that it was because Accused impregnated her and subsequently abandoned the baby. She also stated she was one month pregnant when she discovered her condition.

8. During re-examination, the witness stated that she was six months pregnant when she realized she was carrying a child.

9. In response to questions from the Court, Witness 7 clarified that the mattress accommodated three people and that only her two cousins were sleeping next to her and that they did not wake up during the assault. She further noted that her aunt, uncle, and a third cousin were in different rooms. She reiterated that she was unable to scream because she was restrained by Accused.

Additionally, she testified that the Accused had threatened her in a van one day prior to the incident. She added that her aunt’s place comprised of one bedroom and one living room.

10. It was observed that Witness 7 appeared hesitant during her deposition and, at various points, stopped answering questions

11. After being explained his available options, the Accused elected to give evidence under oath. He stated that his relationship with Witness 7 began at the latter’s residence in Sebastopol. He explained that, as at that time, he was working for the Complainant’s uncle and was staying away from home; consequently, the uncle hosted him. The Complainant’s mother also invited him to her place where he and Witness 7 began a relationship in the latter's room. They later went to Alma. On the day of the incident, music was playing and Witness 7 had consumed alcohol. They eventually went to sleep. The mattress where Witness 7 was sleeping with her two cousins could only accommodate two people. He also occupied the mattress, while the uncle and aunt of Witness 7 slept on a bed. He maintained that no sexual contact occurred on the mattress, as it was too small to facilitate intercourse.

12. Under cross-examination, Accused admitted that he failed to put this version to the complainant. He also acknowledged telling the police he had intercourse with Witness 7 but conceded that he provided a different version in court. He denied that the day of the alleged incident was his first time meeting Witness 7 and maintained that their sexual relationship was consensual. Furthermore, he denied placing his hand and her undergarments in her mouth to prevent her from screaming. He rejected the allegation of abuse, reiterating that they had intercourse at her mother’s house and have a child together. He explained that his police statements omitted the mention of

intercourse at the ’residence of Witness 7 because police officers advised him it would aggravate the situation and he followed this advice to avoid making matters worse.

13. According to the Medico-Legal Report (Doc D) prepared by Witness 1, Witness 7 was examined by the Principal Police Medical Officer on January 17, 2022. The findings indicated a non-virgo status and a pregnancy of approximately 26 to 28 weeks' gestation. Therefore it is clear that the Compalianant was subject to a sexual intercourse some 26 weeks prior to the medical examination. Consequently, in order to find whether Accused sexually abused Witness 7, the Court must determine the circumstances of this encounter: whether it transpired as described by Witness 7 in court, or according to the sworn testimony of the Accused, or as detailed in the Accused’s out-of-court statements.

14. I have analysed the evidence of Witness 7 and i find that her credibility and reliability has been undermined for the following reasons:

14.1. The most significant blow to the witness's credibility is the contradiction between her cross-examination and re-examination regarding a core fact. She stated, under cross examination, that she was one month pregnant when she discovered her condition. In re-examination, she changed this to six months. I find that this is not a minor lapse in memory but a material inconsistency regarding the timeline of the alleged offence. Such a wide margin, five months, suggests either a fabrication or unreliability of memory.

14.2. Her description of the event raises serious doubts in that she testified that the assault occurred on a mattress shared with two other persons, while

the Accused was also on the mattress. Despite claiming she "struggled", she admits the two cousins sleeping immediately next to her did not wake up. A physical struggle involving the removal of clothing and a forcible assault would reasonably be expected to alert others in the same bed or the adjacent room. Hence there are doubts on the veracity of the struggle.

14.3. She introduced a critical piece of evidence when she claimed the Accused threatened her in a van the day before the incident. If a prior threat had occurred, it would logically mean that she knew Accused prior to the day she had intercourse with him at her aunt’s place, therefore destroying her claim that she was introduced to Accused only on the day of the incident.

14.4. I also observed that she appeared hesitant and stopped answering questions While trauma can cause hesitation, in the present case, i find that the witness was struggling to maintain a fabricated narrative as to how the intercourse occurred.’

14.5. .i also find that she had a motive to fabricate the alleged non-consensual assault as she admitted she and her mother vowed "not to let the Accused live in peace" because he abandoned the baby, therefore suggesting that she was driven by a desire for retribution over abandonment rather than a factual account of the night in question.

15. As regards the evidence of Accused, given under Oath, i find that his version of events is unreliable due to significant contradictions and that his testimony lacks credibility for the following reasons:

15.1. The Accused admitted under cross-examination that he gave a different version to the police than the one he provided in court. He acknowledged telling the police he had intercourse with Witness 7, yet in court, he maintained that no sexual contact occurred on the mattress because it was "too small."

15.2. His claim that he omitted details or changed his story because police officers "advised him it would aggravate the situation" is a weak justification.

15.3. He failed to put his version to the Complainant during cross-examination.

15.4. The narrative of the Accused shifted from a claim of a consensual relationship to a total denial of intercourse on the night in question

16. Having found that the sworn testimonies of both Witness 7 and Accused cannot be relied upon, the Court is left with the Confession of the Accused contained in his out of court statement (Doc H1). It is to be noted that the admissibility of this statement was challenged but was ruled admissible. The issue that needs to be thrashed out is the weight that the Court should attach to that statement. The weight to be attached to a confession was considered in Carosin v the Queen (1959) MR 1, where the Court referring to Archbold’s Criminal Pleading and Practice, found that

“It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true: R. v. Jones, 2 C. & P. 629; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say

whether the facts asserted by the prisoner in his favour be true: Smith v. Blandy Ry. & M. 257; R. v. Higgins, 3 C & P. 603; R v. Clewes, 4 C. & P. 221." 17. In the present matter, since the court has already rejected the testimonies of Accused and Witness 7, which were materially different from the tenor of Doc H1, it can safely be said that there no other evidence which is incompatible with the confession. Additionally, when looking at Doc H1, wherein Accused accepted the charges levelled by Witness 7 against him, I find that in fact, it is a full-fledged confession, on which I can act. What I need to determine now is whether from the contents and tenor of document H1, the essential ingredients of the offence have been established against Accused,

18. It is relevant to consider the case of The Director Of Public Prosecutions v Coomhar N. 2024 SCJ 512, where the Court held that: “Sexual abuse” is not defined in the then CPA. The prosecution may, in appropriate cases, rely on the deeming provision at section 14(2). We are of the view that, where reliance is not being placed on section 14(2) of the then CPA, this concept includes, and is not limited to, any sexual act or behaviour imposed on a child victim without his/her consent and often involving coercion or manipulation, implied or express, which transpires from the circumstances surrounding the sexual act. However, this does not mean that, as a general rule, sexual intercourse cannot amount to ‘sexual abuse’. It is the factual circumstances surrounding the act of a sexual nature in a particular case that will determine whether the said act amounts to ‘sexual abuse’ or not. We need to also point out that it is for the DPP to elect whether to charge an accused party under section 14 of the

then CPA (now section 19 of the Children’s Act) or section 249(4) of the Criminal Code.

19. In the present mater, based on the confession of Accused, it is clear that he knew that Witness 7 was a child at the material time. It is also clear, from the confession, that the intercourse was consensual. However, what has to be determined is whether, from the surrounding circumstances of the sexual intercourse, the act amounts to ‘sexual abuse’ or not. I do bear in mind that Accused, according to his birth certificate, was born on the 04.12.2003 and hence, he himself was a minor at the material time such that there was no power or age imbalance. But in the present matter, there is an important detail which transpired from the confession of the Accused and which is that he closed the mouth of Witness 7 during the intercourse. Although the act of closing her mouth does not convert the entire encounter into abuse, in the present matter, there are several factors that have to be borne in mind, namely that consent to intercourse does not equal consent to every physical detail, including the closing of the mouth of Witness 7. But most importantly, in the present matter, Witness 7 was aged around 13 years at the material time and therefore the mouth closing detail has to be analysed from the point of view of a child, hence a vulnerable person.

20. In the present matter, I find that the closing of the mouth of a child, during intercourse, prevents her from breathing freely and also prevents her from communicating her distress, therefore rendering the sexual act an abusive one. I therefore find that, on the basis of Doc H1, the prosecution has proved beyond reasonable doubt that Accused has caused witness 7, then a child, to be sexually abused.

21. I therefore find Accused guilty as charged

Delivered by: ……………………………. Mrs R. GOWRY-BHURRUT President Children’s Court This 8 th April 2026