Ramadhani Musa Ramadhani vs Republic (Criminal Appeal No. 652 of 2024) [2026] TZCA 175 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. J.A.. MASOUD. 3.A. And FELESHI, J.A.) CRIMINAL APPEAL NO. 652 OF 2024 RAMADHANI MUSA RAMADHANI...................... ...................... APPELLANT VERSUS REPUBLIC............................................* ................... * ............RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Masabo, 3J dated the 14th day of June, 2024 in DC. Criminal Appeal No. 40 of 2023 JUDGMENT OF THE COURT 11th February & 2n d March, 2026 FELESHI. 3.A.: The appellant, Ramadhani Musa Ramadhani, is contesting the conviction and life imprisonment sentence meted to him by the District Court of Kondoa (the trial court), which was confirmed by the High Court of Tanzania sitting at Dodoma (the first appellate court) for the charge of unnatural offence, contrary to section 154 (1) (a) of the Penal Code Chapter 16. It was alleged that, on diverse dates in 2021 at Mlua Village within Kondoa District and Dodoma Region, the appellant carnally knew R.R. (his name concealed and hereinafter referred to as "the victim"), a boy aged four years, against the order of nature. Upon the appellant's plea of not guilty, the prosecution called five witnesses in support of its case: Adam Juma (PW1); the victim (PW2); Sada Ally Said, a street executive officer (PW3); Florence Hilary, a medical doctor (PW4); and G.2990 D/CPL Joseph (PW5). The prosecution also tendered one exhibit, the victim's PF3 (Exhibit PI). The prosecution evidence in a nutshell was that, the appellant resided in Mlua Village with the victim, his biological son, following his separation from his wife. While living in the village, allegations emerged that he had been subjecting the victim to severe physical abuse, including beating him and, at times, burning his hands. On an unspecified date and month, a person who was grazing cattle near the appellant's residence reportedly heard a child crying for help. The matter was reported to PW3. Subsequently, on 7th December 2021, during a general village meeting, the villagers discussed the appellant's alleged acts of cruelty against the victim including sodomy. According to PW1, he discussed the matter with PW3. On 21s t December, 2021 based on the information given by PW1 that he heard a child crying inside the appellant's house, PW3 ordered the village militiamen to arrest the appellant, which they did, and took him 2 together with the victim to her office. PW3 conducted a physical examination of the victim's anus and observed a white discharge. On that basis, they suspected the appellant to be responsible and escorted both him and the victim to the police station where they were issued with a PF.3. Thereafter, the victim was taken to a hospital where PW4 examined him and found his sphincter muscles and anal tone were reduced and she concluded that, the victim had been sodomized. The victim's PF3 was tendered and admitted in evidence as Exhibit PI. PW2 testified that, the appellant was inserting his "dudu" into his anus and was burning his hands. On his part, PW5 testified that, upon interviewing the victim, who was brought to him by PW1 and PW3 on 21s t December, 2021, he informed him that it was the appellant who had sodomized him. In his defence, the appellant testified as the sole defence witness (DW1) and denied committing the offence charged. He stated that, he was arrested by local militiamen while working on his farm, following allegations made by his uncle to PW3 that, he had slaughtered a donkey and a cow. He further testified that, after an exchange of words with the militiamen and PW1, he was severely assaulted and he sustained injuries inflicted with a machete. Additionally, he alleged that the same individuals who assaulted him forcibly sodomized both him and his son. Based on the foregoing evidence, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. Consequentiy, as aforesaid, the appellant was convicted and sentenced to life imprisonment. Aggrieved, he preferred his first appeal before the first appellate court which dismissed it, and both the conviction and sentence were upheld. Still aggrieved, he preferred the instant appeal. The appellant's appeal to this Court was originally predicated on fifteen grounds as set out in both the main memorandum of appeal and the supplementary memorandum of appeal. However, during the hearing of the appeal, the appellant abandoned all except three grounds, namely the 1 st, 7th and 13th grounds as contained in the main memorandum of appeal, which are paraphrased hereunder: 1. First Ground-That the first appellate court erred in law in upholding the decision o f the trial court on a charge that was not proved beyond reasonable doubt against the appellant 2. Seventh Ground-That the two courts below erred in law in acting upon an Illegal and defective charge sheet which failed to indicate the date o f the alleged offence as required by law. 3. Thirteenth Ground-That the two courts below erred in law and fact to Ignore the appellant's defence case. Ms. Tussa Mwaihesya, learned Senior State Attorney, who appeared on the hearing date to represent the Republic, the Respondent, assisted by Ms. Prisca Kipagile, learned State Attorney, readily conceded to the appeal. On his part, the appellant, who appeared in person and was unrepresented, welcomed the concession and the learned Senior State Attorney was granted leave to address the Court first, while the appellant reserved his right to respond, if need arises. Ms. Mwaihesya argued the 7th ground first. She submitted that, they supported this ground because the charge sheet which is the heart of any criminal proceeding should conform to the evidence. And in the event the evidence varies with the charge, they have powers under section 251 of the Criminal Procedure Act, Chapter 20 (the CPA), to amend the charge. The charge has to be complete and should state who, when, where, and to whom the offence was committed as per section 135 of the CPA. She argued that making a charge understandable to an accused promotes a fair trial, and the opposite leads to an unfair trial. To support her argument, she cited the cases of Ladislaus Baltazari Kalaba v. Republic [2025] TZCA 247 and Mayala Njigailele v. Republic [2016] TZCA 253. According to Ms. Mwaihesya, the charge in the matter at hand particularized that the offence had been committed on diverse dates in 2021. However, the evidence by PW3, PW4, and PW5 indicated that the alleged sodomy was revealed on 21s t December, 2021. To her, by this evidence that specified the date when the victim was examined and found with white discharge in his anus would have led to the amendment of the charge to specify the date. Short of that, in Ms. Mwaihesya's view, rendered the charge to remain vague on the time of the commission of the offence, which affected the appellant's ability to prepare his defence because he remained uninformed of which date or month in 2021 the alleged offence was committed. For that reason, she held the view that the charge was fatally defective. She related the circumstances to those in the cases of Ladislaus Baltazari Kalaba (supra) and Mayala Maya la Njigailele (supra) where the Court held that the charge should specify the time of the incident so that the accused can be able to marshal a reasonable defence. About the 1s t and 13th grounds of appeal, which complained that the case was not proved to the standard required by the law and that the defence evidence was ignored, Ms. Mwaihesya supported these grounds, contending that, had the trial and the first appellate courts considered that the prosecution did not call any witness from the persons who arrested the appellant, his defence that those who arrested him sodomized him and the victim remained unchallenged, and therefore would have found that the prosecution's evidence was doubtful. She added that, the appellants defence was raised after the prosecution failed to call a witness from the person who arrested the appellant, of which the courts below were not seized with evidence to weigh against the defence and the doubt had to be resolved in the appellant's favour. Ms. Mwaihesya, therefore, urged the Court to allow the appellant's appeal. After the learned Senior State Attorney had rested the respondent's case, the appellant was invited to rejoin. He stated that, he had nothing to add and left the matter to the Court for determination. To start with, the 7th ground impugned the legality of the charge sheet. At the outset, we are inclined to affirm the submissions by Ms. Mwaihesya regarding the centrality and indispensability of a proper charge in criminal proceedings. It is trite that a charge is the foundation upon which a criminal trial is initiated, as it informs the accused person, with precision and clarity, of the nature of the accusation he is called upon to answer. Without reciting a plethora of authorities on the point, it suffices to reiterate the observation made by the Court in Francis Fabian @ Emmanuel v. Republic [2023] TZCA 17936, wherein it was aptly stated that: "The charge sheet is a heart, brain and blood o f criminaljustice and fair trial. It plays a duo role o f informing the accused person on the nature o f his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial." In the matter at hand, Ms. Mwaihesya quickly pointed out that, the charge which was placed before the appellant's door was vague regarding the time of commission of the offence. Without hesitation, we uphold this contention. Indeed, the charge in this matter had this defect that rendered it fata!. Its impugned particulars of the offence read that: ' ! RAMADHANI MUSA RAMADHANI, on diverse dates, 2021 at Miua village, within Kondoa District in Dodoma Region, did have carnal knowledge o f one R.R. a boy o f 4 years against the order o f nature." With the above framed particulars, the charge effectively permitted the prosecution to adduce evidence relating to any date between 1s t January and 31s t December, 2021. Likewise, the appellant was compelled to prepare his defence in respect of the entire span of that year. However, once the prosecution called PW3, PW4 and PW5, whose testimonies consistently pointed to 21s t December, 2021 as the specific date on which the alleged offence occurred, the broad time frame became plainly unjustified. Their evidence was categorical that the appellant was suspected of having sodomized the victim on that date; that, the victim's anus was examined by PW3 immediately thereafter; that, the appellant was arrested on the same day and taken to the police station; and that, the victim was escorted to hospital and medically examined by PW4 on that very date. In light of such precise and date-specific evidence, there was no reasonable basis for framing the charge so as to encompass the margin of the entire calendar year of 2021. The inclusion of such a wide time span was wholly unnecessary, manifestly prejudicial to the appellant, and patently inconsistent with the prosecution's own evidence, which was strictly confined to the 21s t December, 2021 event. Therefore, unlike the position obtained in Yustus Aidan v. Republic [2022] T7CA 622, where the variance complained of concerned the dates 03/04/2014 and 04/04/2014 as reflected in the PF3 and PW2's evidence which this Court found to be inconsequential, reiterating that the specification of a date in a charge is not a legal requirement unless time is of the essence, the circumstances in the present case are materially distinguishable. Here, the defect was not a minor discrepancy between two proximate dates, but rather the framing of the charge over an unnecessarily wide period despite the prosecution's evidence being confined to a specific and identifiable date. In such circumstances, an amendment ought to have been effected to cure the vagueness to mount a charge with sufficient particularity to enable the appellant to prepare and present a fairly guided defence. In Ladislaus Baltazari Kalaba (supra), we underscored that: "In the premises, the omission to amend the charge did not oniy negatively impact on the p/vsecution case, but prejudiced the appeiiant who was not aware o f the specific date o f the occurrence o f the aiieged offence for him to make a rational defence." In this matter, therefore, we are inclined to agree with Ms. Mwaihesya's view that, the charge and evidence materially varied and the prosecution ought to have sought amendment of its charge under section 251 of the CPA, as failure to do so rendered the case unproven. 10 Conversely, the total effect in the foregoing discussion resolves the 1s t ground of appeal in favour of the appellant, as it generally assailed the prosecution's case for not being proved beyond reasonable doubt. Having held so, we would have ended there, but for the sake of completeness, we find it consequential to also have a word on the appellant's complaint that, his defence was ignored. On this, we shall be guided by the law that, criminal convictions must be based on a balanced evaluation of the entire evidence on record, that is, prosecution and defence evidence. For further guidance see- Hassan Singano @ Kang'ombe v. Republic [2022] TZCA 261. The appellant's defence was that, he had himself been sodomized by the persons who arrested him, and the same individuals were responsible for the sodomy of the victim. Although, as correctly submitted by the learned Senior State Attorney, that this line of defence emerged only after the close of the prosecution's case, we have observed that certain evidential gaps remain noteworthy. First, none of the individuals described by PW3 as militiamen, nor any other persons involved in the appellant's arrest, were called to testify regarding the circumstances under which he was apprehended and to encounter his alleged assault when he was being escorted to PW3's office, and subsequently to the police station. Neither party invoked the court's powers under section 209 of the CPA to summon those witnesses. Their absence left unresolved material questions surrounding the appellant's arrest and the injuries he alleged were attended at the hospital. Secondly, no action appears to have been taken against Hassan Musa, whom PW3 mentioned in connection with the victim's abuse after taking him to PW4 as reflected at page 10 of the record of the appeal. The omission weakened the prosecution's narrative. More significantly in connection to the defence case is a material inconsistency between the testimonies of PW3 and PW4 regarding who escorted the victim to the hospital. While PW3 asserted that, she personally took the victim to the hospital, PW4 testified that, the victim was brought to her by a police officer identified as Waziri Nyagawa in the company of the appellant. This latter account, to some extent, lent support to the appellant's claim that, he received medical treatment at the hospital, including stitches to his wounds. This contradiction on a material aspect of the prosecution's case was neither reconciled nor satisfactorily addressed by the two courts below. When considered alongside the defence case, we found the inconsistency undermined the coherence and reliability of the prosecution's evidence as a whole and casted doubt on whether the charge was proved beyond reasonable doubt. 12 With respect, for interest of substantive justice, we find ourselves constrained to hold that, this case as a whole, was poorly investigated and weakly prosecuted. The record discloses material gaps and manifest deficiencies which ought not to have occurred in the charged grave offence. Vital witnesses were not called; crucial aspects of the prosecution narrative were left unexplored; and certain evidentiary links necessary to establish the charge beyond reasonable doubt remained tenuous or altogether absent. We had occasion to express a similar standpoint in Chacha Ng'era v. Republic [2013] TZCA 2194 and Bujiku Mzigo v. Republic [2024] TZCA 446, where this Court underscored that inadequate investigation and perfunctory prosecution cannot form a sound basis for sustaining a conviction, for they inevitably occasion doubts which must, in accordance with settled principles of criminal justice, be resolved in favour of the accused. In view of the foregoing discussion, we are satisfied that, had the trial court and the first appellate court properly evaluated the shortcomings we have endeavoured to highlight above, they would not have arrived at the erroneous conclusion that the prosecution had proved its case beyond reasonable doubt. 13 Consequently, and on the strength of the foregoing discussion, the appeal is hereby allowed. The conviction of the appellant is quashed and the sentence of life imprisonment imposed upon him is set aside. We order that he be released forthwith from prison custody unless he is otherwise lawfully held. DATED at DODOMA this 2n d day of March, 2026. Judgment delivered this 2n d day of March, 2026 in the presence of the appellant in person, Mr. Abdulkheri Sadiki, learned State Attorney for the respondent and Mr. Oscar Msaki, Court Clerk via virtual Court; is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL 14