Michael Marco vs Republic (Criminal Appeal No. 271 of 2023) [2026] TZCA 233 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA 1C-QRAM; LILA, J.A„ MAIGE, J.A. And MANSOOR. J.A.l CRIMINAL APPEAL NO. 271 OF 2023 MICHAEL MARCO. .................. .............................................APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) CKulita, J-) dated the 2n d day of December, 2022 in Criminal Appeal No. 63 of 2021 JUDGMENT OF THE COURT 24h February, & 4h March, 2026 MANSOOR. J.A.: Michael Marco, was arraigned before the District Court of Maswa at Maswa in Criminal Case No. 72 of 2020, charged for the offence of rape contrary to sections 130(1), 130(2)(b), and 131(1) of the Penal Code [Cap. 16 R.E. 2019]. He was found guilty of the offence charged, convicted and sentenced to serve 30 years in prison, and 12 strokes of the cane on the buttocks. It was alleged by the prosecution that, on 5th May 2020, at approximately 11:00 a.m. at Wigelekelo Village, within Maswa District, i

in Simiyu Region, the appellant, a young man of 22-year-old, was accused of forcibly having carnal knowledge of Mbuke Seni, an old woman aged 75 years. In order to bring home the guilt of the appellant, the prosecution lined up four witnesses and two exhibits. The victim, Mbuke Seni, testified as PW1. She testified that, she knew the appellant who is the resident of Wigelekelo Village, and on the material day, the appellant went to her house and asked for food. PW1 asked him to wait outside while she was preparing the food. The appellant did not wait instead he suddenly held her neck, but PW1 managed to escape to her bedroom. The appellant followed her in the bedroom, lifted her dress and forcibly entered her. After the act, the appellant ate the food prepared for him by PW1 and left the scene. PW1 then called out for help and the neighbors went to her house, and with the help of the militia men (Sungusungu), the appellant was apprehended at his residence at around 1:30 p.m. The militiamen took the appellant to the Village Executive Officer (VEO), who testified as PW2. A clinical officer at Maswa District Hospital (PW3), examined the complainant on May 5, 2020, at around 8:00 p.m. His assessment identified vaginal bruises, and a high vaginal swab 2

confirmed the presence of spermatozoa. He opined in Form No. 3 (PF3), which was admitted as Exhibit PI, that, "the laboratory exam & physical examination revealed signs o f rape". The appellant was taken to Maswa Police Station and his cautioned statement was recorded by PW4, WP 6328 DC Anande, on May 6, 2020, at 8:00 a.m. in which the appellant purportedly confessed to the crime. The caution statement was admitted as exhibit P2. In his sworn defense, the appellant denied any involvement in the commission of the crime. He stated that on the material day and time, he was arrested by the militia men at the Village Centre, and was taken to the police. He denied knowing the complainant and claimed that the police forced him to sign the statement unaware of its contents. At the end of the trial, he was found guilty, primarily based on PWl's testimony which was supported by medical findings which suggested that the complainant was raped. His first appeal before the High Court was unsuccessful, hence this is the second appeal. At the hearing, the appellant entered appearance without representation whereas the respondent, Republic had the representation of Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard 3

Mushumbusi, learned Senior State Attorneys. The appellant adopted his four grounds of appeal as raised in his memorandum of appeal and prayed before the court for his acquittal as he claimed innocence. Ms. Mushumbushi on the other hand, and upon carefully reflecting on the charge, admitted that the charge was defective, as the appellant was charged under section 130 (1) (2) (b) of the Penal Code, Cap, 16, instead of section 130 (1) (2) (a). She also pointed out that, the particulars of the charge could not cure the defect in the statement of the offence as the ingredients of section 130 (1) (2) (a), were not given. That, the particulars of the offence used the words "use of force" instead of the words "without her consent", and this has made the appellant unable to understand the charge he was facing contrary to section 135 of the Criminal Procedure Act, Cap 20 "CPA", which requires the charge or information to contain all the particulars of the offence as accurately as possible to enable the accused to understand the crime he is facing. For the reason of the charge being defective, Ms. Mushumbushi prayed for the conviction and sentence of the appellant to be quashed and set aside, and that, the appellant be acquitted. The appellant did not have anything for a rejoinder.

We have heard the submissions by Ms. Mushumbusi, and also have had a look at the record of appeal. The appellant was charged for having sexual intercourse with an old woman aged 75 years, without her consent, but the charge indicated that, she consented but the consent was obtained by the use of force. The charge which was premised under section 130 (2) (b), reads: CHARGE STATEMENT OF OFFENCE Rape: Contrary to Section 130 (1) (2) (b) and 131 (1) of the Penal Code [Cap 16 R: E 2019] PARTICULARS OF THE OFFENCE MICHAEL S/O MARCO stand charged that on 5th day of May 2020, at or about 11.00 hrs. at Wigelekelo Village within Maswa District in Simiyu Region by the use of force did rape one MBUKE D/O SENI. Section 130 (2) (b) of the Penal Code, applies where there is consent by the victim but the consent is legally invalidated because it was obtained through force, threats, intimidation, fear of death or being hurt, or during unlawful detention, as consent obtained through force, intimidation or threat is not true consent. This section provides:

130 . - (1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; When a woman yields to sex through fear of death, or through duress, or intimidation, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; it is not an excuse that she consented after being forced or intimidated to consent to the act. In the present case, and looking at the evidence, PW1 never consented to have sex with the appellant either before or after the act. The evidence shows that, even after she was coerced by the appellant, she never gave her consent. She stated that, the appellant held her by the neck and dragged her to her bedroom, undressed her and then penetrated her, showing that, she never consented contrary to what is shown in the charge.

Lack of consent is an essential element of the crime of rape and where there is no consent, the crime falls under section 130 (2) (a), which states: 130 . - (1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; The charge under which the appellant was convicted shows that the act of sexual intercourse committed by the appellant to the victim was with the victim's consent which consent was obtained by the use of force, while in fact, the victim never consented either expressly or by force. PW1 stated that, she was forced to have sexual intercourse with the appellant, and at no single moment of the ordeal she had consented. The evidence of PW1 also shows that, she had resisted the act from the moment the appellant had grabbed her up to the moment the appellant had accomplished his evil act. The evidence on record, particularly, the testimony of the victim herself shows that, there was a

use of force as she was grabbed by the neck and dragged all the way to her bedroom and was forcefully penetrated but there was no consent; As we have stated in Fredy Mtewele vs Republic (Criminal Appeal No. 87 of 2022) [2025] TZCA 1024 (6 October 2025) "Consent or lack of it, is the essential element in sexual offences involving adults and must be expressly stated as precisely as possible in the charge, and the element o f consent and the nature in which it was obtained, if at all it was obtained, must be stated in the charge and proved by evidence in order to find the accused guilty of the offence charged. When the victim does not at all give her consent, even after being threatened or forced, the particulars of the charge must state that the victim was penetrated without her consent" We are however alive to our position in Jamali Ally @ Salum vs Republic (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019), that, when the particulars of the offence give all the ingredients of the offence clearly to enable the accused to understand the offence, the wrong citation of the provision of the law in the 8

statement of the offence in the charge is curable, as long as the accused is not prejudiced by the omission or defect. We thus, stated: "It is our finding that the particulars o f the offence of rape facing the appellant, together with the evidence o f the victim (PW1) enabled him to appreciate the seriousness of the offence facing him and eliminated all possible prejudices. Hence, we are prepared to conclude that the irregularities over non-citations and citations of inapplicable provisions in the statement of the offence are curable under section 388(1) o f the CPA." Thus, the test under Jamal Ally (supra), is whether the omission or defect in the charge causes any prejudice to the accused, and that, the particulars given in the charge did not enable the accused to appreciate the seriousness of the charge, preventing him from giving a defence. In the present case, however, the defect in the statement of the offence was not cured by the particulars of the charge. The particulars of the charge did not at all indicate the element of consent or lack of it, which is the essential element in sexual offences involving adults. The evidence of PW1, the victim, also did not support the particulars of the

charge, as throughout her testimony, she never testified that she had given her consent even after she was forced. The omission to indicate the element of consent in the particulars of the offence, in our view, has prejudiced the appellant as the charge being unclear on an issue of consent, it has prejudiced the appellant on his rights to prepare a meaningful defence. See Charles Maiso Manyanki vs Republic (Criminal Appeal No. 671 of 2023) [2026] TZCA 90 (23 February 2026) and Simon Magani vs Republic (Criminal Appeal No. 691 of 2023) [2025] TZCA 810 (6 August 2025). Thus, we agree with Ms. Mushumbusi that, the charge should have been premised under section 130 (1) and (2) (a) of the Penal Code, since there was a sexual intercourse by the appellant with the victim, who is not his wife, without her consent. We also agree with her that, the particulars of the offence should have indicated that, the sexual act was done to the victim without her consent. We therefore find that the charge was defective. As we earlier held in Meshaki s/o Malongo @ Kitachangwa vs Republic (Criminal Appeal No. 302 of 2016) [2018] TZCA 301 (11 December 2018) that, when the charge is defective it denies the appellant the ability to comprehend the seriousness of the offence he 10

is charged with, and for those reasons, we declared the proceedings a nullity, we proceeded to quash and the set aside the resultant judgement and quashed the conviction and set aside the judgement, we thus said: "In this case, it is dear from the defect in the charge that the appellant did not know that he was facing a serious offence which carries a mandatory sentence of life imprisonment We are therefore, o f the considered view that he was prejudiced. For these reasons, we find that the charge was fatally defective. Since the proceedings o f the trial court were based on a fatally defective charge, those proceedings are a nullity, so are consequentially, the proceedings o f the High Court. The same are therefore hereby quashed and the judgment is set aside. As a result, the appellant's conviction is quashed and the sentence is set aside." Similarly, in the present case, the charge was defective for lacking the material ingredient of consent. The appellant was definitely prejudiced as he did not understand the seriousness of the offence which carries a mandatory thirty years' imprisonment, as well as a judicial caning of 12 strokes of cane on his buttocks. 11

In the circumstances, we find merit in the submission of the learned State Attorney. Resultantly, we quash the conviction and set aside the sentence, and order the immediate release of the appellant from custody unless held for any other lawful cause. DATED at SHINYANGA this 3rd day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 4th day of March, 2026 in the presence of the Appellant appeared in person, and Ms. Mboneke Ndimubenya, learned Senior State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 12