Patric Muruta vs Republic (Criminal Appeal No. 239 of 2022) [2024] TZCA 1030 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA ATSUMBAWANGA ( CORAM: KEREFU, J.A., KIHWELO, J.A. And MPEMU. J.A^ CRIMINAL APPEAL NO. 239 OF 2022 PATRIC MURUTA ..... ........ ..........................................................APPELLANT VERSUS THE REPUBLIC ...... ................. .......................................... . RESPONDEN (Appeal from the Decision of the High Court of Tanzania at Sumbawanga) (Nkwabi, J.1 dated the 3rd day of March, 2022 in DC Criminal Appeal No. 36 of 2021 JUDGMENT OF THE COURT 31st October & 4th November, 2024. KEREFU, 3.A.: This is a second appeal by Patrick Muruta, the appellant, who was before the District Court of Nkasi at Namanyere charged with the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code). It was alleged that, on divers dates between 2n d August, 2019 to 10th April, 2020, at Kichangani Village in Kirando Ward within Nkasi District in Rukwa Region, the appellant, unlawfully, had carnal

knowledge of a girl aged sixteen (16) years who was a student at Kirando Secondary School. The appellant denied the charge laid against him and therefore, the case proceeded to a full trial. To establish its case, the prosecution called a total of four witnesses and tendered three documentary exhibits, namely, the school register book (exhibit PI), examination results (exhibit P2) and the Police Form No. 3 (exhibit P3). On his side, the appellant testified alone, as he did not call any witness. In a nutshell, the prosecution case, as obtained from the record of appeal, can be briefly stated as follows: That, at the material time, Nemesi Kalinaki (PW2) was living at Kilimahewa in Kirando Ward with his wife, one Mariam Hamadai together with their four children including the victim, who testified as PW1 (name withheld). It was PWl's testimony that, the appellant was her boyfriend and she had intimate relationship with him. PW1 went on to state that, on the fateful date, she went with him to the Lake for swimming and thereafter, they went to spend a night at the house of the appellant's friend where they had sexual intercourse. In the next morning, they went together to Kisweta Village. While there, her father (PW2) appeared and the appellant ran away. PW2 reported the

matter to Kirando Police Station. Subsequently, PWl was taken to Kirando Health Center, after they had obtained a PF3. At the said Health Centre, PWl was examined by Catherine Kimaro, the Clinical Officer (PW4), who found that PWl's vagina was normal but, the hymen was not intact, an indication that it had been penetrated by a blunt object. PW4 recorded her findings in the PF3 (exhibit P3). In his testimony, Godwin Ndawala Anyisile (PW3), a teacher at Kirando Secondary School stated that, PW l was a form II student in that school but, sometimes, in 2019, she stopped going to school and they were informed that she was married. PW3 tendered the school register book together with the examination results which were admitted in evidence as exhibits PI and P2 respectively. In his defence, the appellant who testified as DWl, denied to have committed the offence. He contended that, on the material date he was at the football pitch and surprisingly, he was arrested and taken to the Police Station where he was accused of having raped PWl. It was his defence that he knew nothing about that crime and the case was framed against him.

At the end of it .all, the trial court found that the prosecution has failed to prove the offence of rape against the appellant, thus, the appellant was outright acquitted of that offence. However, the trial court convicted the appellant with what it termed as a minor offence of aiding and soliciting PW1, who was a school girl, not to attend school contrary to section 60A (4) of the Education Act, as amended by the Written Laws (Miscellaneous Amendment) (No. 2) Art, 2016. Consequently, the appellant was sentenced to five years imprisonment. The appellant's first appeal before the High Court hit a snag, as the learned High Court Judge, having analysed the evidence adduced during the trial, was of the view that the prosecution has managed to prove the offence of rape against the appellant to the required standard. Thus, and acting under section 366 (1) (a) (iii) and (b) of the Criminal Procedure Act, Cap. 20 (the CPA), the learned High Court Judge revised the decision of the trial court, quashed the conviction and set aside the sentence imposed on the appellant. Alternatively, the appellant was found guilty, convicted on the offence of rape and sentenced to thirty years imprisonment. The decision of the first appellate court prompted the appellant to lodge the current appeal to express his dissatisfaction. In his memorandum

of appeal, the appellant indicated five (5) grounds of appeal. However, for reasons that will shortly come to light, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal, the appellant entered appearance in person whereas the respondent Republic was represented by Mr. John Mwesiga Kabengula, learned Senior State Attorney assisted by Mses. Safi Kashindi Amani and Irene Godwin Mwabeza, both learned Senior State Attorneys. When the appellant was given an opportunity to elaborate on his grounds of appeal, he decided to hear first the respondent's reply to his grounds with the option of making a rejoinder if the need to do so would arise. Responding to the grounds of appeal, Ms. Mwabeza, at the outset, declared the respondent's stance of supporting the appeal and she intimated that she will only argue the first ground of appeal, which according to her, if upheld disposes of the appeal. The said ground states that: "The learned High Court Judge erred in law and facts by convicting the appellant while the case

against the appellant was not proved beyond reasonable doubt" Responding to that ground, Ms. Mwabeza readily conceded that the prosecution case was not proved beyond reasonable doubt as the charge, which is the foundation of the case, was at variance with the evidence adduced by the prosecution witnesses during the trial. She assigned two reasons to support her argument. One, that, while the particulars of the offence indicated that the offence was committed from 2n d August, 2019 to 10th April, 2020, in her testimony, PW1 did not say when she had sexual intercourse with the appellant. PW2, who said that the victim went missing at home, did not mention the specific period when she went missing and the date she was allegedly found with the appellant. Ms. Mwabeza also referred us to the testimony of PW3, the victim's teacher, who simply testified that, PW1 stopped going to school without mentioning the specific period when she was absent. She also added that, although, in her testimony, PW4, stated that she medically examined PW1 on 15th October, 2019 on allegation of rape, after the matter had been already reported at the police but, the charge indicated that the appellant continued to commit the said offence until 10th April, 2020. It was her argument that, from the evidence of the prosecution witnesses, it is not clear when exactly the

alleged rape was committed, as even the victim failed to mention the date when she had sexual intercourse with the appellant. Two, the learned counsel argued that, it is also not clear as to where exactly the alleged offence was committed. That, while the particulars of the offence indicated that the offence of rape was committed at Kichangani Village, the evidence of PW1 was such that, the offence was committed at Kilimahewa. In the circumstances, the learned counsel argued that the prosecution was required to amend the charge under section 234 of the CPA, but that was not done. That, since the evidence adduced by prosecution witnesses does not support the charge laid against the appellant, the same was not proved to the required standard and the matter should be resolved in his favour. To bolster her argument, she cited the cases of Marki Said @ Mbega v. Republic, Criminal Appeal No. 204 of 2018 [2022] TZCA 667, Tito Paulo Kuchungura v. Republic, Criminal Appeal No. 570 of 2020 [2023] TZCA 17992 and Charles Mwinami v. Republic, Criminal Appeal No. 451 of 2021 [2024] TZCA 231. She then, finally, urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty.

In a brief rejoinder, the appellant welcomed the stance taken by Ms. Mwabeza to support the appeal. He thus, also urged us to allow the appeal and set him free. On our part, having carefully examined the record of appeal and considered the submissions advanced by the parties, we agree with them that, the prosecution case was not proved beyond reasonable doubt, as the charge which is the foundation of the case was at variance with the evidence adduced by the prosecution witnesses. For the sake of clarity, we find it appropriate to reproduce the particulars of the offence as per the charge sheet found at page 3 of the record of appeal, which reads as follows: "PARTICULARS OF THE OFFENCE That, PATRICS/O MURUTA charged that, on divers' dates between 02n d day of August, 2019 to MF day OfApril, 2020 at Kichangani Village in Kirando Ward within Nkasi District and Rukwa Region, did have carnal knowledge to a girl aged 16 years and a student at Kirando Secondary School." From the above extracted particulars of the charge, it is clear that, while the dates for the commission of the offence of rape was indicated to

be 2n d August, 2019 to 10th April, 2020, none, among the four prosecution witnesses, testified on that aspect. It is also on record that, in her evidence, PW4 testified that she examined PW1 on 15th October, 2019, which suggest that, by that time, the incident had already been reported to the police and the appellant was under police custody. In the circumstances, one would wonder, as how the appellant could have continued to commit the said offence up to 10th April, 2020, indicated in the charge, while under police custody. Furthermore, and as correctly argued by Ms. Mwabeza, while the particulars of the offence indicated that the offence of rape was committed at Kichangani Village, in her evidence, found at page 9 of the record of appeal, PW1 stated that she had sexual intercourse with the appellant at Kiiimahewa the place which was not mentioned in the charge. Pursuant to section 234 (1) of the CPA, when such a situation happens, the charge should be amended. The said provision provides for the steps to be taken when there is variance between the charge and the evidence. It confers powers on the trial court to allow amendment of the charges to meet the pertaining circumstances. Therefore, in the case at hand, after the prosecution had noted that there was variance between the

charge and evidence, it was required to seek leave to amend the charge, but, unfortunately, that was not done. At this juncture, we are compelled to emphasize what we stated in Leonard Raphael & Another v. Republic, Criminal Appeal No. 4 of 1992 (unreported) that: "Prosecutors and those who preside over criminal trials are reminded that when , as in this casey in the course of trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions of section 234 of the CPA... and have the charge amended in order to bring it in line with the evidence ," Again, in the case of Abel Masikiti v. Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 8, when we were faced with an akin situation and considered the consequences of the failure by the prosecution to amend the charge after detecting that the same is at variance with the evidence adduced by the witnesses, we observed that: "...If there is any variance or uncertainty in the dates then the charge must be amended in terms of section 234 of the CPA. If this is not done the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Shot of that a failure ofjustice will occur."

Likewise, in the instant appeal, the failure by the prosecution to amend the charge is fatal and prejudicial to the appellant hence leads to serious consequences to the prosecution case as it was stated by this Court in various cases some of which have been cited to us by Ms. Mwabeza. We however wish to add more cases such as, Salum Rashid Chitende v. Republic, Criminal Appea! No. 204 of 2015 and Ryoba Mariba @ Mungare v. Republic, Criminal Appeal No. 74 of 2013. Specifically, in the former case, we stated that: "When specific date, time and place is mentioned in the charge sheet, the prosecution is obiiged to prove that the offence was committed on that specific date, time and place/' The totality of the foregoing leads us to the conclusion that the prosecution case was tainted with doubts which, in our criminal jurisprudence, requires us to resolve in favour of the appellant. In our settled view, the first ground of appeal suffices to dispose of this appeal and we thus find no useful purpose to consider the remaining grounds raised by the appellant.

In the event, we allow the appeal and accordingly quash the conviction and set aside the sentence imposed on the appellant. Consequently, we order for immediate release of the appellant from prison unless he is being held for some other lawful cause. DATED at SUMBAWANGA this 2n d day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 4th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original.