Petro Maro vs Republic (Criminal Appeal No. 546 of 2023) [2026] TZCA 213 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYAN6A (CORAM: LILA. J.A.. MAIGE. J.A. And MANSOOR. J.A/l CRIMINAL APPEAL NO. 546 OF 2023 PETRO MARO................................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) LNonqwp, J.) dated the 7th day of October, 2022 in Criminal Appeal No. 95 of 2021 JUDGMENT OF THE COURT 27h February, & 2nd March, 2026 MANSOOR, J.A.: The appellant, Petro Maro, appeared before the District Court of Shinyanga at Shinyanga where he faced the charge of incest by a male contrary to section 158(1) (a) and 159 of the Penal Code, Cap 16, R.E 2002. The particulars of the charge were that, on 29th September, 2020 at Lubaga Area, within Shinyanga Municipality in Shinyanga Region, the appellant had prohibited sexual intercourse with his daughter, a girl who at the time of the incident was fourteen years old. The appellant denied the charge, prompting the trial in which the prosecution called nine (9) witnesses and a medical report was tendered as exhibit PI. The prosecution's case was that, the victim was born in 2007 and by the time of the incident, she was 14 years old, and a standard VII student at Kambarage Primary School in Shinyanga. That, upon losing her mother in 2017, the victim stayed with her grandmother Bhoke Mwita (PW2) and in 2019, the appellant, who is her biological father, went for her and started living with her in a rented house in Shinyanga Town. The house had one room and a sitting room, and the victim used to sleep in the sitting room. It was alleged by the prosecution that, the appellant had carnal knowledge of his daughter several times but the particulars of the charge indicated that, he had carnal knowledge of her on 29th September 2020. The victim's story was that, her father used to drug her by putting the drugs in the biscuit and soda, as when she eats or drinks them, she would fall into a deep sleep. That, when she wakes up, she would always find her pants wet and her private parts lubricated in oil. That, in one incident, she woke up and found herself naked, she also saw her father naked, and when she switched on the lights, the appellant quickly slipped into his room. The records are silent as to when she reported the incidences of rape to the neighbors. 2 The neighbors, Tekla Michael (PW6) and Mwajuma Ramadhani (PW5), testified that the victim confided in them about the sexual abuse and other physical abuses from her father. The neighbours reported the matter to the Street Chairman, one Mariki Juma Mabasha (PW1). The police, alerted by a gender activist, Lucy Stanslaus (PW7), arrested the appellant on the night of 27th September 2020. Dr. Abbas Haji Rama (PW9), a retired medical doctor who was working at Shinyanga Referral Hospital, attended to the victim on 29th September, 2020. On physical examination, he noted the victim was penetrated as her hymen was torn and the vaginal canal was wide. The Police Form No. 3 (PF3) containing these findings was admitted as Exhibit PI. The appellant gave a sworn statement in his defence. He denied committing the offence stating that, he works as a watchman and never slept at home during the nights. He claims of the hatred from his neighbours as he was strict about his child as the neighbours were using her as their housemaid. That, the case against him was fabricated by the neighbours. After the trial, the trial court found the prosecution case proved beyond reasonable doubt, thus convicted the appellant of the offence of incest by male c/s 158 (1) of the Penal Code, and sentenced him to thirty (30) years imprisonment. His first appeal to the High Court was unsuccessful. Still aggrieved, the appellant filed his memorandum of appeal in which he complained of the following: 1. That both lower courts erred by failing to properly consider his defence. 2. That the courts erred in admitting the PF3 (Exhibit PI) whose contents were not read over to him, rendering the trial unfair. 3. That the victim's testimony was unreliable because she did not report the earlier incidents. 4. That the victim's testimony was incredible as her police statement was not tendered, raising the possibility of a fabricated case. 5. That the proceedings were vitiated by procedural irregularities leading to an unfair trial. At the hearing of the appeal, the appellant appeared unrepresented while the respondent Republic had the services of Mr. Jukael Reuben Jairo, learned Senior State Attorney assisted by Mr. Satuninus Kamala, learned State Attorney. Mr. Kamala took the floor and intimated to the Court that, the respondent supports the appeal, particularly on grounds one and four, in which the appellant complained that, the lower courts failed to consider his defence and that, the testimony of the victim was not credible raising the possibility of a fabricated case against him. He also argued that, there were variances between the charge and the evidence on record. That, while the charge indicated that, the appellant committed the offence on 29th September, 2020, all the prosecution witnesses gave their testimonies to the effect that, the appellant was apprehended and taken to the police since 27th September, 2020, thus, by 29th September 2020, he was already under the police custody. That, he could not have committed the offence on 29th September 2020 while he was already under the police custody. Amplifying on this, Mr. Kamala submitted that, PW1, Mariki Juma, had testified that, he was informed of the crime on 27th September 2020, and that, the appellant was apprehended and taken to the police on 28th September 2020. Again PW7, the arresting police officer said, the appellant was arrested on 27th September, 2020 and this corresponded to the appellant's defence that, he was apprehended on 28th September, 2020. That, the appellant at page 34 of the proceedings while defending his case, he said, "how come I com m itted the offence while I was already under police custody." Yet, his evidence was not considered by the trial court as well as the first 5 appellate court on appeal. Mr. Kamala, thus, conceded that, the prosecution failed to prove the date of the commission of the offence. Mr. Kamala submitted further that, the victim's evidence who testified as PW2, was not credible, as sometimes she would say that, she was raped several times by her father but she also said while on examination in chief, that, it was only one time. Mr. Kamala, submitted therefore that, the prosecution evidence was contradictory as PW6, the neighbour said, the victim had confided in her that, she was being raped by her father since July, 2020, for about three months, while the victim herself never mentioned the period within which her father was raping her, as alleged. Mr. Kamala, therefore argued that, these contradictions in the prosecution's oral testimonies were so grievous that, they affected the credibility of the victim's reliability, and he urged the court to hold the contradictions in favour of the appellant. He rounded up his submissions by praying before the court to allow the appeal, and acquit the appellant of the charged offence. The appellant did not have anything for a rejoinder, and prayed for his acquittal. Having heard the submissions by Mr. Kamala in support of grounds one and four of the appeal, and having looked at the charge sheet and the evidence of the prosecution witnesses, specifically, that of the victim, 6 PW7, the arresting officer, and PW1, the Street Leader, the question we must grapple with is whether there are material variances between the charge and the evidence on record, that went to the substance of the case. It is true, as submitted by Mr. Kamala that, the charge sheet stated that, the alleged offence occurred on 29th September, 2020, while PW1, the Street Chairman who accompanied the police officers for the appellant's arrest stated that, on 27th September, 2020, the appellant was arrested and taken to police custody. This corresponds to the appellant's defence who stated that, he was arrested on 28th September, 2020, and by 29th September, 2020, he was still under the custody of police, and could not have committed the alleged offence while in the custody of the police. As submitted by Mr. Kamala, we also agree that, these were among the material contradictions in the evidence of the prosecution and should lead to the invalidation of the charge as per section 234 of the Criminal Procedure Code, Cap 20 R: E 2020, in which, the prosecution was required to amend the charge at the earliest in order to correspond with the evidence on record. We agree also that, there were material contradictions in the testimony of the victim, PW2, and that, these contradictions go into the substance of the case and were fatal to the prosecution's case. We understand that in Ridhiwani Nassoro Gendo vs Republic, (Criminal Appeal 201 of 2018) [2020] TZCA 1790 (30 September 2020), in which we stated that normal discrepancies in evidence are unavoidable due to lapse of time or such other factors as shock and horror at the time of the occurrences and that in any trial there are bound to be discrepancies, and in considering those discrepancies, the court must weigh whether they are minor or such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence. In the instant appeal, however, the variance on the dates of the incident, is so fundamental that, it affected the credence of the prosecution witnesses in that, the appellant could not have committed the crime while he was already in the custody of the police. The variance did go into the substance of the case. The variance on the dates between the one indicated in the charge sheet and the evidence did affect the substance of the charge. Indeed, in terms of section 234 (1) of the CPA (now section 251 (1) in R.E 2023), the charge sheet needed an amendment. 8 It is also important to point out that the victim who gave her testimony as PW2 did not state the dates in which the alleged offence was committed on her, and the dates mentioned by PW1 and PW7 as the date of the appellant's arrest did not tally with what is in the charge sheet, rendering the charge sheet utterly defective. Thus, it was an error on the part of the trial court to convict the appellant on a defective charge sheet. In Damas Mgova vs Republic (Criminal Appeal 13 of 2022) [2022] TZCA 657 (28 October 2022), we stated that, when the specific date is stated in the charge sheet as the date when the offence was committed, the prosecution is bound to prove that it was on that date when the offence occurred. We thus stated: 'It is settled law that it is the duty o f the prosecution to prove the allegation as la id in the charge". In the DPP vs Yussuf Mohamed Yussuf (Criminal Appeal 331 of 2014) [2014] TZCA 266 (10 December 2014) in which we quashed the conviction for indecent assault and unnatural offence as we found that the prosecution failed to prove the specific dates of the alleged offences as stated in the charge sheet, we concluded that the defect in charge sheet was fatal and not curable under Zanzibar Criminal Procedure Act No. 7 of 2004, we thus said: 9 "It is alw ays the duty o f the prosecution to make sure that; what is contained in the particulars or statem ent o f the offence including the dates o f when the offence was com m itted is proved and supported by the evidence and not otherw ise." The variance between the charge and the evidence created doubts as to when exactly the appellant is alleged to have committed the offence, and failure to give accurate particulars of the offence not only is fatal and violates the law, it also prejudices the appellant on his rights to understand the charge he is facing and denies him a right to a fair trial as he is not able to prepare for a defence. We stated in Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 8 that, variances between the charge and evidence on the date of the commission of the offence, render the charge unproven, we stated: "If there is any variance or uncertainty in the dates, then the charge m ust be am ended in term s o f section 234 o f the CPA. I f this is not done, the preferred charge w ill rem ain unproven and the accused sh all be entitled to an acquittal. Short o f that, failure o fju stice w ill occur." In the result, we subscribe to the admission made by Mr. Kamala that, in the present appeal, there are material contradictions between the 10 charge and the evidence, which has materially affected the prosecution's case, rendering the charge unproven on the required standard. In the end, 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 2n d day of March, 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, Ms. Mboneke Ndimubenya, learned State Attorney for the respondent/Republic via virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL li