Fredy Mtewele vs Republic (Criminal Appeal No. 87 of 2022) [2025] TZCA 1024 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MWANDAMBO. J.A, MAIGE 3.A. And MANSOOR, J.A! CRIMINAL APPEAL NO. 87 OF 2022 FREDY MTEWELE..,..,....,., .............. . ................ . ........ . ........ ....APPELLANT VERSUS THE REPUBLIC..................... ............. . ..... . ............... .... . RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Iringa) (Paul. RM, Extended Jurisdiction! dated the 7 th day of November, 2019 in Criminal Appeal No. 7 of 2019 JUDGMENT OF THE COURT 1st October & 06th October, 2025 MANSOOR. J.A.: The appellant Fredy Mtewele, was convicted by the District Court of Ludewa for the offence of rape c/s 130 (1) & (2)(b) and 131 (1) of the Penal Code, Cap 16 [R.E 2022].He was sentenced to serve 30 years imprisonment. His appeal to the High Court, Iringa, was unsuccessful, hence this appeal before the Court. The charge alleged that on 23 July 2017, at approximately 00:30 hours, in Mlangali Village, Ludewa District, Njombe Region, the

appellant, Fredy Mtewele, raped his aunt (the victim) with her consent. The consent was allegedly obtained through threats while she was unlawfully detained. However, the evidence presented at trial contradicts both the particulars of the charge and the facts read over to the appellant during the preliminary hearing. The facts read over to the appellant during the preliminary hearing claimed that, the appellant entered the victim's house at midnight, grabbed her by the neck, took her to his house, and raped her there. In contrast, prosecution witnesses, including PW1 (the victim) and PW2 (the victim's daughter), testified that the appellant entered the victim's house around midnight on 23 July 2017, grabbed her by the neck, dragged her through a maize farm to an open area near a church, and raped her there. The testimonies of PW1 and PW2 further confirm that the victim resisted throughout the ordeal and never consented to the sexual act, contrary to the particulars stated in the charge that there was consent which was obtained through threats or unlawful detention. In order to bring home the guilt of the appellant, prosecution paraded five witnesses, including the victim who testified as PVVl, the daughter of the victim as PW2, who allegedly saw the appellant and the victim at the scene while both naked, and the neighbours as PW3 and

PW4, who ran to the scene in response to an alarm raised by the victim. PW5 was the police investigator who tendered a PF3 which was admitted as Exhibit PI. The doctor who examined the victim and recorded a PF3 was never called for cross-examination. The appellant elected to defend himself under oath; he denied committing the offence to his aunt. After a full trial, the appellant was found guilty as charged, convicted, and sentenced to serve 30 years in jail. As stated above, his appeal to the High Court was unsuccessful; thus, he filed the present appeal with six grounds in the first memorandum of appeal and added four more grounds in the supplementary memorandum of appeal. However, we need not restate the grounds of appeal as the determination of the appeal rests on ground six only. During the hearing of the appeal, the appellant appeared unrepresented, while Ms. Penzia Nichombe, Learned Principal State Attorney, represented the respondent/Republic. At the hearing, Ms. Nichombe readily conceded to the sixth ground of appeal that the charge against the appellant was not proved beyond reasonable doubt, as there were variances between the charge and the evidence on record regarding the place of the occurrence of the offence.

She also stated that, in the particulars of the charge, it is shown that the act of sexual intercourse committed by the appellant to the victim was with the victim's consent which consent was obtained by the use of threat while the victim was in an unlawful detention, while in fact, the victim never consented either expressly or by threat, and she was never in any unlawful detention. She submitted that while the charge states that the victim, PW1, had consented, but the consent was obtained due to threat while she was in an unlawful detention, the evidence of PW1 was to the contrary. PW1 stated that she was forced to have sexual intercourse with the appellant, and at ho single moment of the ordeal she had consented. The evidence of PW1 also shows that she had resisted the act from the moment the appellant had invaded her house up to the moment the appellant had accomplished his evil act, For this reason, Ms. Nichombe supported the sixth ground of appeal, contending that the offence against the appellant was not proved beyond a reasonable doubt, as there were variances and material contradictions between the charge, the facts of the case, and the testimonies of witnesses. She therefore invited the Court to allow the appeal, quash the conviction entered, set aside the sentence, and set free the appellant.

The appellant did not have anything to submit in reply, instead, he prayed for his release. From the record, it is true as submitted by Ms. Nichombe that the appellant was charged under section 130 (1) and (2) (b) and section 131 (1) of the Penal Code, for raping an adult woman with her consent but which consent was obtained by the use of threat while she was in unlawful detention. Section 130 (2) (b) reads: "130 (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (b) With her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear o f death or of hurt or while she is in unlawful detention; " The charge in this appeal suggests that there was consent to the sexual act by the victim, but the consent was not given voluntarily. The charge suggests that the consent was given by the use of threats while the victim was in unlawful detention. Of course, the evidence of PW1, the victim, was clear that there was neither express consent which was clearly and unmistakably given, nor implied consent inferred from her conduct, nor were there threats given to her while she was in an

unlawful detention, which threats induced her to give consent, The evidence on record, particularly, the testimony of the victim herself shows that, there was use of force as she was grabbed by the neck and dragged all the way from her home to the scene of crime and was forcefully penetrated; there is nowhere in her testimony that shows that she was threatened while she was in an unlawful detention and that due to the threats, she had consented to have sexual intercourse with the appellant. The victim's testimony shows that she never consented and, the particulars of the charge ought to have stated that the appellant had sexual intercourse with the victim without her consent. Consent or lack of it, is the essential element in sexual offences involving adults and must be expressly stated as precisely as possible in the charge, and the element of consent and the nature in which it was obtained, if at all it was obtained, must be stated in the charge and proved by evidence in order to find the accused guilty of the offence charged. When the victim does not at all give her consent, even after being threatened or forced, the particulars of the charge must state that the victim was penetrated without her consent. Consent is a contentious issue, which explains why the Penal Code, under section 130 (1) (a-d) and (3), provides different and

extensive situations where consent can be seen to have been obtained involuntarily, either through the use of threats, force, intimidation, or authority. A charge of rape must allege in its particulars that the act of sexual intercourse was unlawful and that it was without the consent of a woman. If there was consent, the charge must clearly and unambiguously show the way and nature in which such consent was obtained, either by force, threat, or authority, or when the victim was apprehended in an unlawful detention. In the case at hand, looking at the way the charge was drafted, it is as if the victim had consented, but the consent was obtained through the use of threats while she was in an unlawful detention. Contrary to the charge, there was no consent given at all, but the victim had been forced and subdued to have sex with the appellant without her consent. The evidence obviously was at variance with the charge on the aspect of consent. The evidence also does not support the charge on whether the victim was forced to have sex with the appellant while she was in an unlawful detention. The charge should have been premised under section 130 (1) and (2) (a) of the Penal Code, since there was a sexual intercourse by the appellant with the victim, who is not his wife, without her consent. This section provides:

"130 (2) A male person commits the offence o f rape if he has sexuai intercourse with a girl or a woman under circumstances falling under any o f the following descriptions: a) Not being his wifer or being his wife who is separated from him without her consenting to it at the time of sexual intercourse " Apart from the variance between the charge and the evidence on record, as submitted by Ms. Nichombe, there are also discrepancies and contradictions regarding the place of occurrence of the crime between the facts read over to the appellant during the preliminary hearing and the evidence on record. The facts read over to the appellant during the preliminary hearing state that the appellant raped the victim in the appellant's house, while the evidence of all the prosecution witnesses, including the victim herself, shows that the appellant had sexual intercourse with the victim without her consent at an open ground near the church. Considering the evidence on record as alluded to above, there are variances between the charge and evidence offered by the prosecution at trial, and also contradictions and discrepancies between the facts of the case and the testimonies of the witnesses. The prosecution did not 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 Emmanuel Kabelele vs R (Criminal Appeal No.536 of 2017) [2021] TZCA 531 (23 September 2021) quoting from the case of Abel Masikiti vs R [2015] T.L.R, where we stated: "If there is any variance or uncertainty in the dates, then the charge must be amended in terms o f section 234 of 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 f justice will occur." Equally, in the present case, there is variance between the charge and the evidence on record on an essential element of consent in sexual offences. The prosecution was duty bound under the then section 234 of the Criminal Procedure Act, (CPA), (now section 251 of the CPA R: E 2023) to amend the charge. Since that was not done, the charge facing the appellant remained unproven, and the appellant was entitled to acquittal. When the charge is in material conflict with the evidence, the prosecution's case is seen as not credible, and the charge remains unproven. This was again emphasised in Said Musa Soweni vs R

(Criminal Appeal No.93 of 2020) [2022] TZCA 218 922 April 2022), in which we stated that: "The law is settled that, a charge which is material conflict with the witnesses' testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard". On the aspect of discrepancies found on the facts read over to the appellant during the preliminary hearing and those given by the testimonies of the prosecution witnesses regarding the place of the occurrence of the offence, the prosecution had a duty to establish that the unlawful act of having sexual intercourse with a woman without her consent took place at a particular place as shown in the charge and the facts supporting the charge. We find that there was no evidence to prove that the offence was committed at the appellant's house, as stated in the facts of the case, and not at the open ground of the church, as stated by the victim and corroborated by the three witnesses of the prosecution. In the circumstances, we find merit in the sixth ground of appeal, and consequently allow it. 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 IRINGA this 04thday of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 6th day of October, 2025 in the presence of Appellant in person - unrepresented, Rehema Ndege, learned State Attorneys for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. o. h . k in g w S e S DEPUTY REGISTRAR COURT OF APPEAL