IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

( CORAM: KILEO. J.A.. MJASIRI. J.A. And MASSATI. J.A.)

CRIMINAL APPEAL NO. 252 OF 2011

FREDY MWAKAJILO.....................................................................APPELLANT

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

(Appeal from the decision of the High Court of Tanzania at Mbeya)

f Mmilla, J.A.I

dated the 15th day of August, 2011

in
Criminal Appeal No. 37 of 2009

JUDGMENT OF THE COURT

15th & 17th October, 2014

MASSATI. J.A.:

Both the District Court of Kyela, and the High Court of Tanzania at

Mbeya on first appeal, were satisfied that the appellant was guilty as

charged and so respectively, sentenced and confirmed the sentence of life

imprisonment imposed upon him for the offence of raping a 2 year girl.

Dissatisfied, the appellant is now before this Court to protest his innocence.

The charge that was put before his doors was this: -

"CHARGE SHEET

NAME : FREDYS/O MWAKAJILO

TRIBE : Kyusa

i
 Age 44 years
Occ. Peasants
Re/. Christian
Res Mbugani
STA TEMENT OF OFFENCE : Rape c/s 130 (i)
and 2 (a) and 131 (1) o f the penai code cap 16 Vol.
1 o f the laws.
PARTICULARS OF OFFENCE: That FREDY
S/O MWAKAJILO charged on 07th day o f
February 2009 at about 11.00 hours at Ikolo willage
within Kyela District in Mbeya Region did have
unlawfully carnal knowledge o f one DEBORA D/O
PHILIBERT a girl aged 2 years.

STATION: KYELA
Date : 10/02/2009 .......................................

PUBLIC PROSECUTOR

to which the appellant pleaded not guilty. After the prosecution case, built

by 4 witnesses, was closed,the appellant told the trial court that on

7/2/2009 he had gone to Nganga village to purchase eggs and other

agricultural products. He was, in fact, responding to the charge laid at his

doors. But, that was not PW1, PW2 and PW3 (the eye witnesses) had told

the trial court. According to them, they consistently said that the incident
took place on 17/2/2009. This variance notwithstanding and without

amending the charge, the trial court found the accused "guilty as charged".

But, the High Court,and perhaps noting the discrepancy in the statement of

the offence, decided to "amend" the charge sheet by prefacing its

judgment by stating that the appellant was charged with "the offence of

rape c/ss 130 (1) 2 (e) and 131 (1)" which as shown above was not what

the charge sheet discloses. Similarly, but contrary to the finding of the trial

court, the first appellate court also found credibility in the evidence of PW1,

PW2 and PW3 that the girl was raped on 17/2/2009 and not 7/2/2009 as

he had surmised in the preface of his judgment. It is with this background,

that, we now turn to consider the appeal.

At the hearing of the appeal, the appellant, who was

unrepresented,adopted his memorandum of appeal, consisting of eight

grounds, but which could be condensed into five major ones, namely, the

violation of section 240(3) of the Criminal Procedure Act (CPA) in admitting

the PF3; the violation of section 127(1) of the Evidence Act by not calling

the child victim; the credibility of PW1, PW2, and PW3; the ignoring of the

defence case; and that the prosecution case was not proved beyond

reasonable doubt. After hearing the respondent, the appellant also added

by elaborating that contrary to what PW1, PW2 and PW3 claimed, on the
17th February, 2009, he was in fact, in remand prison. So, he prayed that

his appeal be allowed.

The respondent/Republic was represented by Ms Rhoda Ngole, the

learned State Attorney. She declined to support the conviction, and we

think, rightly so. She expoused three reasons. First, in her view,

consistent with that of the appellant it was wrong for the victim of rape,

not to have been produced in court, for the court to determine whether or

not she was competent to testify in terms of section 127(1) of the Evidence

Act. Secondly, she also agreed with the appellant that the PF3 was

admitted in violation of section 240 (3) of the CPA. Thirdly, there was a

variance between the particulars of the offence (the date the offence was

alleged to have been committed) and the evidence. She elaborated that

according to PW1, PW2 and PW3, the offence was committed on

17/2/2009 and not on 7/2/2009. It was her view that, without the charge

being amended to accommodate the evidence, the variance was fatal, as it

embarrassed the appellant in his defence. She cited to us the decision of

SANKE DONALD @ SHAPANGA, Criminal Appeal No. 408 of 2013

(unreported) for inspiration.

Asked further from the bench, Ms Ngole also conceded that the trial

court, after finding the accused guilty did not proceed to convict as
required by the law; and that the statement of offence in the charge sheet

omitted the relevant paragraph of section 130 (1) (2) of the Penal Code,

for the appellant to be said to have been properly charged. Besides, she

was also of the view that, it was not proper for the High Court judge to

have "amended" the charge sheet by citing section 130 (1) (2) (e) in his

judgment. She therefore persuaded us to allow the appeal.

The law on the consequences of the omission to inform the appellant

of his rights under section 240(3) of the CPA is now settled. Fortunately,

the High Court had already dealt with it, and had expunged the offending

PF3. So this point need not detain us.

It is true that the victim of the rape was not produced before the trial

court for it to decide her competency as a witness. Ms Ngole thinks that

the omission was fatal. Apparently, this complaint was also raised by the

appellant in the first appellate court. The High Court considered it and

ruled that although it was irregular, for the victim to not have been

brought to court which would have determined her competency to testify,

the irregularly was curable as it was a minor one. On our part, we think

that it is the duty of the prosecution, not the court, to determine which

witnesses, and how many of them to call. (See R v GOKALDAS KANJI

KARIA AND ANOTHER (1949) 16 EACA 116). Section 127 (1) of the
Evidence Act, therefore only comes into play, if a witness is in court, and is

about to testify, not otherwise. The absence of awitness might invite

adverse inference in certain circumstances, and so could affect the weight

of the prosecution evidence, which might be evaluated in the judgment,

but, with respect, in the present case, we can find no irregularity in not

calling the victim to the witness stand.

Before embarking on Ms Ngole's third ground, we would first like to

put it that there is no dispute that, by omitting to mention a particular

paragraph of section 130(1) (2) of the Penal Code, the charge offended

section 135 (a) (ii) of the CPA in which reads as follows: -

Section 135(a) (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.
In our view the citation of section 130(2) (a) instead of 130(2) (e) of

the Penal Code was wrong, and fatal because, these two, carry different

categories of rapes, and attract different penalties. Under section 130(2)

(a) the minimum sentence is 30 years imprisonment, whereas under

6
section 130(2) (e), the prescribed penalty is life imprisonment. In this

case, the lower courts imposed life imprisonment, believing that the

appellant was charged under section 130 (2) (e) which was the correct one

(See JUMA MOHAMED v R Criminal Appeal No. 272 of 2011

(unreported). But in fact he was charged under section 130(2) (a) - which

reads as follows: -

"(a) Not being his wife or being his wife who is

separated from him without her consenting to
it at the time o f the sexual intercourse. "

The charge sheet in this case alleges different particulars.

If in the course of the trial, the prosecution had realized this variance

it would have moved the court to amend the charge sheet under section

234(1) of the CPA, where the appellant was entitled to corresponding

rights listed under subsection (2) of the section. This analysis brings us to

Ms Ngole's complaint, that there was variance between the charge sheet

and the evidence of PW1, PW2 and PW3, with regard to the date of the

commission of the offence. We agree. The insistence by PW2 and PW3

that the offence was committed on 17/2/2009 is at variance with the

statement of the offence which alleges 7/2/2009 as the date the offence

was committed. Short of applying the provisions of section 234 of the CPA,
the variance was incurably defective, because the appellant was prejudiced

in his defence as demonstrated above.

The above analysis would have been sufficient to dispose of the

appeal. But for the sake of completeness, we would also like to observe

that it was not enough for the trial court to have merely found the accused

"guilty as charged". Both Sections 235(1) and 312(2) of the CPA require

that after hearing the prosecution and the defence, the court should either

convict or acquit. "Finding Guilty" is therefore not sufficient. In a number

of recent decisions pronounced by this Court, it has been held that in the

case of convictions, the absence of such conviction renders the judgment

invalid (See SHABANI IDDI JOLOLO AND THREE OTHERS v R,

Criminal Appeal No. 200 of 2006 (unreported), AMANI FUNGABIKASI v ,

Criminal Appeal No. 270 of 2008 (unreported).

With all those defects, we think the proceedings and judgments of

the two courts below cannot be spared as they are nothing but nullities.

Exercising our revisional powers under section 4(2) of the Appellate

Jurisdiction Act (Cap 141 - R.E. 2002) we revise and quash all the

proceedings and judgments of the trial court and the High Court. We have

toyed with the idea of ordering a retrial. However, in view of the nature

8
and quality of evidence on record, we think that it would not be in the

interest of justice to do so.

We therefore order that the appellant be released from custody

forthwith, unless he is lawfully so held.

DATED at MBEYA this 16th day of October, 2014.

E.A.KILEO
JUSTICE OF APPEAL

S. MJASIRI
JUSTICE OF APPEAL

S.A.MASSATI
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

f^Vv. BAMPIKYA
SENIOR DEPUTY REGISTRAR
COURT OF APPEAL