Daudi Ramadhani Migire vs Republic (Criminal Appeal No. 85 of 2024) [2026] TZCA 218 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO, J.A., MWAMPASHI. J.A. And MLACHA. J.A.1 CRIMINAL APPEAL NO. 85 OF 2024 DAUDI RAMADHANI MIGIRE .................................................. APPELLANT VERSUS THE REPUBLIC .................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Kiwonde. 3.) dated the 17th day of November, 2023 in Criminal Appeal No. 69 of 2023 JUDGMENT OF THE COURT 26th February & 3rd March, 2026 MWANDAMBO. J.A.: The District Court of Arusha at Arusha tried and convicted the appellant Daudi Ramadhani Migire of the offence of rape of "FH" a girl aged seven years at the time. A sentence of life imprisonment followed the conviction. Both the conviction and sentence were sustained by the High Court sitting at Arusha in Criminal Appeal No.69 of 2023 whose decision is challenged in this appeal. Briefly, the prosecution arraigned the appellant on accusations of rape of "FH" which was alleged to have been committed at Moshono area i

within the city, District and Region of Arusha on an unknown date in May 2021. When the appellant was called upon to answer to the charge read and explained to him on 28 July 2021, he pleaded not guilty after which a trial followed involving four witnesses from the prosecution side and one from the defence side. Culled from the record, FH, the victim of the offence who was labelled as PW1 told the trial court of what transpired at 7.00 p.m. on the unknown date in May 2021 on which, the appellant who stayed in the same house with PW1 as a tenant of the victim's grandmother (PW2) summoned her to his rented room with a view to asking her to buy kerosene for him. At that time, only PWl's brother was around inside but no other people. To her surprise, the appellant is claimed to have shut the door to the room in which he stayed alone, undressed the victim before doing so to himself and inserted his manhood into PWl's vagina. He allegedly did so after applying some lubricants to both his and the victim's private parts. Not only did the appellant allegedly close PWl's mouth to prevent her from shouting but also threatened killing her should she dared disclosing the ordeal to anybody before letting her go home after he had accomplished his mission. It would appear PW1 succumbed to the appellant's threat. She did not disclose what the appellant had done to her to PW2 until on 10 2

May 2021. That was after PW2 had been summoned by the administration of Meru Primary School where the teachers had suspected something unusual with PW1 which required her grandmother's attention. PW2 took FH to Levolosi hospital where she was given some medicine. However, PW2 noted something unusual with PW1 as she was not walking normally which triggered her inspecting PWl's vagina and anus. According to PW2, the inspection revealed a wet pant and some discharge. Upon asking the victim, she disclosed to her what the appellant had done to her. Thereafter, PW2 proceeded to Mount Meru Hospital with her granddaughter the same day but nothing could be done to the victim without a PF3 which was obtained the following day at Unga Limited Police Station. After obtaining the PF3, PW2 took the victim to Mount Meru Hospital on 11 May 2021 where, Doctor Elibariki Samson Kaluwa (PW4) examined her and posted the findings in the PF3 he tendered and admitted in evidence as exhibit P2. From the examination, PW4 observed yellowish discharge in PWl's vagina, existence of reddish bruises in her labia majora and labia minora and absence of hymen. He concluded that the victim had been penetrated by a blunt object. Later, on 22 June 2021, WP 5897, Dsgt Rehema (PW3) of Arusha Central Police Station allegedly interrogated the appellant and recorded his 3

cautioned statement which he tendered in court and admitted in evidence as exhibit PI. In his defence, the appellant denied the accusations against him blaming PW2 for framing him up with the case allegedly out of extortion from her who he claimed to have been his paramour. The trial court found the case for the prosecution proven the essential ingredients constituting statutory rape; victim's age as 7 years through her own evidence and PW2; penetration through PW1, and PW2 corroborated by the PF3 (exhibit P2) and; the culprit being no other than the appellant through PWl's testimony and the cautioned statement in which he is recorded to have raped the victim. The first appellate court concurred with the trial court in its findings and sustained them resulting into an order dismissing the appellants appeal predicated upon three grounds. The appellant's dissatisfaction against the first appellate court's decision is upon six grounds out of which, five are in the memorandum of appeal lodged on 5 May 2024 and one in the supplementary memorandum lodged on 4 February 2026. The appellant appeared in person, unrepresented, during the hearing and invited the Court to find merit in the appeal based on the grounds in both memoranda and acquit him. He had nothing in elaboration. Ms. Janeth Sekule, learned Senior State Attorney, appeared representing the 4

respondent Republic resisting the appeal. Counsel addressed the Court on the grounds of appeal except the 2n d and 4th grounds which she invited us not to consider as not only they did not feature before the first appellate court but also not based on points of law worth the Court's consideration and determination. Ms. Sekule fully supported the impugned decision through which the first appellate court concurred with the trial court's findings resulting in the conclusion that the case against the appellant was proved to the required standard. However, counsel was candid that, the cautioned statement was irregularly taken by PW3 out of the prescribed period contrary to the dictates of section 51 of the Criminal Procedure Act ("the CPA"). She invited us to expunge it from the record but the remaining evidence was sufficient to prove the case independent of the purported confession in exhibit PI. Thereafter, Ms. Sekule addressed the Court on the supplementary ground faulting the first appellate court for sustaining conviction despite variance in relation to the place where the offence was allegedly committed between the charge and the evidence. Whereas the particulars of the charge show that the offence was committed at Moshono area, PW2's evidence was that it was at pallot Sokoni I. Initially, Ms. Sekule was persistent that no such variance existed, she threw in her towel midway and conceded it. She was forthright that, it rendered the charge unproven 5

more so when the prosecution made no attempt to have the charge amended in terms of section 251 (1) of the CPA. In the circumstances, counsel supported the appeal and invited the Court to allow it resulting in quashing conviction and setting the sentence aside. In view of the learned Senior State Attorney's concession, we need not belabour on the submissions in the grounds in the memorandum of appeal except to the extent it relates to the cautioned statement. With respect, we agree with Ms. Sekule on her submission in that regard mindful of the mandatory requirements of section 51 (1) of the CPA that a cautioned statement must be taken within four hours of arrest of the suspect unless the time for doing so is extended. According to PW2, she went to arrest the appellant at a bus stand on 11 May 2021 after reporting the matter to the police. The appellant for his part had three different versions on his arrest; 5 May 2021 during his evidence in chief; 10 May 2021 in cross examination and 22 June 2021 according to exhibit PI. Apparently, the prosecution did not adduce investigative evidence to prove the date on which the appellant was arrested and so, PW3's assertion that the appellant was arrested on 22 June 2021 remains as worthless as anything else. We note that in his evidence in chief, the appellant said that he was arrested on 5 May 2021 but we don't think that is correct considering the undisputed evidence that PW2 discovered the 6

appellant's wrong doing on 10 May 2021 and, in her own words at page 11 of the record, she went to arrest the appellant the following day after the first visit to Mount Meru Hospital. So, we take his arrest to have been on/about 11 May 2021. That means, the cautioned statement shown in exhibit PI to have been recorded by PW3 on 22 June 2021 was beyond the basic period of four hours set out under section 51 (1) of the CPA. Consequently, we expunge exhibit PI from the record for being illegally obtained. Next for our consideration is on the variance in relation to the place where the offence was allegedly committed, subject to the appellant's complaint in the supplementary memorandum of appeal conceded by the learned Senior State Attorney. Was it at Moshono area according to the charge or pallot sokoni I discerned from the evidence? Section 251 (1) of the CPA permits amendment, alteration or substitution of the charge whenever it occurs to the court that there is a variance between the charge and evidence at any time before judgment. Otherwise, failure to do is fatal to the prosecution as it amounts to the charge remaining unproven. See for instance; Issa Mwanjiku v. Republic [2020] TZCA 1801, Abel Masikiti v. Republic 2015] TZCA 8 and Ntobangi Kelya & Another v. Republic [2021] TZCA 393. It was not suggested in evidence that, Moshono area and Pallot Sokoni I are one and the same. Since the 7

prosecution did not seek to amend the charge, the variance between the charge and the evidence as to the place where the offence was committed rendered the charge unproven. In the event, we allow the appeal in the supplementary ground with the net effect that, the trial court's finding of guilty sustained by the first appellate court is set aside and substituted with a finding of not guilty. Consequently, the conviction is quashed and sentence set aside. The appellant shall be released forthwith from prison unless his continued incarceration is upon a lawful cause. DATED at ARUSHA this 3r d day of March, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered virtually this 3r d day of March 2026 in the presence of the Appellant in person, Mr. Philibert Morrison Msuya, learned State Attorney for the Respondent/Republic and Mr. Fahmi Karemwa, Court clerk, is hereby certified as a true copy of the original.