CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MUGASHA. J.A.. MLACHA. 3.A. And NGWEMBE. 3.A.) CRIMINAL APPEAL NO. 648 OF 2020 MANYWA THABIT @ RAMA BONGE.................................... APPELLANT VERSUS THE REPUBLIC.........................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fMashauri. J.1 dated the 19thday of November, 2020 in Criminal Appeal No. 127 of 2020 JUDGMENT OF THE COURT 12th & 14th August, 2024 NGWEMBE. JA.: This is a second appeal, Manywa Thabit @ Rama Bonge, the appellant herein, was arraigned before the District Court of Chato District at Chato with the offence of gang rape contrary to section 130 (1) (2) (e) and 131A (1) (2) of the Penal Code [Cap 16 R.E. 2019]. It was alleged by the prosecution in the particulars of offence that; the appellant on 18th day of June, 2019 at Buseresere Village, Chato District within Geita Region did, unlawfully, had sexual intercourse with a girl aged 16 years. To conceal her identity, we shall be referring to the victim by the acronym of BC, the victim or PW1, in the course of this judgement. Discerned from the court record, the facts underlying the conviction of the appellant are as follows. On 18th June, 2019 the appellant forcefully lured the victim to a place where two other men were, and together they took the victim into a bush. On the way, the appellant threatened the victim by words and showed her some scars he had on his right leg that those scars were due to criminal acts he committed to others. At a certain place in the bush, one John Joseph together with the appellant forcefully, laid her down and John Joseph raped her. After that incident, they walked to another place where other men were and one of them again raped her. After being satisfied with their shameful acts, they led her to the main road Where they left her unattended. Upon reporting the incident to Buseresere Police Station, she was given PF3 and she went to hospital for medical checkup and medication. At the end of investigation, the appellant was arrested and arraigned in court charged for gang rape. When he was called to plead, he pleaded not guilty. Hence the prosecution lined up seven witnesses and tendered five exhibits. At the end of trial, the learned trial magistrate convicted the appellant with gang rape and passed a statutory sentence of life imprisonment with an order to compensate the victim for shillings one million only. His first appeal to the High Court was unsuccessful, hence the instant appeal. The appellant fronted two memoranda; the original memorandum had six grounds while the supplementary memorandum carried seven grounds forming an aggregate of thirteen grounds of complaint. Among his grounds, the appellant complained on variances between the charge sheet and the evidence. We need not to reproduce those grounds herein for a reason to be disclosed soon. At the hearing, the appellant appeared in person unrepresented, while the respondent Republic was represented by Mr. Robert Magige, learned Senior State Attorney. When the appellant was invited to elaborate his grounds of appeal, he solely adopted the grounds and reserved his right to rejoin after the response from the respondent. We therefore, invited Mr. Magige, to address the Court on the alleged variances between the charge and the prosecution evidence before he can submit on other grounds of appeal. In turn Mr. Magige, conceded that there are serious variances between the charge and the evidence to the extent that the charge remained unproved. He pointed that, according to the charge sheet, the incident of gang rape occurred on 18th June, 2019 contrary to the evidence of the victim PW1 and the Clinical Officer (PW5) who testified to have attended the victim on 23rd February, 2020 as reflected in the PF3. Equally the police officer (PW6) who attended the victim and gave her PF3 (exhibit P2) indicates that the eventful date was 23rd February, 2020. Moreover, the cautioned statement of the appellant which was admitted in court marked exhibit P3 states the fateful date was on 23rd February, 2020. Further, in view of the variance, he pointed out that section 234 of the Criminal Procedure Act (Cap 20 R.E. 2022) was not invoked to amend the charge sheet. He finally rested his submission by insisting that the charge remained unproved. We have given a deserving consideration to the appellant's complaint on variances between the charge and the evidence adduced during trial. We have observed vividly that the charge is very particular that the offence was committed on 18th day of June, 2019 which fact is diametrically opposed with the whole prosecution evidence. The testimony of BC indicates that she was molested by the appellant jointly with others on 23rd February, 2020 which evidence is corroborated by PW4 who recorded the cautioned statement of the appellant, the Clinical Officer (PW5) who attended her soon after that shameful act, and the PF3 both disclose the same date of 23rd February, 2020. Moreover, PW5, PW6 and PW7 all enjoin on the same date that it was 23rd February, 2020. Therefore, it is evident that the charge was at variance with the evidence. Under normal circumstances, the evidence must support the contents of the charge. Section 132 of the CPA provide necessary elements of the charge sheet, those are: statement of specific offence or offences with which the accused person is charged; particulars of the offence as may be necessary to give reasonable information to the accused to the nature of the offence charged. For clarity section 132 is quoted hereunder: Section 132 "Every charge or information shall contain, and shall be sufficient if it contains, a statement o f the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged". The catch word in this section is 'shall' contain a specific offence or offences and 'shall' provide particulars of the offence charged. When the above section is read together with section 135 of the Criminal Procedure Act, the charge must be specific on the date, time and place where the offence was committed. Due to its importance, section 135 is reproduced hereunder: Section 135 "The following provisions o f this section shall apply to all charges and information and, notwithstanding any rule o f law or practice, a charge or an information shall, subject to the provisions o f this Act, not be open to objection in respect o f its form or contents if it is framed in accordance with the provisions o f this section: - (i) a count o f a charge or information shall commence with a statement o f the offence charged, called the statement o f the offence; (ii) the statement o f offence shall describe the offence shortly in ordinary language avoiding as far as possible the use o f technical terms and without necessarily stating all the essential elements o f the offence and, if the offence charged is one created by enactment, shall contain a reference to the section o f the enactment creating the offence; (Hi) after the statement o f the offence, particulars o f such offence shall be set out In ordinary language, in which the use o f technical terms shall not be necessary, save that where any rule o f law limits the particulars o f an offence which are required to be given in a charge or an information, nothing in this paragraph shall require any more particulars to be given than those so required". The above two sections set out three important attributes; one, the process of proper charging the accused, which is a fundamental responsibility of the prosecutor; two, the accused must know exactly what he is being accused for and start preparing his defense; and three, the trial court knows if it has jurisdiction and sets up procedures on how to handle that case from the beginning of trial to the end. Therefore, in criminal trials, the profound foundation of fair trial is the proper charge which initiates the whole process of criminal adjudication. The two sections have attracted attention of this Court in numerous decisions, including, Charles s/o Makapi v. Republic (Criminal Appeal No. 85 of 2012) [2014] TZCA 247 TANZLII (19 June 2014); Abdallah Ally v. Republic (Criminal Appeal No. 253 of 2013) [2015] TZCA 55 TANZLII (21 July 2015); Musa Mwaikunda v. Republic [2006] T.L.R. 387; Marekano Ramadhani v. Republic, Criminal Appeal No. 202 of 2013 (Unreported). In the latter decision it was held as follows: "Framing o f charge should not be taken lightly, we think it is imperative for the prosecution to carefully frame up a charge in accordance with the law. It becomes even more vital to do so where an accused is faced with a grave offence attracting a long prison sentence". The corresponding remarks which were echoed by the Court is in the case of Oswald Mangula v. R, [2000] T. L.R 271, where the Court observed that: "We wish to remind the magistracy that it is salutary rule that no charge should be put to an accused before the magistrate is satisfied, inter alia, that it disclosed an offence known to law, it is intolerable that a person should be subjected to the rigors o f trial based on charge which in law is no charge. The charge laid at the appellant's doorhaving disclosed no offence known In law all the proceedings conducted in the District Court on the basis thereof were nullity since you cannot put something on nothing". Despite the above decision of this Court, yet, we cannot say that the prosecutor cannot make mistakes in drafting charges. But where such mistakes are identified, the law has provided a curative solution to the effect that in the course of trial, when the evidence is at variance with the charge, they should invoke the provisions of section 234 of CPA. The law allows the prosecutor at any stage of the trial to alter the charge or substitute it in order to bring it in line with the evidence. See: Leonard Raphael & another v. Republic, Criminal s Appeal No. 4 of 1992 (unreported); Sylvester Albogast v. Republic (Criminal Appeal 309 of 2015) [2016] 77CA 238 (14 April 2016); and The DPP v. Jamila Salum Mtaly & another, Criminal Appeal No. 34 of 2017 (unreported), dealing with the latter case, this Court provided an advise to both, the prosecution and the trial magistrate to have a habit of perusing the charge as a matter of routine to satisfy themselves that the charge is laid correctly and if not, to require that it be amended accordingly. We find the above decisions and advice ought to have been followed in the instant case to avoid glaring variances like in the instant appeal. Undoubtedly, the variances between the charge and the evidence rendered the charge unproved. Failure to prove the allegations in the charge, makes the offence not established and proved against the appellant. Had the trial court noticed such variance; it would not have proceeded any further and even convicting the appellant. We are of the view also that the first appellate court should have acquitted the appellant at least for the glaring variance observed. In the event, the appeal is hereby allowed. The appellant's conviction is quashed and the sentence is set aside. We consequently order his immediate release from prison unless he is otherwise lawfully held. DATED at MWANZA this 14th day of August, 2024. S. E. A. MUGASHA 3USTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of Appellant who appeared in person and Mr. Benedicto Ruguge, learned State Attorney for the Respondent / Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10