kilalika rubuye vs republic 2017 tzca 322 25 august 2017

kilalika rubuye vs republic 2017 tzca 322 25 august 2017

The prosecution failed to prove the charge of rape under section 130(2)(c) or the substituted charge of defilement of imbecile under section 137; the charge sheet and evidence were at variance; therefore, the conviction and sentence could not stand and the appellant was entitled to acquittal.

Citation
kilalika rubuye vs republic 2017 tzca 322 25 august 2017
Parties
Appellant: Kilalika s/o Rubuye; Respondent: The Republic
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
25 August 2017
Procedural Posture
Criminal Appeal / Second Appeal (court of Appeal of Tanzania)
Outcome
appeal allowed; conviction quashed; sentence set aside; appellant acquitted
Legal Topics
Rape, Defilement of Imbecile, Variance Between Charge and Evidence, Retrial Principles, Acquittal for Insufficient Evidence
Source Language
English
Criminal Law Rape Defilement of Imbecile Variance Between Charge and Evidence Retrial Principles Acquittal for Insufficient Evidence

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Parties

Kilalika s/o Rubuye

Appellant

The Republic

Respondent

Procedural Posture

Criminal Appeal / Second Appeal (court of Appeal of Tanzania)

Legal Issues

  1. 1 Whether the prosecution proved the charge of rape under section 130(2)(c) of the Penal Code
  2. 2 Whether the substituted conviction for defilement of imbecile under section 137 of the Penal Code was proper
  3. 3 Whether a retrial should be ordered when the charge and evidence are at variance

Ratio Decidendi

The prosecution failed to prove the charge of rape under section 130(2)(c) or the substituted charge of defilement of imbecile under section 137; the charge sheet and evidence were at variance; therefore, the conviction and sentence could not stand and the appellant was entitled to acquittal.

Court Disposition

appeal allowed; conviction quashed; sentence set aside; appellant acquitted

Orders

  • Appellant to be released from prison forthwith unless lawfully held for another matter.