Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023)

The appellant, Francis Fabian @ Emmanuel, was appealing against his conviction and sentence by the High Court of Tanzania for the crime of rape, contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R.E. 2022. The victim was a 16-year-old girl, thus a minor, and a student at Lupalilo Secondary School. The crime was alleged to have occurred on 3rd July, 2020 at 14 hours at Ikonda Village within Makete District in Njombe Region.

The appellant was initially charged with two counts: rape and impregnating a secondary school pupil, contrary to section 60A (3) of the Education Act Cap 353 R.E. 2002, as amended. The trial court acquitted him of the second count but found him guilty of rape, sentencing him to 30 years imprisonment. The appellant appealed to the High Court, but his appeal was unsuccessful, leading to the current appeal in the Court of Appeal.

The main issue in this appeal was the discrepancy between the charge sheet and the evidence presented during the trial. The charge sheet specified that the rape occurred at 14:00 hours on 3rd July, 2020, but the prosecution's evidence related to a sexual relationship that began in March 2020. The court emphasized the importance of the charge sheet in a criminal trial, citing sections 132 and 135 of the Criminal Procedure Act, Cap 20 R.E. 2022, which mandate that the particulars of the offence in the charge sheet must be proved by evidence during the trial.

The court agreed with the Senior State Attorney's concession that the count of rape was not established and proved as required by law due to the variance between the charge sheet and the evidence. As a result, the court allowed the appeal, quashed the appellant's conviction, and set aside his sentence. The court also ordered the appellant's immediate release from prison, unless otherwise lawfully held.