Bilal Juma Ramadhani vs Republic (Criminal Appeal No. 82 of 2024) [2026] TZCA 191 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CORAM: KOROSSO, J.A.. MASHAKA. 3.A. And NGWEMBE. J.A.l CRIMINAL APPEAL NO. 82 OF 2024 BILAL JUMA RAMADHANI...................................................APPELLANT VERSUS THE REPUBLIC ............ .................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Gwae, J.) dated the 30th day of October, 2023 in Criminal Appeal No. 37 of 2023 JUDGMENT OF THE COURT 23rdFebruary & 03rd March, 2026 NGWEMBE. J.A.: The appellant faced a criminal allegation before the Resident Magistrate Court of Arusha that is; attempted rape contrary to section 132 (1) of the Penal Code, Cap 16 R.E. 2019. It was alleged that the appellant attempted to have carnal knowledge with a girl of seven (7) years old on 19th September, 2020 at Kisongo area within the city of Arusha. When the charge was read and explained to him, he pleaded not guilty. However, upon full trial, he was convicted and sentenced to thirty (30) years' imprisonment 1 A brief factual account underlying the conviction of the appellant is as follows: on the fateful day, Caroline Samwel Anthony (PW3) was returning from her mother's workplace, when she noticed that her young sister, the victim (PW2) had gone missing from where she was playing with other children. Upon inquiry, Joyce informed her that she saw the appellant holding hand of the victim and led her to the house of Mama Mwanaidi. Acting on that information, accompanied with Mama Babuu went to Mama Mwanaidi's house and found the appellant but the victim was nowhere to be seen. When she inquired about the victim's whereabouts, the appellant denied to know the whereabout of that victim. However, she persistently questioned the appellant as to why the victim's shoes were visible in the room. Being suspicious, the two forcibly opened the bedroom of the appellant, alas the victim was found lying on the bed with her clothes pulled down to her knees. Instantly, Mama Babuu dressed her and took her home. The victim's evidence was brief that when she was playing with her friends, the appellant held her hand and together entered Mwanaidi's house. He undressed her to the knees and wanted to rape her but she was rescued by Mama Babuu and PW3. Moreover, the evidence of Theckla Idd Malle (PW1) mother of the victim, testified what she heard from PW3 and Mama Babuu, as she was not at the scene of crime. PW1 testified further 2 that upon arrival at her home she participated in arresting the appellant and took him to police station. Also, she testified that the victim was examined by a medical doctor but did not disclose the name of the doctor and hospital. Having established a prima fade case, the appellant defended himself stating that the case was fabricated against him. According to him, the motive for such fabrication was on existing conflict between the appellant's sister and the victim's mother, who were neighbours. In his defence, Mbarouk Ayubu (DW2) whose evidence was brief. He testified that he appeared at the scene and found PW1 beating the appellant and beseeched her not to beat the appellant. Upon full trial, the learned magistrate was satisfied that the offence of attempted rape was established and proved to the hilt. Thus, proceeded to convict and sentence him to the statutory sentence of thirty (30) years' imprisonment. The appellant was aggrieved and attempted to assail the decision before the High Court on points that; the charge was defective; contravention of section 312 (2) of the CPA; contradictions and unreliability of the prosecution witnesses; shifting the burden of proof to the appellant; failure to call material witness; and that the offence was not proved beyond reasonable doubt. 3 The first appellate court, in determining the grounds of appeal observed some procedural irregularities that: first, the name of the victim as it appears in the charge sheet was DS, while her actual name is Debora Samwel. He observed that it was improper, the charge ought to comprise her actual name. Second, citation of section 132 (1) of the Penal Code, which creates the offence and sentence without citation of subsection providing ingredients of the offence of attempted rape which is, subsection (2)(b) of section 132 of the Penal Code. That was irregular, the two subsections ought to be cited in the charge. Third, the learned Judge also observed that the trial court convicted the appellant without citing the charging section. However, at the end the learned Judge found those irregularities were minor and curable under section 388 (1) of the CPA. Hence, dismissed the appeal and upheld the conviction and sentence of the trial court. Undaunted and determined to defend his innocence, the appellant lodged his memoranda to this Court comprising seven (7) grounds in the original memorandum of appeal, lodged on 26th January, 2026 and one (1) ground in the supplementary memorandum of appeal constituting an aggregate of eight grievances. However, for the reasons to be disclosed in the course, we do not intend to reproduce them here. At the hearing, the appellant entered appearance in person unrepresented and when he was invited to argue his appeal, he adopted 4 his grounds of appeal together with his written statement of arguments lodged in Court on 20th February, 2026. He thus, implored the Court to consider them and allow the appeal. In brief, the appellant is complaining on; one, failure of the prosecution to prove the offence against him to the required standard; two, variances between the charge and evidence; three, failure of the prosecution to call material witnesses, thus urging the Court to draw adverse inference against the prosecution; and four, credibility of the prosecution witnesses. The respondent Republic was represented by Ms. Neema Mbwana, learned Senior State Attorney assisted by Ms. Marietha Maguta, learned State Attorney. On the onset, Ms. Maguta stated the respondent's stance that they support the appeal because the prosecution case was not proved to the hilt. Ms. Maguta elaborated that the charge presented before the court was defective for failure to disclose elements of attempted rape. She explained that those elements are provided for in section 132 (2) of the Penal Code including the intent to procure prohibited sexual intercourse. She added that the charge must clearly provide in its particulars all necessary elements establishing the offence. She supported her argument with a case of Chesco Mhyoka v. Republic (Criminal Appeal No. 82 of 5 2014) [2014] TZCA 2159 (12 June 2014). Therefore, she insisted that failure to provide those elements in the particulars of the offence is not curable under section 388 of the CPA. Ms. Maguta, argued further that, the prosecution failed to call material witnesses. Mama Babuu was the one who witnessed the presence of the victim at the appellant's bed room and thereafter she dressed her and together with PW3 took her to her mother's home. Therefore, Mama Abuu was a material witness who could have corroborated the evidence of PW1, PW2 and PW3 who were all family members (mother and her children). Also, since the appellant had alleged that they had a family conflict with the appellant's sister where he was living. Therefore, the only independent witness to corroborate the prosecution evidence was Mama Babuu who played a key role to rescue the victim from being raped. On this point she supported her arguments with the cases of Joseph Macarius Ntara v. Republic, (Criminal Appeal No. 157 of 2005) [2009] TZCA 85 (15 September 2009) and Ayubu Hassan v. Republic, (Criminal Appeal No. 79 of 2009) [2010] TZCA 156 (12 March 2010). She further argued that, given the nature of the offence and the severity of the sentence, the alleged conflict existing between the family of the victim and the appellant's family cannot be ignored bearing in mind that all prosecution witnesses were family members. Calling to testify an 6 independent witness like Mama Abuu or the investigator could clear that doubt of the alleged conflict. In totality, Ms. Maguta implored the Court to depart from the concurrent finds of the lower courts and allow the appeal. We have paid the deserving consideration of the parties' arguments and after careful perusal of the record of appeal, we find imperative to determine, first on points of law raised and argued by both parties when need arise we will revert to the procedural irregularities argued by the parties. In determining this appeal, we will be guided by the principles that in a second appeal, the Court rarely interferes with concurrent findings of the courts below save where there is misdirection in a point of law or facts which occasions injustice to either party to the case. This was underscored in Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported) where the Court said: "The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless It can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non-direction on the evidence; a 7 violation of some principle of law or procedure or have occasioned a miscarriage ofjustice." [See also, Seif Mohamed El-Abadan v. Republic (Criminal Appeal No. 320 of 2009) [2010] TZCA 294 (19 March 2010)]. We are also alive that in criminal justice, the charge is the cornerstone of a criminal trial. In our jurisdiction, the charge must be clear in terms of the charging offence with all necessary particulars. Framing a charge is governed by section 132 now section 135 of Criminal Procedure Act Cap 20 R.E. 2023 (CPA) which provision is reproduced as follows: 135. ” A charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged" (Emphasis added). Equally, section 135 now section 138 of the CPA provides the mode under which offences are to be charged. The two provisions are couched in a mandatory term for a proper charge. 8 In the instant appeal, the charge presented to the appellant had three shortfalls: one, the charge was preferred under section 132 (1) of the Penal Code which creates an offence of attempted rape and its sentencebut does not provide ingredients of the offence ofattempted rape. Two, the ingredients of the offence are provided in subsection 2 of section 132 which subsection was not cited in the charging section. It follows that in this case the statement of offence in the charge sheet ought to have cited both subsections as follows: 132-(1) "A person who attempts to commit rape commits the offence of attempted rape, and except for the cases specified in subsection (3) on conviction, shaii be iiabie to imprisonment for iife, and in any case shaii be iiabie to imprisonment for not iess than thirty years with or without corporal punishment (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girt or woman, he manifests his intention by- fa) threatening the giri or woman for sexuai purposes; (b) being a person of authority or influence in reiation to the giri or woman, applying any act of intimidation over her for sexuaipurposes; 9 (c) making any false representations for her for the purposes o f obtaining her consent; (d) representing himself as the husband of the girl or woman, and the girl or woman is put in a position where, but for the occurrence of anything independent o f that person's will, she would be involuntarily carnally known." Due to the nature of the offence of attempted rape to a girl of tender age, the two subsections were mandatory to be cited in a proper charge sheet. Three, the particulars of the offence did not disclose ingredients of the offence like intent to procure prohibited sexual intercourse with a girl and threatening the girl for sexual purposes, are key elements in attempted rape. As it is, in the charge sheet, the words "did attempt to rape one "DS" a girl of seven (7) years"\n our considered view was not enough to provide reasonable information to the appellant to know the nature and content of the offence faced with and prepare his appropriate defence. The words " with the intent to procure prohibited sexual intercourse and threatened DS" ought to be featured in the particulars of the offence. See, Isidor! Patrice v. Republic (Criminal Appeal No. 224 of 2007) [2007] TZCA 2 (30 October 2007); Yavan Charles v. Republic (Criminal Appeal No. 411 of 2023) [2025] TZCA 438 (21 May 2025) and Riziki Damas v. Republic (Criminal Appeal 75 of 2011) [2013] TZCA 451 (25 June 2013). In the 10 latter case, the Court was faced with similar situation and observed as follows: "The charge does not disclose the intent, which is to procure prohibited sexual intercourse and the element of threatening the victim which are essential for courts to uphold the charge. In the absence of these basic attributes of the offence of attempted rape, any conviction will be prejudicial to the appellant because from the beginning he did not know what offence he was pleading to and could not be in a position to effectively put an appropriate defence to such a charge. A charge which is deficient and does not include all the essential Ingredients of the offence as in this case, is incurably defective and cannot be remedied by the evidence of the victim" The excerpt above remains a proper position of the law which is applicable in the instant appeal. Therefore, we agree with the position of the learned State Attorney that the charge preferred against the appellant had incurable defect. Another important ground of appeal is on failure to call material witnesses. The appellant lamented that the prosecution failed to call one Joyce, who allegedly saw the appellant holding the victim's hand to take her to the house of Mwanaidi where the appellant was residing. Another l l material witness was Mama Babuu, who allegedly was together with PW3 and was the one who dressed the victim and took her home. In response to this complaint, the learned State Attorney is at one with the appellant that in the circumstances of this case, Mama Babuu was a material witness. We have critically reviewed the record of appeal and find that it is evident that there were only three witnesses for the prosecution who happened to be family members. However, in law, all are competent and compellable witnesses in terms of section 135 (1) of the Evidence Act Cap 6 R.E. 2023 (the Evidence Act) that, the three prosecution witnesses were not prevented by any law, thus they were competent and compellable witnesses. It reads: 135 -(1) "Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause ." The above provision makes the three witnesses competent and compellable witnesses. There is no rule that enjoin all persons who happened to witness the incident in question to be called as witnesses. Since there is no specific number of witnesses is required to prove a fact, 12 even one witness may suffice so long as the contents of his/her testimony proves the alleged offence. This is the spirit of section 152 of the Evidence Act, thus, the prosecution enjoys the liberty to call the witnesses who will establish their case. However, we agree with both parties that witnesses who witnessed the incident and in all circumstances are readily available must be called to testify what they saw and witnessed. The term 'material witness' is defined by The Black's Law Dictionary, Eighth Edition, page 1634 to mean: "A witness who can testify about matter having some logical connection with the consequential facts." It has been the legal position in our jurisdiction that failure to call a material witness without any sufficient reason, the Court may draw adverse inference against the prosecution. See, Azizi Abdallah v. Republic, [1 9 9 1 ] T.L.R 9 1 and Mashimba Dotto@Lukubanija v. Republic (Criminal Appeal No. 317 of 2013) [2014] TZCA 271 (22 October 2014). The latter case was held: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw inference adverse to the prosecution ." 13 In the circumstances of this case, we are restrained to find that Mama Babuu and Joyce were material witnesses to connect the incident of attempted rape with the appellant. Despite the fact that the offence charged did not require an independent witness to corroborate, still Mama Babuu being not a family member of the victim and since she played a key role to rescue the victim from the crime scene, she was a material witness ought to be called to testify in court on what she saw and acted upon. Also, one Joyce was the first person to see the appellant with the victim entering the house of Mama Mwanaidi and was the one who revealed the whereabouts of the victim to PW3. Therefore, failure to call them was detrimental to the cause of justice and we make adverse inference against the prosecution, that if they were called, they could have given the evidence which was contrary to the prosecution's case. See also, Adam Mikael Matera v. Republic (Criminal Appeal No. 547 of 2022) 2025 TZCA 304 (27 March 2025). The above grounds dispose of the appeal as we have so decided in the first ground that the charge was defective for failure to include elements of the offence in the particulars of the offence as required by law. Also, the prosecution's failure to call material witnesses weakened their case. Therefore, we find no compelling reasons to consider the remaining grounds raised by the appellant for the same cannot change the already 14 arrived conclusion. We are therefore, in agreement with the learned State Attorney that the appeal is merited. Consequently, for the above reasons, we allow the appeal, quash the appellant's conviction and set aside the sentence imposed on the appellant. The appellant is to be released from prison unless lawfully held. DATED at ARUSHA this 03r d day of March, 2026. W . B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 03r d day of March, 2026 vide video link in the presence of the Appellant in person, M r. Philbert Msuya, learned Senior State Attorney for the Respondent/Republic and M r. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 15