Supreme Court of Mauritius, 29 avril 2026, 2026 INT 102 – Police v Rottoo

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Police v Rottoo

2026 INT 102

Cause No. 173/2026 IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION) In the matter of:- Police v Sunil Kumar Rottoo Judgment Accused is charged for the offence of “involuntary homicide by imprudence” in breach of section 239(1) of the Criminal Code coupled with sections 52 (Second Schedule) and 133 of the Road Traffic Act (count 1). Accused pleaded not guilty to the count in the information and was represented by Counsel at the trial. The court has duly considered all the evidence on record, together with the submissions of learned counsel for the Prosecution and the Defence. The Prosecution produced the following documents: i. Extract of death certificate of deceased which was marked as Document A; ii. NTA Certificate of vehicle bearing registration no. 7720 AG 22 which was marked as Document B; iii. MLR of deceased dated the 9 th January 2026 signed by witness no.2 which was marked as Document C; and iv. FSL report dated the 26 th January 2026 signed by witness no.3 which was marked as Document D. Witness no.9, produced the defence statement he recorded from Accused on the 4 th

January 2026 at Bel Ombre Police Station which was marked as Document E. He stated that he was the first officer on the spot at Royal Road Allee Coco Bel Ombre near the entrance of Tamassa Hotel at around 18 00 hours. He saw a private car of witness no.12 which has knocked against a coconut tree which due to the impact was uprooted. The victim was lying near the said car and SAMU was giving her treatment and she was brought to hospital. The car registration no. was 10374 AG 24. There were 2 cars involved. Witness no.12 and the other passengers were brought to hospital by volunteers. He took down and measurements in presence of Accused and

he subsequently made a rough sketch which he produced to court and it was marked as Document F. He stated that the debris were found at spot D. The line from point D to point E represents the brake marks. He stated that the vehicle found at point A is the vehicle of witness no.12. He stated that point X is the point of impact shown by Accused. He stated that the main road has priority. He stated that the road from Ile Sancho is not quite winding and the speed limit is 60 km/h. he stated that there is an uninterrupted white line at the spot of the accident and that overtaking is not allowed. He stated that the victim passed away on the following morning. He confirmed that the coconut was not uprooted but sectioned. It was around 22 meters in height. He stated that the vehicle of witness no.12 was heavily damaged. It was a frontal impact and the damages on Accused’s vehicle were slights and it was on the passenger’s side. The two cars were painted in different colours and he could not recollect the colour of the debris. He stated that the brake marks are about 5 meters 60. Witness no.4 stated that under the instructions of witness no.6 at Royal Road, Allee Coco, Bel Ombre under indication of Accused on the 6 th January 2026 and on the 13 th

January under the indication of witness no.12, he located spots and he subsequently drew a plan of the locus. He produced the said plan to court which was marked as Document G. he stated that the width of the road was 7 meters 80 cm. There are 2 lanes one going towards Baie du Cap and the others towards Rivière des Galets. He stated that the length of the tyre mark was 6.3 meters. He confirmed that there is a bus stop shelter and its layby before the access leading to Tamassa Hotel. The distance between point E to point F is 46 m 90cm. The distance between point E and towards the end of the layby is 12 m 30 cm. He stated when he attended the locus on the 6 th January 2026, he did not see any debris on the lane but off road at point D. He stated that witness no.12 apart from points E and F on his lane, he did not show any other points. Witness no.4 also stated that witness no.12 also showed points C and D. witness no.12 also showed point H as the point of impact. He stated the distance between point H and the white line is 20 cm. Witness no.11 stated that he examined both vehicles on the 6 th January 2026. firstly he examined vehicle bearing registration no. 7720 AG 22 driven by Accused. He explained the damages on the vehicle and he produce his report which was marked as Document H. then he examined vehicle bearing registration no. 10374 AG 24 . he stated that both front and lateral airbags burst out, the front windscreen was heavily cracked, the bonnet heavily dented, both head lamps smashed, front bumper heavy damage and detached, both wings and front valence dented and forced in. Front cross bumper heavily forced and dented, the dash board partly broken, front passenger seat partly broken, near side doors rubbed and dented and rear bumper rubbed and partly detached at the near side port. He produced his report which was marked as Document H1. In cross examination, the witness stated that he did not mention the width and length of both vehicles. He stated that the insurance of vehicle 10374 AG 24 had expired since the 31 st July 2024 and it did not have its motor vehicle license. He stated that the vehicle was a sport utility vehicle and it is bulkier, heavier and higher. He stated that this type of vehicle has an anti-accident system. However, he did not check because it was really damaged. He stated that we have the anti-collision system but it depends on the speed the driver was driving. He stated that maybe if the driver

is driving too fast, the anti-collision device will not automatically react. The device will stop or slow down the vehicle. The witness in re-examination stated that he did not assess the vehicle to say whether it did possess the anti-collision device because the front part and the electronic mechanics have been heavily damaged. He also stated that he did not have knowledge and expertise on how the devices work. Witness no.6 produced the defence statement he recorded from Accused on the 6 th

January 2026 at Bel Ombre Police Station which was marked as Document E1. He also produced a set of 17 photographs taken by witness no.5 upon his instructions and indication of Accused. The said booklet was marked as Document J (J1 toJ17). He also produced another set of 5 photographs taken by witness no.5 on the 13 th

January 2026 under his instructions and indication of witness no.12 which was marked as Document K (K1 to K5). He also identified and certified to the correctness of the plan made by witness. He also produced an explanatory statement he put up at the Rivière des Anguilles Enquiry Panel Office to explain the photographs , the plan and the spots on the plan, which was marked as Document L. He stated that accident occurred near a lane that leads to the entrance of the Tamassa Hotel. He stated that the speed limit is 60 km/h. He stated that Accused was emerging from Tamassa hotel and he turned right to proceed on the main road towards Riviere des Galets to go to Chemin Grenier. He stated that witness no.12 indicated point E and point F on his lane. The witness stated that Document K5 is a straight line and there is a clear view. He confirmed that there is a layby at a bus shelter. He also stated that Document K1, the road is straight and the driver i.e. witness no.12 would have a clear view. He also confirmed from Document J1, witness no.12 would have a clear view. He confirmed that there was an uninterrupted white line on the road and witness no.12 cannot overtake to go on the other side. He admitted that he made a mistake with reference to point C and point D in his explanatory statement and confirmed that the tree fell at point D. He stated that he did not attend the locus on the day of the accident, he went there afterwards. He cannot recollect whether there are eye witnesses apart from the passengers and the drivers of the two vehicles. He stated the damages of the vehicle driven by witness no.12 are heavy damages and frontal. He confirmed that witness no.12’ s car did not a valid insurance policy nor a valid motor vehicle licence. In cross examination, the witness confirmed that the coconut tree has been sectioned. Witness no.7 produced the defence statement he recorded from Accused on the 31 st

January 2026 which was marked as Document E2. In cross examination, the witness confirmed that the statement was recorded after Accused and witness no.2 had attended the locus. Witness no.12, the main witness for the prosecution stated that he was driving car bearing registration no. 10374 AG 24 on the 4 th January 2026 and in his car there were his wife and baby at the rear and his mother (deceased) on the front passenger seat. At about 18 00 hours the accident occurred on Royal Road Allee Coco bear Tamassa entrance. He was proceeding towards Le Morne and was coming from Ilot Sancho. He stated that the car which he was driving is a specialise car fully equipped and it drives automatically by itself. He stated that the was being driven according to the limit it has to drive. He stated that it could be between 60 to 80 Km/h. He stated that the car was on auto pilot, the car did its auto brake by itself. He stated that the road is a

straight road, it was free. He stated that the car of Accused emerged infront of hi, and to avoid hitting against it he avoided the car to prevent the driver and passengers in the other car. When he did this act, Accused panicked and hit at the back of his vehicle and he went toward the coconut tree. He stated that instead he applied his brakes he applied his accelerator crashing him with the coconut tree. He stated that he was at a distance between 50 to 100 meters when he saw the car emerged. He was on his left and the car emerged from the hotel and to prevent the accident with it, he went on the other side and if Accused would not have accelerated, he would be able to pass bit the car hit his car at the rear and he went to hit the coconut tree. He stated that the brakes are applied automatically by the car itself and he did not understand why the car applied the brakes like this, He stated that when the car saw an obstacle, it applied the brake all of a sudden. When the car applied its brake, it did not stop, he saw the vehicle of Accused emerged, he told himself that he will move on the other side to prevent the accident. He made an error, he did not hit him, he should have done so. He lost his mother. He stated when he went on the other side, he hit against Accused car, he was carried away to the coconut tree. He stated that the car of Accused hit his car at the rear. He stated that accident occurred in a fraction of seconds about 50 seconds. He stated that the accident because of Accused emerging on his way. His mother who was the front passenger passed away. He stated that the car of Accused was about 50 meters, his car when it recognises an object, applied its brake automatically. His car applied its brakes. The car of Accused took the whole lane i.e. the left lane, he tried to avoid the accident, but Accused applied his brake and hit at the rear of his vehicle and he went on the coconut tree. He stated there was no damages on the front. It was from the middle to the rear on the passenger’s side. he stated when Accused’s car hit his car at the rear, he lost control. In cross examination, witness no.12 stated that he knows the region and his car is auto pilot. The car drives by itself, he did not have to look after the road. he stated that he has to insert the locality he has to go. On the material he went to a picnic and there were some of the attendees in front of him and one was behind him. He stated that he did not know how the insurance work. He admitted that there no insurance and motor vehicle licence in force on the vehicle. He also admitted taking the vehicle without the consent of its owner. He also confirmed that his mother was sick. He confirmed that he had good visibility and the road was a straight. He stated that they have to order the car and the car is a sophisticated one. He stated when there is an obstacle, the car will brake and will signal the driver by making a sound and it will apply the brakes. When it did this act, he did the manoeuvre to avoid the accident. He stated that he did not stop the car because he would have hit against it. He stated that 50 meters is short. He stated that when a driver is in a panic state, he applies his brakes and swerve on the other side to avoid an accident. He admitted that a driver cannot overtake on the uninterrupted white line. He stated the road was free and that is why he overtook on the other lane. He stated that he wanted to separate the accident. He showed on Document J1 where his car hit with the other vehicle by a cross. He denied to be the cause of the accident. He stated that he could not avoid the accident despite the presence of the layby. He admitted that he went on the opposite lane by overtaking the uninterrupted white line. In re-examination, witness no.12 stated that point X on

Document J1 shows the spot where he tried to avoid the accident and he re-explained how the accident occurred. The defence did not adduce any evidence as it was entitled to. Section 239(1) of the Criminal Code states that:- Any person who, by skilfulness, imprudence, want of caution, negligence or non- observance of regulations, involuntarily commits homicide shall be punished by imprisonment and by a fine not exceeding 150, 000 rupees. According to Note 8 to E. Garçon, Code Pénal, Tome 2ème, Art. 319-320 at page 113 provides the elements of involuntary homicide as follows:- Les éléments constitutifs des délits prévus par les art. 319 et 320 sont: 1. Un fait matériel d’homicide; 2. Une faute de l’auteur de ce fait matériel; 3. Une relation de cause à effet entre la faute commise et l’homicide ou les blessures. The Prosecution needs to prove all the constitutive elements of the offence beyond reasonable doubts to establish that the Accused was the cause of the involuntary homicide of the deceased (see Lowtun v The State 2005 SCJ 133). Un fait matériel d’homicide et coups et bléssures It is undisputed that deceased passed away after the accident from the injuries he sustained from the road accident . According to the Document C, the cause of death of deceased is shock due to multiple injuries. Une faute de l’auteur de ce fait matériel The Prosecution must establish that the death not only resulted from the accident involving the accused but that the accident involving the accused but that the accident was due to his imprudence. In Leblanc v The State 2001 SCJ 137, the Supreme Court has cited the notion of imprudence being as it exists in French law. Garçon Code Pénal Annoté (Edition 1956) Tome Deuxième. arts 319-320 at notes 21 and 25 as follows: Note 21. La faute constitutive du délit, peut être inconsciente: C'est ce qui se produit lorsque l'agent n'a pas effectivement prévu les conséquences de son acte, qu'il pouvait cependant et devait prévoir. L'imprudence punissable consiste précisément dans ce défaut de prévision. Note 25. L'imprudence, la négligence et l'inattention sont des fautes de même nature, qui échappent à toute définition précise. Ces expressions, très compréhensives, embrassent toutes les fautes que leur auteur pouvait éviter avec plus de prévoyance, de soins, de diligence. L'agent est responsable parce qu'il aurait pu empêcher l'accident de se produire en agissant avec plus de prudence. In cases of imprudence, the Supreme Court has in numerous occasions explained that the issue to be resolved is whether the driver has departed from the standard of

a reasonable prudent driver in the particular circumstances in which the road accident occurred. In Chaddee v The State 2011 SCJ 149 the Supreme Court held as follows: “On a charge of imprudence, the focus should not be on the choice of versions between that of the prosecution and the defence but whether objectively speaking the driver in question may be stated to have driven his motor vehicle with the standard required in the given conditions of light, weather, time and traffic as revealed generally by the particular facts and circumstances of the case of which the trial court is the sovereign judge. The test is an objective one as decided in McCrone v Riding [1938] 1 All ER 157. What the prosecution has to prove is “that the defendant has departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case (see also Walker v Talhurst [1976] 1 RTR 513; R v Lawrence 1981 RTR 217; Marot v R [1990 SCJ 17]; Ramloll v R [1990 SCJ 237]; Affoque v State [2005 SCJ 108]”.(emphasis added) The more so as stated in Khoobloll v The State 2021 SCJ 108 the Supreme Court stated that “ As is wont in such cases, it is the totality of the circumstances which need to be looked at and assessed”. The version of Accused can be grasped by the 3 out of court defence statements he gave to Police i.e. Documents E, E1 and E2. From Document E, Accused stated that he was emerging on the main road, witness no.12’s car tried to avoid hitting his car, change its lane and hit against his car’s nearside bumper and the car of witness no.12 hit the coconut tree. In Document E1, the Accused stated that he stopped at the junction and he looked well on both sides before emerging on the main road. As he did not see any vehicle, he emerged and when he entered the second lane to proceed towards Chemin Grenier, witness no.12’s car came onto him at full speed and hit to the nearside part of his vehicle in the same lane. The other car then hit the coconut tree. He stated that he was driving at 20 km/h. In Document E2, Accused stated that the accident occurred in his lane. He denied that the accident occurred at point H as suggested by witness no.12 and he maintained that the point of impact was at point B The court notes from Document H, Documents J8, J9 and J16, the damages sustained on the vehicles show that the front part of nearside part of vehicle bearing registration no. 7720 AG 22 had an impact against the nearside part of vehicle 10374 AG 24 confirming the version of Accused that the accident occurred at point B instead of point H as advanced by witness no.12. The more so, the presence of debris and brake marks (see point D and point E on the rough sketch) and tyre mark on Document G also suggest that the accident occurred on the lane proceeding towards Chemin Grenier i.e. on the lane on which Accused’s vehicle was. The more so, at point H which is 20 cm in the opposite lane, no debris has been found at this spot and has not been marked on Document F by the first police officer who attended the spot witness no.9. The tyre marks as shown on Document G (Brake marks on Document F ) which goes in the direction of the coconut tree indicate the point of impact between the 2 vehicles at point B. The version of Accused is more plausible. In Sham v The Queen 1982 MR 224, the Supreme Court quoting note 50 of Garcon wrote: 7 “Il ne faudrait pourtant pas croire que la faute de la victim soit indifferente; le

juge doit encore rechercher si elle existe et la defense peut la plaider. Il est evident, en effet, qu’aucune condemnation ne pourrait plus etre prononcee s’il etait etabli que l’imprudence de la victim a été si grossiere qu’elle fait disparaitre, en realite, toute faute de la part de l’auteur materiel de l’homicide et, d’autre part, tout le monde reconnait que, dans les cas ou l’imprudence de la victime laisse subsister la responsabilite du tiers, elle peut au moins justifier une large attenuation de la peine et des dommages et interêts. In Ramburn v The State 2013 SCJ 472, it was held by the Supreme Court that “Besides, for the “faute” of the victim of an accident to completely excuse the “faute” of the driver the victim’s “faute” must have been exclusive and unpredictable – vide note 56, Garçon Code Pénal Annoté, Art 319. It is clear and undisputed from the evidence on record that witness no.12 admitted that his car was on auto pilot driving between 60 to 80 km/h and when the car noticed an obstacle some 50 to 100 meters from point F, the car made a sound and applied its brake automatically. Witness no.12 was relying on the auto drive system of his vehicle instead of driving his car as a prudent and reasonable driver. There is no evidence on record that he applied his horn to warn Accused, stopped his car or swerve on his left on the lay by or on the grass. Instead of stopping his car, he went on the other lane, overtaking the uninterrupted white line supposedly to avoid hitting Accused’s vehicle. Unfortunately, by his misjudgment, he hit against the nearside frontal part of Accused vehicle, damaging the nearside part of his vehicle. He lost control and hit against the coconut tree. As such, there is evidence on record to show that the act of the witness no.12 by engaging his vehicle on the opposite lane at full speed as stated by Accused was so “grossière quelle fait disparaîre en realité toute faute de la part de l’auteur de la victime”. His act when he entered the opposite lane was exclusive and unpredictable. The court finds that given the facts and circumstances of the present matter, Accused did not depart from the standard of a reasonable, prudent and competent driver who was already on his lane at the time of the accident. In light of the above, the court finds that the Prosecution has not proved its case beyond reasonable doubts against Accused with respect to count of the Information. The count of the information is dismissed.

Yorgesh Bhookhun Magistrate, Intermediate Court (Criminal Division), This 29 th April 2026