Ombeni Ngole @ Chaukucha vs Republic (Criminal Appeal No. 19 of 2022) [2025] TZCA 1103 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MWANDAMBO. 3.A.. MAIGE. 3.A. And MANSOOR. 3.A.V CRIMINAL APPEAL NO. 19 OF 2022 OMBENI NGOLE ©CHAUKUCHA ...... ...... ....... ........APPELLANT VERSUS THE REPUBLIC .. ...... ...... .................. .......................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mivambina, 3 / ) dated the 15th day of December, 2021 in Criminal Appeal No. 29 of 2020 JUDGMENT OF THE COURT 3rd & 15th October, 2025 MWANDAMBO. J.A.: Ombeni Ngole @Chaukucha appeals to this Court against the decision of the High Court (Mlyambina,J), which dismissed his first appeal on a conviction and sentence for statutory rape made by the District Court of Mufindi at Mafinga. At the District Court, the appellant and another person not a party to this appeal stood charged with gang rape contrary to section 130 (1) and 131A (1) of the Penal Code. The particulars in the charge alleged that, on 26 August 2015, the duo did unlawfully have carnal knowledge of a girl ("JK") aged 16 years on that date at a place called Mkombwe Area in Mafinga township, Iringa Region. To the extent material to the determination of the appeal, the facts giving rise to the appellant's prosecution and ultimately, his conviction can be conveniently set out thus: 26 August 2015 happened to be a seventh day for person professing Christianity under Seventh Day Adventist Church and the victim set himself to attend prayers at the Church at Mkombwe. On her way to the church, she bumped on two persons who asked her about a certain woman they were looking for and, eventually, they persuaded the victim to go along with them as they were heading to the same direction. Then they went to Bwawani area, and, a little later, the first man broke news to PW3 about some miraculous theft of her stars by an old man for witchcraft purposes. Immediately thereafter, the strange men offered a solution. The solution entailed performing some miracles under a tree aimed at exorcising demons from her which happened to be sexual intercourse with her by both of them in turns. Having finished performing the miracle, the two men demanded payment for the services rendered. However, as PW3 had only TZS 10,000.00 which happened to be too little for them, the two men asked the victim to go home for the balance and call them. In a twist of things, the miracle performers took PW3's mobile phone after removing a Simcard from it and asked her to leave without turning back and call them later for the balance of the money they had demanded. At home, PW3 narrated the ordeal to PW1 who, with the assistance of the police, had PW3 call the culprits. Afterwards, the culprits were arraigned in court to answer the offence of gang rape contrary to section 130 (1) and 131(A) of the Penal Code involving a girl claimed to be 16 years. The appellant and his co-accused denied involvement in the charged offence which triggered a trial in which, the prosecution called four witnesses and tendered three exhibits namely; cautioned statements of the accused tendered by F3725 DC Joseph (PW2) and a PF3 (exhibit P3) tendered by Doctor Patrick Kivambe (PW4) who examined the victim on 26 August 2015 and confirmed that she had been penetrated by a blunt object. In her oral testimony, the victim told the trial court that the two strangers seated her under a tree and performed miracles onto her, they instantly, scrubbed her stomach, undressed her and had sexual intercourse with her in turns starting with the second man before the first man did alike. The first man turned out to be the appellant herein. We note from the record that, when PW3 was testifying, she did not mention names of the accused, she only referred to them as, the first man for the appellant (first accused) and second man referring to Omary s/o Nyakunga (second accused). Significantly, in re-examination, PW3 told the trial court that the second accused person did not do sex with her but just sat quietly in front of them holding two knives. After PW3's testimony on 19 October 2015, the hearing was adjourned to a subsequent date due to the absence of the accused persons. On 20 January 2016, the appellant appeared in court but the co accused was still at large which prompted the court to proceed with continuation of hearing in his absence in pursuance of section 226 of the Criminal Procedure Act (the CPA). Upon the closure of the prosecution case, the trial court found that the prosecution had established a prima facie case against both accused persons for them to enter their defence. However, due to the absence of the appellant and his co-accused, on 31 August 2016, after several adjournments, the trial court pronounced its judgment without the accused's defence. In doing so, it invoked the provisions of section 226 (1) of the CPA which permits the court to proceed with hearing where the accused absents himself at the hearing or further hearing. The court determined the case on two points that is; whether there was proof of penetration as an essential ingredient in sexual offences and, if so, whether the accused were the culprits who committed the offence. Regarding the first point, the trial court found it proved through the victim's evidence corroborated by PW4 and the PF3 (exhibit P4) as well as the appellant's cautioned statement (exhibit P2) tendered by PW2. Regarding the second point, the trial court observed that, the only evidence incriminating the accused was through their caution statements in particular, exhibit P2 in which, the appellant is recorded that he, and a friend going by the name of Joseph Mhagama, had consensual sexual intercourse with PW3 in turns. It found no evidence incriminating the co- accused and acquitted him. Since the said Joseph Mhagama together with the appellant had sexual intercourse with the 16 years' victim who could not have legally consented to sexual intercourse, the trial court found the appellant guilty of statutory rape in lieu of gang rape. It sentenced him to 30 years7 imprisonment in absentia commencing from the date of his arrest. Dissatisfied, the appellant unsuccessfully appealed to the High Court on four grounds of appeal. The High Court (Mtyambina, J) determined the appeal on the main complaint whether the case was proved beyond reasonable doubt, subject of the 1s t, 2n d and 4th grounds and dismissed the appeal. Notably, the 1s t appellate court said nothing in relation to the 2n d ground which faulted the trial court for convicting and sentencing the appellant without affording him the right to be heard in contravention of his constitutional right. Before us in this appeal, the appellant has preferred five grounds against the first appellate court's decision. Stripped of their inherent grammatical errors, the 1st, 2n d and 5th grounds are directed against the first appellate court concurring with the trial court in finding that the case against the appellant was proved beyond reasonable doubt notwithstanding weaknesses and contradictions in the evidence adduced by the prosecution witnesses. On the other hand, the 3rd and 4th grounds raise more or less the same complaint raised at the first appellate court, that is, validity of the conviction and sentence against the appellant without affording him the right to be heard in defence upon his arrest. The appellant who was unrepresented, appeared in person at the hearing to prosecute his appeal during which, he simply adopted his grounds of appeal before letting the respondent Republic to reply. Apparently, Mr. Yahaya Misango, learned Senior State Attorney, who represented the respondent Republic did not contest the appeal on the 3rd ground of appeal in relation to denial of the right to be heard after the appellant's conviction and sentence in absentia. Mr. Misango's submission on this ground was predicated upon section 243, formerly, section 226, of the GPA which enjoins the trial court to require the accused convicted and sentenced in absentia, to be brought to it upon his arrest to show cause and explain his absence during the hearing. To the contrary, counsel argued, there is no indication in the record that the court complied with the above provision considering that his absence was explained as evident at pages 25 and 26 of the record of appeal. Counsel referred to the Court's decision in Magoiga Magutu @Wansima v. Republic [2016] TZCA 608 citing Marwa Mahende v. Republic [1998] T.L.R 249 for the proposition that, non-compliance with section 226 (2) of the CPA renders the conviction and sentence a nullity resulting in directing the trial court to summon the accused to show cause behind his absence and, if satisfied, quash conviction and sentence and hear the accused in defence. Nevertheless, counsel was quick to point out that, in view of the shortcomings in the evidence in support of the charge, he was reluctant to support that path. Supporting his position, Mr. Misango argued that, whereas the trial court rightly substituted statutory rape with gang rape, evidence in support of that offence was wanting, in particular, in relation to identification. This is so, he argued, PW3's evidence was too vague on the identity of the exact person who raped her between the first and second man or another man who surfaced at the scene when the appellant and the co- accused were performing miracle to her under the tree. He reinforced his argument with the Court's decision in Damian Manyika @Babu Tanga v, Republic [2024] TZCA 451, for the proposition that, proof of penetration as an essential ingredient in the offence of statutory rape without linking it with the appellant as the culprit was not enough to prove the offence. At any rate, it was further argued, the victim's age was not proved by PW3 regardless of it being stated in the particulars of the offence. First of all, we agree with the learned counsel in support of the 3rd ground of appeal on the non- compliance with the provisions of section 243(2) which provides: "(2) Where the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probabie defence on the m erit / / As alluded to earlier on, the complaint in the 3r d ground featured as 2n dground in the petition of appeal and parties were heard on it as evident at page 67 of the record. However, for no apparent reason, the learned first appellate judge did not determine it. With respect, that was irregular on the part of the first appellate court for it was tantamount to denying the appellant the right of hearing on that ground. In our view,had the first appellate court dealt with the 2n d ground, this appeal couldnot have been necessary in view of the decided cases on the procedure to be followed by trial courts in respect of an accused person who is convicted and sentenced in his absence, upon his arrest. In Marwa Mahende cited in Magoiga Magutu @Wansima, the Court construed section 226(2) of the CPA to mean that, once an accused who is convicted in absentia is arrested, he should not be taken straight to serve his sentence but should be brought before the trial court to enable the court to exercise the discretion to set aside the conviction or not. The Court stressed that, failure to take the appellant before the trial court to exercise its discretion under Section 226 (2) of the CPA was fatal as it denied the appellant his fundamental right to be heard. Reiterating itself, in Lemonyo Lenuna and Lekiton! Lenuna v. Republic [1994] T.L.R 54 the Court stated: "...The need to observe this procedure assumes even greater importance bearing in mind that by and large accused persons o f our community are laymen not learned in the law, and are not often represented by counsel. They are not aware of the right to be heard which they have under the subsection, it is, therefore, imperative that the la w enforcement agencies make it possible for the accused person to exercise this right by ensuring that the accused, upon his arrest, is brought before the court, which convicted and sentenced him, to be dealt with under the sub-section... " The position in the instant appeal is such that, the appellant defaulted appearance in court in particular, when PW4 gave his evidence marking the closure of the case for the prosecution and subsequently judgment convicting and sentencing him absentia. Interestingly, at page 30 of the record of appeal reveals that the appellant was sentenced to 30 years' imprisonment ordered to commence upon apprehension and his right of appeal explained. Apparently, after arresting him, the law enforcing agencies sent the appellant to serve his sentence in compliance with the court's order instead of sending him to the trial court to be dealt with in accordance with the law section 243(2) the CPA. This was fatal as it denied the appellant his right to be heard. In the upshot, we allow the appellant's 3rd ground of appeal. The above would have been sufficient to dispose of the appeal after making an order remitting the record to the trial court for it to deal the appellant in accordance with the law as aforesaid. However, as submitted by Mr. Misango, that route is not desirable in view of the weak evidence grounding the appellant's conviction, in particular, identity of the culprit as well as age of the victim, essential elements in the offence of statutory rape. It is remarkable that, in its judgment, the trial court took the view that, penetration had been admitted at the preliminary hearing and so no further proof was required from the prosecution. However, the record reveals at page 8 that, the accused persons denied the rest of the facts read to them except their personal particulars being taken to police and their arraignment before the court where they pleaded not guilty. The record does not support the trial court's finding, As to whether it was the accused who were responsible for the charged offence, the trial court observed that, the only evidence incriminating the appellant was his cautioned statement (exhibit P2) in which he was recorded to have admitted having had consensual sexual intercourse with PW3 contrary to her evidence that she was raped by three men. Be it as it may, as submitted by Mr. Misango, having examined the record, in particular, page 15, we agree with him that, exhibit P2 was wrongly admitted in evidence and relied upon by the trial court in grounding conviction against the appellant as it was not tendered by PW2. Consistent with the Court's decisions on the effect of an exhibit tendered by a prosecutor, amongst others, Thomas Ernest Msungu @ Nyoka Mkenya v. Republic [2013] TZCA 440, we expunge exhibit P2 from the record. After expunging the only evidence linking the appellant with the offence he was convicted of, there is no basis upon which the two courts below could have concurred in the appellant's guilt. At any rate, we agree with the learned Senior State Attorney that, worth for what it may have been, exhibit P2 could not have been confession to statutory rape with which the trial court found it proven ii instead of the charged offence of gang rape. This is so considering that, the appellant is recorded to have admitted to consensual sexual intercourse with a consenting adult woman rather than a girl below 18 years, That means, there was no confession to the offence considering that, the prosecution did not prove the victim's age to sustain the offence of statutory rape contrary to section 130(1) and (2) (e) of the Penal Code. It will be recalled that, Mr. Misango downplayed the indication that PW3 was 16 years old before testifying as shown at page 16 of the record but there is no evidence from her proving her age to be below 18 years. Much as we do not agree with the learned counsel on his contention against the irregular admission of the PF3, which, as evident at page 24 of the record was tendered in evidence by PW4, we agree with him that, PW4's evidence as well as exhibit P4 was too wanting. This is so because, a mere indication in the PF3 of the victim's age as 16 years could not have sufficed to prove her age as he was not asked to give an opinion on the age. At best, the age stated in exhibit P4 was stated to PW4 by PW3 who did not prove it before the trial court. On the whole, in view of the fundamental gaps in the evidence, we agree with the learned Senior State Attorney that, this is not a fit case for remitting the record to the trial court for it to call upon the appellant to explain his absence during the hearing resulting in his conviction and 12 sentence in absentia and deal with him in accordance with section 243 (2) of the CPA. We therefore allow the appeal and quash the appellant's conviction, set aside sentence and order his immediate release from prison if not held lawfully therein. DATED at IRINGA this 13th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Sophia Manjoti, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. 0. H. KINGWELE^^ DEPUTY REGISTRAR COURT OF APPEAL 13