Mabula Meli vs Republic (Criminal Appeal No. 745 of 2024) [2026] TZCA 421 (15 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MPEMIJ. 3.A. And ISSA. J.A .^ l CRIMINAL APPEAL NO. 745 OF 2024 MABULA M ELI ..... ........... .......... ........ ...... ....... ...................APPELLANT VERSUS THE REPUBLIC..................................... .............................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) (Robert, J.) dated the 23rd day of October, 2023 in Criminal Appeal No. 34 of 2023 JUDGMENT OF THE COURT 3rd March & 15th April, 2026 LEVIRA. J.A.: Mabula Meli, the appellant herein was charged, prosecuted, convicted and sentenced to serve 30 years in prison and pay a compensation of TZS. 500,000.00 to the victim of rape one VH (the name withheld), whom it was allegedly that he raped, by the District Court of Sengerema at Sengerema. The appellant was aggrieved by the conviction, sentence and order for compensation. He therefore, appealed to the High Court of Tanzania at Mwanza. Nonetheless, his appeal was dismissed for lacking in merit. Assiduously, he has approached the Court armed with six grounds of grievances presented in the memorandum and supplementary memorandum of appeal, five and one grounds, respectively. Before we consider the appellant's grounds of appeal, it is apposite to consider the background of this case. The record of appeal reveals in the particulars of the offence that, on 2n d September, 2022 at about 8:00 hours at Mission Village, in Mission Ward within Sengerema District in Mwanza Region, the appellant had sexual intercourse with the victim, a girl of 11 years old, a standard three pupil at Igogo Primary School. To prove the allegations against the appellant, the prosecution paraded four witnesses. The first prosecution witness (PW1) was the victim who testified to the effect that: On 2n d September, 2022 at 8:00 hours, the appellant @ "Babu Mabula" sent her to the well to fetch watch. Having done so, PW1 kept the water in the appellant's siting room. The appellant called her to enter in his bedroom, she entered and the appellant told her to undress her underwear. PW1 denied, but the appellant forced her, undressed and laid her on the bed. He, as well, undressed his trousers and inserted his penis in PWl's vagina. Thereafter, he gave PW1TZS. 500.00 and warned her not to tell anyone about what had happened. On that day, PW1 did not tell anyone about the incident until after lapse of seven days when she decided to tell her mother, one Juliana Yohana Kakulilo (PW2). She went on to testify that, the appellant had 2 sexual intercourse with her only once. Having informed her mother, PW1 testified further that, she was sent to Police Station and later to the hospital where she was examined and treated. According to PW2, on 9th September, 2022 at 8:00 hours while at home, PW1 told her that "Babu wa pale ameniingizia dudu lake huku Ha amenikataza kusema" At that time PW2 knew "Babu wa pale" referred by PW1 was the appellant, their neighbour. PW2 decided to take PW1 inside the house and required her to undress her under pant, then PW2 inserted her finger into PWl's vagina to check if she was really raped. She found PWl's vagina open. Thereafter, PW1 narrated to PW2 on how she was raped by the appellant. PW2 reported the incident to Mr. Shilebero Amos, a ten-cell leader and to Sengerema Police Station on the next day, that is, on 10th September, 2022. At the police, PW1 was issued with a PF3 and sent to Mission Hospital where she was examined and it was found that she was raped. PW2 tendered the clinic card of PW1 (exhibit PI) to prove that she was born on 13th April, 2012. Dr. Maria Jose Votien (PW3) from Sengerema Designated District Hospital/Mission Hospital was the one who attended PW1. In her examination, she found that PW1 had no hymen in her vagina which proves penetration and had no discharge from her vagina. After the examination, she filled the PF3 and gave it back to the victim and the same was admitted as exhibit P2 at the trial. WP 11136 D/C Alice (PW4) from Sengerema Police Station accompanied PW1 to the Hospital. She was also the one who recorded PWl's statement at the police. According to her, PW1 told her that on 2n d September, 2022 at 8:00 hours, she was at home. The neighbour called Mabula requested her to go and fetch water for him. She went to fetch water and sent to his house. While at his house, the appellant told PW1 that he wanted to rape her. PW1 said, she was afraid and run back home. However, later PW1 took her exercise book and sent it to the appellant to fix it as it was torn. She found the appellant alone at home. The appellant forced and had sexual intercourse with her. Having finished, the appellant gave her TZS. 500.00 and warned her not to tell anyone. Further that, PW1 did not tell anyone until on 10th September, 2022 when she told her sister. On that day, her mother was not present, that is why her (PWl's) brother-in-law sent her to Sengerema Police Station to report the incident. After closure of prosecution case, the appellant was given an opportunity to defend. He defended as DW1 and called one witness, Tabu Mashauri Meli (DW2). The appellant denied to have committed the charged offence. He testified that on 2n d September, 2022, he was sick and sleeping at home. He neither sent PW1 to fetch water nor raped her by force as alleged by PW1. He further testified that, he is impotent and thus could not have sexual intercourse with anyone. According to him, the case was fabricated because, it was alleged that the offence was committed on 2n d September, 2022 but PW1 was sent to the hospital on 10th September, 2022. He added that the mother of the victim (PW2) had a conflict with his sister (DWl's) in whose house the appellant was staying. In her testimony, DW2 stated that the appellant is her brother and they were living together. Further that, on the material day, she was at home and the appellant was sick sleeping. She was surprised that her brother (the appellant) was accused of rapping PW1, a daughter of her neighbour (PW2) whom they had a conflict. She added that, it is not true that the appellant sent PW1 to fetch water because she (DW2) was the one fetching water for him. That was the end of defence case. The trial court, having evaluated the evidence by both sides was satisfied that, the prosecution proved its case against the appellant beyond reasonable doubt. Consequently, convicted and sentenced the appellant as intimated earlier. The appellant's first appeal to the High Court was not successful; hence, the present appeal. On 9thAugust, 2024, the appellant lodged a memorandum of appeal comprising five grounds and on 9th September, 2024 and 11th November, 2024, he filed supplementary memoranda of appeal with two and one grounds of grievances, respectively. In totality, the appellants main complaint is that, the charge against him was not proved beyond reasonable doubt At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic had the services of Mr. Benedict Kapela, learned Senior State Attorney assisted by Mr. Japhet Ngussa and Ms. Hellena Mabula, both learned State Attorneys. The appellant adopted his grounds of appeal as part of his oral submission before the Court. He opted to hear first from the respondent as he reserved his right to rejoinder. Initially, Mr. Ngussa opposed the appeal. Nevertheless, in the course of submission and having gone through the record of appeal thoroughly, he changed the respondent's position and supported the appeal. He submitted that, upon review of the record of appeal, he discovered that the charge placed before the trial court contravened section 135 of the Criminal Procedure Act, Cap 20 (the CPA) for failure to furnish sufficient information as to the nature of the offence with which the appellant was charged in the particulars of the offence. This defect, he said, is fatal and capable of disposing of the appeal as there was no proper charge laid down against the appellant He thus urged us to allow the appeal. Being probed by the Court, Mr. Ngussa submitted that, PW1 was not a credible witness because she gave contradictory evidence. According to him, PW1 testified that she did not tell anyone at home about the incident because the appellant warned her not to tell anybody, but in cross examination, she said, her mother was absent, she travelled that is why she did not tell her. Also, she did not disclose when her mother came back, Not only that, but also, he said, the age of the victim was not proved. Another contradiction highlighted by Mr. Ngussa was that, PW1 gave PW4 a different version of evidence regarding what took place on the material day. She said that, the appellant told her his intention to rape her and she ran back home and came again later to the appellant to find herself being forced to rape; while in her testimony, she said, she was raped immediately after coming from fetching water. These contradictions, he said, were not minor and not resolved by the courts below. That apart, Mr. Ngussa submitted that, the appellant's defence was not considered by the courts below. Therefore, he urged us to allow 7 the appeal. In rejoinder, the appellant urged us set him free because he did not commit the alleged offence charged with. We have carefully considered the submission by the parties and thoroughly gone through the record of appeal. The appellant was charged with and convicted of rape, but the question as to whether the charge against him was proved beyond reasonable doubt is still calling for our determination. It is settled principle in criminal cases, that the prosecution is duty bound to prove the case. The burden of proof never shifts and the standard of proof is beyond reasonable doubt. We are also guided with other principles that, charge is a foundation of criminal trial and the best/true evidence in sexual offence comes from the victim. We shall start with the charge. Section 135 of the CPA provides that: "A charge or information shall contain and shaii be sufficient if it contains, a statement o f specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged. "[Emphasis added] The provision as quoted above requires, among other things, the charge to contain particulars as may be necessary for giving an accused 8 person reasonable information as to the nature of the offence charged with. In the present case, we wish to reproduce the particulars of offence in the charge laid down against the appellant hereunder: "MAELEZO YA KOSA Kwamba wewe Mabufa Meii unashtakiwa kuwa mnamo tarehe 02 mwezi Septemba, 2022 majira ya saa 02:00 asubuhi huko Kijlji cha Mission Kata ya Mission Wilaya ya Sengerema na Mkoa wa Mwanza uUfanya tendo la ndoa na VH mwenye umri wa miaka 11, mwanafunzi wa darasa !a tatu katika shuie ya msingi Igogo. "[Emphasis added]. The bolded part of the above extract translates un officially that, the appellant had act o f marriage or conjugai rights with VH aged 11 years old a pupil o f standard three. We agree with the learned State Attorney that, such particulars did not give the appellant necessary information as to the nature of the offence charged with. We say so because the phrase "had conjugai rights with"was ambiguous taking into consideration that the appellant and victim were not husband and wife. In our considered opinion, the particulars of the offence did not disclose how the alleged offence was committed so as to give the appellant sufficient information of the offence with which he was charged. As regards the age of the victim (PW1), the charge stated that the age of the victim was 11 years old. Nonetheless, the victim did not disclose her age while testifying. PWl's age was mentioned by her mother at page 8 of the record of appeal where she said, PW1 was 10 years old as she was born on 13th April, 2012. It is settled position that, the age of a victim can be proved by her/his parents, birth certificate, doctor or guardian. Therefore, PW2 proved that her daughter was 10 years old by then. The said age differed from what was stated in the charge, where it was said that she was 11 years old. In the circumstances, having heard the age of the victim from her mother (PW2), it was incumbent upon the prosecution to amend the charge so as to insert the proper age of the victim, but that was not done. As a result, the charge remained unproved as far as the age of the victim was concerned due to that variance. Assuming that the charge was proper and the age of the victim was proved, we still find unattended shortcomings in the prosecution case. We are aware that this being a second appeal, we cannot easily disturb concurrent findings of fact made by lower courts, unless there are clear misapprehension on the nature and quality of evidence, especially if those findings are based on the credibility of witnesses; see: Nimo Samu v. The Director of Public Prosecutions (DPP) [2022] TZCA 674 (7 10 November, 2022). First, in our assessment, we find that PWl's evidence lacked coherence and consistence as far as what took place on the material day. We shall spot out some of the weaknesses. At page 6 of the record of appeal, PW1 said, she went to the well (kisimani) to fetch water and found "Babu Mabula" in the house of their neighbour who requested her to go to fetch water for him. Having fetched it, she sent water to the house where the appellant was staying and while in the sitting room, 'Babu Mabula'caWed her: ’Babu njoo chumbani! She went to the bedroom where she was raped. At page 21 of the record of appeal, PW4 testified that while recording her statement, PW1 said: "On 2n d September, 2022 she was at home. Her neighbour by name of Mabula went there and requested her to go to fetch water for him. She went, fetched water and sent to his house. At his house, the appellant told PW1 that he wanted to raped her, PW1 became afraid and ran back home." In the circumstances, it is difficult to comprehend at what time did the appellant raped the victim (PW1), if at all. It is also not clear as to why PW1 decided to give PW4 a new version of evidence on how she went to the appellant before the alleged rape incident. li We, as well, note at page 8 of the record of appeal that, PW1 testified that she did not report the incident to anybody including her mother immediately because the appellant warned her not to do so. However, in cross examination, she said, she did not tell her mother because she was absent, she had travelled. According to PW2 on 9th September, 2022 is when PW1 told her about the incident. At page 22 of the record of appeal, PW4 testified that PW1 told her that she did not tell anyone about the incident until on 10th September, 2022 when she informed her sister about the incident and was taken to the Police by her brother-in-law. This is a new version of PWl's evidence. We further note that, the said sister was not mentioned anywhere else in evidence and she was also not called to testify. While PW1 and PW2 testified that PW2 was the one who reported the incident to the police, PW4 testified to have been told by PW1 that she was taken to the police to report the incident by her brother-in-law. In the circumstances, it creates doubt whether, indeed, PW1 was raped by the appellant and her mother was the first person to whom she reported the incident or her unknown sister and whether the matter was reported to the police by PWl's brother-in-law or her mother. If either of them, why different stories? 12 Much as we are aware that the best evidence in sexual offences comes from the victim, we can equally not be swayed away by that principle forgetting that the victim witness needs to be credible. Otherwise, his/her evidence, crucial as it is, cannot be relied upon to ground conviction for the evidence in sexual offences which are usually involving two persons when committed, need to be examined and treated cautiously. It is our firm finding that, PW1 was not a credible witness. Therefore, the courts below ought not to have relied on her evidence to ground and sustain the appellant's conviction. We, as well, agree with Mr. Ngussa that both courts below did not consider the appellant's defence against PWl's inconsistent evidence. We have perused the record of appeal and found that both courts below condemned the appellant for not producing evidence to prove that on the fateful day he was sick sleeping at home. As we introduced earlier, the appellant had no obligation to prove his innocence, but he only raised doubt to the prosecution case. He went as far as calling his sister (DW2) to testify that on the fateful date, he was at home sleeping. Failure to consider defence case was a fatal irregularity on the part of the courts below and their findings cannot stand. 13 Following all we have endeavoured to discuss above, we find that the charge against the appellant was not proved beyond reasonable doubt. Therefore, we allow the appeal, quash conviction and set aside the sentence and compensation order meted out to the appellant. We order the immediate release of the appellant from custody unless he is held for any other lawful cause. DATED at DODOMA this 27th day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered virtually this 15th day of April, 2026 in the presence of the Appellant in person, Ms. Neema Kibodya, learned State Attorney for the Respondent and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. 14