CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: MKUYE. J.A.. KAIRO, J.A. And MPEMU, J J U CRIMINAL APPEAL NO. 778 OF 2023 RAMADHANI ZUBERI........................................................................APPELLANT VERSUS REPUBLIC........................................... ......................................... RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Dodoma) (Hassani_J.) Dated the 22nd day of June, 2023 in DC Criminal Appeal No. 85 of 2022 JUDGMENT OF THE COURT 12th & 28th March, 2025 MPEMU. J.A.: The appellant Ramadhan Zuberi appeared before the District Court of Kongwa for the offence of rape contrary to the provisions of section 130 (1) (2) (e) of the Penal Code, Cap. 16 R.E 2019. It was alleged in the particulars of the offence that, the appellant had the carnal knowledge of "GHK "or the victim (identity concealed) whose age was thirteen (13) years old at Majengo Kibaigwa within Kongwa District. He was alleged to have committed the offence on 16th December, 2021. Brief facts of the case may be stated that, on the fateful day, Humphrey Kundael Kweka (PW1) called her daughter (the victim) who was at home, to report to his office located at Karume street so that she could provide some office assistance work. On her way, it is alleged, she met two young men at Mroma road, the appellant inclusive. Shortly, the appellant grabbed the victim's handset and commanded her to follow him. She obeyed. The duo then proceeded to the appellant's room where the appellant undressed her and undressed himself and thereafter, he inserted his manhood into the victim's vagina. According to the record, the victim was in her menstruation cycle. He also inserted his manhood into the victim's anus. He then locked the door and left her in the room while promising to return at late hours. He returned as promised and the duo proceeded with sexual intercourse from 13th - 16th December 2021 on regular basis. In those days, it was alleged that, the appellant used to lock her in the room during day time and probably sharing one bed tonight and in the occasion, it is alleged, they had several regular rounds of sexual intercourse. It appears some of the appellant's friends were aware of what was happening between the duo. Sometimes before sunset on 16th December, 2021 one Emmanuel informed the victim to escape from the appellant's room because the appellant had been arrested. She fled as advised, and proceeded to the bush instead where she stayed in an unfinished house to the evening of 17th December 2021 when she decided to go home. On 2 her way back home, she met one woman whose identity was never disclosed by the victim and informed her that her parents were looking for her. It would appear the said woman took her to the ten-cell leader instead. The matter was then reported to the police station and proceeded to Kibaigwa Health Centre where a clinical officer one Pius Willie Gumbo (PW5) attended her. According to his clinical examination, the victim was found to have some bruises in her vagina with no hymen. The PF3 (exhibit P9) is a revelation to this fact. On the other hand, the appellant was arrested and upon being interrogated, he confessed in his cautioned statement recorded by PW4 one E 9101 Detective Surgent Moses who tendered it as exhibit P8. Despite such confession, the appellant distanced himself from the rape incident all through his arraignment to his trial. That notwithstanding, the District Court of Kongwa trusted the prosecution evidence and thus convicted the appellant for the rape of "GHK" and imposed the following sentence as seen at page 91 of the record of appeal: "The accused is a first offender and logically, he deserves lenient punishment. However, the minimum sentence o f rape under section 130 (1) o f the PenaI Code Cap. 16 R.E 2022 is 30 years imprisonment, compensation and corporal punishment. I therefore order the accused person to serve thirty years im prisonm ent sentence. He is also ordered to pay a fine o f Tshs. 100,000/= and compensation to the victim to a tune o f Tshs. 100,000/= Further, he is ordered to a punishm ent o f 6 strokes." This decision aggrieved the appellant. He appealed to the High Court unsuccessfully as the High Court (Hassan J.) on 22nd June, 2023 dismissed the appeal on the ground that the prosecution case was proved beyond reasonable doubt. Still professing his innocence, the appellant filed the instant appeal comprising of twelve (12) grounds of appeal, which, for reasons to follow soon, we are unable to reproduce them. The appeal came before us for hearing on 12th March, 2025. The appellant appeared in person, unrepresented whereas on the respondent's side, Ms. Patricia Mkina, learned Senior State Attorney (SSA) and Mr. Gothard Mwingira, leaned State Attorney appeared to represent it. The appellant stood by the contents of his grounds of appeal and sought to hear first from a reply by the learned SSA and committed himself for a rejoinder should a need to do so arises. We thus invited Ms. Mkina to submit in reply thereof. She began by citing the case of Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (6 May, 2019; TanzLII) urging us not to hear the appellant in grounds 7, d 9 and 11 because they are new. We acceded to the invitation. The remaining grounds of appeal for that matter are reproduced as hereunder: 1. That, your lordships, the learned tria l Judge erred in law and fact by upholding the tria l court decision while the prosecution side failed to prove it's charge against the appellant beyond a ll reasonable doubts. 2. That, your lordships the learned tria l Judge erred in law and fact by failing to notice that the evidence given by PW 5 as an expert (third party opinion) didn't state anything concerned penetration, leave alone exhibit P9 (PF3) hence the provision o f section 130(4)(a) o f the Penal Code (Cap. 16) R.E. 2019 was not established. 3. That, your lordships the two courts bellow grossly erred in law and fact by failing to notice that the charge sheet was defective due to the fact that the charge sheet show that the victim was only raped contrary to the victim (PW2) who told the court that she was being raped and sodom ized (see pages 4 and 21 o f the court proceeding). 4. That, your lordships the learned tria l Judge erred in law and fact when upholding the tria l court decision w ithout considering that the tria l court m agistrate convicted the appellant while it is not dear whether memorandum o f undisputed facts at the prelim inary hearing was read over to the appellant before the court contrary to section 192 (3) o f the CPA (Cap. 20) R.E. 2019 as this was fatal and both tria l and sentence was a nullity. 5. That, your lordships the learned tria l Judge erred in fact and law when failed to notice that the accused person (appellant) was arrested on 16/12/2012 but he was arraigned before the court on 20/12/2021 contrary to the procedure o f law. 6. That, your lordships the two courts bellow grossly erred in law and fact by failing to adhere to the provision o f section 10(3) o f the CPA (Cap. 20 R.E. 2019, that is why the evidence given by PW2 (victim ) and PW5 (doctor) contradicted). 7. That, your lordships the learned tria l Judge erred in law and fact by failing to notice that, the learned tria l m agistrate m isdirected him self when stated that evidence o f the doctor has proved penetration while neither doctor (PW5) nor exhibit P9 (PF3) clarified the same (see pages 69 and 86 o f the court proceedings. 8. That, your lordships the two courts below grossly erred in law and fact by failing to notice that the age o f PW2 (the victim ) was not proved. 9. That, your lordships the two courts below grossly erred in law and fact by failing to give due consideration the defense raised by the appellant. Responding briefly to ground two of the appeal, Ms. Mkina stated that penetration, as an element in sexual offences, was proved by PW5 who examined the victim. According to the PF3 (exhibit P9), the victim sustained some bruises with no hymen. The learned SSA thought this evidence proved penetration. She added while replying to ground three that, such evidence proves the offence of rape as explained by PW3 regardless of the presence of another set of evidence from PW3 that she was also carnally known by the appellant against the order of nature. To the learned SSA, such a contradiction was not material and would not make the charge defective on the principle regarding variance between the charge and the evidence as alleged by the appellant. We also heard Ms. Mkina submitting in ground four that failure to read the memorandum of undisputed facts deduced during the preliminary hearing is not fatal to the entire trial. She cited to us the case of Jovin Daud v. Republic (Criminal Appeal No.481 of 2020) [2024] TZCA 97 (23 February 2024; TanzLII) arguing that the abnormality vitiates the preliminary hearing proceedings alone. Replying in ground five, Ms. Mkina drew our attention at page 7 of the record of appeal conceding that, the appellant was not arraigned in court immediately after his arrest. She however argued that, as the appellant was arrested on 16th December, 2021, which was Thursday, his being arraigned in court on the Monday of 20th December, 2021 was with justification as courts do not transact on weekends. She thus found nothing to have prejudiced the appellant in the circumstances. Turning to ground six, Ms. Mkina conceded that the statement of the complainant was not availed to the appellant. She however added that, such state of affairs did not in itself occasion contradiction in the evidence of PW5 and PW2 as alleged in the complaint. She added that, to the contrary, the evidence of PW5 corroborated that of PW2 on the ingredient of penetration, unlike what the appellant complained in ground seven (7) of the appeal that penetration remain unproven. Regarding the age of the victim complained in ground eight of the appeal, her argument was that the record of appeal at pages 16, 20, 21 and 69 in the evidence of the victim (PW2), her father (PW1) and the clinical officer (PW5) are to the effect that the victim was thirteen (13) years of age. She backed up her argument on the principle we stated in Isaya Renatus v. Republic (Criminal Appeal No. 54 of 2015 [2016] TZCA 218 (29 April 2016; TanzLII) that the age of the victim may be proved by the victim, parents and or evidence in the PF3 duly filled by a qualified medical practitioner. For that matter, the learned SSA urged us also to dismiss ground nine of the appeal because the learned Judge considered the evidence of the appellant as seen at page 142 of the record of appeal but found it an afterthought. Ms. Mkina summed up her argument by submitting in ground one of the complaints that the prosecution managed to prove their case because; one, the victim was thirteen (13) years old thus consent is immaterial. Two, there is evidence of penetration of a male manhood in the victim's vagina. In this one, the learned SSA trusted the evidence of the victim to have met the threshold test stated in Selemani Makumba v. Republic [2006] TLR 379. She also said that the evidence of the victim was corroborated by the evidence of the clinical officer (PW5). Three, that, it is obvious that, it is the appellant who penetrated his manhood in the vagina of the victim. Ms. Mkina concluded in her argument by arguing that, the prosecution evidence was watertight and there are no any contradictions as complained by the appellant. She finally urged us to dismiss the appeal for want of merits. On his part, the appellant wrapped up his rejoinder by reiterating what is in the contents of the grounds of appeal and added further that, the prosecution case was not proved beyond reasonable doubt. He also blamed the two courts below for ignoring his concern regarding variance between the evidence and the charge rendering the charge defective. This, to him, is evident that the charge was not proved. It was on this account the appellant urged us to allow the appeal. Having given the background of the case and considered the evidence on the record, along with the argument of the parties for and against the appeal, we think now we are in a position to deal with the grounds of appeal. To begin with, we are in all fours with the learned SSA that failure by the trial court to read the memorandum of undisputed facts during the preliminary hearing is not fatal to the entire trial proceedings. As we observed in the case of Jovin Daud v. Republic (supra) cited by Ms. Mkina, the omission only vitiates the preliminary hearing proceedings. We proceed to dismiss ground four (4) of the appeal. Regarding the complaint of the appellant that the age of the victim was unproven, again we need not be detained unnecessarily. It is clear in the evidence of the victim at page 21 of the record of appeal, her father, PW1 as seen at page 16 of the record of appeal and the clinical officer, PW5 at page 47 of the record of appeal that at the time the offence was committed, the victim was 13 years old. To be specific, the victim testified that she was born on 25th December, 2008. It is the principle of law well established in our legal system that proof of age may be exhibited by parents, medical practitioners or by way of a birth certificate. See: Haruna Mtasiwa v. The Republic (Criminal Appeal No.206 of 2018) [2020] TZCA 230 (15 May 2020; TanzLII). We thus hold ground eight (8) of the complaint meritless and we are constrained to dismiss it. We now turn to deal with ground three (3) of the complaint on variance between the charge and the evidence. Ms. Mkina resisted steadily alleging absence of such variance. The appellant's concern in ground three (3) is twofold. First, is the charge which comprises the offence of rape and second is the evidence of the victim that the appellant raped her and also carnally knew her against the order of nature. To appreciate this concern, we find it apposite to reproduce the statement and particulars of the offence together with the portion of the evidence of the victim in that regard. To begin with the statement and particulars of the offence, it stated at page 4 of the record of appeal that: "STA TEM ENT O F THE O FFEN CE RAPE contrary to section 130 (1) (2) (e) and 131 (1) o f the Penal Code Chapter 16 o f the Law [RE:2019] PA R T IC U LA R S O F THE O FFEN CE That RAMADHANI ZUBERI charged on the day between 13jl December and lf f h December, 2021 at Majengo Kibaigwa within Kongwa D istrict in Dodoma region did have carnal knowledge o f one GLADNESS HUMPHREY KWEKA a g irl o f 13 years old." On the other hand, PW2 testified the following at page 21 of the record of appeal in a quest to prove the levelled accusations in the charge: "He also removed m y underwear. He also rem oved his underwear and his clothes. H e in se rte d h is kon d o in E n g lish is c a lle d p e n is. H e in se rte d in m y anus. H e a lso in se rte d h is p e n is in to fro n t u n d erp an ts w here m e n stru a tio n p e rio d b lo o d p a sse s... "[emphasis supplied] Besides this version, PW2 proceeded to testify at page 22 of the record of appeal that, while at hospital, she was examined by the medical practitioner both in her vagina and anus. We note the following in the evidence of PW2 regarding proof of the charge of rape: We first underscore that, the statement and the particulars of the offence in the charge of rape we reproduced above contain only one count of rape. Second, the victim testified to have been raped and also carnally known against the order of nature. Third, the medical practitioner examined her in both her vagina and anus. Fourth, unlike PW2, the medical practitioner (PW5) only examined the victim in her vagina. He is silent in his oral testimony if at all any clinical examination was ever conducted in the victim's anus. Fifth, the PF3 (exhibit P9) is equally silent regarding PW5's clinical examination if at all was extended to the sexual offence against the order of nature. Sixth, the victim reported to PW1 the rape incident only. Our observation in the above stated prosecution evidence resolves also the remaining grounds of appeal which, besides the variance between the charge and the evidence, are wrapped up in one issue whether the prosecution case was proved beyond reasonable doubt. Beginning with the alleged complaint on the variance between the charge and the evidence, we are in all fours with the appellant that there is variance between the charge which comprises of only one count of rape and the evidence of the victim which comprises of two offences, that is rape and unnatural offence. Throughout the trial, the record is silent if the charge was amended in terms of section 234 (1) of the Criminal Procedure Act, Cap. 20. For that matter, the charge of rape was unproven because the prosecution has failed to discharge its burden of proving the case beyond reasonable doubt. In Ladislaus Baltazar Kalaba v. The Republic (Criminal Appeal No. 736 of 2023) [2025] TZCA 247 (19 March 2025; TanzLII) at page 8 of the judgment, the Court observed that: 'W e begin with the charge because it is the foundation o f the trial. In crim inal justice it is incum bent on the prosecution to lead evidence in support o f the charge. Whenever the evidence is not com patible with the charge, that constitutes variance between the evidence and the charge and has adverse im pact on the prosecution as the charge rem ains unsubstantiated." The foregoing is the settled position of the law in criminal jurisprudence. The argument of Ms. Mkina that we should pick the evidence of the victim which is compatible with the charge is a new criminal jurisprudential dimension which the criminal world has not invented. Besides the variance between the charge and the evidence, we think the evidence of the victim should not have been relied upon to base conviction because; one, as we stated in the foregoing, PW2 testified with deviation on what she reported to the police leading to the foundation of the charge of rape and what she testified in court at trial that she was also sodomized. Two, she testified to have been raped and sodomized but what she reported to the police and PW1 was the offence of rape only! Three, she further testified to have been examined both in her vagina and anus, a statement which is at a great variance to that of PW5 who examined her as the latter muted regarding anal examination both in his oral evidence and in the filled PF3 (exhibit P9). Four, at page 22 of the record of appeal, the victim testified to have stayed in the bush, in an unfinished house for one night. That information remained to her knowledge only as she did not inform anyone including the undisclosed woman she met on her way from the bush and whose evidence was not procured at the trial. Five, of interest, going by the evidence of the victim, it would appear the victim and the appellant never had prior communication through a mobile phone. However, PW4, a police detective at page 28 of the record of appeal has a revelation that before the victim 14 left home on the fateful day, the outgoing calls in her hand set indicated that she called one Ramadhan Zuberi, the appellant herein. This prosecution evidence has not been shaken in any way. This to us also leaves unresolved questions on the victim for concealing such vital information because she wanted to impress the world that she was not known to the appellant and never had a contact with him, save for what she alleged to have happened on the fateful day. It is doubtful to us therefore if any cell phone of the victim was ever grabbed by the appellant. Perhaps our close scrutiny of the evidence of the victim takes us to think along the lines of the Lord Chief Justice in People vs Benson, 6 Call 221 (1856) who had this to say: "rape is an accusation easily to be made and hardly to be proved and harder to be defended by the party accused though never so innocent". Our position in the foregoing analysis of the prosecution evidence appears to have shaken the credence and the credibility of the evidence of the victim. The two courts below should have considered the evidence of the victim along with the entire evidence on record before trusting her. We therefore decline the invitation by Ms. Mkina that the said evidence meets the principle stated in Selemani Makumba v. Republic (supra) that the best evidence in sexual offences comes from the victim. Had the two courts below thoroughly assessed and evaluated the evidence of the victim, they would have found that the said witness is not credible. Regarding this nature of the evidence of the victim, the Court in Frank Jeremia Maliano v. The Republic (Criminal Appeal No. 177 of 2022) [2025] TZCA 257 (21 March 2025; TanzLII) being aware that in terms of section 127 (6) of the Evidence Act, Cap. 6, the best evidence in sexual offences is that of the victim, it quoted that section and thereafter made the following observation at page 10 through 11 of the judgment regarding circumstances upon which such evidence has to be treated before it is trusted: "Undoubtedly, we have pronounced ourselves in the above position In the case o fS e le m a n i M akum ba [2006] T.L.R. 379 and a series o f decisions that followed, in which we observed that, true evidence o f rape has to come from the victim, if an adult, that there was penetration and no consent, and in case o f any other woman where consent is irrelevant, that there was penetration. However, the above rule is not absolute. The court have to be satisfied that the evidence contains nothing but the truth. The reason is not farfetched, sexual offences are very serious in nature as they often attract public attention and public scrutiny, but more so, they have direct consequences once the accused person is found g u ilty given the severity o f the sentence imposed. In the case o f M oham ed S a id v. R e p u b lic, Crim inal Appeal No. 145 o f 2017 (unreported), while discussing subsection 7 o f section 127, we held that the word o f the victim o f sexual offence should not be taken as a gospel truth but should pass the test o f truthfulness. Ordinarily, credibility o f a witness can be assessed by the tria l court during trial, However, the credibility o f a witness can also be determ ined in two ways, that is, one, by assessing the coherence o f the testim ony o f the witness, and two, when the testim ony o f the witness is considered in relation to the evidence o f other witnesses. There is in this regard, a considerable body o f case law on this aspect See, for instance, Shaban D au d v. R ep u b lic, Crim inal Appeal No.28 o f 2001 (unreported)." Given the foregoing analysis of the evidence and the quoted Court's decision in Frank Jeremia Maliano's case (supra), there is no truth in the evidence of the victim. It was not the best evidence in support of the charge against the appellant and the two courts below misinterpreted it, as such, we are mindful to interfere because it is such misinterpretation that led to a wrong conclusion that the victim was raped by the appellant on the fateful day. The end of it takes us to a finding that the prosecution case was unproven beyond reasonable doubt. We are constrained, on that account, to allow the appeal. Accordingly, the conviction and sentence meted out to the appellant for the offence of rape is quashed and set aside. Our final order which we are making is for the immediate release of the appellant from custody, else, held for some other lawful causes not allied to the forestated conviction and sentence. DATED at DODOMA this 27th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 28th day of March, 2025 in the presence of appellant in person, and Ms. Patricia Mkina, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. COURT OF APPEAL