Three years ago, a teacher noticed that the behaviour of her seven-year-old pupil had changed and that she had difficulties walking. She suspected that the girl had been defiled and reported the matter to the police.
The suspect was the girl’s father, known only as TNM.
He was arrested and charged in court. But three years later, the High Court has quashed a life sentence handed out by a magistrate’s court, the reason being that the girl and her mother testified that he was innocent and the police failed to carry out investigations.
A P3 form issued by the doctor indicated otherwise. It said that the girl’s private parts had pus and were inflamed, an indication that she was involved in sexual activity.
But the girl insisted that her father had nothing to do with the alleged incest although they had slept in the same bed on the night of March 5, 2014, when he was alleged to have defied her.
The girl testified that the observations that she had injured genitals and missing hymen, as contained in the P3 form, were as a result of a fall. The girl’s testimony was echoed by her mother, whom the court noted was not interested in assisting doctors examine the child.
“The trial magistrate cannot be blamed for suspecting that, as is often the case with incest, a cloak of secrecy was thrown around the matter by the concerned family to suppress the offence,” Justice Christine Meoli said.
She added: “The alleged fall by Prosecution Witness One on a base on the material night per Prosecution Witness One and Prosecution Witness Two could not possibly have caused the injuries in her genitalia, in particular, the breached hymen.”
Justice Meoli found that it was the girl’s teacher who obtained the P3 form after her mother refused to cooperate.
“The fact that the appellant spent the material night in the same bed as the minor victim suggests opportunity for perpetrating the offence. However, both the complainant and her mother denied that the offence in question occurred on the material night,” the judge said.
She continued: “Indeed, it seemed that the mother was uncooperative, as according to notes on the P3 form, the teachers took the initiative to obtain the P3 form because the mother refused to work with the doctor.”
Justice Meoli noted that the trial magistrate also agonised over the matter and declared both the child and the mother hostile witnesses. The lower court ended up ignoring their evidence.
Despite the doctor indicating that the girl had inflamed private parts, she wrote that she did not physically examine her. The police, on the other hand, did not bother to investigate the issue nor did they call the doctor to testify. In addition, other forms that correspond with the P3 forms were never produced in court.
The judge said: “This is an unfortunate case. The victim’s teachers rose to the occasion in the protection of the minor and her welfare but were let down by the police who seemingly conducted routine investigations into the matter. The most unfortunate and heart-breaking fact is the uncooperative stance by prosecution Witness Two (mother), considering the age of the victim and her health condition.”
The Director of Public Prosecutions also conceded to the appeal by the man and argued that poor investigations could not sustain the case.
“In the clear absence of proper medical or other evidence in proof of the offence, the court ought not to have anchored a conviction on mere suspicion. For these reasons, I do find that the conviction in this case cannot stand and agree with the decision of the Director of Public Prosecutions to concede the appeal. The conviction is quashed and the appellant is set at liberty unless otherwise lawfully held,” the judge ruled.
The judge ordered the children’s office to prepare a comprehensive report on the girl’s current condition, in particular her health, and report to the court on May 22 for further orders.