64

64

There was a fatal variance between the charge of attempted rape and the evidence adduced, which proved the offence of rape, not attempted rape. Since the appellant was not charged with rape, the prosecution failed to prove the offence charged, entitling the appellant to acquittal.

Citation
64
Parties
Appellant: Omary Mwang’ombe; Respondent: The Republic
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
20 August 2024
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully detained for another matter
Legal Topics
Attempted Rape, Rape, Standard of Proof, Variance Between Charge and Evidence, Testimony of Child Witness
Source Language
English
Criminal Law Attempted Rape Rape Standard of Proof Variance Between Charge and Evidence Testimony of Child Witness

Case Brief

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Parties

Omary Mwang’ombe

Appellant

The Republic

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the prosecution proved the offence of attempted rape beyond reasonable doubt
  2. 2 Whether there was a fatal variance between the charge and the evidence adduced
  3. 3 Whether the trial court properly considered the evidence and the defence

Ratio Decidendi

There was a fatal variance between the charge of attempted rape and the evidence adduced, which proved the offence of rape, not attempted rape. Since the appellant was not charged with rape, the prosecution failed to prove the offence charged, entitling the appellant to acquittal.

Court Disposition

appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully detained for another matter

Orders

  • Conviction quashed
  • Sentence set aside