Faustine Petro v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 135 OF 2023 FAUSTINE PETRO........................................................................ APPELLANT VERSUS REPUBLIC..................................................................................... RESPONDENT JUDGMENT 1/8/2024 & 30/8/2024 ROBERT, J:- This is an appeal by Faustine Petro (hereinafter referred to as "the appellant") against the judgment and conviction rendered by the District Court of Sengerema. The appellant was charged with and convicted of the offence of rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2022, and was sentenced to thirty years imprisonment. Dissatisfied with the conviction and sentence, the appellant has preferred this appeal. The prosecution's case was based on the events of February 19, 2023, at around 9:00 a.m., at Tunyenye village, Sengerema District, Mwanza region. It was alleged that the appellant, an uncle to the victim (a 10-year- old girl), raped her while they were in the farm together with one Daudi i Petro. The prosecution presented five witnesses, while the appellant defended himself as the sole witness for the defense. The appellant's appeal is premised on three grounds: 1. The trial magistrate erred in law and fact by convicting the appellant based on the evidence of PW1 and PW3, which was taken contrary to section 127(2) of the Tanzania Evidence Act, Cap. 6 R.E. 2019. 2. The trial magistrate erred both in law and in fact by convicting the appellant while the prosecution did not prove the case beyond reasonable doubt. 3. The trial court erred in law and fact by convicting and sentencing the appellant based on weak and contradictory prosecution evidence. The Appellant's Counsel, Mr. Sijaona Revocatus, argued the 2nd and 3rd grounds of appeal together while the first ground was argued separately. Starting with the 2nd and 3rd grounds of appeal, he strongly argued that the prosecution failed to meet the standard of proof required in criminal cases, which is beyond reasonable doubt. He contended that the evidence presented was weak, inconsistent, and marred by contradictions that significantly undermine the credibility of the prosecution's case. 2 The Counsel pointed out discrepancies in the testimonies of key witnesses. For instance, PW2, the doctor, testified that she examined the victim on 28th February 2023, whereas PW5, the police officer, stated that the examination took place on 1st March 2023. This discrepancy, he argued, is material as it directly impacts the timeline of events and the integrity of the evidence collected. Further, the testimony of PW1, the victim, conflicted with that of PW3 regarding the state of the appellant during the incident. PW1 claimed that the appellant did not fully undress, whereas PW3 testified that both the appellant and the victim were naked when he arrived at the scene. Such contradictions, Mr. Revocatus argued, are too significant to overlook and should have been thoroughly analyzed by the trial court. The Counsel also highlighted the unexplained delay in reporting the incident. According to the evidence, the alleged rape occurred on 19th February 2023, but it was not reported to the police until 27th February 2023. He argued that the prosecution failed to provide a reasonable explanation for this delay, which casts further doubt on the credibility of the victim's account. 3 Mr. Revocatus emphasized that the prosecution failed to call the victim's grandmother, the first person to whom the victim allegedly reported the incident. The grandmother's testimony could have corroborated the victim's story or provided a different perspective. The failure to present this witness, without explanation, further weakens the prosecution's case. Regarding the impact on penetration evidence, the counsel argued that if the evidence of PW2 and the PF3 are disregarded due to the contradictions, there remains no conclusive proof of penetration, a key element required to prove the charge of rape. He cited the case of Tito Paulo Kuchungura vs Republic, Criminal Appeal No. 570 of 2020, CAT at Iringa, where the Court of Appeal emphasized that any doubt in a criminal case should benefit the accused. Thus, he argued that the doubts raised in this case should lead to the appellant's acquittal. Coming to the first ground of appeal, he submitted that the trial magistrate erred in admitting the testimony of PW1 and PW3, who were both children of tender age, without complying with the mandatory provisions of Section 127(2) of the Evidence Act, Cap. 6 R.E. 2019. He argued that the witnesses were not properly sworn in as they did not explicitly promise to tell the truth and not to tell lies, a requirement for witnesses of tender age. 4 He referred the court to the case of Godfrey Wilson vs Republic, Criminal Appeal No. 168 of 2018, CAT (unreported) where the Court of Appeal emphasized the importance of ensuring that child witnesses promise to tell the truth before giving evidence. He argued that since this procedure was not followed, the testimonies of PW1 and PW3 should be expunged from the record, leaving the prosecution's case without any substantive evidence. He concluded by urging the Court to allow the appeal, quash the conviction, and set aside the sentence imposed by the trial court. He maintained that the prosecution's case was fundamentally flawed, and the appellant's conviction was based on insufficient and unreliable evidence. In response to the 2nd and 3rd grounds of appeal the State Attorney, Mr. Benedicto Ruguge, argued that the prosecution successfully discharged its burden of proving the case beyond reasonable doubt. He contended that despite minor discrepancies in the testimonies, the core elements of the offence, penetration and the age of the victim, were clearly established. Mr. Ruguge conceded that there were minor contradictions between the testimonies of PW2 and PW5 regarding the dates of the victim's medical examination. However, he argued that these discrepancies do not affect the 5 substance of the case, as the key issue was whether the offence of rape occurred, not the exact date of the medical examination. He further argued that minor contradictions are common in witness testimonies and should not automatically lead to the rejection of the prosecution's case. He cited the case of Emmanuel Lyabonga vs Republic, Criminal Appeal No. 257 of 2019 at page 10, where the Court held that minor inconsistencies do not necessarily undermine the credibility of witnesses, particularly in cases involving traumatic experiences. Addressing the delay in reporting the incident, Mr. Ruguge argued that the delay was not significant enough to discredit the victim's testimony. He cited the case of Seleman Hassan vs Republic, Criminal Appeal No. 203 of 2021 at page 18, where the Court acknowledged that delays in reporting sexual offences are not uncommon due to factors such as fear, shame, or confusion. In this case, the victim was threatened by the appellant, which could explain the delay. Mr. Ruguge maintained that the evidence of PW1 was sufficiently corroborated by PW3, who witnessed the appellant in a compromising 6 position with the victim. He argued that the trial magistrate correctly relied on this corroborative evidence to convict the appellant. He asserted that the trial magistrate did not err in admitting the testimonies of PW1 and PW3. He argued that PW1 did promise to tell the truth, as recorded in the court proceedings. Although PW3 did not explicitly make the same promise, the magistrate's belief in his credibility should not be overturned. He cited the case of Wambura Kiginga vs Republic, Criminal Appeal No. 301 of 2018 at page 26 and TJ, where the Court held that the omission of a promise to tell the truth does not automatically invalidate the testimony if the witness is otherwise credible. The State Attorney urged the Court to focus on substantial justice rather than technicalities. He argued that the purpose of Section 127(2) is to ensure the credibility of child witnesses, which was achieved in this case despite the alleged procedural irregularities. Mr. Ruguge concluded by praying that the appeal be dismissed, and the conviction and sentence of the trial court be upheld. He argued that the prosecution had successfully proved the case beyond reasonable doubt, and the minor contradictions raised by the appellant's counsel did not affect the integrity of the trial court's findings. The first ground of appeal raises concerns about the admissibility and reliability of the testimony provided by PW1 and PW3, who were children of tender age. Section 127(2) of the Tanzania Evidence Act mandates that a child of tender age must promise to tell the truth before giving evidence. This legal safeguard ensures that the testimony of a child is given the necessary weight and reliability. In the present case, the record indicates that while PW1 made a promise to tell the truth, no such promise was obtained from PW3. The Court of Appeal in Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 CAT (unreported), underscored the importance of this procedural step, ruling that failure to secure such a promise renders the child's testimony inadmissible. Given this legal precedent, the omission to secure a promise from PW3 is not a mere procedural irregularity, as argued by the respondent's counsel, but a fundamental flaw that affects the admissibility of PW3's testimony. 8 Consequently, this court finds that the evidence of PW3 must be expunged from the record. The second and third grounds of appeal challenge the sufficiency and consistency of the prosecution's evidence. It is an established principle that the burden of proof in criminal cases rests on the prosecution, which must prove the charge beyond reasonable doubt. The testimony of PW1, the victim, was critical in establishing the charge of rape. PW1 provided a detailed account of the incident, identifying the appellant as the perpetrator. However, with the expunging of PW3's testimony, the court must scrutinize the remaining evidence more carefully. The medical evidence provided by PW2 indicated that the victim's hymen was absent and that there was a vaginal infection, which is consistent with penetration. However, the timeline provided by PW2 was inconsistent with the testimonies of other witnesses. PW2 testified that she examined the victim on February 28, 2023, while PW5, the investigating officer, stated that the examination took place on March 1, 2023. Such inconsistencies raise doubts about the reliability of the medical evidence taking into consideration that the alleged rape took place on 19th February, 2023. 9 Moreover, there were significant contradictions in the testimonies regarding when the incident was reported and the subsequent medical examination of the victim. PW4, the victim's father, stated that the incident was reported on February 27, 2023, which contradicts PWl's testimony that she was taken to the hospital the day after the incident. These inconsistencies were material and went to the root of the prosecution's case, particularly on the issue of penetration. The law requires that any doubts arising from inconsistencies in the prosecution's evidence must be resolved in favor of the accused, as established in the case of Tito Paulo Kuchungura v. Republic, Criminal Appeal No. 570 of 2020 (CAT at Iringa). The third issue is on reliance on the evidence of PW1, PW2, PW4, and the PF3. The trial magistrate's reliance on the evidence of PW1, PW2, PW4, and the PF3 to convict the appellant was problematic, given the inconsistencies and contradictions highlighted above. The court failed to properly evaluate the credibility of the witnesses and to consider whether the prosecution had indeed met the standard of proof beyond reasonable doubt. io In criminal cases, it is imperative that the court carefully scrutinizes the evidence and resolves any contradictions or inconsistencies in favor of the accused. In this case, the inconsistencies in the prosecution's evidence should have raised reasonable doubt, leading to an acquittal. In light of the above analysis, this court finds that the prosecution failed to prove the charge of rape against the appellant beyond reasonable doubt. The trial court erred in convicting the appellant based on the evidence presented, which was tainted with inconsistencies and improperly admitted testimony. The appeal is hereby allowed. The conviction of Faustine Petro by the District Court of Sengerema is quashed, and the sentence of thirty years imprisonment is set aside. The appellant is to be released from custody forthwith unless he is otherwise lawfully held. It is so ordered. 11