Shambuli Mbegesheni vs Republic (Criminal Appeal No. 544 of 2023) [2026] TZCA 212 (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. 544 OF 2023 SHAMBULI MBEGESHENI ......................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Hemed, J.) dated the 6th day of October, 2022 in Criminal Appeal No. 98 of 2021 JUDGMENT OF THE COURT 2ffh February, & 2n d March, 2026 MANSOOR. J.A.: The appellant, Shambuli Mbegesheni, was charged with, tried for, and convicted of the offence of attempted rape contrary to section 132(1) and (2)(a) of the Penal Code [Cap. 16 R.E. 2019]. The particulars of the offence alleged that, on 7thJune 2020, at Nguliati Village within Bariadi District in Simiyu Region, the appellant attempted to rape a nine-year-old girl. He was found guilty, convicted and sentenced to thirty (30) years' imprisonment. His first appeal to the High Court at Shinyanga in Criminal Appeal No. 98 of 2021 was unsuccessful, and this is the second appeal. The background facts leading to the charge, as appeared on record, are that, the victim (PW2), and the appellant are relatives, they were living with the victim's grandmother in Nguliati Village. On the fateful day, the appellant asked the victim to take water to the bathroom for him to take bath. The victim obeyed. As soon as the victim entered the bathroom, the appellant followed her and forcibly laid her down, removed her underwear, took out his penis and rubbed it on her thighs ("mapaja") until he ejaculated a whitish fluid, which he then smeared on her private parts. The victim cried aloud and the appellant fled the scene. The victim's grandmother, Elizabeth Manoni (PW4), heard the cry and rushed to the scene. She found the victim coming out of the bathroom, the victim told her grandmother what had happened insisting that, the appellant ejaculated on her thighs. PW4 examined the child and observed whitish fluid coming from her vagina. When the victim's mother, Mariam Mathias (PW1), returned home from work, she was informed of the incident. PW1 confronted the appellant, who allegedly admitted having had inappropriate contact with the victim but claimed he had not inserted his penis into the girl's vagina. PW1 herself examined the victim and noticed bruises and fluid in the girl's private parts. The matter was reported to Nguliati Police Station. On 8thJune 2020, the victim was taken to Nguliati Health Centre for medical examination. D r. Mohamed Abasi Omary (PW3) examined her and completed Police Form No. 3 (PF3), which was admitted as Exhibit PI. The doctor found bruises on the victim's waist but no evidence of vaginal penetration. In his defense, the appellant denied the allegations, claiming that, the family had fabricated the charges in order to seize his cotton harvests. Aggrieved by the decision, the appellant filed his memorandum of appeal marshalling four grounds. His complaints were that, the prosecution failed to call independent witnesses and that the lower courts relied on hearsay evidence of PW1 which was not credible and that, the charge against him was fabricated. He also complained that, the whole proceeding was vitiated with procedural irregularities. We shall not address the grounds of appeal raised in the memorandum, for the reasons which soon hereunder will become apparent. At the hearing, the appellant appeared unrepresented and simply adopted his grounds of appeal and prayed for his acquittal as he claimed to be innocent. The respondent Republic had the services of Ms. Sophia Fidelis Mgassa assisted by Ms. Nancy Medard Mushumbusi, both learned Senior State Attorneys. Before she submitted on the grounds of appeal, and when prompted by the Court on whether from the evidence on record, it was appropriate to charge the appellant for the offence of attempted rape, Ms. Mgassa readily conceded that, the evidence on record does not support the charge of attempted rape, rather, the appellant ought to have been charged for committing the offence of grave sexual abuse under section 138C of the Penal Code, Cap 16. We observed that, in attempted rape, there must be an intention to rape, that is to penetrate the male organ into the female genital organ but the act is interrupted, frustrated, or prevented by external circumstances such as resistance from the victim or intervention. Section 132 of the Penal Code provides for ingredients of the offence of attempted rape. It provides: S. 132(1) Any person who attempts to commit rape commits the offence of attempted rape, and except for the cases specified in subsection (3) is liable upon conviction to imprisonment for life, and in any case shall be liable to imprisonment for not less than thirty years with or without corporal punishment. (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman, he manifests his intention by— (a) threatening the girl or woman for sexual purposes; (b) being a person of authority or influence in relation to the girl or woman, applying any act of intimidation over her for sexual purposes; (c) making any false representations for her for the purposes of obtaining her consent; (d) representing himself as the husband of the girl or woman, and the girl or woman is put in a position where, but for the occurrence of anything independent of that person's will, she would be involuntarily carnally known. (3) Where a person commits the offence of attempted rape by virtue of manifesting his intention in the manner specified in paragraph (c) or (d), he shall be liable to imprisonment for life and in any case for imprisonment of not less than ten years. Thus, in attempted rape, a person must have the intent to procure prohibited sexual intercourse with any girl or woman, and he manifests his intention by doing either of the following: (a) threatening the girl or woman for sexual purposes; (b) being a person of authority or influence in relation to the girl or woman, applying any act of intimidation over her for sexual purposes; (c) making any false representations for her for the purposes of obtaining her consent; (d) representing himself as the husband of the girl or woman, and the girl or woman is put in a position where, but for the occurrence of anything independent of that person's will, she would be involuntarily carnally known. Black's Law Dictionary (7th Ed.) defines "attempt" as: 1 . The act or an instance of making an effort to accomplish something, esp. without success. 2. Criminal Law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime. This shows that attempted rape requires acts directed at achieving penetration but falling short of it. The intention to procure the prohibited sexual intercourse must have been interrupted either by the resistance of the victim or any other interruption, thus, the actual penetration is not there, it did not happen and the person has not accomplished his intentions of having prohibited sexual intercourse. Section 132 of the Penal Code requires the prosecution to prove, the intention (mens rea), and the execution of the intention (actus reus). That, the appellant's intention was to rape the victim, but the actus reus was frustrated or interrupted. The prosecution was required to prove the actions taken by the appellant which would have led to rape, but did not succeed, as attempted rape is unsuccessful rape. The prosecution needed to adduce 6 evidence which would have proved beyond reasonable doubt that, the appellant was attempting to penetrate the girl's vagina. In the instant appeal, PW2, the victim testified that, the appellant followed her to the bathroom, undressed her, laid her down and rubbed his male organ on her thighs, and ejaculated. There was no attempt to penetrate the girl's vagina. The girl said, at page 10 of the records: "alitoa mboo akaanza kunigusisha kwenye mapajcl', literally meaning that, he rubbed his penis on the girl's thighs. The victim's evidence was that, "then there was white fluid", meaning that, the appellant ejaculated. This shows that, there was no attempt to penetrate the girl's vagina but there was grave sexual abuse as the appellant had accomplished his unlawful sexual desires. Similarly, the medical evidence was clear that there was no penetration, and the girl had bruises on her waist. Thus, there was no medical evidence to suggest there was an attempt to penetrate. Therefore, based on the evidence, it is clear that there was no attempted penetration. Since there was the evidence of the victim and the evidence of the victims' grandmother who saw the white fluids coming from the girl's private parts, and since the medical evidence did not show that, there was an attempt to penetrate the girl's vagina, the proper charge, as submitted 7 by Ms. Mgassa, would have been grave sexual abuse under section 138C of the Penal Code. Section 138C (1) state that; 138C. -(1 ) A 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 f another person, being an act which does not amount to rape under section 130, commits the offence o f grave sexual abuse". Therefore, if the prosecution had charged the appellant under section 138C, it would have shown in the charge that, for sexual gratification, the appellant used his genital organ to rub it on the victim's thighs, being the act which does not amount to attempted rape under section 132 of the Penal Code, and thus, he committed the offence of grave sexual abuse. Thus, as demonstrated above, there was apparent variation between the charge and the evidence on record. We have stated in a plethora of our decisions that, where there is variation between the charge and evidence on record, the effect is to render the charge unproven. See the case of Fredy Mtewele vs Republic (Criminal Appeal No. 87 of 2022) [2025] TZCA 1024 (6 October 2025), in which we emphasized that, when there is variance between the charge and the evidence, prosecution is required to amend the charge in terms of section 234 (1) of the Criminal Procedure Act (CPA), and failure to amend the charge so as to align with the evidence on record renders the case unproven. See also Emmanuel Kabelele vs R (Criminal Appeal No.536 of 2017) [2021] TZCA 531 (23 September 2021) in which we quoted with approval the case of Abel Masikiti vs R [2015] T.L.R. In Abel Masikiti, we stated: "If there is any variance or uncertainty in the dates, then the charge must be amended in terms o f section 234 o f the CPA. I f this is not done, the preferred charge wiii remain unproven and the accused shall be entitled to an acquittal. Short o f that, failure o fjustice will occur." Again, we emphasised in Said Musa Soweni vs R (Criminal Appeal No.93 of 2020) [2022] TZCA 218 (22 April 2022), that: "The law is settled that, a charge which is material conflict with the witnesses' testimonies materially shakes credence o f the prosecution case and renders the prosecution case not proved to the required standard". In the result, we subscribe to the admission made by Ms. Mgassa that, in the present appeal, there are material contradictions between the charge and the evidence, which has materially affected the prosecution's case, rendering the charge unproven on the required standard. 9 In the end, based on the apparent variance between the charge and the evidence, which rendered the charge unproven, 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 28th day of February, 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 I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL