Abubakari Ismail @ Ramadhan vs Republic (Criminal Appeal No. 255 of 2024) [2026] TZCA 255 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A.. MPEMU. J.A. And ISSA. J.A.^ 1 CRIMINAL APPEAL NO. 255 OF 2024 ABUBAKARI ISMAIL @ RAMADHAN............................................APPELLANT VERSUS THE REPUBLIC ........................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) (Shao, PRM-Ext Jurist dated the 24th day of November, 2023 in RM-Criminal Appeal No. 44 of 2023^ JUDGMENT OF THE COURT 23rd February & 4th March, 2026 MPEMU, J.A.: Abubakari Ismail @ Ramadhan was arraigned in the District Court of Nyamagana for having the carnal knowledge of PW1 against the order of nature. The said offence which was preferred under section 154 of the Penal Code, Cap. 16, was committed during night of 26th November, 2022 at Mwanarichi Buzuruga area in Nyamagana District. Facts; of this case are straight forward. Sometimes in the year 2019, the appellant and the victim (PW1) were living together. It is not clear when they parted away. However, according to PW1, sometimes down the road, the appellant who was selling hot drinks commonly known as "alkasusi," carnally knew him against the order of nature. By then, the victim was sixteen (16) years old. The story as presented by the victim tells further that, the appellant, through supernatural powers, approached the victim and informed him of his desire to kill a boy. As he had already demanded for the evil act from the victim, the statement threatened him, thus he accepted to be sodomized. Nonetheless, it was until 12th December, 2022 when PW1 revealed the ordeal to teacher Emmaus who, in turn, took the victim to one Madam Judith to whom victim explained how the appellant was abusing him against the order of nature. Judith took the victim to the Police Station where, a PF3 was issued and they proceeded to Sekou Toure Hospital. He was attended by Bimkubwa Omari (PW3). According to the PF3 (exhibit PI), the victim's sphincter was loose, being evidence of penetration by a blunt object. On 18th January, 2023, the appellant was arrested. According to E. 4304 Detective Corporal Geuson, the interrogation conducted with the appellant was fruitless because he denied his involvement in the offence. That notwithstanding, the trial court found him guilty and upon conviction, he was sentenced to serve thirty years prison term on 26th May, 2023. His first appeal to the High Court was dismissed by Shao, PRM-Ext. Juris, to whom the appeal was transferred. Further aggrieved, the appellant is now before the Court challenging the concurrent findings of the two courts below leading to his conviction and sentence. 2 On 8th May, 2024, the appellant lodged a memorandum of appeal containing eleven grounds of appeal which, for reasons to follow soon, we will only paraphrase ground six of the appeal instead of reproducing all the grounds. The paraphrased ground reads that: The charge against the appellant was unproven as it varies with the prosecution evidence. On 23rd February, 2026, the appellant appeared before the Court in person, unrepresented whereas the respondent Republic had the services of Ms. Gisela Alex Banturaki, learned Principal State Attorney, assisted by Mr. Mahembega Elias Mtiro and Ms. Brenda Elisha Mayalla, both learned State Attorneys. They did not resist the appeal. In arguing his appeal, the appellant simply invited us to take into account the contents of all the grounds of appeal, which he found to be sufficient in explaining his dissatisfaction regarding the conviction and sentence meted out to him by the trial court and subsequently confirmed by the first appellate court. As we hinted earlier on, the respondent supported the appeal. Submitting in support of that stance, Ms. Banturaki stated that, according to the charge, the offence was committed on 26th November, 2022. This date is not reflected in the victim's testimony. What the victim testified according to Ms. Banturaki, was the evidence to the effect that, on 12th 3 December, 2022 he revealed to one teacher Emmaus that the appellant carnally knew him against the order of nature. As it is, he did not state when exactly was it. She added that, the date as stated in the charge was not also disclosed to the victim's mother (PW4) to whom also the victim reported the incident. It was her further submission that, towards the end of trial of the appellant, the prosecution did not amend the charge in terms of section 251(1) of the Criminal Procedure Act, Cap. 20 (the CPA). To her therefore, failure to amend the charge makes the evidence adduced by the prosecution to be at variance with the charge, thus making it unproven. She cited to us the case of Matiku Thomas v. Republic (Criminal Appeal No. 638 of 2022) [2024] TZCA 666 (31 July 2024; TanzLII), urging us to allow the appeal on account that, the prosecution case was not proved. In rejoinder, the appellant had nothing useful, save for his prayers that, he be released from custody because there is no evidence pointing a finger to him that, he committed the offence charged. In resolving the appellant's complaint, we have dully considered the unanimously position of the parties as coached in their submissions along with the record of appeal as a whole. In arriving at this end, our starting point is the charge itself. As per the record of appeal, the appellant is allegedly to have carnally known the victim against the order of nature on 4 26th November, 2022. During trial of the appellant, neither the victim nor any of the witnesses assembled by the prosecution in that behalf, was able to testify that on that particular day, that is 26th November, 2022, the appellant met with the victim and committed the said offence. PW1 for example, mentioned the date he reported to Teacher Emmaus, which was on 12th December, 2022 and the date he was referred to hospital for clinical examination, that is on 13th December, 2022. We note in the record of appeal that both courts below trusted the evidence of PW1 to possess true account of what happened and that it met the tests stated in Selemani Makumba v. Republic [2006] T.L.R. 384. In the latter, true evidence in sexual offence comes from the victim. However, in the circumstances of this case where the victim did not even know when the offence was committed, his evidence cannot be the true evidence meant and envisaged in Selemani Makumba (supra). We are not ready therefore to side with the two courts below in their interpretation of that evidence and we do not hesitate to hold that, the case of Selemani Makumba (supra) was wrongly applied. Under the circumstances therefore, there was no meaningful evidence from the prosecution to support the averments contained in the statement of offence. That means, the evidence was at variance with the charge. In such circumstances, what the prosecution should have done 5 upon noting the variance, was to amend the charge in terms of section 251(1) of the CPA which allows amendment of the charge in such occurrences. The section reads as hereunder: " Where, at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for 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 meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall seem just." As argued by the learned Principal State Attorney, this was not done. Given such state of affairs, we stated in Mohamed Idd v. Republic (Criminal Appeal No. 204 of 2023) [2026] TZCA 152 (27 February 2026; TanzLII) that, the charge was at variance with the evidence, meaning that, it remained unproven. On that account, we hold that, given the variance between the charge and the evidence of PW1, PW2, PW3 and PW4 in the instant appeal, the charge laid at the door of the appellant was not proved. We are therefore compelled to allow the appeal basing on this ground alone, quash the conviction and set aside the sentence meted out to the appellant thereof. Our final order is for the immediate release of the appellant from prison unless he is held for some other lawful causes. 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 4th day of March, 2026 in the presence of the Appellant in person, Ms. Jainess Kihwelo, learned State Attorney for the Respondent/Republic and Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original.