Sharifu Bakari @ Mdee vs Republic (Criminal Appeal No. 343 of 2021) [2024] TZCA 812 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: JUMAr C.J., LEVIRA. J.A.. And GALEBA, J.A.^ CRIMINAL APPEAL NO. 343 OF 2021 SHARIFU BAKARI @ MDEE.... ..... . .................................... . ............ APPELLANT VERSUS THE REPUBLIC ......... . ....... . ................. . .................. . ........ . ....... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Mkaoa 3.1 Dated the 27th day of April, 2021 in Criminal Appeal No. 30 of 2020 JUDGMENT OF THE COURT 21st & 23* August 2024 LEVIRA. J.A.: Sharifu Bakari @ Mdee, the appellant in this appeal was arraigned before the District Court of Mwanga at Mwanga facing a charge of incest by males contrary to section 158 (1) (a) .of the Penal Code, Cap 16. It was alleged by the prosecution that, on 1st September, 2017 at Lengurumo village within Mwanga District in Kilimanjaro Region, the appellant did have carnal knowledge of her daughter aged 16 years. For purposes of protecting her dignity, we will conceal her real name in this judgment, and refer to her as WSB or the victim or PW2. The appellant denied the charge, but after a full trial, he was convicted and sentenced to thirty

years imprisonment. Aggrieved by the conviction and sentence, he unsuccessfully appealed to the High Court, hence, the present appeal. A brief account of the evidence which led to the trial and the ultimate conviction of the appellant is as follows: The victim and her two siblings were living with their father (the appellant) as her mother (PW1) was not living with the appellant. On the material day/ it was alleged that the victim (PW2) was called by her father in his bedroom and when she entered, she found the appellant sitting on the bed. He ordered her to undress him but she refused. The appellant threatened to kill her with a knife in case she persisted with her refusal. In the state of fear, it is alleged, the victim gave in; she undressed and the appellant had carnal knowledge of her by inserting his penis into her vagina, an act, he allegedly repeated for the whole week, that followed the 1st day of September, 2017. The victim was warned not to tell anybody of what she went through. Nonetheless, the victim went to her mother Amina Selemani (PW1) at Kisangara in October, 2017, and told her that the appeilant had raped her. On that day, PW2 did not go back to her father. The next day, at school she was asked by her teacher if had any problems, she revealed the ordeal and was required to stay in the school hostel. She wrote a letter to social welfare officer and was taken to Mwanga police

station. The matter was investigated by E. 6912, D/GPL Jovin (PW3) who started the investigation on 13th November, 2017. He interrogated the victim, who affirmed being raped by her father, but the appellant denied committing the offence. The appellant's defence case was briefly that, on an unknown date which was a Friday, the victim went missing. He asked his two children on the whereabouts of the victim, and they informed him that, she had gone to her grandfather's house. The appellant made a follow up and, indeed he found the victim at her grandfather's home. Upon requiring her to return home with him, the victim refused, for she wanted to live with her grandparents and her mother. As the victim refused to go back, the appellant informed the victim's grandfather that, he will not be responsible for any maintenance of PW2. The victim's grandfather made a commitment to take care of the victim. However, after a month, the said grandfather called the appellant and told him to send the school fees for his daughter. Based on the previous undertaking of the said grandfather, the appellant refused to send any money for maintenance of the victim. After two weeks following the appellant's refusal to pay any money for the victim, he was called at Mwanga Police Station, where a charge was drawn alleging that he had raped his own child. The appellant's evidence 3

was supported by his two children; Amina Sharifu (DW2) and Hussein Sharifu (DW3), whose evidence was that, they lived in the same house as the appellant, and together with the victim, they were sharing a room, but were sleeping on separate beds, DW3 also testified that the appellant, was sleeping alone in his separate room, while the children had their room and they used to iock their door from inside. He also testified that the victim was on many occasions complaining of too much work and would invariably complain and tell them that she would leave that place and go to her grandfather. DW3 stated that, had their father been raping the victim, they would have known. Nonetheless, upon full hearing the appellant was convicted as sentenced as indicated earlier on. On 23rd June, 2021 the appellant lodged in Court a memorandum of appeal comprising seven grounds, and on 9th August, 2024 a supplementary memorandum of appeal raising one complaint regarding the variance between the charge and evidence, which is similar to the second ground in the substantive memorandum of appeal. Apart from those two documents, we note that on 18th February, 2022, the appellant filed written submissions in support of his appeal. For ease of reference, we paraphrase the appellant's grounds of appeal as follows:

1. That the victim 's PF3 was read out before its admission.
2. That there was variance between the charge and evidence as the charge indicates that the offence was committed on 1st September, 2017 while the victim testified it to have taken piace for the whole week.
3. That the prosecution evidence was contradictory, unreliable and fu ll o f inconsistencies.
4. That the case was fabricated against the appellant as the victim wanted to Jive with her mother.
5. That the prosecution failed to call m aterial witnesses.
6. That defence evidence was not given the weight it deserved despite raising reasonable doubt against prosecution case.
7. That the case was not proved beyond reasonable doubt At the hearing of the appeal, the appellant appeared in person, unrepresented and he adopted his grounds of appeal together with written submissions to form part of his submission before the Court while reserving his right of rejoinder. The respondent had the services of Ms. Rose Sulle, learned Senior State Attorney, assisted by Messrs. Isack Mangunu and Frank Ong'eng'a, both learned State Attorneys.

In reply to the first ground of appeal, Ms. Sulie readily conceded to the complaint in that ground of appeal. She referred us to page 19 of the record of-appeal where PW4 identified the PF3 (exhibit PI) which he filled in after examining the victim (PW2) and immediately thereafter read it before its tendering and admission. She referred us to the case of Robinson Mwanjisi and Three Others v. R, [2003] T. L. R. 218 and argued that the appellant was prejudiced by such procedural irregularity. The learned Senior State Attorney urged us to expunge exhibit PI from the record. In respect of that ground of appeal, there is no dispute between the parties regarding the procedural irregularity that occurred during admission of exhibit PI. We think, the issue as to whether such irregularity occurred should not detain us much. The record of appeal is very clear on what transpired on 11thJanuary, 2019 before admission of exhibit PI. The said exhibit was tendered by PVV4 as reflected on page 19 of the record of appeal quoted hereunder: "I w ill remember PF3 I fille d for her, it bears my handwriting, name and office stamp. I have the PF3, I p ra y to re a d th e co n te n t Contents o f PF3 read over and explained

PW4 continues: I p ra y to te n d e r P F3 a s e x h ib it in court. Accused: I have no objection. Court: PF3 adm itted as exhibit P L Sgd: M. B. Lusewa SR M i/c 11/01/2019." [Emphasis added]. Without much ado, the above excerpt tells it all, and it is our finding that exhibit PI was not cleared for admission before it was actually admitted. It was proceduraiiy wrong for the trial court to allow PW4 to read out the PF3 before its admission. The first appellate court overlooked this procedural irregularity, which we hold to be prejudicial as it was held in Robinson Mwanjisi and 3 Others (supra). In the circumstances, we agree with Ms. Sulle that exhibit PI deserves to be expunged from the record, as we accordingly do. In the circumstances, the first ground of appeal has merit, and it is hereby allowed. In the second ground of appeal the complaint is that, there was variance between the charge sheet and the evidence which was tendered to support it. Responding to that ground of appeal, Ms. Sulle opposed the appellant's claim that there was variance between the charge and the evidence of PW2. She referred us to page 1 of the record of appeal where

it was stated in the charge sheet that the appellant raped the victim on 1st September, 2017. According to her, the said date was also mentioned by PW2 on page 11 of the record of appeal to be the incident date. Thus, it was correct for PW2 to state that she was raped on that date because that is when it started and the appellant continued to do so for the whole week. As such, there was no variation between the charge and the evidence adduced by PW2, Ms. Sulle, insisted. In this ground of appeal, we are invited to determine as to whether there was variance between the charge and the evidence that was adduced to support it. The position of the iaw applicable is settled, that, in case of any variance between the charge and evidence, the charge must be amended so that it harmonizes with the evidence. This is a requirement of section 234 (1) of the Criminal Procedure Act, (the CPA), with marginal notes; variance between charge and evidence and amendment o f charge. It provides that: "234.-(1) Where at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to m eet the circumstances o f the case

unless, having regard to the m erits o f the case, the required amendments cannot be made without injustice; and a ii amendments made under the provisions o f this subsection shall be made upon such terms as to the court shall seem ju s t" With that position of the law at the back of our mind, we proceed to consider the issue of dates in the prevailing circumstances of the present case, in which, the date mentioned in the charge sheet was, as well, mentioned by PW2 in her evidence but with an addition that, the appellant had been repeating the act of raping her for the whole week. We are mindful of the settled position that, it is not the number of occurrences of the act of penetration that constitutes an offence of rape, but penetration however slight is sufficient. Nonetheless, we think, we need to pause for a while and ask ourselves one more question, why did PW2 fail to disclose to the police that she was raped repeatedly and preferred to unveil that fact in her evidence? Certainly, the record is silent. But, this question goes to the credibility of PW2. We say so because according the charge, the victim was raped on one occasion that is on 1st September, 2017 but at the trial, the witness changed the statement, she testified that she was raped not only on 1st September 2017, but also for the whole week that followed. Anyhow, it suffices to state here that, we agree with the

appellant that there was a clear variance between the charge and the evidence of PW2 as regards the date(s) of the incident and the frequence of its occurrence despite the fact that, she also mentioned 1st of September, 2017 in her evidence as one of the dates on which the incident occurred. We disagree with Ms. Sulle that by mere mentioning of that date in her evidence, it was sufficient that the charge was proved to the required standard. We find and hold that, it was incumbent upon the prosecution to amend the charge so that it portrays that the offence was committed on diverse dates between Ist September, 2017 and the last day that the offence was committed, as it would match with the evidence of PW2. In law, where the evidence and the charge are poles apart, the charge is deemed not to have been proved. In Abel Masikiti v. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (24 August 2015) [TANZLII], addressing a similar issue of variance of dates and the charge; this Court stated as follows: "If there is any variance or uncertainty in the dates, then the charge m ust be amended in term s o f section 234 o f the CPA. I f this is not doner the preferred charge w ill remain unproved and the accused sh all be entitled to an acquittal." 10

See also: Issa Mwanjiku @ White v. R (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 (6 October 2020) [TANZLII]. That means the case against the appellant was not proved to the required standard as per Abel Masikiti's case (supra). Thus, the second ground of appeal is meritorious and we allow it. Although we might have ended right there, for the case was not proved, but for purposes of showing more doubts in the prosecution case, we will as well discuss the fourth ground of appeal. In the fourth ground of appeal, the appellant complains that the case was fabricated against him as he refused to pay for PW2's maintenance when she went to live with her mother and grandfather. Ms. Sulle resisted this ground of appeal stating that, the same has been raised as an afterthought because the appellant did not cross examine any prosecution witnesses regarding any grudges between him and them at the trial. She referred us to page 23 of the record of appeal where DW2 stated that the appellant had no grudges with PW2. She concluded that there were no grudges neither between the appellant and PW1 nor PW2. Therefore, it was not possible for them to frame a case against the appellant. We referred Ms. Sulle at page 21 of the record of appeal, where the appellant testified on how he made a follow up of PW2 at her i i

grandfather's house, but his request to take her back was turned down. As a result, the appellant excused himself from responsibilities of taking care of her. However, after a month they called him asking for PW2's school fees, which he refused because they had already agreed that, her grandfather and mother will take care of her. Following that refusal, the said grandfather became angry and threatened to make the appellant pay for that refusal, This act, according to the appellant created a grudge between PW2's grandfather and the appellant. Having refreshed her mind on the record of appeal, Ms. Sulle argued that, the said grandfather was not called to testify so as to clarify what was stated by the appellant. Despite the failure to call him, the learned Senior State Attorney submitted persistently that there was no conflict between PW2 and the appellant. She urged us to find this ground of appeal baseless. This ground presupposes that there was misapprehension of evidence by the courts below which requires our intervention. We are mindful of the established principle, which shall guide us in this appeal, that unless there are misapprehension of evidence, we cannot interfere with the concurrent findings of fact of the courts below. See; Salum

Mhando v. Republic, [1993] T.L.R. 170 and Julius Josephat v. Republic, Criminal Appeal No. 3 of 2017 (unreported) We have thoroughly examined the record of appeal with a view of satisfying ourselves whether there was a possibility for the case to have been fabricated against the appellant. We are unable to agree with Ms. Sulle that there were no grudges between the appellant, PW1 and PW2 because, PW2's. grandfather was not called to testify. With respect, such an answer was unexpected for it is the duty of the prosecution to prove the case against the appellant beyond reasonable doubt. The burden of proof never shifts. At any rate, the appellant could not call a person whom allegedly they had quarrelled as his witness since his duty was only to punch holes on prosecution case. On page 95 of the record of appeal, the first appellate court delt with the appellant's complaint regarding the alleged grudges and it had the following to say: "The appellant claim ed that this case was fabricated against him due to the existed fam ily feud between him self and victim 's mother but at the same time adm itted the fact that there had been no grudges between him selfand the victim.... In her testim ony the victim a t page 10 o f the trial court's proceedings narrated how the appellant called her into his room 13

raped her and threatened to k ill her with a knife if she dared disclose the ordeal to any person. From her testim ony I find it difficult to believe the victim would He against her biological father (the appellant) more so, it is on record the appellant denied to have grudges with the victim. I thus consider her evidence is based on truth as there is no doubt to pro ve otherwise." We note from the above extract of the decision of the first appellate court that, the learned Judge did not consider the evidence as a whole. To be precise, with respect, the learned first appellate Judge picked a single line from the appellant's evidence on page 22 of the record of appeal to arrive to the conclusion that there were no grudges. The relevant part from that page reads: "/ never complained anywhere I had no grudges with m y daughter I was surprised by her testim ony." It is very clear from the record that this was a family matter. PW1 and the appellant were lovers previously and in the course of their relationship PW2 was born. However, things did not work out and thus PW1 went back home to live with her father, the grandfather of PW2, the fact which was not disputed. In his testimony the appellant stated how he quarrelled with PW2's grandfather when the former refused to pay for 14

school fees after PW2's grandfather and PW1 had undertaken to take care of PW2. On page 21 of the record of appeal, the appellant stated the following referring to PW2's grandfather: "... He said, if I have refused, I w ill pay for that. In two weeks', time I was called to police Mwanga and was charged fo r rape. I was locked up and taken to court, I think I was charged due to grudges they needed to take the child from me and I refused to pay fo r her maintenance." In cross examination the appellant maintained that he was promised by the victim's grandfather to be fixed as he said: "[PW2's] grandfather prom ised to make me pay I think [PW 2J was influenced by her grandfather," Basing on the excerpts above, it cannot be said with certitude that there were no grudges between the appellant, PW1, PWl's father and PW2 which might have resulted into the appellant's prosecution and subsequent conviction. It is, thus, doubtful if the case was not framed against the appellant, because cross examination from the prosecution was unable to shake the appellant's position on that aspect. Therefore, we find merit in this ground of appeal. In this appeal, as determination of the above two grounds of appeal has the effect of determining the entire appeal, we find no reason to

engage in determining the other grounds of appeal. Finally, we allow the appeal and quash the conviction of the appellant. Further, the appellant's sentence of thirty years imprisonment is hereby set aside, and order his immediate release from prison, unless he is held there for any other lawful cause. DATED at MOSHI this 23rd day of August, 2024. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL The Judgment delivered this 23rd day of August, 2024 in the presence of the Appellant in person - unrepresented and Mr. Frank Daud Wambura, learned State Attorney for the Respondent/Republic, is hereby certified as, a true copy of the original. A - D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 16