Gabriel Mbilinyi vs Republic (Criminal Appeal No. 416 of 2023) [2026] TZCA 383 (1 April 2026)

IN THE COURT OF APPEAL OF TANZANIA ATM BEYA CORAM: MKUYE. J.A.. RUMANYIKA, J.A., And AGATHO. J.A. CRIMINAL APPEAL NO. 416 OF 2023 GABRIEL M BILIN YI ...... ................................................................APPELLANT VERSUS THE REPUBLIC ........ ........................ ........... .................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Monaella, 3.^ dated the 24th day of April, 2023 in Criminal Appeal No. 186 of 2022 JUDGMENT OF THE COURT 4th March & 1st April, 2026 RUMANYIKA. 3.A. This is a second appeal from the judgment of the High Court of Tanzania at Mbeya, that was handed down on 24th April 2023. That decision upheld the conviction of the appellant and the sentence meted out on him by the District Court of Mbeya in Criminal Case No. 73 of 2022. In that case, the appellant, Gabriel Mbilinyi, was charged, tried, and convicted for the offence of rape contrary to Sections 130(1) (2) (e) and 131(1) of the Penal Code. It was alleged that, on 29th March, 2022, at Utengule Usongwe within District and Region of Mbeya, the appellant unlawfully had carnal knowledge of a sixteen-years-old girl. We shall refer her to as the victim or PW1 to conceal identity and protect her dignity. However, while under cross examination, the victim testified to have been dating with the appellant since January, 2022. That, on the material night, she visited the appellant's residence, where they prepared and had supper together and later, sexual intercourse but against her will, as she experienced some pain. The victim's further narrative is that, she remained there until 29th March 2022, when her father (PW2) interfered with them and the appellant got charged. PW2 testified that, the victim went missing from 26th up to 29th of March, 2022 when he found her being cohabited by the appellant at the latter's residence. WP. 9471 D/CPL Diana, the investigating officer, testified as PW3. She also led to the tendering of PF3, which was admitted in evidence as exhibit PI. The appellant, in his defence testifying as DW1, denied the charge. He claimed PW1 had arrived at his house with two men seeking accommodation, but later on they abandoned her there. Augustina S/O Christopher, DW2 initially supported the appellant's story. However, while under cross-examination, he stated that the appellant knew the victim and that one of the said two men, Rock, was the appellant's friend. After full trial, the victim was found to be credible and consistent, as a witness of truth. The appellant was therefore convicted as charged and sentenced to thirty years’ imprisonment. Dissatisfied with that decision, the appellant lodged an appeal to the High Court of Tanzania at Mbeya which was unsuccessful. Still disgruntled, he is now before us on a second appeal seeking to challenge both the conviction and sentence. The appeal hinges on two memoranda consisting a total of nine (9) points of grievance. Four grounds in the substantive and another five in the supplementary memorandum of appeal. However, for the reasons that will come to light shortly, we shall not reproduce or refer to them in any way. When the appeal was called on for hearing, the appellant appeared in person without representation. Mr. Alex Mwita, Mses= . Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys teamed up with Mr. Dominic Mushi, learned State Attorney representing the respondent Republic. The appellant opted for the learned State Attorney to respond to the grounds of appeal, first. Mr. Mushi readily supported the appeal on one, but a different ground from those fronted in the memoranda of appeal, as follows; That, the charge and the evidence are at variance, with respect to the alleged date of commission of the charged offence, rendering the prosecution case not proved. Expounding the point, Mr. Mushi contended that, the charge which appears at page 1 of the record of appeal reads 29/03/2022 whereas, at times the victim on record at page 12 suggested it to be 26/03/2022. Therefore, it was asserted, the prosecution ought to have sought to amend the charge, pursuant to section 234 (now section 251 (1)) of the Criminal Procedure Act to arrest the situation, but this was not done. It was Mr. Mushi's assertion, therefore, that the anomaly went to the root of the case, amounting to the charged offence not being proved. He urged us to hold as such. To bolster this proposition, Mr. Mushi cited Jaffary Ndabita @ Nkolanigwa v. R, Criminal Appeal No. 270 of 2016. Therefore, the Court was urged to nullify the impugned proceedings, quash the decision and to set aside sentence, in terms of section 6(2) of the Appellate Jurisdiction Act. In rejoinder, the appellant happily welcomed the learned State Attorney supporting the appeal. He also prayed for the appeal to be allowed and for restoration of his liberty. We have considered the learned State Attorney's submission and the cited authority, in support of the appeal and sufficiently scanned the record. The pivotal issue for our consideration is whether the charge is inconsistent with the evidence, incurably denting the prosecution case. Our take off point is to state the obvious that, any judicial criminal proceedings are founded on a charge. Therefore, unless amendment is sought and granted, not only the variance between the charge and the evidence shakes the prosecution case, but also, the said material variance renders the charged offence unproven. It invalidates the conviction, to say the least. See- Fredy Mtewele v. R (Criminal Appeal No. 87 of 2022) [2025] TZCA 1024, from unbroken chain of authorities. For the present case, there is variance between the particulars in the charge sheet appearing on page 1 of the record of appeal and the evidence, regarding the date of commission of the charged offence. Notably, the charge sheet indicates that the offence was committed on 29/03/2022. PW2, in this regard, supported the victim's story, that, on 29/03/2022 he found the victim and the appellant, at the latter's residence. This presupposed the appellant consummated the victim, as alleged in the particulars of the offence. Nonetheless, while under cross examination on page 12 of the record of appeal, the victim changed the course, completely. She stated that, their love affairs actually commenced sometime in January 2022. It is patent and clear to us that the said discrepancies were so material, going to the root of the case. Now that, for the date of commission of the charged offence the Court is left on cross roads, the appellant has to get the benefits of doubt. In other words, the mishap above had the effect of causing the charged offence unproved. Given the general rule in the celebrated Selemani Makumba v. R [2006] T.L.R 379 that, in sexual offence cases 5 true evidence comes from the victim. However, the charge and the evidence of the victim in the present case taken together, her evidence was neither credible nor reliable to solely found a conviction. In fine, the appeal is allowed in its entirety. Consequently, we order for immediate release of the appellant unless he is held for some other lawful cause. DATED at DODOMA this 31st day of March, 2026. R. K. MKUYE U. 1 AGATHO JUSTICE OF APPEAL The Judgment delivered this 1st day of April, 2026 in the presence of the Appellant in person, Ntegwa Mpinyagwa, learned State Attorney representing the respondent/Republic, through Virtual Court and Mr. Shafii Kassim, the Court Clerk, is hereby certified as a true copy of the original. JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL