Masano Shija Shomari vs Republic (Criminal Appeal No. 537 of 2023) [2026] TZCA 210 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA, J.A., MAIGE. J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 537 OF 2023 MASANO SHIJA SHOMARI .................................................. APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Massam, 3.^ dated the 28th day of July, 2022 in Criminal Appeal No. 117 of 2022 JUDGMENT OF THE COURT 25th February & 2n d March, 2026 LILA. J.A.: The decision by the High Court of Tanzania at Shinyanga sitting on first appeal in Criminal Appeal No. 117 of 2022, which arose from the decision of the District Court of Kahama in Criminal Case No. 238 of 2021, is being challenged before this Court. In that decision, the High Court upheld the appellant's conviction and a twenty years imprisonment sentence imposed on him after being convicted of the offence of grave sexual abuse contrary to section 138C(l)(a) and (2)(b) of the Penal Code [Cap. 16 R.E. 2019]. i

The charge alleged that, on 7thJune 2021, in the evening at Chambo Village, Ushetu District, Shinyanga Region, for sexual gratification, the appellant rubbed his penis on the vagina of a two-years' old girl whose name is withheld but for the purpose of this appeal, we shall conveniently refer to her as the victim. The accusation was refuted by the appellant at the trial and the prosecution lined up seven witnesses namely Maria Maziku (PW1), Mery Sadick (PW2), Mary Juma (PW3), Perpetua Masasi Mihayo (PW4), Nehemia Gogwini (PW5), Elisha Masunga Bernard (PW6) and Shingo Joseph Rashidi (PW7). They were brief in their respective testimonies. For the purpose of disposing of this appeal, the following constitute the substance of their respective testimonies. It all began by PW4 who was at Chambo dispensary attending to her patient who saw, when she went out to throw away her patient's urine, a person carrying a child (the victim). A little later, she could not find her bucket when she went outside again something that prompted her to ask where it was and was told that, it was with the person who had taken it for washing the victim. No sooner had she, again got out, than she saw the victim and other two children outside the hospital but the victim was screaming due to pains. She undertook the responsibility to check her and she found dirty things oozing out from her anal part. She handed the children to the nurses. PW2 and PW3 were children who, 2

together with the victim, went to play near Chambo Hospital and were concurrent that when they were playing, the appellant went to them and picked the victim and took her to the bush and when she took her back, she (victim) had her underpants stained with black matter and the appellant washed her. PW1 was the victim's mother who told the trial court that she received a phone call informing her that her child (the victim) was at Chambo Hospital without being told what was the matter. She rushed there only to find the victim sitting with other children but the tight she wore was wet and upon checking her properly she saw spermatozoa on her anal part. She took her to Chambo Dispensary where she was medically examined first by Doctor Gloria but the PF3 (exhibit Kl) was tendered by PW6 which had a finding that spermatozoa were found on the anal part of the victim. PW7, a nurse at Chambo Dispensary, checked the victim and found her with spermatozoa in her anal part. In his defence, the appellant admitted, on the material date, visiting Chambo Dispensary where he found children playing and he sat with them while waiting to meet a nurse. After that, he proceeded to defend himself, he left leaving the children only to be arrested later on the same day at 19:00hrs on accusation of raping a child, the accusation he stoutly denied.

Relying on the testimonies of PW2, PW3 and PW4 whose evidence was found to be circumstantial, the trial court was convinced that the chain of events as evidenced by those witnesses linked the appellant with the commission of the offence charged. The appellant was accordingly convicted and sentenced in the manner earlier on stated. Such was also the findings of the High Court on first appeal. Still protesting his innocence, the appellant is before the Court armed with a memorandum of appeal fronting four (4) grounds of appeal. However, in view of what transpired at the hearing of the appeal soon to be disclosed, it is of no essence to painstakingly bother to recite them. As was before the trial and first appellate court, the appellant appeared before us unrepresented. The respondent Republic enjoyed a joint efforts of Ms. Immaculata Mapunda, learned Senior State Attorney and Ms. Gloria Ndondi, learned State Attorney. Responding to the appellant's prayer to the Court to consider his grounds and decide the appeal in his favour, Ms. Ndondi straight away revealed the respondent's inclination not to resist the appeal, but for a different ground. Having seriously examined the charge and the prosecution evidence on record, it was her stance that there was an apparent variance between the charge and the evidence led by the

prosecution witnesses on the abused part of the victim. Submitting further, she stated that, while the charge claimed to be victim's vagina, the evidence sought to establish that it was the anal part which, in effect, constituted a different offence. On that account beefed with the prosecution's failure, at an appropriate stage, to seek leave of the court to amend the charge so as to accord with the evidence, she was of the view that, the appellant was prejudiced by the omission with the result that the evidence advanced did not prove the charged offence. That view, was positively and keenly received by the appellant who just urged the Court to allow his appeal and order his release from prison. On our part, we find the submissions by Ms. Ndindo valid and supported by the record. It is vividly clear, looking at the narrated particulars of the charged offence and the evidence summarized above that, they do not tally. They are incompatible. As shown above, the offence of grave sexual abuse was charged under section 138C(l)(a) of the Penal Code. That section provides: "any person who, for sexual gratification, does any act, by the use o f his genital or any other part o f the human body or any instrument or any orifice or part o f the body o fanother person, being an act which does not amount to rape under section 130, commits the offence o f grave sexual

abuse if he does so in circumstances falling under any o f the following descriptions, that is to say- (a) Without the consent o f the other person." As rightly submitted by Ms. Ndondi, all the prosecution witnesses and the PF3 (exhibit PI) show that the abuse, if any, was on the anal part. The particulars of the offence stipulated that: "Masano s/o Shija Shomari on the 07h day o f June, 2021 during evening hours at chambo Village within Ushetu District Council in Kahama district Shinyanga Region for sexual gratification did grave sexual abuse to "the Victim" a girl o f 02 years old by rubbing his penis to her vagina without her cmse/tf. "(Emphasis added) The main accusation was rubbing his penis on the victim's vagina. As proof that the appellant was prejudiced by the said variance, even the appellant's defence as reflected on page 43 of the record shows such a confusion created. The appellant defended himself against the offence of rape which was not the offence charged. He stated, in part, that: "Sijafanya kosa lolote, jioni saa 19:00hrs niiikamatwa kuwa nimebaka..." (Literally translated, means "I did not commit any offence, in the vening at 19:00hrs I was arrested on accusation o f raping children...) 6

There is, fortunately, no lacuna in our laws for section 234(1) of the Criminal Procedure Act, empowers the trial court to allow amendment of the charge at any stage of the proceedings in the event variance between the charge and evidence occurs. It provides: "Where in any stage o f the trial it appears to the court that the charge sheet is defective, either in substance or in form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or additional o f new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merit o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this sub section shall be made upon such terms as the court shall seem just." Unfortunately, the prosecution did not seize the opportunity they had under the law and exercise the right to seek leave of the trial court to amend the charge. Consequently, the omission is fatal and prejudicial to the appellant (See Issa Mwanjiku @ White vs Republic, Criminal Appeal No. 175 of 2018 and Mohamed Juma @ Mpakama vs Republic, Criminal Appeal No. 385 of 2017, (both unreported). 7

In sum and for the foregoing reasons, we entirely agree with Ms. Ndondi that, the charge against the appellant was not proved and we hereby allow the appeal and quash the appellant's conviction. We also set aside the sentence and hereby order his immediate release from prison if not held for another 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 M r. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. ~ D. R. LYIMO

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