CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CO RAM: MWANPAMBO, 3.A, MAIGE. 3.A. And MGEYEKWA, 3.A/1 CRIMINAL APPEAL NO. 447 OF 2020 ELIHURUMA EMMANUEL MUSHI...... ......... ......................APPELLANT VERSUS THE REPUBLIC........... .......................... ............ ..... .......RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mutungi, 3.V dated the 10th day of September, 2020 in D.C. Criminal Appeal No. 33 of 2020 JUDGMENT OF THE COURT 18th & 20lh March, 2024 MWANPAMBO, J.A.: The appellant Elihuruma Emmanuel Mushi @ Totoo was convicted by the District Court of Hal at Bomangombe of the offence of attempted rape contrary to section 132 (2) of the Penal Code. He was accordingly sentenced to 30 years imprisonment. His appeal to the High Court siting at Moshi was barren of fruit. That appeal was dismissed upon the first appellate court being satisfied that his conviction was proper so was the sentence. He is now before the Court in this appeal against the first appellate court's decision. Before the trial court, the appellant stood charged with two courts; indecent assault and attempted rape. However, the trial court dismissed the first count on indecent assault. To the extent relevant to the count on which the appellant was convicted, it was alleged in the charge that on 12 June, 2017 at about 13:30 hours at a place called Sanya Station village in Hai District, Kilimanjaro Region, the appellant attempted to have sexual intercourse with a 9 years girl whose identity is concealed henceforth to be referred as the victim or simply PW3. The trial court believed the prosecution evidence through six witnesses including the victim that the appellant did indeed commit the offence. Among the witnesses, were, Christian Oshoseni Munisi (PW1) whose evidence was to the effect that, upon being informed by her granddaughter (PW1) of the ordeal she had gone through in the hands of the appellant who happened to be her neighbour. She confronted her and that he confirmed to have had sexual intercourse with PW1 and PW3 who allegedly forced him to make love with him. Upon such revelation, a report was made instantly to Wilfred Justine Urassa (PW4), a street chairman who had the appellant arrested by local militiamen. According to PW4, upon interrogation, the appellant admitted to have been forced by the victims to have sexual intercourse with them. The other evidence came from Dr. Neti Sawe (PW6); a medical doctor at Hai Hospital who, upon examination of PW3, found bruises and reddish colour on her private parts but ruled out existence of any sexual intercourse. She concluded that there was an attempted rape on the victim. Her findings were posted in a PF3 which was admitted in evidence as exhibit PI. In his defence, the appellant attacked the findings in exhibit P i as doubtful without more. In cross examination, he denied having committed the charged offence. In not so many words, the trial magistrate was satisfied that the prosecution had adduced sufficient evidence proving its case the more so because the appellant did not controvert that evidence. The learned trial Resident Magistrate convicted the appellant as charged on the second count of attempted rape. The appellant's notice of intention to appeal shows that he is appealing against conviction on the offence of indecent assault, subject of the first count which had been dismissed by the trial court. Nevertheless, the petition of appeal to the High Court was pegged on conviction on the attempted rape. It is significant that, despite the High 3 Court determining the appellant's appeal faulting conviction on attempted rape, the notice of intention to appeal at page 63 of the record of appeal makes reference to indecent assault c/s 138 of the Penal Code. The appellant faults his conviction which was sustained by the first appellate court on 9 grounds of appeal. At the hearing of appeal during which he appeared in person, the appellant urged the Court to find merit in it and allow it, without more. However, as it will become apparent shortly, the determination of the appeal turns on an issue raised by the respondent Republic represented by Ms. Sabina Silayo, learned Senior State Attorney and Ms. Nema Moshi, learned State Attorney. Before hearing could begin in earnest, we drew the attention of the learned counsel for the respondent on the validity of the notice of intention to appeal we alluded to earlier. Initially, Ms. Moshi took the view that, since the notice referred to a different offence from which the appellant was convicted, such notice was defective. However, upon reflection, she backtracked and urged that, reference to indecent assault instead of attempted rape in the notice of appeal was curable by way of amendment under rule 68 (8) of the Court of Appeal Rules, 2009 (the 4 Rules). We agreed with Ms. Moshi and ordered amendment of the notice of appeal by deleting "'indecent assault c/s 138" to be replaced with "attempted rape c/s 132 (2) o f the Pena/ Codd' then and there and proceeded with the hearing of the appeal. When she rose to argue the appeal, Ms. Moshi expressed the respondent's position to support it on two grounds: one, defect in the charge on which the appellant was convicted and; two, non-compliance with section 226 (2) of the Criminal Procedure Act (the CPA). Not surprisingly, the appellant had nothing to say in any of the grounds referred to shortly. Ms. Moshi's submission on ground one was predicated on the court's previous decision in Isidori Patrice v. Republic, Criminal Appeal No. 224 of 2007 (unreported) interpreting section 132 (1) and (2) of the Penal Code. According to the learned State Attorney, whereas section 132 (2) has paragraphs (a) (b) (c) and (d) as instances of the commission of the offence, the second count on which the appellant was convicted omitted to include the relevant instance the appellant was alleged to have committed the offence of attempted rape. Ms. Moshi was resolute that, the omission was fatal to the conviction and offended 5 the principles of fair trial as the appellant was placed in a disadvantage of not understanding the nature of the offence to enable him prepare his defence. For our part, having examined count two in the charge before the trial court, we readily agree with Ms. Moshi that it was indeed wanting in material respects. We find it necessary to reproduce count 2 as under: "2nd COUNT STA TEMENT OF OFFENCE Attempt rape c/s 132 (2) o f the PenaI Code Cap 16 Vol. 1 o f the Law (R.E. 2002). PARTICULARS OF OFFENCE: That ELIHURUMA S/O EMMANUEL MUSHI @ TOTOO charged on 12th day o f June, 2017, at or about 13:30 hrs at Sanya Station Village within Hai District in Kilimanjaro Region, did attempt to have sexual intercourse to one JASMINE D/O ISSA KATUMBA a girl o f 9 years old a student o f standard one at Obrien Primary School. Dated at Bomangdmbe this 03 day o f 10, 2017. Sgd PUBLIC PROSECUTOR ". Qn the other hand, section 132 (2) provides: - 6 "(2) A person attempts to commit rape if, with intent to procure prohibited sexual intercourse with any giri or woman, he manifests his intention by: (a) threatening the giri or woman for sexuai purposes; (b) being a person o f authority or influence in relation to the girl or woman, applying any act or intimidation over her for sexual purposes; (c) making any false representations to her for the purpose o f obtaining her consent; (d) representing himself as a husband o f the girl or woman, and the girl or woman is put in a pbsition where, but for the occurrence o f anything independent o f that person's will she would be involuntarily carnally known;" It is a mandatory requirement under section 132 of CPA for a charge in a subordinate court to contain, not only a statement of specific offence with which the accused is charged but also such particulars necessary for giving reasonable information as to the nature of the offence charged. As we held in Isidori Patrice (supra): 7 "This requirement hinges on the basic rules o f criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus o f the offence charged with the necessary mens tea. Accordingly,-f the particulars in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts o f the offence and any intent specifically required by law. We take it as settled law also that where the definition o f the offence charged specifies factual circumstances without which the offence cannot be committed, they must be included in the particulars o f the o ffe n c e [At page 14] Relying on Musa Mwaikumba v. Republic [2006] T.L.R. 387 to which reference was made in Isidori Patrice, we are satisfied that the wanting particulars in the count on which the appellant was tried and convicted were fatal to such conviction and the ultimate sentence. In the event, satisfied that the appellant was tried and convicted on a defective charge, we invoke our revisional power under section 4 (2) of the Appellate Jurisdiction Act (the A]A) and quash the appellant's conviction and set aside the sentence. In view of the foregoing, we do not find it necessary to belabor on the issue in relation to non­ 8 compliance with section 226 (2) of the CPA as doing so will be superfluous. The above said, the appellant shall be released forthwith from custody unless lawfully held therein. DATED at MOSHI this 20th day of March, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 20th day of March, 2024 in the presence of the appellant in person and Ms. Bertina Tarimo, learned State Attorney for the respondent Republic, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 9