CRIMINA APPEAL NO 840 OF 2023 BONIFACE NYERERE SENDA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: GALEBA. J.A.. FIKIRINI. J.A.. And ISMAIL. J.A,^ CRIMINAL APPEAL NO. 840 OF 2023 BONIFACE NYERERE SENDA............................................... APPELLANT VERSUS THE REPUBLIC..............................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) fltemba, 3.^ dated the 27th day of October, 2021 in Criminal Appeal No. 18 of 2021 JUDGMENT OF THE COURT 12th & 18th March, 2025 GALEBA. J.A.: Boniface Nyerere Senda the appellant in this appeal, was arraigned before the District Court of Temeke (the trial court), in Criminal Case No. 243 of 2019 facing a charge of rape. The victim was a moderately mature woman of 28 years, whose identity we will conceal and refer to her as the victim or PW1 in this judgment. Upon a full trial/ the appellant was convicted of the offence of rape and was sentenced to thirty years' imprisonment. He was also condemned to endure administration of five strokes of the cane, pay compensation of TZS 500,000.00 to the victim, and a fine of TZS. 10,000.00. His first appeal to the High Court (the first appellate court), was dismissed for want of merit. In this appeal, the appellant is contesting the latter decision. The facts leading to the appellant's prosecution in brief were that, at around 14:00 hours on 25th January, 2019, the victim, while walking from home, met the appellant who told her that her fiance named Hashim, needed to meet her. Therefore, the victim accompanied the appellant to his home at Mashine ya Maji area within Temeke District in Dar es Salaam City. However, the victim did not find her fiance at the appellant's house. So, she informed the appellant that she had to leave. However, before she could do so, the appellant got inside the house and came out with a knife and stood right behind the victim and commanded her to stay calm. At that point, the appellant and other four men hauled the victim inside the appellant's house, where they had carnal knowledge of her in succession. Out of the five rapists, the victim was able to recognize three namely; the appellant, George and Mood. As for the defence, the appellant's position was that on the material day, it is true that the victim who was his previous girlfriend, went to his house and found him with his current girlfriend whereupon she started to abuse him. He also abused the victim back, and people 2 intervened to avert chaos. The victim stopped the fracas, but promised the appellant that she would teach him a lesson, and true, after a week, he was arrested and charged of raping her. To the appellant, the case was fake; it was framed against him. Despite his defence, the appellant was convicted and ultimately sentenced as earlier indicated. This appeal is based on five grounds of appeal, and we will start with the first ground, which is a complaint that the first appellate court erred in law by upholding a conviction of the appellant, which was based on a defective charge. At the hearing of the appeal, the appellant appeared in person, and as he had lodged written submissions, he moved us to consider them as his points in supporting the appeal, and allow it. In respect of the first ground of appeal, the appellant's argument was briefly that, the evidence at the trial, and the charge were at a huge variance. In elaborating that point, he submitted that, whereas he was charged with rape, the evidence that was adduced to prove the charge, particularly by PW1, proved gang rape. Despite the obvious disparity between the charge and the evidence, the charge was not amended in terms of section 234 (1) of the Criminal Procedure Act, (the CPA), contended the 3 appellant. Following that illegality, he urged us to allow the first ground of appeal and acquit him. In reply, Ms. Elizabeth Muhangwa, learned Senior State Attorney, assisted by Ms. Marieta Maguta, learned State Attorney, submitted that, the prosecution charged the appellant with rape instead of gang rape, because they managed to arrest only one gang rapist who is the appellant. She submitted that, the evidence of gang rape is identical to that of rape except for the number of offenders. To her, the number of offenders was an ingredient, one could neglect. The issue in this ground of appeal is whether, a suspect may be convicted on a charge of rape based on the evidence proving gang rape. The crucial evidence of PW1 and relevant to this ground, is traceable at page 8 of the record of appeal, which is as follows: "The accused with other four men, covered my mouth and took me inside Boniface's house, and started undressing my ciothes and unlawfully did have carnal knowledge with me [all] o f them, they were five men and one by one did have carnal knowledge with me...I know only three persons' names [which] are 1. Boniface, 2. George and 3. Mood." In other words, according to the victim, she was raped by five persons. In law, where a group of persons rapes or abates rape of a woman or girl, the offence by each of those in the group, is called gang rape, as per the provisions of section 131A (1) of the Penal Code, which provides as follows: "131A.-(1) Where the offence o f rape is committed by one or more persons in a group o f persons, each person in the group committing or abetting the commission o f the offence is deemed to have committed gang rape." The evidence on record from the victim therefore, was seeking to prove gang rape, in respect of which there was no charge before the court. The charge that was facing the appellant was in respect of an offence of rape which is provided for under section 130 (1) (2) (a) of the Penal Code. That section upon which the appellant was charged provides as follows: "(1) It is an offence for a maie person to rape a girl or a woman. (2) A male person commits the offence o f rape if he has sexuai intercourse with a giri or a woman under circumstances failing under any o f the foiiowing descriptions: 5 (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time o f the sexual intercourse." The following is the charge upon which the appellant was tried: 'CHARGE ST A TEMENT OF OFFENCE RAPE: contrary to sections sections 130 (1) and (2) (a) and 131 (1) of the Penal Code [Cap 16 RE 2002] PARTICULARS OF THE OFFENCE BONIFASI NYERERE SENDA on 25th day o f January, 2019 at Mashine ya Maji area within Temeke District in Dar es Saiaam Region, did unlawfully have carnal knowledge o f (THE VICTIM) without her consent" The above is the provision of the law and the charge upon which the trial was conducted. However, according to the appellant supported by the record before us, no evidence was led to prove the above charge of rape. In summary, what happened at the trial court is this; the evidence (of gang rape), which was adduced by PW1 had no charge to prove, whereas, the charge (of rape) on record, had no evidence to 6 substantiate it. The point we wish to clarify is that, the offences of rape and gang rape are completely two different offences and created by two different sections of the Penal Code. In fact, the two offences attract different punishments. The punishment for rape ranges from thirty years to life imprisonment, whereas the punishment for gang rape, is just one sentence, life imprisonment. Luckly, it is not the first time that this Court is entertaining an akin scenario, in the case of Salim Abdallah Maganga v. R, [2023] TZCA 17680, which had more or less similar facts, this Court stated as follows: "As the record shows, the offence laid down in the charge is not the same as that which is portrayed in the evidence. As we said, the appellant was charged with the offence o f rape contrary to section 130 (2) (a) and 131 (1) o f the Penai Code. Conversely, the victim's evidence suggests that she was raped by the appellant and a bus conductor (not a party to this appeal). In effect, the evidence points out to an offence o f gang rape under section 131A (1) o f the Penai Code. This is a separate offence having its own ingredients and punishment different from the offence at issue. Despite that, the trial court continued with the trial and ultimately convicted the appellant without the charge being amended. Obviously, therefore, the omission was prejudicial to the appellant as he was rendered unable to know the nature and seriousness o f the offence he was facing." See also this court's decisions in Frank Saul Mushi @ Omary v. R, [2018] TZCA 424 and Marekano Ramadhani v. R, Criminal Appeal No. 201 of 2013 (unreported). The holding in the above quoted passage, which we adopt as applicable to this case, is briefly that, the offence of gang rape cannot be proved on a charge of rape. Thus, we do not agree with Ms. Muhangwa's contention, that they charged the appellant with rape because he is the only gang rapist they managed to arrest, because the argument is implausible and it accords to neither logic, nor law. We also do not agree with the finding of the first appellate court, that the charge was not defective to the extent of prejudicing the appellant, or that the omission was the one curable under section 388 of the CPA. It is our firm finding that, what happened at the trial of the appellant, was a clear injustice, and his conviction, an illegality. Thus, we find the first ground of appeal with merit, and allow it. As this finding on the first ground, is capable of disposing of the whole 8 appeal, we find no viable reasons to discuss any other grounds of appeal. Lastly, we allow the appeal and quash the appellants' conviction. We set aside his sentences including that of thirty years imprisonment, and order his immediate release from prison, unless he is otherwise held there for any other lawful cause. DATED at DAR ES SALAAM this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 18th day of March, 2025 in the presence of the appellant in person via video link from Ukonga Prison and Mr. Clemence Kato, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9