Juma Mugulus vs Republic (Criminal Appeal No. 497 of 2024) [2026] TZCA 262 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU, J.A. And ISSA. J. A." > CRIMINAL APPEAL NO. 497 OF 2024 JUMA MUGULUS..............................................................................APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Itemba, J.) Dated the 29th day of September, 2023 in Criminal Appeal No. 87 of 2023^ JUDGMENT OF THE COURT 25th February & 5th March, 2026 MDEMU, J.A.: The appellant was arraigned in the District Court of Ilemela for the offence of rape under section 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap. 16. It was committed on the night of unknown date of March, 2022 at Bwiru area in Ilemela District, where it is alleged that, the appellant raped the victim (PW1), a girl of eight years old. It is provided that, in the material night, the victim was at home sleeping with PW2, another 8 years old child. In that room, one Emma also used to sleep there. Adjacent to that room, was the appellant's room who was also present during that night. According to the evidence of PW1 and PW2, their parents, that is, Daud Julius Mkwaya (PW3) and Shauri i Magessa (PW4), were not at home. Taking that advantage, it is alleged, the appellant went to the room where PW1 and PW2 were, took PW1 to his bed and inserted his male member into her vagina. The lights in the room described to be sufficient, is what enabled the victim to identify the appellant. The appellant then disappeared from the scene of crime, while, on the other hand, PW1 returned to her usual bed. When all was going on, PW2 witnessed the incident and informed PW3 upon his return from safari on 25th March, 2022. PW4 was also informed by both PW1 and PW2 on what the appellant did to the victim. It was PW3 who thereafter reported the matter to Kirumba Police Station to which, a PF3 was issued referring the victim to Sekou Toure Hospital. At the hospital, the victim was attended by Muhoja Samson Muchunga (PW6) who also filled PF3 (exhibit PI) indicating that, the victim was no longer virgin. On that information, the appellant was arrested on 20th April, 2022. According to WP 6743 Detective Corporal Yunis of Kirumba Police Station, when interrogated, he denied his involvement in the offence. That notwithstanding, the trial was mounted and, in the end, he was found guilty and upon conviction, he was sentenced to serve life imprisonment. However, his first appeal to the High Court was dismissed for being unmeritorious. Further aggrieved, the appellant is now before the Court 2 challenging the said conviction and sentence by lodging two sets of memoranda of appeal. The first one was of 12th June 2024 comprising of 6 grounds of appeal while the supplementary memorandum of appeal lodged on 14th August, 2025 had 9 grounds of appeal. The major complaint in all 15 grounds of appeal hinges on one issue, that is, whether the prosecution case was proved beyond reasonable doubt. In resolving this issue, on 25th February, 2026 the appellant appeared in person, unrepresented whereas the respondent Republic had the services of Mr. Morice Mtoi, learned Senior State Attorney, assisted by Ms. Brenda Elisha Mayalla, learned State Attorney. In arguing his appeal focusing on the above raised issue, the appellant simply invited us to take into account the contents of all the grounds of appeal which explains his discontentment regarding the conviction and sentence meted out to him by the trial court and affirmed by the first appellate court. In reply to the issue whether the prosecution case was proved beyond reasonable doubt, Mr. Mtoi submitted that, there is cogent evidence on record pointing a finger to the appellant that, on that material night, he raped PW1. Confining himself on the ingredients of rape legislated in the Penal Code, Mr. Mtoi stated that, by the aid of the light in the room, the appellant shifted PW1 from the bed she shared with PW2, 3 to another bed, inserted his penis into her vagina and then left the premises. PW1 thereafter joined PW2 in their bed. He added that, all through the rape incident, PW2 eye witnessed as she was also present in the room. That evidence of penetration, according to the learned Senior State Attorney, was corroborated by the PF3 (exhibit PI). With this evidence, Mr. Mtoi was confident that, there is direct evidence of two eye witnesses to the effect that the appellant, who was known to PW1 and PW2 and previously stayed in their compound as house maid, was dully recognized to be the ravisher. The second element he discussed was in respect of the age of the victim. This being a statutory rape, it is in the evidence of the victim's parents (PW3 and PW4) and the medical evidence (exhibit PI), that PW1 was 8 years of age. He cited to us the case of Meclino Michael @ Msechu v. Republic (Criminal appeal No. 167 of 2021) [2024] TZCA 756 (16 August 2024; TanzLII), elaborating that the age of a victim of sexual offence may be proved by, among others, the evidence of parents and medical evidence in the PF3. Was the appellant responsible? Mr. Mtoi submitted that, PW1 described how the appellant raped her, an act which was witnessed by PW2. To him therefore, the complaint of the appellant that the light was sourced from solar or otherwise, is not material because, at the end of the day, the appellant was recognized by the two witnesses and also, they described him to PW3 and PW4 upon their arrival from safari. He urged us to dismiss this ground because, one that, the contradiction is minor and two, that be it solar or electricity light, the same do not vitiate the argument that, the appellant was recognized in the material night in the room where PW1 and PW2 had their night and indeed raped the victim. As to the complaint that the appellant's evidence was not considered, Mr. Mtoi argued to be unfounded because, at page 61 of the record of appeal, the trial court considered the appellant's a lib i and attached no weight to it. When probed further if really there was any consideration of that defence, Mr. Mtoi argued in a further reflection that, what the trial court did was to restate the law and on the other hand, the High Court, shifted the burden to the appellant to prove his alibi. He urged us to reevaluate the appellant's a lib i relying on principles stated in Abdi Azizi Omary v. Republic, Criminal Appeal No. 339 of 2019 (unreported), to bolster his assertion. With the above submission, the learned Senior State Attorney argued that, the prosecution case was proved beyond reasonable doubt, thus implored us to hold so and dismiss the appeal. The appellant had nothing much to submit in rejoinder and instead, he stood by the contents of the grounds of appeal and prayed for his release. We have dully considered the submission of the learned Senior State Attorney, the grounds of appeal fronted by the appellant and the entire record of appeal in quest to determine whether the prosecution case was proved beyond reasonable doubt. We are mindful to start with the charge laid at the door of the appellant. It appears at page 1 of the record of appeal that, the alleged rape of PV\/1 occurred sometimes in March, 2022. Going by the evidence of PW1 and PW2, the said month and year was not reflected in their evidence. In fact, throughout their evidence, they never stated any month or any year, leave alone what is contained in the particulars of offence. We therefore asked ourselves what was the basis of the charge in the particulars of the offence that, it was in March 2022 when the appellant raped the victim? We probed Mr. Mtoi on that infraction and was straight forward that, the charge was framed basing on the evidence of PW3 because he returned home on 25th March, 2022. He did not however come to light, but probably, he had in mind that, since PW3 was absent when the offence was committed and that, since he returned on that date, then it is the days he was absent, the appellant raped the victim. Is there any evidence to that effect? We have the following evidence to consider: One, in the evidence of PW3, it is not stated which date he left his residence to Kahama. Our stance is that, since PW3 remembered to be at 6 home on 24th March, 2022, then it was important for him also to state which exact date he left instead of saying it was March, 2022 more so during cross examination. Two, PW3 did not testify if he requested the appellant to stay with his kids during his absence. We are saying so because, there is uncontroverted evidence of the appellant to the effect that, from January to March 2022, he was in Ukerewe Island. Three, according to the PF3, exhibit PI and the evidence of PW6 who tendered it, the victim who was examined on 26th March, 2022 told the medical practitioner that, she was raped a month ago. Since the contents of the charge indicates that she was raped in March, 2022, a month ago, in our view, it was February, 2022. What we note from the foregoing analysis is that, it is not clear on whose evidence the charge owes its basis. If it is in the evidence of PW3 which Mr. Mtoi wanted us to believe, that evidence is at variance with the charge. The variance also is rooted from the evidence of PW1 and PW2 in whose evidence nowhere is mentioned that the offence was committed in March 2022, the very date forming the contents of the particulars of the offence. We therefore treat this case within the principles stated in Mohamed Idd v. Republic (Criminal Appeal No. 204 of 2023) [2026] TZCA 152 (27 February 2026; TanzLII) that, as the charge was at variance with the evidence, then the charge remained unproven. We have that stance on account that, the prosecution did not utilize the remedy provided for under section 251(1) of the Criminal Procedure Act, Cap. 20 which allows amendment of the charge in such occurrences, among others, regarding variance between the charge and the evidence. It is provided in the section that: " Where, a t any stage o f a trial, it appears to the court that the charge is defective, either in substance or form ; the court m ay make such order fo r alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to m eet the circum stances o f the case unless, having regard to the m erits o f the case, the required amendments cannot be made without injustice; and a ll amendments made under the provisions o f this subsection sh all be made upon such term s as the court sh all seem ju s t" In the final analysis, since the evidence of the prosecution did not support the charge leveled against the appellant, as we stated above, the infraction created by that evidence occasioned variance between the charge and the evidence. On that account, we hold that, the charge of rape which faced the appellant was not proved. This ground alone suffices to resolve the appeal and we find no compelling need to deal with the remaining grounds. Accordingly, the appeal is allowed. Conviction of the offence of rape is thus quashed and the life sentence imposed by the court is hereby set aside. The appellant be released from prison unless he is held for some other lawful grounds. DATED at MWANZA this 4th day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of the Appellant in person, Mr. John Saimon Joss, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. / \ V T O U - A. S. CMUGULU DEPUTY REGISTRAR COURT OF APPEAL