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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 31044 OF 2024 (Originating from the District Court of Mbeya at Mbeya in Criminal Case No. 54 of 2024) JULIUS JOHN…………………………….…APPELLANT

VERSUS THE REPUBLIC……………………….….…………………RESPONDENT

JUDGMENT Date: 6 January 2025 & 7 January 2025 SINDA, J.: The appellant was charged with and convicted of the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16, R.E 2022 (the Penal Code). The District Court of Mbeya at Mbeya (the Trial Court) sentenced him to serve thirty (30) years in prison. 1 The particulars of the offence are that on diverse dates between November 2018 and January 2019 at the Airport area within the City and Region of Mbeya did have carnal knowledge of a girl of eleven (11) years old (the Victim or PW1). The appellant challenges his conviction and the corresponding sentence on the following grounds: 1. That, the trial magistrate erred when he convicted the appellant, relying on contradictory evidence adduced by Pw1 and the charge sheet. The charge sheet showed the alleged incident happened on diverse dates between November 2018 to a girl of 11 years old, while Pw1’s evidence showed the alleged incident happened in November 2019 and the victim was 12 years old.

2. That, the trial magistrate erred when he convicted the appellant, relying on unconfirmed evidence of Pw4 and Pw3 and doubtful evidence of Pw1, Pw2 and Pw5.

3. That the trial magistrate erred in law and in facts to convict the appellant, basing on inadmissible evidence of Pw1,Pw2,Pw3,Pw4 and Pw5 while Pw1’s evidence was about the incidence which happened in November 2019, and Pw2 and Pw3 and other witnesses' evidence was about an incident that happened in January 2019. 2 At the hearing of the appeal, the appellant was unrepresented, the respondent was represented by Mr. Rajab Msemo, learned State Attorney. The appellant requested the Court to consider his grounds in the petition of appeal as presented in the Court. He opted for Mr. Msemo to reply to them first so he could rejoin in case such need arose. In his submission, Mr. Msemo supported the appeal and agreed with the first and third grounds of appeal in the petition of appeal. Mr. Msemo submitted that he reviewed the proceedings of the Trial Court (the Proceedings), the judgment of the Trial Court (the Judgement) and the petition of appeal, specifically grounds number one and three, and supports the appeal. He contended that he reviewed the charge sheet and evidence brought in court, particularly the evidence of PW1 at page 8 of the Proceedings, who stated that she was raped in November 2019. He argued that there was a variance between the charge and the evidence on record regarding the date of the incident. The charge sheet stated that the Victim was raped on diverse dates

between November 2018 and January 2019. He referred to 3 the case of Frank Charles Sumbuka vs R, Criminal Appeal No. 678 of 2020, CAT at Moshi [2024] TZCA 342 (9 May 2024) to support his argument. He further added that PW2 at page 11 of the Proceedings stated that on 8 January 2019 she received information that the appellant was seen standing with the Victim on the road in a suspicious environment. He argued that a person standing by a roadside in a doubtful environment cannot prove rape beyond reasonable doubt. He was of the opinion that the prosecution case was not proved to the required standard and supported the appeal. In rejoinder, the appellant prayed the court to allow his appeal. I have considered the Trial Court’s record and the parties' arguments. I have scrutinized whether the case against the appellant was proved beyond reasonable doubt. I have analyzed the evidence of the prosecution’s witnesses. I do agree with Mr. Msemo that there was a variance between the charge and the evidence on record regarding the date of the incident. In this particular 4 case, the Victim stated that she was raped in November 2019 while the charge sheet clearly stated that the Victim was raped on diverse dates between November 2018 and January 2019. In line with the case of Frank Charles Sumbuka vs R (supra), it is a settled law that a charge which is in material conflict with the

witness testimonies materially shakes the credence of the prosecution case and renders the prosecution case not proved to the required standard. As such, I find that the prosecution evidence was not water tight to secure conviction against the appellant and was definitely full of doubts. Therefore, the prosecution has failed to prove its case beyond a reasonable doubt. Sections 110(1) and (2) and 112 of Evidence Act Cap. 6 R.E 2022 (the TEA) state that he who alleges must prove, and the burden of so proving lies on him. See also the cases of Abdul Karim Haji vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004, Nathaniel Alphonce Mapunda and Benjamin Mapunda vs. Republic [2006] TLR 395 and Zombo Rashid vs. Republic, Criminal Appeal No. 7 of 2012 (CAT- unreported). 5 Consequently, I allow the appeal, quash and set aside the conviction and sentence, and order the immediate release of the appellant from prison unless held for another lawful cause. The right of appeal was explained. DATED at MBEYA on this 7 day of January 2025. A. A. SINDA

JUDGE 6