Juma Abdallah vs Republic (Criminal Appeal No. 433 of 2023) [2026] TZCA 207 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA, J.A., MAIGE. 3.A. And MANSOOR. J.A.l CRIMINAL APPEAL NO. 433 OF 2023 JUMA ABDALLAH..................................................................APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Massam. J.^ dated the 26th day of May, 2023 in Criminal Appeal No. 108 of 2022 JUDGMENT OF THE COURT 24h February, & 2nd March, 2026 MANSOOR. J.A.: Juma Abdallah was charged and tried by the District Court of Meatu in Criminal Case No. 29 of 2022, for the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code (Cap 16 R: E 2019), and for impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016. The particulars of the offence stated that, on diverse dates between January and April 2022, at Bulyashi Village, within Meatu District in Simiyu Region, the appellant did have carnal knowledge of one Eunice d/o Shotto, a girl of sixteen (16) years old. On the second count, the particulars of the offence indicated that, on April 2022 at Bulyashi Village within Meatu District in Simiyu Region, the appellant impregnated one Eunice d/o Shotto, a pupil of Bulyashi Primary School. He was convicted and sentenced to 30 years' imprisonment for the offence of rape and 30 years' imprisonment for the second count of impregnating a school girl. The sentences were ordered to run concurrently. The appellant's first appeal to the High Court was unsuccessful, thus, this is the second appeal. The appellant raised a total of eight grounds of appeal, and at the hearing, the appellant appeared unrepresented while the respondent Republic was duly represented by Ms. Sophia Fidelis Mgassa, learned Senior State Attorney assisted by Ms. Nancy Medard Mushumbusi, learned Senior State Attorney. Ms. Mushumbusi conceded to the issue of variance between the charge and evidence on record raised by the appellant. In support of her concession, Ms. Mushumbusi submitted that, it is true that, there were variances between the charge and the evidence with regard to the period of the commission of the offence. She stated that, while the charge stated that, the offence was committed on 2 diverse dates between January and April 2022, and that the second count was shown to have been committed on April 2022, all the witnesses of the prosecution testified that, the offence was committed in January and February 2022. That, the victim who gave her testimony as PW1, stated that, she had sexual intercourse with the appellant in January and February 2022 while the charge extended it to March and April, 2022. Based on the discrepancies, Ms. Mushumbushi urged the Court to nullify the proceedings of the trial court as well as the High Court on appeal. She also prayed to the Court to quash the conviction and set aside the sentence and discharge the appellant. On our part, as submitted by Ms. Mushumbusi, we also noted that, while the contents of charge stated that, the appellant is alleged to have committed the offence on diverse dates between January to April 2022, PW1, the victim testified that, the last encounter with the appellant was in the month of February 2022. In her testimony, PW3, the mother of the victim testified that, she realised in the month of May 2022 when her child started vomiting and took her to the doctor for examination, and discovered that she was eight weeks pregnant. PW2, the doctor who examined her only confirmed that, by 31s t May 2022, the victim was eight weeks pregnant, and the medical document was produced, confirming that, the offence was committed before the month of March and April contrary to the periods indicated in the charge. We agree that, the charge did not contain accurate particulars of which diverse months the offence was committed. It is the requirement of the law that, every charge or information must contain sufficient particulars of the person charged, the date and time of the commission of the offence and other particulars so as to give necessary information as to the nature of the offence charged. In this case, even if the exact dates of the commission of the offence could not be given as perhaps the victim's memories had escaped it and that the offence was committed at various times or on separate occasions, or on different dates, the charge ought to have shown the diverse dates between the months of January and February so as to correspond with the evidence on record, but not beyond that period. Giving accurate particulars of the offence is the requirement of the law under section 135 of the Criminal Procedure Act, Cap 20 "CPA" that, the charge or information must contain all the particulars of the offence as accurately as possible to enable the accused to understand the crime he is facing. Section 135 of CPA provides: - "Every charge or information shall contain , and shall be sufficient if it containsa 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." Therefore, a charge for the offence of rape of girls under the age of eighteen years must indicate clearly and as accurately as possible, all the elements or particulars stipulated under section 130 (1), (2) (e) of the Penal Code. The charge must indicate that, the man or accused is alleged to have had sexual intercourse with a girl under eighteen years old, and that, the date or period in which the alleged offence was committed must clearly be shown. Similarly, for the offence of impregnating a school girl, the charge must indicate the period within which the girl was impregnated. In the present matter, and as demonstrated above, indeed there is variance between the charge and the evidence as the period of the commission of the offences indicated in the charge varied with the period mentioned by the prosecution witnesses. In Jamali Ally @ Salum vs R (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019), we emphasised the purpose of the charge sheet, that, it serves to notify a person charged of committing an offence and that, all the particulars of the offence charged must correctly and accurately be reflected in the charge to enable him to provide a defence. The essential matter is for particulars to be clear and understandable to the accused person to avoid prejudicing him. As demonstrated hereinabove, the charge being unclear on the period in which the appellant was alleged to have committed the offence, this has prejudiced the appellant on his rights to prepare a meaningful defence. See also 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). The risk of false accusation in sexual offences necessitates a cautious approach to ensure that, the evidence is credible and reliable. In the present case, the fundamental discrepancy in the periods of the commission of the offence between the charge sheet, the testimony of the victim, compounded by the lack of any explanation by the prosecution witnesses regarding the variances, the charge is rendered un proven. It is settled law that, it is prosecution's duty to prove the criminal case beyond reasonable doubt. In this regard, in Director of Public Prosecutions vs Philipo Joseph Ntonda (Criminal Appeal No. 68 of 2023) [2024] TZCA 298 (3 May 2024), we emphasised this requirement when we stated thus: "It is instructive to state, at the outset that, this being a criminal case, the burden ties on the prosecution to establish the guilt of appellant beyond reasonable doubt In Woolmington v . DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard ofproof is beyond reasonable doubt." The variances rendered the case for the prosecution unproved and that, the prosecution failed to discharge its burden of proving the guilt of the appellant beyond reasonable doubt. Consequently, we allow the appeal and quash the conviction entered by the trial court on both counts and confirmed by the High Court on appeal and the sentences meted thereon are set aside. In the end, we order that the appellant, JUMA ABDALLAH be released from prison, unless held for any other lawful cause. DATED at SHINYANGA this 27th day of February, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of the Appellant appeared in person by virtual Court, and Mr. Christopher Msuya, learned Senior State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL