JUDGEMENT EMMANUEL MRISHO NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA CRIMINAL APPEAL NO. 26601 OF 2024 (CASE REFFERENCE NUMBER 202409172000026601) (Original from Criminal Case No. 53 of 2023 of Dodoma District Court at Dodoma) BETWEEN EMMANUEL SAID MRISHO................................................................... APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT JUDGMENT 23/10/2024 & 12/12/2024 MANYANDA, J:. The Appellant namely, Emmanuel Said Mrisho, hereafter referred to as "the Appellant", is appealing against both conviction with offence of rape, contrary to section 130(1) and (2)(e) and 131 of the Penal Code [Cap. 16 R. E. 2022] and sentence of 30 years imprisonment imposed onto him by Dodoma District Court, hereafter referred to as "the trial court". Initially, before the trial court the Appellant was charged with two offences. The first count wasimpregnating a school girl, contrary to section 60A(3) of the Education Act, [Cap.353 R. E. 2022] and the second count Page 1 o f 33 of incest by males, contrary to section 158(1)(a) of the Penal Code, [Cap. 16 R. E. 2022] on allegations that on unknown date in February, 2023, at Zepisa-B Hombolo within Dodoma District in Dodoma Region he did have sexual intercourse with a girl aged 15 years old, a student of form one, at Mtemi Chiloloma Secondary, whose name for the purpose of protecting her dignity, is withheld, knowing that she was his daughter, thereby impregnating her. In this judgement her name will be referred to as "the victim" or simply as "PW1". Later on, the count of incest was substituted with rape on allegations that he raped the victim on unknown date in February, 2023 at Zepisa-B Hombolo within Dodoma District in Dodoma Region. After testimonies of two prosecution witnesses, on 01/08/2023, the charge was amended, unfortunately the record does not tell what was amended and how. Then at a more later stage on 06/02/2024, after testimonies of three prosecution witnesses, the charge was substituted and a new one back dated the incident date alleging that the offences were committed on unknown date in October, 2022. Page 2 of 33 The trial court acquitted the Appellant on the second count of impregnating a school girl for want of proof of student hood, but convicted him on the first count for the offence of rape. The evidence presented by the prosecution through 7 witnesses and 5 exhibits was that PW2, a mother of the victim, on unknown date in December, 2022, travelled away from their home at Zepisa-B Hombolo to Mahoma Makulu village for three days to attend clan cemetery construction ceremonies leaving her husband, the Appellant and the victim together with two other children at their home. That, the Appellant is alleged to have seized that opportunity to forcibly have sexual intercourse with the victim and threaten to kill her if she dares to reveal information of that act to anyone. The evidence of the victim who testified as PW1, was that she was raped by the Appellant who is her step-father during absence of her mother on unknown date in December, 2022. She feared to inform anyone even her own mother upon her return. However, after failing to report at secondary school where she was selected to join form one, PW4, the Hamlet leader, namely, Eliabi Amon Mnyamhala took up the matter and summoned the victim and her mother whereas it was revealed by the Page 3 of 33 victim that she was pregnant caused by the Appellant; her step-father. The incidence was reported to Bwawani Police Station and the victim was medically examined by PW3, a medical doctor namely, Steven Adam Chikoti, who confirmed pregnancy. As stated above, after these witnesses' testimonies, the charge was substituted with a new one showing that the offences were committed on unknown date in October, 2022. A police officer who investigated the case, PW5, G. 258 D/SGT Fasani, after the victim was delivered of a child in August, 2023 processed for DNA test on samples taken from the victim, the Appellant and the new born child. PW6, a Chemist at the Government Chemist Laboratory Authority, Rajabu Omary Mohamed, conducted a DNA test and opined that 99.99% of the born child to belong to the Appellant. The Appellant gave general denial defence alleging to have been framed up with the case by his wife, the victim's mother due to family conflict between them. The trial court found the appellant guilty of rape, regardless of absence of evidence on the date of commission, it convicted and sentence him to serve 30 years imprisonment. He is Page 4 of 33 aggrieved by both conviction and sentence. Hence, the instant appeal. The Appellant has eleven grounds of appeal as follows: - 1. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact when convicted the appellant while the prosecution failed to prove the case against the appellant beyond a ll reasonable doubts; 2. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by convicting the appellant while the tria l was unprocedurally conducted; 3. That, your honor Judge, (sic) the learned tria l Magistrate erred in law and fact by failing to notice that the procedure o f the law o f DNA (EXB.P4) was not adhered; 4. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice that the age o f the victim was not proved as required by the law; 5 That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice that neither the evidence given by the third p art opinion (PW3) Doctor Page 5 of 33 nor PF3 (Exb. P1) was established (sic) the provision o f section 130(4(a) o f the Penal Code (Cap 16 R.E. 2022); 6. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice that failure on the p art o f the witness to name the suspect a t the earliest available and appropriate opportunity renders the evidence o f the victim (PW1) highly suspect and unreliable; 7. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice that the appellant was arrested on 14/04/2023 but he was arraigned before the court on 25/04/2023 contrary to the procedure o f the law; 8. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice that the case against the appellant was cooked and fabricated due to the diverse reason from the prosecution side; 9. That, your honor Judge, (sic) the learned tria l Magistrate grossly erred in law and fact by failing to notice the way the alleged pregnancy observed a t the first tim e before the Page 6 of 33 victim was exam ined by PW3 is questionable but one could ask him self if the appellant was really responsible why then he was not m entioned a t that tim e; 10. That, your honor Judge, (sic) the learned tria l M agistrate grossly erred in law and fact by failing to notice that it was evidence by the prosecution side that the appellant confessed the crim e before WEO but there was no any document which was tendered during the tria l to prove the same as it has to stand by the law; and 11. That, your honor Judge, (sic) the learned tria l M agistrate grossly erred in law and fact by failing to give due consideration the evidence raised by the appellant during the tria l as the law requires The appeal was argued orally, the Appellant was unrepresented, while the Republic was represented by Ms. Mwilongo Tenge, State Attorney. In his submissions, the Appellant basically adopted his grounds of appeal and added that he was arrested and tortured by militia men and sent to Hombolo Police station. That the evidence by the victim and the Page 7 of 33 medical doctor is fabricated aiming at oppressing him. He prayed this Court to allow the appeal and set him free. In reply submissions by Ms. Mwilongo Tenge, opposed the appeal, supported conviction and sentence. She argued jointly grounds 1, 8 and 10. She also argued together grounds 6 and 9 while the rest grounds were argued seriatim. In respect of grounds 1, 8 and 10 where the complaint is that the prosecution failed to prove the charge as its evidence is fabricated, she submitted that the trial court well evaluated the evidence and adequately considered the defence evidence. That, the offence of rape was proved beyond reasonable doubt by the victim that, it as the Appellant's penis which penetrated into the victim's vagina. That the act being a secret one, could be proved by the victim herself. To bring home her point, she referred this Court to the case of Selemani Makumba vs Republic [2006] TZCA 96 (21 August 2006). The State Attorney submitted further that the victim's evidence is corroborated by a medical doctor PW3 who found pregnancy in her, meaning that she was penetrated. It was the State Attorney's submissions that the victim’s evidence is further corroborated by laboratory evidence Page 8 o f 33 per Exhibit PE3, tendered by the Chemist, PW6 that DNA of the victim, the Appellant and the child born by the victim matched. In respect of ground 2 where the complaint is that the trial was unprocedural, the State Attorney submitted that the trial court followed all the criminal procedures to the letter. She narrated those procedures to be reading of a charge against the Appellant to which he pleaded not guilty. He also pleaded not guilty to the substituted charge. Then, preliminary hearing was dully conducted during which he admitted his personal particulars and that he was arrested and charged in court in respect of the offences he was charged with. That, witnesses testified and his advocate cross examined them, after withdrawal of his advocate's service, the Appellant was given chance to cross examine them. He was given opportunity to defend himself following a case to answer ruling, defence which was adequately heard, then a decision was delivered. She was of the view that the provisions of sections 229, 230, 231 of the CPA were complied with. In regard to ground three where the complaint is that procedures for taking DNA were not followed, the State Attorney submitted that the procedure in Part IV of the Human DNA Regulation Act, 2009, [Cap 73 of Page 9 o f 33 2019], were all followed. She argued that DNA samples were taken by PW7, a person authorized by the Chief Chemist. That, there was a request to the Chemist by a police officer. That, PW6 stated that he received the sample and request for DNA analysis through a letter by a DCI, Exhibit P4. The State Attorney added that the appellant accepted to have his sample taken and filled PF 180, Exhibit P4. Lastly, she was of the view that in case this Court finds out that the procedures for application for DNA analysis were not fully followed, then let it hold that Form 180 is not a mandatory requirement per Regulation 28(3) of Human DNA Regulation Act. In regard to ground 4, Ms. Mwilongo submitted that the complaint that the age of the victim was not proved is unfounded because the victim testified that she had 15 years by the time the incident happened. This is sufficient evidence and the same was not controverted by the appellant. She referred this Court to the case of Issaya Renatus vs, Republic, Criminal Appeal No. 542 of 2015 where it was stated that the age of a victim can be proved by the victim, parent, relative with knowledge of when the victim was borne, birth certificate or the report of a doctor. Therefore, it is proper for the victim to testify on her age. Page 10 of 33 Regarding the complaint in ground five that the doctor did not testify, she submitted that PW3 testified that he found the victim was pregnant at and filled PF3 which was admitted as Exhibit PE1. Penetration was proved through pregnancy. The State Attorney submitted in respect of grounds 6 and 9, arguing that also do not have merit because the argument that the victim failed to mention the Appellant at the earliest opportunity is unfounded. The victim was found to be pregnant on 03/04/2023 as evidenced by PW4. This was after her absconding from school, whereas the victim said she feared to go to school due to pregnancy and named him as a causer, that she delayed mentioning him because he had threatened to harm her. Regarding ground seven where the complaint is that the Appellant was delayed from been taken to court as he was arrested on 14/04/2023 and sent to court on 25/04/2023. She replied that it is true that the time was wasted during investigation procedures. There is no any explanation from the Appellant whether he was prejudiced in any way. She submitted that PW5 gave explanations for delay that investigation was still going on. She referred this Court to the case of Daktari Jumanne vs. Republic, Criminal Appeal No. 602 of 2021 Page 11 of 33 In respect of ground eleven about non-consideration of defence evidence. The State Attorney replied that the trial magistrate adequately considered the defence evidence but disbelieved the same. She added that in case this Court finds it to the contrary, then let it step into the shoes of the trial court and re-evaluate the evidence and come to its own conclusion which need not necessarily be the same as the trial court. Then, she rested her submissions by praying the appeal to be dismissed in its entirety. In rejoinder the Appellant rejoined that the victim pointed out delay of reporting the incident that the victim said that she was raped in December when her mother had gone to Mahoma Makulu Village for clan cemetery issues, she did not tell her mother until on 04/04/2023 when he was arrested. According to the Appellant, this was lie by her mother because if she knew that the child was pregnant since December 2022, had it been correct, she could have said it before his arrest date. Moreover, the Appellant rejoined questioning reliability of the evidence of the victim that she was raped in December, 2022 when compared with medical evidence that the victim was examined on 05/04/2023 and discovered to have a five weeks pregnancy and said would deliver a child in November or December, 2023, but delivered in Augst Page 12 of 33 2023. He also questioned the DNA test by PW4 which is said the child's DNA matched 99.99 with that of the Appellant. He was of the view that the DNA test was not well analyzed. I have carefully gone through the records of the trial court, the grounds of the appeal and the submissions of the parties, I found that the main issue is whether the appeal is meritorious. Let me start with the complaint in grounds 1, 8 and 10 which is general that the prosecution failed to prove the charge. The State Attorney opposed this complaint arguing that there is enough evidence proving the charge of rape with which the Appellant was convicted and sentenced to 30 years imprisonment. The evidence which the State Attorney relied on is based on the testimony of the victim who said that she was raped by the Appellant, her step-father during a period which her mother, PW2, had left her and her siblings with their father. According to the victim, it was on unspecified date in December, 2022. That, on the fateful date, during the mid-night, the Appellant went into her room and raped her. The State Attorney went on submitting that, the evidence of the victim is corroborated by the evidence of PW2, her mother who testified Page 13 o f 33 that she travelled to her village known as Mahoma Makulu on unspecified date in December, 2022 for clan cemetery construction ceremonies and returned after 3 or 4 days. That, even if the victim was selected to join Form One at Mtemi Chiloloma Secondary School, she could not join due to absence of basic material requirements. She did not discover her daughter's pregnancy until April, 2023 when they were summoned by the Hamlet Chairman on 03/04/2023 to give explanations why she was not attending school. The State Attorney also argued that the victim's evidence is corroborated by PW3, Steven Adam Chikoti, a medical officer who on 05/04/2023 examined and found her with pregnancy of which age he did not diagnose. Further, the State Attorney submission was that the victim's evidence is also corroborated by PW6, Rajab Omary Mohamed, a Chemist from the Chief Government Chemist Authority who is alleged to examine the Appellant's DNA which matched with that of the new born child. Then, she concluded that, the evidence which the trial court also found as sufficient, proved the offence of rape. In this case, the Appellant challenges the evidence on grounds 1, 8 and 10 arguing that the prosecution did not prove the offence. The reason Page 14 of 33 he gave is found in his rejoinder that there is contradiction in the prosecution's evidence as to the time of commission of the offence. That, while the victim alleged that she was raped in December, 2022 and was delivered of a child in August, 2023, in cross examination, PW3 stated that rape occurred in February, 2023 as the last menstruation cycle was on 28/02/2023, hence the pregnancy was five weeks and the expected delivery date (EDD) to be in November or December, 2023. To put it the other way around, the Appellant was saying that the medical officer's evidence is contradictory with that of the victim and her mother because if the evidence that the victim was delivered of a child in August, 2023, which is six moths only, is believed, then, PW3 evidence that she became pregnant in February 2023 due to rape, becomes doubtful. Also, if it is believed that the last menstruation cycle was on 28/02/2023 meaning there was no pregnancy prior to that date, then the evidence by the victim that she conceived in December, 2023 due to rape, also becomes doubtful. Therefore, it is either she conceived in December, 2022 due to rape or that she conceived in February, 2023 due to rape. One of the two Page 15 of 33 versions should be correct, as it is not known which one is correct, then the whole evidence is doubtful, doubt which is to be resolved in his favour. This Court has keenly followed up the controversy and found that it hinges on the date of commission of the offence. While on one hand, the story of the victim and her mother is that she acquired the pregnancy in December, 2022 and delivered in August, 2023, evidence which tend to tally with PW5, a police officer who investigated this case, that the child was born in August, 2023, within the 9 months' gestation period for human beings as per PW3 testimony. On the other hand, the evidence of PW3 is that rape occurred in February, 2023 as the last menstruation cycle was on 28/02/2023, hence the pregnancy was five weeks and the expected delivery date (EDD) to be in November or December, 2023. Moreover, the particulars in the charges levelled against the Appellant bears different facts, as far as the date of commission of the offence is concerned. According to the fresh charge sheet which initiated the proceedings, registered in the trial court on 25/04/2023 containing two counts namely, impregnating a school girl and incest by male, indicated that the said Page 16 of 33 offences were committed on unknown date in February, 2023. The Appellant pleaded not guilty to both counts. This first charge, which is printed, is doctored in ink pen tending to show the date of commission of the offences to be on unknown date in December, 2022. However, it is not known who did doctor it as there is neither endorsement showing the name of a person who doctored it nor date of doctoring. The proceedings also do not show whether there was amendment made to this charge authorizing the doctoring. Whatever the case between the date on the printed charge, that is, February, 2023 and the doctored one December, 2022, both have nothing to do with the case because this first charge was withdrawn and a new one substituted bore different offences. The first charge was replaced with a new one registered on 18/05/2023 with two counts of offences namely, impregnating a school girl and rape. This second charge indicates the offence of rape was committed on unknown date in February, 2023 to which a plea of not guilty was entered by the trial court on 23/05/2023 and preliminary hearing conducted on 06/06/2023. Page 17 of 33 On 01/08/2023, after testimonies of the victim (PW1) and her mother (PW2), the charge was amended, unfortunately, neither the charge sheet is availed in the record nor the proceedings do show the alterations caused by the amendment. Moreover, no right of recalling of any witness if any was explained to the Appellant after pleading not guilty. Things did not end there, on 06/02/2024 after testimonies of PW1, PW2 and PW3, a medical officer testimony, a new charge was registered in the trial court with two counts of rape and impregnating a school girl, showing that the offences were committed on unknown date in October, 2022. Apart from the proceedings showing that the Appellant pleaded to three counts which are not in the said charge because it contains only two counts, the Appellant was not addressed of his right to recall the already testified witnesses. As it can be seen the charge sheet was amended four (4) times, three substituted charges each bear different date of allegations on date of commission of the offences. While the first charge alleged the offences were committed on unknown date in February, 2023. Such assertion is not supported by any evidence. In fact, it is impossible to hold that the offences were committed in February, 2023 and the child born six (6) Page 18 of 33 months later, as that is against the nature of human beings' nine months pregnancy gestation. The second charge alleged the offences were committed on unknown date in February, 2023. As explained above, this assertion is untrue because, if the story by PW5, that the child was born in August, 2023 is believed, then the gestation period becomes hardly six months, which period a child is virtually incapable of being born alive per provisions of section 219(3) of the Penal Code. The third amendment was effected on 01/08/2023, after testimonies of the victim (PW1) and her mother (PW2), without disclosing what was amended and how. The fourth and final substituted charge dated 06/02/2024 made after the victim (PW1), her mother (PW2) and the medical officer (PW3) had testified, alleges the date of commission of the offences was on unknown date in October, 2022. This assertion is in variance not only with (PW1), (PW2) and (PW3) evidence, but also with the entire evidence adduced in court by the prosecution. In this case, it was imperative to prove the date of commission of the offences because, the victim's allegations are that the offences were Page 19 o f 33 committed during a period of absence of her mother in December, 2022. The Appellant denies to commit the offences on those dated giving reasons that, had it been true, the victim or her mother would have revealed before April, 2023 as the pregnancy was already conspicuous, being five months. This means that he contends that the offences might have been committed on a different date and by a different male person. The State Attorney supports the trial court on its finding of guilty and conviction of the offence of rape regardless absence of evidence showing the time of commission of the offences based solely on presumption of evidence of DNA. The trial court stated at page 10 of the typed judgement as follows: - "Kwa kuwa hakuna ubishi kuwa mhanga alikua na mimba na vinasaba vinamhusisha mshitakiwa kama baba wa mtoto aliyezaliw a na mhanga, basi n i wazi mshitakiwa ndiye aiiyem uingiiia kim w iii mhanga kw a n y a k a ti am bazo h a zija ta jw a kw enye u sh a h id i. " Literally means that since it is not denied that the victim was pregnant and DNA shows the accused is a father of the victim's, then, it is obvious that it was the accused who penetrated her regardless absence of evidence showing the time of commission of the offences. Page 20 of 33 Was the trial court justified in reaching at that conclusion? In my firm view, the answer is in negative. I say so because, in this matter, the evidential controversy is based on time, that is the victim was raped in December, 2022 when the Appellant's wife was away from her home, an act which paved way for commission of the rape. This fact is fiercely contested by the Appellant arguing that it is fabricated or else, had it been true, the pregnancy being 5 months old with all signs revealed, they could have reported before April, 2023. However, the prosecution did not believe the victim and her mother's evidence, hence, they drafted the first charge showing that the offences were committed in February, 2023 with unauthorized doctored-date December 2022. Later on, as explained above, the prosecution kept on shifting the goal poles from February, 2023, as per first charge and second charge sheets to October, 2022 in the third charge sheet, which was the final charge one. These amendments, though with full knowledge that they contradicted the victim, her mother and the medical officer's evidence already adduced in court, still were deliberately made and no evidence was presented to support the assertions in the new charge. Page 21 of 33 In my understanding, by substituting the charge with new particulars of offence after adduction of evidence by the victim, her mother and a medical officer, an act which resulted into the new charge to fall in variance with that evidence, means that the evidence of these witnesses was doubted by the prosecution; it became unreliable, or else there was needed new evidence to support the particulars in the new charge. In law, it has frequently, now and then, been said that where there is variance of evidence tendered in court and the particulars of offence adduced in the charge, and the charge is not amended, the effect, is to render the charge unproven. The test is usually that of prejudicial effect as put by the Court of Appeal of Tanzania in the case of Bore s/o Cliff vs. Republic, Criminal Appeal No. 193 of 2017 [2021] TZCA 178 (6 May 2021) that: - "There is no rule that whenever there is variance between the charge and the evidence then the proceedings are vitiated. Rather, the test is whether the variance had the effect o f prejudicing the accused person." Page 22 of 33 As to consequences of failure to amend a charge in variance with material evidence adduced in court, the Court of Appeal of Tanzania in the case of Thabiti Bakari vs. Republic, Criminal Appeal No. 73 of 2019 (unreported) where the particulars of offence showed what was stolen on the material day was a tricycle bajaj, but the evidence of PW1 and PW3 showed it was a motorcycle, therefore, the prosecution evidence was at variance with the charge in respect of the stolen item and although section 234(1) of the CPA allows amendment, the prosecution did not do so, stated as follows: - "It is w ell settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant. This is because such anom aly leads to serious consequences to the prosecution case." The Court made reference to its earlier decision in the case of Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 8 (24 August 2015) where it had held that: - "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 done, the preferred charge w ill remain unproved and the accused sh all be entitled to an acquittal." Page 23 of 33 Then, the Court went on observing as follows: - "Being guided by the excerpt from the above decision and as we have am ply demonstrated, certainly, we believe even though in the instant appeal the variance is not in dates but item s stolen, the consequences should be the same. See also the cases of Mohamed Juma @ Mpakama vs Republic, Criminal Appeal No. 385 of 2017 [2019] TZCA 518 (27 February 2019), Noah Paulo Gonde and Another vs Republic, Criminal Appeal No. 456 of 2017 [2020] TZCA 269 (3 April 2020) Issa Mwanjiku @ White vs Republic, Criminal Appeal No. 175 of 2018 [2020] TZCA 1801 (6 October 2020) and Frank Charles @ Sumbuka vs. Republic, Criminal Appeal No. 678 of 2020, to mention a few. In the latter case, the Court of Appeal of Tanzania quoted with approval its earlier decision of Said Musa Soweni vs. Republic, Criminal Appeal No. 93 of 2020 where it stated that: - "The law is settled that, a charge which is in m aterial conflict with the witnesses/testim onies m aterially shakes credence o f the prosecution case and renders the prosecution case not proved to the required standard." Page 24 of 33 Further, I associate myself with the holding by my brother, Hon. Nkwabi, J. in the case of Nestory Andrea vs. The Republic, DC. Criminal Appeal No. 3791 of 2024 [2024] TZHC 7306 (19 August 2024) where he faced a situation akin to the present one. In that case a charge was substituted after prosecution witnesses testifying, but the new charge was in variance with the already adduced evidence and no further evidence was adduced to support the new charge. After referring to Frank Charles @ Sumbuka v. Republic (supra), the Honourable Judge held as follows: "On m y side, I accede that due to variation o f the evidence against the charge sheet which was substituted for, the charge was not p ro ve d ....... I t is u n fo rtu n a te th a t th e p ro se cu to r w ho su b stitu te d th e ch arge sh e e t a n d file d th a t is in c o n flic t w ith th e evid en ce or sta te m e n t o f w itn e sse s is ik e a fo o tb a ll p la y e r w ho s trik e s th e b a ll, in an a tte m p t to defend, w h ich g o e s s tra ig h t in to th e n e t o f h is ow n g o a l p o le s. " (emphasis added) I subscribe to this holding. In the case at hand, the prosecutor substituted the charge ending up with new particulars which are unsupported by any evidence. Page 25 of 33 It follows therefore that where a charge is substituted, but the new charge falls in variance with the material evidence already adduced in court the evidence in the former charge becomes obsolete and unreliable, unless witnesses are recalled to clarify the differences or new evidence is adduced to support the new charge. The anomaly is prejudicial to fair trial of the accused and the case, as far as the new charge is concerned, becomes unproven to the required standard. The rationale is in line with the cardinal principle of law that in criminal cases, the prosecution is charged with a duty of proving the charge beyond all reasonable doubts. Hence, it must ensure that allegations in the charge are stated clearly to enable the accused man his defence and every allegation is proven to the required standard, as was put by the Court of Appeal of Tanzania in Thabiti Bakari vs. Republic (supra) in the following words: - "Undoubtedly, a charge sheet is a basis o f a crim inal trial. I ts purpose am ong others b ein g to inform the accused person the nature a n d magnitude o fthe charge facin g him to enable him /her to prepare h is/h er defence. In crim inal charges, the prosecution side has the duty to prove the Page 26 of 33 charge against an accused person beyond reasonable doubt and this burden never sh ifts." Back to the case in hand, the vital evidence adduced by the prosecution from the victim and her mother is contradicted by that of the medical officer. The contradiction, as explained above, is whether the victim conceived in December 2022 or February, 2023, is material going to the root of the case because proof of penetration in this case is dependent on pregnancy conception. Second, the said victim's material evidence which was already adduced fell in variance with the particulars of offence adduced in the new substituted charge, connoting disbelief by the prosecution of the said victim's evidence. Moreover, no evidence was adduced to support the particulars in the new charge. Since the adduced evidence was itself contradictory and no evidence was adduced to support the new one, then, on the strength of the authorities cited above, the Appellant's right to fair trial was prejudiced; the case was not proved. The trial court conviction was based on PW6, a Chemist, whose evidence that Appellant's DNA matched with that of the child, the evidence Page 27 of 33 which the Appellant questions. In my view, the trial court acted on opinion evidence of an expert without looking whether it aligned with the material evidence generally. In law evidence of an expert is supplementary in nature to other evidence adduced in court, hence, the court is not bound by it. In the case of Fauzia Jamal Mohamed vs. Oceanic Bay Hotel Limited, Civil Appeal No. 161 of 2018, the Court of Appeal of Tanzania in regard to the status of expert evidence stated as follows: - "We are however aware that usually what the expert witness states is sim ply an opinion and the court is not bound to accept it. Essentially, an expert is not a witness o f fact and thus, his evidence is o f supplem entary or advisory nature. It follow s that upon due consideration o f the expert witness evidence, the court has to come to its own conclusion on the issue which is supposed to be answered in resolving the dispute between the parties." See also the cases of Nyinge Suwata vs. The Republic [1959] E.A. 974; Hilda Abel vs. The Republic [1993] T.L.R. 246; D.P.P. vs. Omari Jabili [1998] T.L.R. 151, Enock Yasin vs. The Republic, Criminal Appeal No. 12 of 2012 and R. vs. Kerstin Cameron [2003] T.L.R. 84 at p. 128, among others. Page 28 of 33 In the latter case, the Court of Appeal of Tanzania echoed with approval what the Indian Supreme Court stated in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Others, AIR 2010 SCC1007, that: - "The scientific opinion evidence, if intelligible, convincing and tested becom es a fa cto r fo r consideration alon g w ith other evidence o f the case." Had the trial court considered the contradictory nature of the evidence it had, and the effect of substitution of the charges, that landed in variance with the evidence rendering the new charge unproven, it could have doubted the evidence of PW6 evidence as well, because being expert opinion was only supplementary to the already existing evidence, which in this case, as explained above, in relation to the new charge, is missing. Therefore, expert opinion could not stand alone and found a conviction. There is another complaint that the trial procedures in subordinate courts under the Criminal Procedure Act, [Cap. 20 R. E. 2022] (CPA) were not followed. The State Attorney argued that all the procedures were followed to the letter. She demonstrated that a charge was read against him, he pleaded not guilty. Then, witnesses testified and his advocate cross Page 29 of 33 examined them, even after withdrawal of his advocate's service, still he was given chance to cross examine them. After he was found with a case to answer he was given opportunity to defend himself, defence which was adequately heard, then a decision was made. Hence, sections 229, 230, 231 of the CPA were all complied with. My perusal of the proceedings as stated above, show that when the charge was substituted on 06/02/2024 and a new one back dating date of commission of the crimes from unknown date in February, 2023 to unknown date in October, 2022, thereby touching the very already adduced material evidence on controversy on the time of commission of the offence, the Appellant was not informed of his rights to recall any testified prosecution witness. Although the decision to allow or not allow recalling of witnesses is in the discretion of the trial magistrate, that do not remove the mandatory requirement of informing the accused about that right. The relevant provisions read as follows: - "234(2) Subject to subsection (1), where a charge is altered under that subsection- (a)NA (b) the accused person may demand that the witnesses or any o f them be recalled and give their evidence afresh or be further cross exam ined by the accused person or his advocate and, in such last- Page 30 of 33 m entioned event, the prosecution sh all have the right to re­ examine any such witness on m atters arising out o f such further cross-exam ination" The new charge that back-dated the date of commission of the offences from unknown date in February, 2023 to unknown date in October, 2022, was a new fact never mentioned by any witnesses in the case. The Appellant had right to know where the new date came from by re-cross examining the witnesses which the trial court ought to inform him. In my view, in the circumstances of this case, none informing the accused of this right to recall witnesses is an infraction of the biggest proportion and a serious travesty of a fair trial. I say so because the substitution of charges apart from being unsubstantiated by the evidence, forward and back dating of the incident denied the Appellant better background for manning his defence leading to unfair trial, hence occasioning miscarriage. These proceedings were fatally flawed and the only resultant consequence is to have the proceedings vitiated. Based on the above findings that the case was not proved on reasons explained, I need not to deal with other grounds of appeal. Page 31 of 33 Moreover, the boggling evidence do not warrant retrial without prejudicial to the Appellant as that will do no more than affording room to the prosecution to fill up gaps in their case, a procedure which courts abhor. See the case of Fatehali Manji vs. Republic, [1966] E.A. 343. In the event, in exercise of powers of this Court endowed to it under the provisions of section 366(1)(a)(i) of the Criminal Procedure Act, [Cap. 20 R. E. 2022], I do hereby allow the appeal, quash the conviction and set aside the sentence of 30 years imprisonment. The Appellant be released from prison forthwith unless is withheld for other lawful cause. Order accordingly. Dated at Dodoma this 12th day of December, 2024 F. K. MANYANDA, JUDGE Delivered at Dodoma this 12th day of December 2024 in the presence of the Appellant, Emmanuel Said Mrisho and Ms. Mwilongo Tenge, State Page 32 of 33 Attorney for the Respondent. The appeal is allowed, the conviction quashed and the sentence of 30 years imprisonment set aside. The Appellant be released from prison forthwith unless is withheld for other lawful cause. Right of appeal explained to the parties. F. K. MANYANDA, JUDGE Page 33 of 33