Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: MKUYE. 3.A., MGEYEKWA. 3.A, And NGWEMBE. J.A/l CRIMINAL APPEAL NO. 261 OF 2021 FRANCIS FABIAN @ EMMANUEL ...... ..... ................APPELLANT VERSUS THE REPUBLIC.. ....... ....... .................. ......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Matoaoto, 3A dated the 3rdday of May, 2021 in DC. Criminal Appeal No. 56 of 2020 JUDGMENT OF THE COURT 06th & 12th December, 2023 NGWEMBE, J.A.: We wish to preface our judgment by observing that, before the appeal was heard on merits, the Court suo mottu, inquired from the learned Senior State Attorney who appeared for the Republic, on the validity of the charge sheet. Ms. Pienzia Nichombe, learned State Attorney, upon careful perusal to the charge sheet in relation to the prosecution evidence, quickly conceded that, the count of rape was not established and proved as required by law. Only on this point, the learned State Attorney, i

prayed that the appeal be allowed and the appellant be acquitted forthwith. The appellant being unrepresented had nothing useful to address the Court, rather he supported the prayer by the Republic. To appreciate the genesis of this appeal, it is on record that, the appellant on 3rd July, 2020 at 14 hours at Ikonda Village within Makete District in Njombe Region, unlawfully had carnal knowledge of a girl of 16 years old and a student of Lupalilo Secondary School contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R.E. 2022. The second count was related to impregnating a secondary school pupil contrary to section 60A (3) of the Education Act Cap 353 R.E. 2002, as amended. Upon hearing the case, the trial court found the appellant not guilty on the second count, but found him guilty to the first count of rape, hence sentenced him to statutory punishment of thirty (30) years imprisonment. However, the appellant was dissatisfied with both conviction and sentence, thus unsuccessfully, he appealed to the High Court. Yet the

appellant's quest to challenge his conviction and sentence never stopped, hence this appeal in this Court. As we noted earlier, this appeal was not heard on merits for the reason that, the whole evidence of the prosecution was related to sexual relationship which commenced in March 2020. See the evidence of PW1 - victim, PW4 - medical doctor, at pages 6, 7 and 12 of the record of appeal, while the contents of the charge sheet are related to the offence of rape committed at 14:00 hours on 3rd July, 2020. Thus, leaving the charge of rape to be in variance with the evidence adduced during trial. In the circumstance of this appeal, we want to sound a note on the propriety of proving the contents of the charge sheet. We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is a heart, brain and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial.

In fact, the road map of what to expect from the prosecution witnesses during trial is provided in a properly framed charge sheet. So much so, sections 132 and 135 of Criminal Procedure Act, Gap 20 R.E. 2022 of the (CPA) restate that foundation on the following compulsive words 132, "Every charge or inform ation sh all contain, and sh a ll be sufficient if it contains, a statem ent o f the specific offence or offences with which the accused person is charged, together with such particulars as m ay be necessary fo r giving reasonable inform ation as to the nature o f the offence charged" The catch word in this section is the word 'shall' meaning that, it is mandatory that the particulars of the offence in the charge sheet must be proved by evidence during trial. Therefore, framing a proper charge according to the dictates of law is mandatory to the prosecution. Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. In the case of Abdel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date

alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. This position has been repeated in a good number of cases - See Ryoba Mariba @ Mungare v. Republic Criminal Appeal No. 74 of 2023, Christopher Rafael Maingu v. Republic, Criminal Appeal No. 222 of 2004 and Anania Turian v. Republic, Criminal Appeal No. 195 of 2009 (all unreported). In respect to this appeal, the whole prosecution evidence was centered on the incidence claimed to have occurred in March, 2020, while the charge sheet was specific that, it occurred at 14:00 hours on 3rd July, 2020. Such particulars were not supported by evidence from any of the five prosecution witnesses. Thus, making the offence of rape not established and proved. We are therefore, in agreement with the learned Senior State Attorney that, the offence of rape was not established and proved. Consequently, we allow the appeal, quash the conviction of the appellant

and set aside the sentence of 30 years imprisonment. Likewise, we set aside other ancillary orders of corporal punishment and compensation to the victim. Subsequently, we order an immediate release of the appellant from prison, unless otherwise lawfully held. DATED at IRINGA this 11th day of December, 2023. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 12th day of December, 2023 in the presence of the Appellant in person and Messrs. Sauli Makori and Burton Mayage, both learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original.

• y . — iA R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 6