Juma Charles vs Republic (Criminal Appeal No. 540 of 2023) [2026] TZCA 211 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: L I U J.A.. MAIGE. 3.A. And MANSOOR. 3.A.) CRIMINAL APPEAL NO. 540 OF 2023 JUMA CHARLES............................................................................ APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Shinyanga) f Hemed, J.) dated the 6th day of October, 2022 in Criminal Appeal No. 86 of 2021 JUDGMENT OF THE COURT 26th February & 2n d March, 2026 MAIGE. 3.A.: The offence for which the appellant was convicted by the District Court of Shinyanga (the trial court) and sentenced to 30 years' imprisonment, was rape contrary to section 130(1) and (2) (a) of the Penal Code which was allegedly committed against a girl of 9 years old (the victim) on the 11th day of November, 2020 at Kitangiri Area within Shinyanga Municipality in Shinyanga Region. The appellant appealed to the High Court against the conviction and sentence but his appeal was dismissed for want of merit. This is the second appeal. In the memorandum of appeal, the appellant raised six grounds and in the supplementary memorandum of appeal which was filed subsequently, he raised 12 i grounds. In essence, the grounds mainly raised one issue, namely, whether the case against the appellant was proved beyond reasonable doubt. The facts of the case briefly stated are as follows. The victim was living with her mother Mariam Eliya (PW1) and her father Paul Charles Masunga (PW4). The appellant was irrefutably the victim's paternal uncle. On 14th November, 2020, PW1 noticed something unusual with the victim having observed a drop of blood in her urine. Upon inspection of the victim's private parts , she saw some blood coming from her vagina and, the vagina was wide, signifying that she had been penetrated. The victim eventually disclosed to her that it was her uncle, the appellant, who raped her. The victim was taken to the hospital and medically examined by Dr. Hamis Machibya (PW5) and the result as per exhibit PI, was that she was penetrated. Afterwards, the victim was taken to another hospital for the second time, where she was examined and found infected with gonorrhea. Similarly, it asserted by PW1 that, subsequently, the appellant was medically examined and allegedly found with the same decease. The matter was reported to the police and the appellant was arrested, prosecuted, convicted and punished as afore stated. In his defence, he completely denied committing the offence. At the hearing, the appellant appeared in person without representation whereas the respondent Republic was represented Ms. Mwamini Fyeregete, learned Senior State Attorney who teamed up with Mr. Satuninus Kamala, learned State Attorney. When requested to address the Court on the appeal, the appellant fully adopted his grounds in the memorandum of appeal and supplementary memorandum of appeal and urged us to allow the appeal. On her part, Ms. Fyregete informed the Court that the respondent was supporting the appeal on the main ground that there is a variance between the charge sheet and evidence. She submitted that while the charge sheet asserts that the offence was committed on 11th November, 2020, the evidence suggests otherwise. For instance, the mother of the victim, PW1 testified as per page 10 and 11 of the record that, the victim told her that she could not recall the date of the incident. Conversely, the victim testifying as PW3 said it was a day before she had told her mother about the incident, meaning on 13th November, 2020 as PW1 claims to have been told on 14th November, 2020. With that variance, she submitted, it cannot be said that the case against the appellant was proved in the required standard. Additionally, she submitted, the evidence on the record is apparently incredible. She pointed out some elements which affect the credibility of such evidence. One, while the story of PW1 suggests that she was inspected and found with gonorrhea, the victim's father, PW4 testified that she was tested and found positive. Two, while in the oral testimony 3 of the doctor, it is suggestive that the victim was penetrated by a sharp object, the medical report indicates that it was by blunt object. With these discrepancies, such evidence, she submitted, should have not been found reliable. She concluded therefore that, the case against the appellant was not proved beyond reasonable doubt and the appeal should be allowed. With this submission, the appellant had nothing to add the rather than praying that the appeal be allowed and he be set free. On our party, we have examined the record and satisfied ourselves that, the particulars of the offence in the charge sheet differ with the evidence adduced on material respect. The date of the commission of the offence as per the charge sheet was on 11th November, 2020. That was among the allegations which the prosecution was obliged to prove. However, of the five prosecution witnesses, none provided evidence to establish that the incident occurred on the alleged date. Instead, their evidence was either silent on the date of the commission of the offence or asserted different dates from that indicated in the charge sheet. The testimony of the victim and her mother (PW1) has two suggestions. In the first place, it was on the day that the victim could not recall. In the second place, it was a day before 14th November, 2020 when the victim disclosed the ordeal to her mother, meaning on 13th November, 2020. PW3, the investigating officer, does not say anything on this aspect. He, however, reveals that the matter was assigned to him for investigation on 12th November, 2020, meaning that on that date, the incident had already occurred. With these discrepancies, the learned Senior State Attorney is quite right that there was variance between the charge sheet and evidence as regards the date of the commission of the offence. Under section 234 of the Criminal Procedure Act, the prosecution was expected to amend the charge to reflect the correct date before completion of the trial. That was not done. The legal effect of the omission, the law is settled, is to render the charge unproved and set the accused free. See for instance, Abel Masikiti v. R (Criminal Appeal No. 24 of 2015) [2015] TZCA 500, TANZLII; Emmanuel Kabelele v. R (Criminal Appeal No. 536 of 2017)[2021] TZCA 532, TANZLII and Fred Mtewele v. R (Criminal Appeal No. 87 of 2022) [2025] TZCA 1024, TANZLII. In the first case for instance, we observed: "In a number of cases in the past, this Court has held that it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. I f this is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal." In view of the foregoing, and without much ado, we are in total agreement with the learned Senior State Attorney that, because there is a variance between the charge sheet and evidence and, insofar as the charge against the appellant was not amended to eliminated the same, the case was not proved beyond reasonable doubt. The appeal, is therefore, allowed. As a result, 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 1s t day of March, 2026. 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. S. A. LILA JUSTICE OF APPEAL 1.1 MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL d . r T l y im o DEPUTY REGISTRAR COURT OF APPEAL 6