14-year sentence for habitual criminal to stand

Tebogo Kgalemang
Correspondent | Monday October 17, 2011 00:00

Justice Moses Chinhengo of the Francistown High Court acquitted Onalenna Motloung of the offence of robbery but dismissed Ngakayagae's appeal against his conviction and sentence.Ngakayagae and Motloung were charged with four counts of robbery, burglary; stealing from a dwelling house and rape by a Mahalapye Magistrates Court.

The lower court had sentenced Ngakayagae to 10 years for robbery; four years for burglary; one year for stealing from a dwelling house and 10 years for rape. The 10 year-prison terms were to run concurrently while the other two were also to run concurrently. His co-accused Motloung was sentenced to 10 years for robbery but was acquitted of the other three counts. Dissatisfied with the magistrate's ruling, the duo approached the Francistown High Court to appeal against their conviction and sentence.

Justice Chinhengo said the case against Motloung was not proved by overwhelming evidence.'The evidence against him was rather tenuous,' Justice Chinhengo ruled.He disputed the fact that Motloung was found sleeping with Ngakayagae a few hours after the robbery and that being seen with him (Ngakayagae) selling the stolen property was insufficient to prove his guilt.

The judge stated that failure of the state to call as a witness the policeman to whom the complainant first described Motloung as one of those who attacked him weakened the state's case against Motloung. The complainant's evidence of identification appears to be that which he acquired after seeing Motloung at the police station if not merely dock identification, Chinhengo averred.

'In the absence of reliable evidence of his identification as one of the attackers, the case against him was not proved beyond reasonable doubt. And the man involved with Ngakayagae in robbery may well not have been Motloung. The circumstantial evidence on which Motloung was convicted does not remove the doubt that he may not have been involved in the robbery,' the judge ruled.

Chinhengo ruled that Ngakayagae's connection to the four offences was proved by overwhelming evidence. On the offence of robbery, Ngakayagae was identified by his voice by a passerby and he was later found selling the stolen property. This evidence was so strong against him that his conviction cannot be faulted, said Justice Chinhengo.

The judge further added that in convicting Ngakayagae on the other three offences, the magistrate had relied on the evidence linking him to the offences - the shoeprints, his visit to the shebeen, his pledging of the property that he had stolen from the house after raping the owner and the recovery of the said blanket (comforter).