CRIMINAL APPEAL NO 199 OF 2022 BUNDALA GUSHAHA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: 3UMA C J.. WAMBALI. 3.A. And MURUKE, 3.A.) CRIMINAL APPEAL NO. 199 OF 2022 BUNDALA GUSHAHA.................................................................... APPELLANT VERSUS THE REPUBLIC............................................ ........................... RESPONDENT (Appeal from the Decision of the Resident Magistrate Court of Mwanza with Extended 3urisdiction at Mwanza) (Ndyekobora. SRM. Ext. 3ur.l dated 26th day of August, 2021 in RM. Criminal Appeal No. 37 of 2020 JUDGMENT OF THE COURT 24th February & 5th March 2025 MURUKE. 3.A.: The District Court of Magu convicted the appellant, Bundala Gushaha of two counts of rape and abduction, to a girl aged 16 years old after being satisfied that, prosecution had proved the case. On the first count of rape contrary to section 130 (2) (e) and 131 (1) of the Penal Code, it was particularized that, on unknown time and date of December, 2018 at Isangijo Village within Magu District in Mwanza Region, the appellant had unlawful carnal knowledge to a girl of sixteen years old. The second count was abduction contrary to section 133 of the penal code. It was alleged that on 7th April, 2019 at about 06:00 hrs at Isangijo village within Magu District in Mwanza region, the appellant unlawfully took a girl aged 16 years out of protection and custody of her parents, who we shall be referring to as the victim or PW1. To prove the charge, the prosecution summoned the victim (PW1), Mwandikwa Mamyecha (PW2), William Tangawizi (PW3), G. 1885 D/C James (PW4), Getruda Charles (PW5), and Kireo Maduhu (PW6) and tendered one documentary evidence, the PF3 as exhibit PEI. On defence, appellant testified as (DW1), Daniel Maige (DW2) and Gushaha Masalangodo (DW3). Facts briefly are as testified by PW2, that PW1, his daughter of 16 year old, disappeared from home on 7th April, 2019. On the next day, PW2 informed his neighbour PW3, about the incident. The matter was reported to hamlet chairman then to Kisesa police station. With the aid of police officers, on 16th April, 2019 around 21:00 hrs, PW2, PW3 and PW6 went to the appellants' home and arrested him together with the victim. The appellant was interrogated by PW5 on 17th April 2019 at about 10:00 hrs. The victim was also found to be 18 weeks pregnant, after being examined by PW5, Getruda Charles, medical doctor at Kisesa Health Centre. The victim, PW1, admitted that she lived with the appellant as husband and wife at Kisesa area where they rented a room. She testified further that, the appellant abducted her when he phoned her to follow him to Buzuruga where they stayed with the appellant's uncle place for two days before moving to Kisesa. She testified further that she met the Appellant on November 2018, when the appellant visited the cafeteria where she was working. On defence, the appellant admitted to have married the victim. He stated that on 29th December, 2018 he sent a message to the victim's father that he wanted to marry PW1. The appellant discussed the dowry with his relative. On 6th January 2019, the two families agreed the amount of dowry to be Tsh 1,300,000/= which was to be paid on 30th March 2019. However, the agreement did not mature as the appellant's father got sick. On 16th April, 2019 he was arrested for rape and abduction.DW2 and DW3 gave similar accounts of events. Upon full hearing, the trial court was satisfied that the charge was proved to the required standard. On the count of abduction, the court was satisfied that since the victim was taken out of custody of her parent by the appellant, she was abducted and the charge was proved. On the offence of rape, the trial court relied on the evidence that the victim lived with the appellant as husband and wife and that they used to make love at a certain guest house. The trial court convicted the appellant and sentenced him to imprisonment of 30 years on both counts. Appellant's appeal to the High Court was also dismissed. Thus, present appeal raising two set of memorandum of appeal first one filed on 23rd May 2022, the appellant raised six grounds and the two grounds of appeal were raised in the supplementary memorandum of appeal dated 26th March 2024. Essentially, those two sets of memoranda raise the following four paraphrased points of complaint. One, charge of abduction is defective. Two, variance of particulars of the offence in the charge of rape with that of the victim. Three, failure to conduct preliminary hearing. Four, failure by the trial Court to consider appellant's defence. On the hearing date, Ms. Revina Tibilengwa learned Principal State Attorney represented the respondent Republic, whereas appellant was present in person not represented. Ms. Tibilengwa intimated to the Court that after careful scrutiny of the record, the respondent Republic had no intention to oppose the appellant's appeal because of the defective charge on second count and variance of the date on the commission of the offence on second count with the evidence of the victim. Appellant who was not represented, implored us to go through grounds of appeal and allow his appeal. Having heard the Principal State Attorney in her brief submission in opposition to the conviction and sentence on ground one and two, and having gone through the records, we will consider first and second grounds as seem to be decisive in this appeal. Upon perusal of the charge which was the basis of the conviction of the appellant, we are satisfied that the charge on the second count is incurably defective. The appellant was charged with two counts, rape c/s 130 (2) (e) and section 131 (1) of the penal code and abduction c/s 133 of the penal code. Section 132 of the CPA provides that: "Every charge or information shall contain and shall be sufficient if it contains a statement o f the specific offense or offenses with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the actor o f the offence charged. "(Emphasis supplied). Therefore, the proper charge must contain the statement of specific offense together with the necessary particulars to give rise say information as to the nature of the offense charged. On the second count, the appellant was charged with the offense of abduction c/s 133 of the penal code, which provides that: "any person with intention to marry or have sexuai intercouse o fa woman o f any age, or to or cause her to be married or to have sexuai intercourse with any other persons, takes her away, detains her against her will, is guiity o f an offense and is liable to imprisonment for seven years'' (Emphasis supplied). While the particulars of the second offense read that; " Bundaia s/o Gushaha charged that on 7th April 2019 at or about 06:00 hrs at Isangijo village within the Magu district in Mwanza region unlawfully did take one Magreth d/o Mwandiko 16 years out o f the protection and custody o f her parents (Emphasis is mine) Looking at the particulars of the offense above, it is clear that among the main element in the offense of abduction under the section 133 of the penal code can be seen in the bolded part of the section "takes away or detains her, against her will" which imply that one of the main elements "being taken against her will does not depict in the particulars of the second count. Absence of such information imply that the key ingredients of abduction under section 133 of the penal code have been omitted and this makes the charge in respect of this count incurably defective. The omission cannot be cured by the provision of section 388 of the CPA. The omission was prejudicial to the appellant, which amounted to an unfair trial to the appellant, as he could not be in a position to prepare his defence. See the case of Angulile Jackson @ Kasonya v. DPP (Criminal appeal No. 162 of 2019) (2022) TZCA 66 (24 February 2022, TANZLII). To us the appellant was convicted on a defective charge. It is on the record that the appellant was convicted and sentenced to serve 30 years jail term for both counts, which was to run concurrently. We have noted that, first the sentencing section 133 of the penal code was not mentioned, which, apart from being the charging section, it is also a sentencing provision in as far as the second count is concerned. Moreover, the appellant was wrongly sentenced to serve 30 years imprisonment despite the fact that the punishment for the offense of abduction under section 133 of the penal code is imprisonment for seven years. Therefore, the court wrongly sentenced the appellant. The second ground is that the charge is defective since the victim's name indicated is Magreth d/o Mwandiko while the one who testified is Magreth d/o Mwandikwa. Also, there was variance between the charge and the victim testimony as the charge indicated that the incidence took place on December 2018, while victim evidence showed that the incident took place in November 2018. Upon perusal of the charge, the name of the victim was Magreth d/o Mwandiko while the victim testified at pg. 9 as Magreth Mwandikwa and the PF3 (exhibit pi) at pg. 38 indicated the name of the victim as Magreth d/o Mwandikwa. Therefore, it is true that there is error on the name of the victim; however, it is a mere typographical error, which can be overlooked by the Court. On the issue of variance as to the date the incident took place, between December 2018 and November 2018; surely, the first count indicated that at unknown date and time in December 2018 is when the appellant raped the victim herein. However, PW1 (the victim) testified that, she knew the appellant since November 2018 as he used to go to the hotel where she was working. She stated that the appellant enticed her and she agreed. They used to meet at the cafeteria and made love in a certain guesthouse. According to the evidence on record, there is no evidence that the appellant had carnal knowledge with the victim on unknown date and on December 2018. The only evidence on record is that the victim knew the appellant on November 2018 and they made love in unknown guesthouse two times and she later became pregnant. Therefore, there is no specific evidence that the appellant carnally knew the victim on unknown date and time of December 2018. In the case of Rajabu Shabani @ Sanuka v. Republic (Criminal Appeal No. 461 of 2015) (2016) TZCA 2082 (28 October 2016 TANZLII), the Court quoted what was stated in Mathias Samuel v. Republic, Criminal Appeal No. 271 of 2009 (unreported) which categorically stated that; "When a specific date, time and place is mentioned in the charge sheet, the prosecution is obliged to prove that the offense was committed by the accused by giving evidence and proof to that effect". See also the case of Salum Rashid Chitende v. Republic (Criminal Appeal No. 204 of 2015) (2015) TZCA 572 (12 October 2015, TANZLII) and John Julius Martin & Another v. Republic (Criminal Appeal No. 42 of 2020) (2022) TZCA 789 (8 December 2022, TANZLII). The Court in the case of Nathanael Alphonce Mapunda v. R. 2006 TLR 395 insisted that there must be credible evidence linking the accused with the offence he is alleged to have committed. Therefore, the omission to adduce evidence with regard to the date when the offense was committed created doubt which, should be resolved in favor of the appellant herein. That being the case, we resolve that the charge of rape was not proved by the prosecution side to the standard required by the law. Although the appellant's defense can be regarded as an implied admission of the offense charged, the conviction cannot base on the defence. See the case of the Republic v. Anthony (Criminal Appeal No. 99 of 2000) (2005) TZCA 29 (14 June 2005, TANZLII). Since the prosecution has not discharged its burden to prove the case, the appellant defence could not be used to warrant the conviction. From the foregoing, the offence of rape was not proved to the required standard. Therefore, the complaint in the second ground is merited. In the upshot, the appeal is allowed. We quash conviction and set aside the sentence imposed on the appellant. We further order that the appellant be released forthwith, unless lawfully held. DATED at MWANZA this 28th day of February, 2025. I. H. JUMA CHIEF JUSTICE F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2025 in the presence of the Appellant in person vide video link from Butimba Prison and Ms. Jaines Kihwelo, learned State Attorney for the Respondent/Republic also vide video link from NPS Mwanza; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL