IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM; MKUYE. J.A.. Rll CRIMINAL APPEAL NO 213 OF 2022 ADAMSON MWAKASANGULE APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) 23n d February & 9th March, 2026 AGATHO. J.A.: The appellant, Adamson Mwakasangule was arraigned before the District Court of Kyela at Kyela facing a charge of rape under sections 130 (1) (2) (e) and 131 (1) of the Penal Code. It was alleged that on 21/08/2019, in Kilambo village within Kyela District in Mbeya Region the appellant had unlawful carnal knowledge of EN, an eleven-year-old girl. The appellant denied the charges, which prompted the prosecution to call eight (8) witnesses (PW1-PW8) and tendered two exhibits: the victim's clinic card (Exhibit PI) and a PF3 medical form (Exhibit P2). (Monaella. 3.1 dated the 7th day of March, 2022 in Criminal Appeal No. 04 of 2022 JUDGMENT OF THE COURT

Briefly, the prosecution case as grasped from the record of appeal shows that the victim, EN, who testified as (PW1) told the trial court that on the night of 21/08/2020, while her grandmother was at a funeral, the appellant (her grandfather) instructed her to move from her usual sleeping spot in the kitchen to his bedroom, where he then raped her. She managed to escape by pretending she needed to urinate and immediately informed a neighbour (PW3). She also stated this was the second time the appellant had raped her. Edas Mwanyondo (PW2), the victim's grandmother, confirmed that she left the victim alone with the appellant to attend a funeral. Upon being summoned back, she found neighbours gathered and heard the victim's confirmation of the assault. Sophia Minga (PW3), a neighbour testified on how the victim knocked on her door at night and reported the rape. David Kibweja (PW4), another neighbour, corroborated this account and added that when confronted at his home, the appellant remained silent. Edson Nyondo (PW5), the victim's father, testified to being notified of the incident by PW4. He confirmed his daughter's account and introduced her clinic card into evidence to prove she was born on March 13, 2010, in proof that she was 10 years old at the time of the incident. 2

Mali Asanga Mwafyuma (PW6), the ten-cell leader, testified that he led a group of people to the appellant's house. He noted that the appellant remained silent when asked about the allegations before being taken to the police. WP 7450 DC Adella (PW7), the police investigator, recorded the victim's statement and inspected the scene. She recommended the charges after reviewing the evidence and the PF3. Jenita Sanga (PW8), the doctor examined the victim at Kyela District hospital noting no bruises or discharge, but the victim's hymen was perforated suggesting penetration by a blunt object. In his defence, the appellant, testifying as DW1 claimed he was arrested by a militiaman at his home and was denied the opportunity to have the victim inspected immediately at his home. The trial court was satisfied that the prosecution had proved both the victim's age and the act of penetration beyond reasonable doubt. It thus found the appellant guilty, convicted and sentenced him to 30 years imprisonment, four strokes of the cane, and ordered him to pay TZS 500,000.00 in compensation to the victim. 3

Aggrieved, the appellant unsuccessfully appealed before the High Court. Determined to vindicate his innocence, the appellant appealed to this Court lodging a memorandum of appeal containing six grounds of appeal. However, for reasons that will become apparent shortly, we shall not restate the grounds of appeal. Instead, we shall focus on the fifth ground that the charge against the appellant was not proved as per law on account of the charge sheet and the evidence being at variance. When the appeal was called on for hearing, the appellant fended himself whereas the respondent Republic was represented by Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys who teamed up with Mr. Rajabu Msemo, learned State Attorney. The appellant adopted his grounds of appeal and opted to let the learned Senior State Attorneys respond first and thereafter he will rejoin if need be. Initially, Ms. Mollel seemed set to resist the appeal, but after being probed by the Court, she supported it on the basis that the charge and evidence varied. She amplified that there is a variation between the charge sheet and material facts as it is apparent on page 1 (charge sheet) and pages 5-6 of the record of appeal where facts are captured particularly on the date the rape incident occurred. As if that is not 4

enough, she submitted, the testimony of PW5 at page 22 of the record of appeal mentions the incident to have occurred on 21/08/2020. Expounding further on this ground, the learned Senior State Attorney submitted that if there is variance of a charge and evidence then that may vitiate the conviction unless the charge sheet is amended. She conceded that there is indeed a variation between the charge sheet, material facts and evidence of PW5 on the date of incident. She submitted that while the charge sheet shows that the offence was committed on 21/08/2019, the testimony of PW1 states that the incident occurred on 21/08/2020. Ms. Mollel also referred us to the defence evidence of the appellant (DW1) found on page 40 of the record of appeal in which he stated that he was arrested on 21/08/2020. The learned Senior State Attorney rightly submitted that all prosecution witnesses testified that the incident occurred on 21/08/2020. In earnest, Ms. Mollel conceded that since the error on the charge is the date of commission of the offence then the error goes to the root of the matter. She added that the charge being the foundation of the case, then the defect pointed out is fatal rendering the charged offence not proved. 5

Highlighting another defect, the learned Senior Stater Attorney referred us to page 16 of the record of appeal where the interpreter, E. 3252 CPL Abel who translated a testimony of PW2 from Kinyakyusa into Kiswahili was brought into the proceedings, she wondered how the interpreter was brought into the proceedings. The record is silent on that aspect. She added that the interpreter was not sworn in. Considering that shortfall, the learned Senior State Attorney urged the Court to allow the appeal, quash the conviction, set aside the sentence imposed upon the appellant and free him. In his cursory rejoinder, the appellant welcomed the concession by the learned Senior State Attorney and beseeched the Court to allow the appeal and set him free. In determining the present appeal, we shall not dwell on the issue of the interpreter as, we think, the issue whether there is material variation between the charge and the evidence and in considering its implication may be sufficient to dispose the entire appeal. As a starting point, and in line with the fifth ground of appeal, that the charge was not proved as required by the law, we have revisited the record of appeal especially page 1 of the record of appeal, the charge sheet indicates that the offence was committed on 21/08/2019. But the 6

evidence of all prosecution witnesses (PW1-PW8) testified that the incidence occurred on 21/08/2020. That is also apparent on pages 5-6 of the record of appeal where the prosecution read out the facts to the appellant after his plea was recorded. The facts show that the incident occurred on 21/08/2020. Facts no. (6) on page 6 of the record of appeal states that on the same date at night the accused told the victim to sleep naked to avoid bed wetting. Facts no. (7) on the same page shows that the appellant went into the victim's room and raped her. We thus concur with the learned Senior State Attorney that there is indeed variation

between the charge sheet and the evidence on record particularly on the date of the incident. The effect of the variance between the charge sheet and the evidence as correctly pointed out by Ms. Molle is that the charge becomes unproven. That is the position we have taken in several of our decisions including Mashaka Kashinje v. Republic [2024] TZCA 1215. The prosecution never amended the charge. We follow the Court's stand in Barnaba Bazilia Honoli v. Republic [2024] TZCA 997 that whenever a specific date and place of commission of offence is mentioned in the charge sheet then the prosecution is duty bound to prove that the offence 7

occurred on that date and place. In the present case the dates vary, as alluded to earlier. The charge cannot be said to have been proved. For the foregoing reasons, we find merit in the appeal and allow it. Consequently, we quash the conviction and set aside the sentence imposed upon the appellant. We further order his immediate release from prison unless continues to be held for other lawful causes. DATED at MBEYA this 6thday of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 9th day of March, 2026 in the presence of the appellant in person, Ms. Upendo Lyimo, learned State Attorneys for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a truacopy of the original. . M. MAGESA 6PUTY REGISTRAR RT OF APPEAL 8