Idd Musa Ramadhan vs Republic (Criminal Appeal No. 83 of 2024) [2026] TZCA 151 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO. J.A.. MASHAKA. 3.A. And NGWEMBE. J.A.:1 CRIMINAL APPEAL NO. 83 OF 2024 IDD MUSA RAMADHAN................... ...........................................APPELLANT VERSUS THE REPUBLIC ............................. ...................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Kiwonde. J.l dated the 14th day of November, 2023 in Criminal Appeal No. 152 of 2022 JUDGMENT OF THE.COURT 19“' & 27"’ February, 2026 NGWEMBE. J.A.: In the Resident Magistrate's Court of Arusha, the appellant was charged with one count to wit: rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2019. According to the particulars laid against the appellant, on 1st of January, 2021, the appellant had sexual intercourse with a girl aged 18 years without her consent. When the charge was read over and explained to him, he pleaded not guilty. Following his denial, a total of five witnesses testified and one documentary exhibit was tendered on the side of the respondent Republic, while the appellant defended himself with a very brief denial, that; "/ do not know anything and I have nothing to talk about"N l the end of full trial, the trial court was satisfied that the appellant committed the offence, thus, he was found guilty as charged. The trial court convicted and sentenced him to thirty years imprisonment. Dissatisfied with the outcome of the trial, the appellant unsuccessfully appealed to the High Court, hence the instant appeal. Brief factual account underlying the conviction and sentence of the appellant is as follows: on the eve of the new year of 2021 at around 7:45 hours, the victim NH (PW1) was with Amina Salum (PW5), where on * 1 the way home from the church located at Uswahili area when they met with one person called Kipele a tricyclist (dereva Bajaji). Kipele robbed their mobile phones and asked them who was the older amongst them. The victim appeared to be older to Amina Salum. Then Kipele took her into the tricycle where two other boys were there and drove to Mlimani area. Kipele and another man raped , her. The victim recounted that, having been raped she went back to Amina's house and together they slept till the next day. In the morning, she went to church and she did not " / „ disclose the ordeal that she underwent the previous night. However, the victim and her friend Sophia went to report to Unga Limited Police5 Station, where a PF 3 was issued. She was examined at Levolosi Health • 2 ' Center. On 5th January,. 202.1 the police, investigator called her to. go and. identify the culprit at police identification parade, where she is said to have identified Kipele and also identified him at the dock during trial. The evidence of Amina Salim (PW5) partly supported the assertion of the victim on the evening of the new year ceremony. When the culprit took the victim on a tricycle, she went home and slept. At night, the victim came to her house and together they slept till the next day. WP 8230 D/CPL Raphael (PW2) at Arusha central police, interrogated the appellant and recorded his cautioned statement which was not tendered in court as an exhibit. Instead, he tendered PF3 which was admitted as exhibit PI. PF 50241 Assistant Inspector Tunu (PW3) of Arusha District Police Station, testified to have organized the identification parade, where the victim identified the perpetrator of rape. The Identification parade register form was admitted in evidence and marked exhibit P2. Lastly, Neema G. Gabriel (PW4) a justice of peace testified on how she recorded the extrajudicial statement of the appellant which was admitted as exhibit P3. Despite his defence, which was very brief and of a general denial, the trial court found him guilty and passed sentence and order as alluded to above. Being dissatisfied with his conviction and sentence, he 3 .unsuccessfully appealed.to. .the..High .Court..JJndaunted and.intending. to- defend his innocence, the appellant is in the Court with eight grounds of appeal in the original memorandum lodged on 5th March, 2024 and two additional grounds in his supplementary memorandum of appeal lodged on 2n d February, 2026 forming an aggregate of eleven grounds of appeal, which can be conveniently paraphrased into the following grounds of complaints: one, that there was substantial variance between the charge and the evidence adduced by the prosecution witnesses during the trial; two, the prosecution witnesses were not credible; three, the visual identification of the appellant at the scene of crime was not water tight; and four, the prosecution case was not proved beyond reasonable doubt. On the day of hearing this appeal, the appellant entered appearance unrepresented, while the respondent Republic was represented by Ms. Marietha Maguta assisted by Mr. Abdon Bundala, both learned State Attorneys. When the appellant was invited to submit on his grounds of appeal, he opted to adopt his grounds of appeal together with his written statement of arguments lodged in Court on 2n d February, 2026. He thus, implored the Court to consider them and allow the appeal. 4 In the adversarial side, Ms. Maguta intimated to the Court the respondent's stance to support the appeal on the ground that the offence was not proved to the required standard. She elaborated that there were serious variances between the charge and the adduced prosecution evidence. She elaborated those variances that; the place where the alleged rape was committed departed from what was in the charge. While the charge provided that it was at Sokoni area, PW1 alleged that the incident took place at Mlimani area. Moreover, PW5 who was with the victim did not testify on the place where the incident of rape occurred. Another equally important variance is on the name of the victim. The charge indicated that her name was NH, while PW1 testified her name is Neema Hillary. Since she was of the age of majority, there was no need to hide her identity, thus making the victim unknown. In regard to the identity of the alleged culprit, the charge named him as Iddi Mussa @ Ramadhani while the evidence of the victim, throughout her evidence named the rapist as Kipele. None of the prosecution witnesses managed to name the appellant as the culprit of the alleged rape as charged. In regard to the authenticity of the charge, Ms. Maguta argued that the charge was defective because according to the evidence of PW1 and PW5, the culprits were three and that two of them raped her, thus the 5 proper offence ought to-have been gang rape contrary to section~131A of the Penal Code, Cap 16 R.E. 2023, which hold different punishment. She also challenged the propriety of the identification parade whose form was not signed. In the circumstances, the learned State Attorney, urged the Court to allow the appeal. After a careful scrutiny of the record before us, the points of grievance and the submissions made by the parties, the main issue for our determination is whether the charge was properly drafted and proved beyond reasonable doubt against the appellant. In this appeal, we intend to be guided by the principles of criminal justice that the cornerstone of any criminal case is the charge. The charge has a role of informing correctly the accused on the nature of his case and allow him to prepare his defence. Also, the charge plays a role of notifying the trial court on the subject matter with a view to determine its jurisdiction and prepare proper procedure to be applied during trial. Therefore, the charge is the most important documient in any criminal trial. See; Charles s/o Makapi v. Republic (Criminal Appeal No. 85 of 2012) [2014] TZCA 247 (19 June 2014) and Marekano Ramadhani v. Republic, Criminal Appeal No. 202 of 2013 (unreported). Therefore, framing a charge is a serious duty where due care is required. It becomes 6 even more vital to do so when an accused person is faced with a grave offence attracting long imprisonment sentence like sexual offences. In respect to the instant appeal, it is clear to us that, both parties are at one that before the trial court, the charge contained incorrect information contrary to the prosecution evidence, as follows: first, according to the charge, the alleged victim's name was NH while her actual name as per her evidence in page 19 of the record of appeal is Neema Hillary. Also, the charge indicated that her age was 18 years, but in her evidence, she testified that she was 20 years, the difference of two years within a span of one year. Such difference was not a condonable anomaly. More so, the charge indicated the place of incident of rape was at Sokoni I area, while the victim testified that it was at Mlimani area. The most challenging fact is the name of the appellant, while the charge indicated that the culprit was Iddi Mussa Ramadhani, the evidence of the victim named the culprit as Kipele throughout her evidence. There was no explanation from the prosecution as to whether Iddi Mussa Ramadhani is also known as Kipele. That omission in our view, worsened the situation. The irreconcilable variances between the charge and evidence, indicates that the change, at best, was defective incapable of being proved. Pursuant to section 234 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Laws, (the CPA), when such a situation, happens, the. charge should be substituted with a correct one capable of being proved by evidence. For clarity, the section is reproduced as follows: "Where in any stage o f the tria l it appears to the court that the charge sheet is defective, either in substance or in form, the Court may make such order fo r 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 m eet the circum stances o f the case unless, having regard to the m erit o f the case, the required amendments cannot be made w ithout injustice; and a ll amendments made under the provisions o f this sub section sh all be made upon such term s as the court sh all seem ju st." In the above circumstances, failure to amend a charge is fatal and prejudicial to the appellant denying him a fair trial. The consequences therefrom were made in a good number of our decisions including Mohamed Juma @ Mpakama v. Republic, Criminal Appeal No. 385 of 2017 [2019] TZCA 518, Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018 [2020] TZCA 1801 and Hussein Kausar Rajan v. Republic, Criminal Appeal No. 670 of 2020 [2022] TZCA 571. 8 In the circumstances, we are satisfied that there was no evidence on record which could have been safely relied upon to prove the charge placed before the appellant. More so, the available contradictions indicated above, vitiated the whole prosecution case and were incapable of sustaining conviction on the alleged offence of rape. It is our further view that, had the trial court and the first appellate court considered the validity of the charge as against the adduced evidence, certainly they would have come to the inevitable finding that it was not safe to sustain the appellant's conviction. Giving the deserving consideration of the victim's evidence (PW1) and PW5 who was also alleged to have been beaten at the crime scene, the credibility of both witnesses was tainted with the following challenges: first, the victim after the alleged rape went and slept at PW5's home without disclosing the incident to anyone; second, the following morning she never disclosed to her mother or sister or any close relative; third, until she went to report to the police with Sophia, her mother was not aware of what had befallen her daughter; and fourth, failure to name the culprit at the earliest possible time tarnished her credibility. Equally, important is the conduct of PW5 at the crime scene and thereafter, she testified that the culprits robbed their mobile phones and she was beaten but instead of reporting the incident to the 9 authorities, she went to sleep at home without reporting to anyone or seeking assistance to help PW1 who had with robbers. Such conduct lowered her credibility. It is the stance of this Court which is well established that a victim who cannot report the alleged rape at the earliest, her credibility will be shaken. See; Al-Jabir Juma Mwakyoma v. Republic (Criminal Appeal No. 463 of 2018) [2021] TZCA 527 (27 September 2021) and Simon Gabriel & Another v. Republic (Criminal Appeal No. 487 of 2020) [2024] TZCA 610 (23 July 2024). The conduct of the victim and PW5 coupled with their unexplained failure to report the incident at the earliest opportunity, negates their credibility and reliability. Had the trial and first appellate courts directed themselves on the credibility test, they would have arrived at a different conclusion. Thus, there was nondirectional and misdirection by the two subordinate courts which made their concurrent findings erroneous and obviously the appellant was prejudiced. We are justified to interfere with such concurrent findings. See also; Jilala Justine v. Republic (Criminal Appeal No. 441 of 2017) [2021] TZCA 421 (27 August 2021) and Samson Samwel v. Republic (Criminal Appeal No. 253 of 2017) [2021] 1 \ ' TZCA 422 (27 August 2021). 10 Since the above findings disposes of the appeal, we see no compelling reasons to consider the remaining grounds. In the event, we find merit in the appeal and allow it. Accordingly, we quash the appellant's conviction and substitute it with an acquittal resulting into setting aside the sentence imposed on the appellant. Consequently, we order the immediate release of the appellant from prison unless he is being held for some other lawful cause. DATED at ARUSHA this 27th day of February, 2026. Judgment delivered this 27th day of February, 2026 vide video link in the presence of the Appellant in person, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Ms. Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL