Hassan Jeremia @ Jacob vs Republic (Criminal Appeal No. 83 of 2023) [2025] TZCA 1051 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA, J.A., MGEYEKWA, J.A., And MLACHA. J.A.^ CRIMINAL APPEAL NO. 83 OF 2023 HASSAN JEREMIA ( a ) JACOB ..................................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Salema J.) dated the 16th day of September, 2022 in DC Criminal Appeal No. 5 of 2022 JUDGMENT OF THE COURT 1st & 9h October, 2025 GALEBA, J.A.: The appellant in this appeal, one Hassan Jeremia @ Jacob, was charged for rape contrary to sections 130 (1) and (2) (e) and 131 (1) and (3) of the Penal Code. Upon conclusion of his trial before the District Court of Tabora in Criminal Case No. 9 of 2021, he was found guilty of the offence charged and was accordingly convicted. He was consequently sentenced to life imprisonment, because the victim was allegedly a girl of two years. His appeal to the High Court was dismissed, hence this appeal, in which a total of six grounds of appeal have been raised, four in the l

original memorandum of appeal, and two in the supplementary memorandum. However, as it will soon become clear, we will not consider all the grounds raised, except for the first ground of appeal in the original memorandum of appeal which was a complaint that: "1. The case for the prosecution was not proved beyond reasonable doubt as required by law." At the hearing, the appellant appeared in person without legal representation, whereas the respondent Republic had the services of Mr. Emmanuel Luvinga, learned Senior State Attorney, teaming up with Ms. Ida Rugakingira and Ms. Orester Onesphory, both learned State Attorneys. At the very outset and before the appellant could elaborate his grounds of appeal, Ms. Rugakingira informed the Court that the respondent's side was in full support of the appeal, because the case was not proved beyond reasonable doubt as was complained in the above quoted ground of appeal. In justifying her position, the learned State Attorney contended that, the evidence that was tendered at the trial did not at all prove the charge. She stated that, whereas the charge named the victim to be KULWA RAMADHANI, the evidence was to the effect that KULWA RAMADHANI was the father of the victim and the actual victim of the offence was SADA KULWA. The learned State Attorney

submitted that, in such a case, the prosecution was supposed to amend the charge in terms of the then section 234 (1) of the Criminal Procedure Act (the CPA), in order to harmonize it with the evidence, but the prosecution did not do it. According to the learned counsel, the error pointed out, was not one of those curable under section 388 (now section 411) of the CPA, and to support her contention, she referred us to the case of Ally Hamisi Lyumba v. R, Criminal Appeal No. 179 of 2022 (unreported). As the case was not proved, Ms. Rugakingira moved the Court to hold that, the trial of the appellant was unfair and his conviction, illegal. She moved the Court to nullify the appellant's conviction, set aside his sentence of life imprisonment and acquit him. In rejoinder, the appellant supported the respondent's position and insisted that he be released from prison. In this appeal, we have thoroughly considered the submissions of Ms. Rugakingira in supporting the above quoted ground of appeal, and are in full agreement with her. A careful scrutiny of the record of appeal, reveals a clear mismatch between the charge sheet and the evidence which was tendered to support it. According to available records, the

particulars of the offence in the charge at page 1 of the record of appeal, are as follows: "PARTICULARS O F OFFENCE HASSAN S/O JEREMIA @ JACOB on 5th February, 2021 at Kiloleni area within Tabora Municipality in Tabora Region did rape one KULWA D/O RAMADHANI, a girl aged 2 years . " [Emphasis added] So, although clearly the victim of the offence is documented as KULWA RAMADHANI in the charge sheet, at page 17 of the record of appeal, Salma Kasimu (PW2) the victim's mother stated that KULWA RAMADHANI was the father of the victim, and the victim's name was SADA KULWA, the name which is nowhere in the charge sheet. In so testifying she said: "Before HASSAN married me, I to/d him I [had] one child. The child's name is SADA or NYAMIZI and her father is KUL WA RAMADHANI . " [Emphasis added] In addition, at page 19 of the record of appeal, the name of the victim who testified as PW2 is recorded as SADA KULWA. That means, the charge had a different name of the victim, and the evidence had quite

another, and that is the error of law that Ms. Rugakingira was submitting upon. She said the anomaly was incurable under the law, and we agree with her. Generally, the law in this jurisdiction is that, where the charge is at variance with the evidence tendered to support it, the charge must be amended in order to ensure that it comforms with the evidence. If that is not done, the trial of the suspect on such a charge becomes unfair, and in case a conviction ensues from such a trial, the conviction is illegal and it cannot be left to survive. See this Court's decisions in Simon Magani v. R, Criminal Appeal No. 691 of 2023, Abel Masikiti v. R, Criminal Appeal No. 24 of 2015, and Petro Mlongo and 2 Others v. R, Criminal Appeal No. 271 of 2022 (all unreported). For instance, in the latter case of Petro Mlongo and 2 Others, this Court stated: "There is, in this regard, a long and unbroken chain of decisions of the Court which underscore that, whenever there is variance between the charge and the evidence on record, an amendmentshould be made in terms of section 234 (1) of the CPA to make it in conformity with the evidence on record, failure of which the preferred charge will remain

unproved and the accused shall be entitled to acquittal." The decision which is in all fours with the one before us, is Ally Hamisi Lyumba (supra), as in it, this Court encountered a scenario identical to the situation we are into. In that case, the charge indicated that the victim of the rape was Fatuma Amiri, but the evidence tendered showed that the victim was Joyce Denis. This Court stated that the variance in the names of the victim, was an error of law that was not curable under section 388 of the CPA. Similarly, in this case, the victim's name is nowhere in the charge sheet, which means the appellant was illegally tried for raping KULWA RAMADHANI, who apparently, was the biological father of the victim. In our firm judgment, the trial of the appellant was unfair. His conviction that followed was undoubtedly illegal, and the sentence that was imposed on him, certainly unlawful. Thus, we allow the first ground of appeal in the appellant's original memorandum of appeal, that indeed, the prosecution did not manage to prove the case against the appellant beyond reasonable doubt. As determination of the said ground of appeal has the effect of disposing of the whole appeal, we find no point in seeking to resolve the other grounds of appeal that were raised.

In summary, this appeal succeeds. The appellant's conviction is nullified and his sentence of life imprisonment is set aside. The judgement of the High Court confirming the appellant's conviction is quashed. Lastly, we order the appellant's immediate release from prison, unless he is held there for any other lawful cause. DATED at TABORA, the 8th day of October, 2025. The Judgment delivered this 9th day of October, 2025 in the presence of appellant in person, Mr. Mmary Nurdini, learned Senior State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL