Safari Gisamo vs Republic (Criminal Appeal No. 69 of 2023) [2025] TZCA 1040 (8 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: SEHEL. 3.A.. MAKUNGU. J.A. And FELESHI. J.A.l CRIMINAL APPEAL NO. 69 OF 2023 SAFARI GISAMO ............................................................................APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Manyara) (Barthv, J.) dated the 9th day of February, 2023 in (DC) Criminal Appeal No. 02 of 2022 JUDGMENT OF THE COURT 1st & 8th October, 2025 SEHEL, 3.A.: The appellant, Safari Gisamo, was jointly and together charged with two others namely; Mustafa Said and Shabani Yusufu who stood as the first and third accused persons respectively before the District Court of Babati at Babati (the trial court) for an offence of gang rape contrary to sections 130 (1) (2) (a) and 131A (1) (2) of the Penal Code. The appellant was also separately charged with an alternative count of rape contrary to sections 130 (1) (2) (a) and 131 (1) of the Penal Code. At the end of the trial, they were all acquitted on the first count of gang

rape. However, the appellant was found guilty on the second count. Accordingly, he was convicted and sentenced to thirty years' imprisonment. The appellant's appeal to the High Court of Tanzania at Manyara sitting at Babati (the first appellate court) was dismissed in its entirety. Still aggrieved, he is before this Court protesting his innocence. Briefly, the evidence that led to the conviction of the appellant was that, on 2n d August, 2022 at around 20:00 hours, a woman whom, for purposes of concealing her identity, we shall be referring her as "PW l" or "the victim" hired the appellant who was a motorcycle taxi driver, commonly known as " Bodabodaf ' to take her home at Negmasi area in Babati District. Instead of taking her to Negmasi, the appellant rode her to Kwere area. On the way, PW l saw another Bodaboda carrying three men heading towards them in a very high speed and suddenly it stopped at a certain house and the appellant stopped too. He ordered her to alight from the bodaboda but she refused. He took a bush knife and threatened her while one of the passengers from the other motorcycle came and assisted him to alight her and took her in one of the rooms which had a solar light. They put off the solar light, forcefully undressed her and raped her one after another up to the next day around noon hours. Two of them went out and brought tea, burns and 2

beans while she remained with the appellant. At around 16:00 hours, PW1 managed to open the door and run away. She went to report the matter to the hamlet chairperson. Mrende Paulo (PW2) and Stellah Lazaro (PW3) who were members of the peace committee in Kwere village attended the victim. PW2 said that when the victim arrived, she was very tired. PW2 and PW3 took her to Babati Police Station where they were issued with a Police Form Number 3 (PF3) for medical examination and then to Mrara Hospital. The investigative officer, E. 8080 Detective Staff Sergeant Jimmy (PW4) investigated the case by interrogating witnesses, visiting the scene of crime and drew the sketch map (exhibit PI). He also tendered a PF3 (exhibit P2) that was returned to the police station after the victim was attended at Mrara Hospital on 3rd August, 2022. PW4 also arrested the appellant on 3rd August, 2022 for reckless driving. He interrogated him concerning the alleged rape and admitted to it. The appellant's confessional statement was admitted in evidence as exhibit P3. The owner of the house, one Emanueli Joseph (PW5), in which the victim claimed she was raped also testified before the trial court. PW5 3

told the trial court that the third accused person was well known to him as his sister was a family friend and that, he let the third accused person to take care of his one-bedroom house. Later on, he came to know that the appellant used to reside therein with his wife but now divorced, for about six months. The first and third accused persons were arrested on 4th August, 2022 at Dodoma transport factory where they went to work. In their defence, the appellant, the first and the third accused persons admitted to have been arrested at the factory while working on 4th August, 2022 but denied raping the victim. They said that the victim was a total stranger to them whom they came to know her before the trial court. However, on cross examination, the appellant admitted to be arrested alone on 3rd August, 2022 at the factory. The trial court was not convinced with the evidence of the victim. It held that the victim's evidence contradicted with the admission of the appellant. While PW1 claimed that she arrived at Kwere area at around 20:00 hours, the appellant said in his cautioned statement (exhibit P3) that he arrived at the house around 02:00 hours. The trial court found the confessional statement made by the appellant immediately after his

arrest depicted the truth. It therefore discarded PW l's evidence on the number of people who raped her but found credence on her being raped by the appellant. In that regard, it acquitted the appellant and his co accused on the offence of gang rape but convicted and sentenced the appellant with the offence of rape. As stated earlier on, the appellant's appeal to the first appellate court was dismissed hence, this second appeal. In this appeal, initially, the appellant filed a memorandum of appeal comprised of the following six grounds of appeal: "1. That the firs t appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years regardless o f variance o f evidence as p er particulars o f offence in the charge sheet with the evidence on the record as adduced by the victim (PW1). 2. That the firs t appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years regardless o f the existing fact that PW4, being the Police officer fu lly involved in arresting and investigating the crim e levelled against the accused and p articu lar the appellant. The evidence o f the PW4 has, among others, was used by the tria l court to convict the appellant. 5

3. That the firs t appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years w ithout considering the violation o f section 50 (1) (a) (b) o f the CPA when recording the appellant's cautioned statem ent The firs t appellate court ought to have expunged it on the appeal.
4. That the firs t appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years regardless o f the failure o f the prosecution to ca ll the Doctor who exam ined the victim (PW1) in order to testify and tender the PF3 as expert in the m edical area and who would expectedly explain the m edical criteria as to what he/she exam ined and discovered. The adverse inference ought to have been drawn here.
5. That the first appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years regardless o f the fact that the PF3 was tendered by the public prosecution and not by the witness.
6. That the firs t appellate court erred in law and fact by upholding the conviction and sentence o f the appellant to a term o f 30 years regardless o f prosecution's failure to ca ll the ham let chairm an or Kitongoji chairm an to whom the victim in the first place sought a rescue, received the allegation o f the offence, and participated in arresting the 6

appellant. The adverse inference ought to have been drawn here." On 30th September, 2025, he filed a supplementary memorandum of appeal raising the following three grounds: "1. That, the two courts below erred in law and fact in upholding the Appellant's conviction basing on the victim 's evidence which was taken contrary to section 192 (1) o f the CPA. 2. That, the two courts below erred in law and fact in upholding the conviction while the case was not proved to the required standard required by the prosecution. 3. That, the two courts below erred in law and fact in upholding the conviction basing on the Exhibit P3 (the cautioned statem ent) which was recorded in contravention o f sections 50 and 51 o f the CPA." At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas, Ms. Rose Kayumbo assisted by Mr. Raphael Rwezahula, both learned State Attorneys, appeared for the respondent Republic. When given a chance to argue his appeal, the appellant adopted the grounds of appeal and preferred for the learned State Attorney to respond to his grounds and if need be, he would re-join. 7

Mr. Rwezahula began his reply submission by informing the Court that the respondent was supporting the appeal on account that the prosecution failed to prove the charged offence against the appellant to the hilt as the allegation in the charge sheet materially vary with the evidence adduced by the prosecution on the number of persons who participated in the commission of the crime. Elaborating, he submitted that, although the charge sheet had two counts, to wit, gang rape and rape the trial court found the offence of gang rape was not proved against the appellant, the first and third accused persons. Nonetheless, the trial court convicted the appellant on the second count of rape while the evidence of the victim was to the effect that she was raped by three persons. Relying on the authority in the case of Boniface Nyerere Senda v. The Republic [2024] T7CA 116, Mr. Rwezahula submitted that the offence of gang rape is a distinct offence having its own ingredients and punishment which cannot be proved on a charge of rape. He further submitted that, whenever there is variance between the charge and the evidence, the prosecution is required under section 251 (1) of the Criminal Procedure Act (the CPA) to amend the charge sheet 8

but the prosecution did not amend it to tally with the evidence. He asserted that the failure to amend the charge occasioned a miscarriage of justice on the part of the appellant as he failed to understand the nature and seriousness of the offence for him to mount a meaningful defence. In the end, he urged us to allow the appeal. Having heard the submission by the learned State Attorney, we wish to point out that this being a second appeal, the Court canonly interfere with concurrent findings of fact(s) by the two courts below where there are mis-directions or non-directions on the evidence leading to a miscarriage of justice or a violation of some principle of law or practice - see the cases of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149; Musa Mwaikunda v. The Republic [2006] T.L.R. 387 and Wankuru Mwita v. Republic [2011] TZCA 483. In the latter case, the Court stated that: "The law is w ell-settled that on second appeal\ the Court w ill not readily disturb concurrent findings o f facts by the tria l Court and first appellate Court unless it can be shown that they are perverse, dem onstrably wrong o r clearly unreasonable o r are a resu lt o f a com plete m isapprehension o f the substance, nature and quality o f the evidence; m isdirection o r non

direction on the evidence; a violation o f som e p rinciple o f law or procedure; or have occasioned a m iscarriage o f ju stice . " In the appeal before us, the learned State Attorney invited us to interfere with the findings of the trial court and the first appellate court which found the appellant guilty on the offence of rape contrary to sections 130 (1) (2) (a) and 131 (1) of the Penal Code on account of misapprehension of evidence of PW l. Therefore, the issue before us is whether the two courts below misapprehended the evidence of PW l thus entitling us to interfere with such concurrent findings. In determining the issue, we wish, at first, to reproduce hereunder the charge which the appellant was tried and convicted with: "2nd CO U N T IN A LT E R N A T IV E O F 1 st CO U N T FO R T H E 2 nd A CCU SED PER SO N O N LY STA TEM EN T O F O FFEN CE R A PE: contrary to sections 130 (1) (2) (a) and 131 (1) o f the Penal Code [Cap. 16 R .E 2022]. P A R T IC U LA R S O F O FFEN CE S A F A R I G ISAM O on the diverse date between 2nd day o f August ; 2022 and J d day o f August 2022, a t Kwere area within Babati D istrict in 10

Manyara [Region] did have sexual intercourse with one X Y , w ithout her co n sen t" From the above charge sheet, the allegation against the appellant was that he raped the victim on diverse dates between 2n d and 3rd August, 2022. Being mindful of the settled position of the law that he who alleges must prove and that, in criminal trials, the prosecution is required to prove the charge beyond reasonable doubt against the appellant, the prosecution called four witnesses including the victim to prove the allegation. Part of the victim's evidence in respect of the allegation of rape was as follows: "They took me in their room. There was a solar light. Then they started to undress m y skintight and m y underpants. This was done by the 2nd accused person [the appellant]f then such solar lig h t was p u t off. They push me on the m attress. They lift m y gown and started to have sex with me , one after another. A t that tim e, there was no lig h t but I had seen four m ale peoples. I know that a ll o f them did make sex with me because soon after ejaculation, another one come on top o f me and started afresh. A t the sam e tim e li

others did apart m y legs and hand. They did it u n til m orning o f J d August\ 2022." The above extract of PW l's evidence tells it all that a gang rape was committed and not rape as she was consistent that four people participated in raping her and not the appellant alone as alleged by the prosecution. Going by PW l's evidence, the alleged offence of rape was not established against the appellant. We do acknowledge that the trial court found PW l's evidence materially contradicted with the appellant's evidence and correctly decided not to believe her. In that respect, we find that the acquittal of the appellant and his co-accused with an offence of gang rape was soundly made. Nonetheless, both the trial court relied on the incredible evidence of PW1 and proceeded to hold that the appellant raped the victim while there was no such evidence. It is unfortunate that the first appellate court also failed to properly exercise its duty of critically scrutinizing the entire evidence on the record, and if possible, arrived at its own conclusion. We strongly believed that had it properly exercised its powers, it would have observed the obvious variance between the charge and the evidence. That, the evidence adduced points out to an offence of gang rape and not rape. 12

The Court has repeatedly held that gang rape and rape are two completely different offences having being created under different sections of the Penal Code and each of them has its own ingredients to prove and attracts different punishments - see the cases of Salim Abdallah Maganga v. The Republic [2023] TZCA 17680 and Boniface Nyerere Senda v. The Republic (supra). In the former case, the Court was faced with akin situation and held that: "As the record shows, the offence la id down in the charge is not the same as that which is portrayed in the evidence. A s we said, the appellant was charged with the offence o f rape contrary to sections 130 (2) (a) and 131 (1) o f the Penal Code. Conversely ' the victim 's evidence suggests that she was raped by the appellant and a bus conductor (not a party to th is appeal). In e ffe c t th e e vid e n ce p o in ts o u t to an o ffe n ce o f g an g ra p e u n d e r se c tio n 131A (1 ) o f th e P e n a i Code. T h is is a se p a ra te o ffe n ce h a v in g it s ow n in g re d ie n ts a n d p u n ish m e n t d iffe re n t fro m th e o ffe n ce a t issu e . Despite th a tth e tria l court continued with the tria l and ultim ately convicted the appellant w ithout the charge being amended. Obviously ; therefore, the om ission was prejudicial to the 13

appellant as he was rendered unable to know the nature and seriousness o f the offence he was facin g." Similarly, in the present appeal, the evidence on record suggests that the offence committed, if any, was gang rape and not rape as alleged by the prosecution in the second count. Given that the evidence adduced by PW1 suggested a commission of a gang rape, we are satisfied that the concurrent findings of both lower courts were made based on the misapprehension of the substance, nature and quality of the evidence of the victim, which resulted in a miscarriage of justice. We are alive that the conviction of the appellant was also based on his cautioned statement but such statement did not prove the charged offence. We say so, because, according to the cautioned statement, the appellant and the victim were lovers and it was not for the first time the appellant had sex with the victim. On that fateful day, the two met at the bar and the victim consented to have sex with the appellant upon payment of TZS. 40,000.00. This means, the sexual intercourse was consensual. It was not forced as alleged by the prosecution. In that respect, we find that we are entitled to interfere with the concurrent findings of the two lower courts.

In the upshot we find merit in this appeal. We accordingly quash the conviction and set aside sentence imposed upon the appellant. We order that the appellant, Safari Gisamo, be released from prison forthwith, unless he is otherwise held for any other lawful cause. DATED at ARUSHA this 7th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 8th day of October 2025 in the presence of the appellant in person, Mr. Stanislaus Halawe, learned State Attorney for the respondent/Republic and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. 15