IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

{CORAM: MUGASHA, J.A. SEHEL. J.A. And KAIRO. J J U

CRIMINAL APPEAL NO. 296 OF 2018

GODFREY SIMON...................... ...................... ....... ........... ist APPELLANT

MASAI YOSIA................. ......................................................... 2nd APPELLANT

VERSUS

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

(Appeal from the Judgment of the High Court of Tanzania

at Arusha)

(Maqhimbi, J.)

dated the 31st day of August, 2018

in

Criminal Appeal No. 19 of 2017

JUDGMENT OF THE COURT

8th & 11th February, 2022

MUGASHA, J.A.:

In the District Court of Karatu the appellants were charged with

the offence of unnatural offence contrary to section 154 (a) of the Penal

Code, Cap 16 RE 2002. It was alleged in the particulars of the offence that,

on the 27/12/2016 at about 1900 hours at Dofa village within Karatu District

in Arusha Region, the appellants did have carnal knowledge of a boy aged

nine (9) years' old against the order of nature. In this appeal, for the

purposes of concealing the identity of the victim we shall refer him as PW3
or DJ. They denied the charge and in order to prove its case, the prosecution

paraded four witnesses and one documentary account (PF3 exhibit P3). The

appellants were the only witnesses for the defence case.

The factual account underlying the conviction of the appellants is to

the effect that: on the fateful day, DJ was sent by his mother Loveness

Josephat (PW1) to collect mobile phone batteries. It is alleged that, while on

the way back home, he encountered the appellants who carried him to the

bush and sodomised him in turns. Later, came one Florian who upon

inquiring as to what the appellants were doing to DJ, the appellants ran

away. Apparently, Florian was not among the prosecution witnesses. Then

PW3 stood up and began to cry because he was feeling so painful. The

victim's mother troubled that PW1 had delayed to return home, made a

follow up and initially heard the victim crying and later saw him coming home

holding his pair of trousers. He probed the victim who revealed to have been

initially sodomised by Josephat and later by the appellants. Then, upon being

inspected by his father the victim's anus was found to be covered by faeces.

The matter was reported to the village chairman and later to the police and

the victim was taken to the hospital. Upon being examined by Dr. Amanuel

William Msemo (PW4), the anal area was found to be reddish and covered

with faeces.
2
 The appellants denied the prosecution accusations and raised the

defence of alibi claiming that they were not at the scene of crime on the

fateful day. The 1st appellant, claimed to have been at Kambi ya Nyoka on

the fateful day and returned at Njia Panda at 20.00 hrs. On the following day

he went to prepare blocks and on 28/12/2016 was arrested by the police

while he was waiting for his boss. On the part of the 2nd appellant, besides

claiming not to have been at the scene of crime, he alleged that, on

28/12/2016 at 18.00hrs he was followed by militia and told about the

incident relating to the victim's whereabouts being unknown and that his

mother was tracing him.

After a full trial, the appellants were convicted and sentenced to life

imprisonment. They unsuccessfully appealed to the High Court, hence the

present appeal. In the memorandum of appeal, the appellants have raised

six grounds which are conveniently summarized into mainly two namely:

One, that the conviction is based on a defective charge and two, first

appellate Court erred to dismiss the appeal relying on evidence of the

prosecution which did not prove a charge beyond reasonable doubt.

 The appellants were unrepresented and the respondent Republic had

the services of Ms. Rose Sule, learned Senior State Attorney and Misses

Naomi Mollel and Upendo Shemkoe, both learned State Attorneys.

The appellants first main complaint is that; the charge sheet was

defective having not cited a proper provision creating the offence and in

addition the punishment provision that is section 154 (2) of the Penal Code

is omitted. It was the appellants' contention that the omission to cite proper

provisions occasioned a miscarriage of justice on their part because apart

from not understanding the nature of the offence charged, they were also

not aware of the consequential punishment of life imprisonment.

On the other hand, apart from the concession by the learned State

Attorney that the charge sheet suffered wrong citation and non-citation, she

was of the view that, since the appellants were aware of the charged offence

from the particulars of the offence, the omission is curable under the

provisions of section 388 of the Criminal Procedure Act CAP 20 R.E 2019 (the

CPA). To support her proposition, he cited to us the case of JUMA HASSAN

VS REPUBLIC, Criminal Appeal No. 458 of 2019 (unreported), the Court

made a following observation:

'The charge in the present case, discloses that the

appellant was charge with unnatural offence contrary
 to section 154 (1) (a) and (c) o f the Penaf Code. That
was proper. As the particulars o f the offence were to
the effect that the appellant had carnal knowledge o f
PW3, the offence section was supposed to include
subsection (2) which is the sentencing provision
instead o f subsection (c). That is to say the [charge]
should read 154 (1) (a) and (2) o f the Penal Code.
However, as the particulars o f the offence clearly
explained the offence charged, the defect is curable
under section 388 o f the CPA. See Jamaii Ally @
Salum i/ Republic\ Criminal Appeal No. 52 o f 2017
and Omary Abdalla @ Mbwangwa v Republic
Criminal Appeal No. 127 o f 2017 (both unreported)
//

Since it is settled law that, the charge is the foundation of any trial,

the mode of framing the charge is prescribed and regulated by the provisions

of section 132 and 135 (a) (ii) of the CPA. While the former provision requires

the offence to be stated in the charge along with specific particulars stating

the nature of the charged offence, the latter one requires the statement to

be described together with the essential elements of the offence and

reference to the section creating the offence. In addition, the punishment

provision must be stated in the charge. Having explained the manner in

which the charge must be framed, for clarity, we deem it pertinent to

reproduce the charge under which the appellants were arraigned:

"OFFENCE SECTION AND LAW: UNNATURAL

OFFENCE C/S 154 (a) OF THE PENAL CODE CAP 16
VOL 1 OF THE LA WS RE 2002.

PARTICULARS OF OFFENCE: That GODFREY

SIMON' JOSEPHAT JOSEPH and MASAI YOSIA are
jointly and together charged that 2 /h day o f
December, 2016 at about 19:00 hrs at Dofa village
within Karatu District in Arusha Region had carnal
knowledge against the order o f nature with DJ 9
years a pupil o f standard 3 at Njia panda primary
School.

STATION: CRIME KARATU

DATE:..............................."

At the outset, we agree with the learned State Attorney that, from the

particulars of the offence the appellants were aware that the victim in the

offence charged was nine (9) years old. However, that brings into scene the

essence to cite the provisions of section 154 (2) of the Penal Codewhich

prescribes the punishment of life imprisonment for a person convictedof

6
such an offence to a child aged below the age of eighteen (18) years the

provision states as follows:

"154 (2) Where the offence under subsection (1) o f

this section is committed to a chiid under the age o f
18 years the offender shall be sentenced to life
imprisonment"

The essence of citing a provision which prescribes the sentence was

emphasized by the Court in a number of cases including the cases of SAID

HUSSEIN VS REPUBLIC, Criminal Appeal No. 110 of 2016, GEOFREY

JAMES MAHALI VS THE DIRECTOR OF PUBLIC PROSECUTIONS,

Criminal Appeal No. 332 of 2018 and MUSSA NURU @ SAGUTI VS

REPUBLIC, Criminal Appeal No. 66 of 2017 (all unreported). In the latter

case, confronted with a similar scenario, whereby punishment provision was

not cited in the charge sheet, the Court stated the consequences as follows:

"Even in this case, we think, the appellant was required

to know clearly the offence he was charged with together
with the proper punishment attached to it We are of a
settled mind that by failing to cite sub section (2)
o f section 154 which is a specific provision for
punishment to a person who committed an offence
of unnatural offence to a person below the age of
[eighteen] might have led the appellant not to
 appreciate the seriousness of the offence which
was laid at his door. On top of thatr he might not
have been in a position to prepare his defence.
(See- Simba Nyangura's case). The end result of it is
that he was prejudiced\ "

[Emphasis supplied]

It is thus settled law that, the punishment/sentencing must be

specified in the charge so as to enable an accused person to understand the

nature of the charged offence and the requisite punishment. In the present

case, the omission to state the punishment provision prejudiced the

appellants who was not made aware of the serious implications of the

offence charged, the gravity of the impending sentence and as such, they

were unable to make an informed defence. See - GEOFREY JAMES

MAHALI VS THE DIRECTOR OF PUBLIC PROSECUTIONS (supra),

JOHN MARTIN MARWA VS REPUBLIC, Criminal Appeal No. 20 of 2014

and ABDALLA ALLY VS REPUBLIC, Criminal Appeal No. 253 of 2013 (all

unreported).

We found the case of JUMA HASSAN VS REPUBLIC (supra)

distinguishable from the present matter. In that case, the Court dealt with

the manner of remedying the charge which has omitted to cite properly a
provision of the law which creates an offence and the proper manner of

framing the charge for unnatural offence to child under eighteen (18) years.

However, the Court did not consider the cases of MUSSA NURU @ SAGUTI

VS REPUBLIC, Criminal Appeal No. 66 of 2017 and most recent case of

GEOFREY JAMES MAHALI VS THE DIRECTOR OF PUBLIC

PROSECUTIONS (supra) which addressed on the adverse consequences

and related prejudices on the accused person where a punishment provision

is omitted in the charge sheet.

We asked ourselves if the omission could have been remedied.

Apparently, this was possible before the conclusion of the trial if the

prosecution had sought leave of the trial court to amend the charge in terms

of section 234 (1) of the CPA. In the event, this did not happen, it follows

that, the charge remained defective throughout the pendency of the

proceedings. This vitiated the trial rendering the proceedings and judgments

of the courts below to be a nullity.

Since the determination of the said ground of complaint is sufficient to

dispose of the appeal, ordinarily we would have ended here and should not

have bothered ourselves to look into evidential matters. However, we shall

do so in the light of what raised by the appellants in relation to the variance

9
of the place of occurrence of the offence in the charge and the prosecution

account. On this, Ms. Mollel was of the view that the omission to amend the

charge to remedy the variance between the charge and the evidence on the

place where the offence was committed was uncalled for as it did not

occasion a failure of justice. With respect, we found this wanting and we

shall give our reasons.

Where in the course of trial it transpires that there is variance between

the charge and the evidence, the prosecution may amend the charge with

leave of the trial court as provided under the provisions of section 234 (1) of

the CPA which stipulates as follows:

"234 (1) Where at any stage o f a trial, it appears to

the court that the charge is defective, either in
substance or form, the court may make such order
for alteration o f the charge either by way o f
amendment o f the charge or by substitution or
addition o f a new charge as the court thinks
necessary to meet the circumstances o f the case
unless, having regard to the merits o f the case, the
required amendments cannot be made without
injustice; and all amendments made under the
provisions o f this subsection shall be made upon such
terms as to the court shall seem ju s t7/

10
 In view of the stated position of the law, it was prudent to amend the

charge. As this did not happen, the prosecution account regarding the place

where the offence was committed did not support the charge. We say so

because while the prosecution account from PW1 and PW3 revealed that the

offence was committed at Matofarini as reflected at pages 10 and 15 of the

record of appeal, the charge shows that it was committed at Dofa village.

This had the effect of weakening the prosecution case and in the absence of

requisite amendment. In the case of BAINTH AND ANOTHER VS

REPUBLIC, Criminal Appeal No.339 of 2013 (unreported), faced with akin

situation, the Court held thus:

"... where there is a variation in the place where the

alleged armed robbery took place, then the charge
must be amended forthwith; if no amendment is
effected the charge wiii remain unproved and
the accused shall be entitled to an acquittal as
a matter of right Short of that a failure of
justice will occur."

[Emphasis supplied]

In the light of the bolded expression, in this particular case the

omission to amend the charge not only occasioned a miscarriage of justice

but also it rendered the prosecution case not proved at the required

ii
standard. In the premises, assuming that the charge had no flaws as earlier

pointed out, still the charge against the appellants was not proved to the

hilt.

All said and done we find the appeal merited and it is hereby allowed.

In the result, the conviction is quashed and sentence set aside and the

appellants should be set free unless if held for some other lawful cause.

DATED at ARUSHA this 10th day of February, 2022.

S. E. A. MUGASHA

This Judgment delivered this 11th day of February, 2022 in the

presence of Appellants in person unrepresented and Ms. Rose Sule, learned

Senior State Attorney and Misses Naomi Mollel, Upendo Shemkole and Ms.

Blandina both learned State Attorneys.

J. E. FOVO
DEPUTY REGISTRAR
COURT OF APPEAL

12