ngolo mgagaja v the republic 2023 tzhc 17533 22 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA DISTRICT REGISTRY) AT TABORA DC CRIMINAL APPEAL NO. 73 OF 2021 (Originating from Nzega District Court in Criminal Case No. 307 of2002) NGOLO MGAGAJA........................................................... APPELLANT VERSUS THE REPUBLIC........................................................... RESPONDENT JUDGMENT Date of last Order: 16/5/2023 Date ofJudgment: 22/5/2023 KADILU, J, The appellant herein is challenging the decision of the District Court of Nzega at Nzega in which he was convicted of the offence of gang rape contrary to Sections 131 (3) (1) and (2) of the Penal Code [Cap. 16 R.E 2002] now [Cap. 16 R.E. 2019] as amended by Section? of Sexual Offences Special Provisions Act, No. 4 of 1998. The prosecution alleges that on 11/12/2002 at about 21.00hrs at Busondo Village, Nzega District within Tabora Region, the appellant and another person known as Njile Sayi did have sexual intercourse with Vailet Henerico who is a woman not being their wife and without her consenting to it. The charge sheet does not show that the two were charged jointly. Likewise, names of the parties appearing on the judgment does not indicate that Njile Sayi was the co-accused. However, both participated in the trial and at the conclusion on 30/4/2003, they were convicted as charged whereby they were sentenced to life imprisonment and each of them was ordered to pay the victim a compensation of TZS. 200,000/=. Discontented with the impugned decision, Ngolo Mgagaja knocked on the i doors of this court after the Court of Appeal granted him leave to file his appeal out of time. The appellant has indicated in his grounds of appeal that Njile Sayi had once appealed and released by the Court of Appeal, but the records are completely silent about it. Thus, the appeal before this court is in respect of Ngolo Mgagaja alone and it consists of six grounds as follows: That, the case for the prosecution was not proved against the appellant beyond reasonable doubt as required by the law. (ii) That, the provision upon which the appellant was charged and convicted was defective. (Hi) That, there is doubt in the evidence by PW2 whether he (PW2) indeed chased and arrested the appellant when his testimony is read together with that of PW4. (iv) That, section 34 B (1) and (2) (a) to (f) of the Evidence Act, [Cap 6 R.E. 2019] was not complied with when PW5 sought to introduce exhibit P4 into evidence. (v) That, record is silent on whether PW5 was recalled or differed. (vi) That, the appellant's co-accused at trial namely Njile Sayi, having been released from the prison on appeal before the Court of Appeal of Tanzania, the sentence of life imprisonment meted on the appellant cannot stand. For these grounds, the appellant urged this court to allow the appeal, quash the conviction, and set aside the sentence so that he may be released from the prison. The facts of the case can be narrated as that on 11/12/2002 at 21:00 hours Njile Sayi was with Vailet Henerico for a good part of the material day drinking alcohol at a local pombe club. Then they left and came into the company of Ngolo Mgaganja who was the first accused person in the trial court. They went close to a place where people were fetching water where PW4, Juliana Michael, was present. The trio were also close to the house of one James Mpina, PW3. 2 PW4 testified that they heard Vailet's voice complaining and shortly after, Njile Sayi passed by the water source having Vailet's Kitenge in his hands. A few minutes later, Vailet shouted again and PW4 rushed towards where the voice was coming from. PW3 also followed back with a torch and the light caused Ngolo to come off Vailet's body, which was supine on the ground and bolted. However, he did not make good his escape. At that time, Vailet was unconscious. The matter was reported to the Village leadership and later to the Police. Vailet was taken to the hospital. The examination established that she sustained injuries after having a forceful sexual intercourse. The PF3 was admitted as exhibit P3. The accused were arrested and taken to Puge Police Post. When this appeal was called for hearing, the appellant appeared in person unrepresented whereas the respondent Republic had legal service of Ms. Tunosye Luketa, learned State Attorney. The appellant had nothing to add other than praying for the adoption of his grounds of appeal by the court. He said, he would like to leave it to the court to decide the outcome of his appeal. In response, the Republic supported the appeal. Ms. Tunosye at the very outset, intimated that she was in full support of the appeal. She said that she supported the whole appeal to save the court's precious time because after perusal of the records, she found that the prosecution evidence was insufficient. She thus, prayed the court to quash the conviction and set aside the sentence. On my part, I had an occasion to navigate through the trial court's records in addition to the grounds of appeal and submissions by the parties. The crucial issue for the determination of this appeal is whether the conviction was merited. Without much ado, I entirely agree with the learned State Attorney that the appellant was wrongly convicted for the 3 offence of gang rape. I hold that view because the victim was never found to give evidence in court but her cautioned statement was tendered as exhibit P4 in which she was alleged to have informed PW2 that she was raped by the appellant and one Njile Sayi and the appellant. PW2 told the court that he found Vailet in the hospital and that she was somehow not mentally fit. She however, stated in the said cautioned statement that she was firstly raped by Njile and then the appellant. The appellant continued to rape her until when she fell unconscious. The cautioned statement shows that Vailet became conscious at the time she was admitted in the hospital. According to PW2, it was Njile who informed him that it was the appellant and himself who raped Vailet. Therefore, it was the testimony of PW2 as recorded in exhibit P4 that Vailet was raped firstly by Njile who was aided by Ngolo, the appellant herein. Njile then left and it was the turn of appellant who subdued her single-handedly. The appellant did not challenge the admission of exhibit P4. However, after admission, exhibit P4 was not read out aloud as required by the law. In defence, the appellant's story was that he was with Vailet at the Pombe shop for quite some time. Then Njile left with Vailet and the appellant followed them until when he caught up with them. The appellant was hostile and so, Njile decided to quit leaving Ngolo with Vailet. Ngolo was found with Vailet's kitenge which was admitted as exhibit Pl. The appellant, on the contrary, exonerated Njile from the accusations. One would expect the appellant to settle scores with Njile because according to Vailent's statement, the appellant assisted Njile to subdue Vailet but Njile left the appellant alone and as a result Vailet 4 shouted for help and Ngolo was found in action. After the incident, Vailet is alleged to have left for Tabora and she could not be found to testify during the trial. Whether or not the appellant is guilty depends on his words against that of Vailet. Since Vailet was not available for cross-examination of her statement then I am left in doubt as to who is credible. According to the law, the best evidence in rape cases is that of the victim. In the instant appeal, it is on record that the victim was mentally challenged. In addition, she could not be available to testify during the trial. In the circumstances, it is hard to establish with certainty that it was the appellant who raped the victim. Therefore, the benefit of the doubt goes to the appellant. From the above review of the evidence I agree with the appellant who was in person in his grounds of appeal, and the learned State Attorney for the Republic that, the case for the prosecution was not proved against the appellant beyond reasonable double as required by the law. I, therefore, allow the appeal, quash the conviction of gang rape, set aside the punishment of imprisonment for life, and order the immediate release of the appellant from the prison unless he is otherwise lawfully held. Order accordingly. JUDGE 22/05/2023 A A A? .• *M J ... ' ' - 5 Judgement delivered in chamber on the 22nd Day of May, 2023 in the absence of the appellant and in the presence of Ms. Joyce Nkwabi, State Attorney, for the respondent. KADILU, M. J. JUDGE 22/05/2023. 6