Emmanuel Safari vs Republic (Criminal Appeal No. 816 of 2023) [2026] TZCA 194 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO, J.A., MASHAKA. 3.A. And NGWEMBE. J.A.n CRIMINAL APPEAL NO. 816 OF 2023 EMMANUEL SAFARI ............................................................ APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania of Manyara Sub-Registry at Babati) (Barthy, JQ dated the 29th day of August, 2023 in Criminal Sessions Case No. 38 of 2022 JUDGMENT OF THE COURT 11th February & 03rd March, 2026 KOROSSO. J.A.: This is a first appeal for the appellant herein having been convicted by the High Court of Tanzania sitting at Manyara (trial court) on a charge of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 (the Penal Code). The particulars of the offence are that on 21/3/2021 at Maganjwa Village in Babati District, Manyara Region, the appellant did murder one Beatus Pamphil (the deceased). The contextual setting leading to the instant appeal as gathered from the record is that the deceased aged one and half years and his sibling

named Brighton lived with their mother Marcelina Cyprian. The appellant and - Marcelina married, resulting in the appellant moving to live with Marcelina and her two children. On 21/3/2021, the appellant and Marcelina left for work and left the deceased and Brighton in the care of Jackson John (PW4), a 9-year-old relative who periodically watched over them when called upon. According to PW4, the appellant returned home after some time, and directed him to go fetch water, leaving the deceased with the appellant. Upon coming back, PW4 found the deceased outside the house crying. PW4 then saw the appellant give a bath to the deceased and soon after, they left to go to Dareda Mission Hospital, leaving PW4. At the hospital, the deceased was attended to by Petro Qewendo Amdi, an Assistant Medical Officer (PW1), and his examination found a swollen anal area with bruises and determined that the deceased anal area had been penetrated by a blunt object. PW1 also found that the deceased's large intestine was protruding and thus did what he could to put it back in its station and then put the deceased on oxygen. PW1 decided the injuries were serious and while processing a referral for the deceased, upon examining the deceased again, he determined that the deceased had already passed. When queried by PW1 on the cause for the injuries sustained by the deceased, the appellant denied knowing anything.

According to Margareth Emmanuel (PW5), sometime later that day, she had confronted the appellant for information on what had happened to the deceased while in his care. That the appellant confessed to have sodomized him to heed instructions of a witchdoctor, that such action will facilitate gaining wealth. This prompted PW5 to report the matter to one Lucy Mahanga, the councilor of the area, and thereafter, to the police, leading to the arrest of the appellant. Rose Moses Shayo (PW2) who conducted the postmortem on the deceased body, determined that the cause of death was neurogenic shock due to severe pain. She testified that the deceased's anal area had been penetrated and the severe pain he endured resulted in the body failing to function and to shut down. At the trial, after the case for prosecution was concluded and the defence invited to respond, the appellant denied committing the offence charged. The appellant testified that on the material day he had left home with his wife and left the deceased there and had no idea who committed the offence. At the end of the trial, the appellant was found guilty as charged, convicted and sentenced to suffer death by hanging. The appellant was aggrieved and has now preferred an appeal to the Court. He lodged a memorandum of appeal on 10/2/2028 with five grounds which we shall not reproduce at this juncture for reasons to be revealed as we progress with determination of this appeal.

On the day scheduled for hearing the appeal, the appellant enjoyed - the services of Mr. Kapimpiti Mgalula and Ms. Judith Reuben, learned Advocates while Ms. Saada Mohamed, Senior State Attorney represented the respondent Republic. Arguing the appeal, Mr. Mgalula began his submission by abandoning grounds 1, 2, 3 and 5 in the memorandum of appeal. Therefore, the only remaining ground states thus: 4. That, the case against the appellant was not proved beyond reasonable doubt On this ground, Mr. Mgalula asserted that in the present appeal, the prosecution failed to meet the burden of proving the offence charged against the appellant beyond reasonable doubt and thus the appellant should not have been convicted on the evidence presented in the trial court. He argued the reasons for his stance are as follows: One, there was no eyewitness and that the conviction erroneously relied only on circumstantial evidence and the alleged confessions before PW3 and PW5 respectively. He urged us to find the oral confession contended to have been made before A/Insp Luis (PW3) should be disregarded, since as a police officer it was expected that such confession be recorded in line with the provisions of the law. The learned counsel for the appellant urged us to disregard the said oral

confession since no cautioned statement of the appellant was tendered and admitted in evidence. Regarding the oral confession which is alleged to have been made by the appellant to PW5, Mr. Mgalula urged us to disregard it as PW5 was not a credible witness. He contended that the veracity of PW5 is doubtful since all those she mentioned who could have corroborated her assertions were not called as witnesses. That, PW5 stated that the appellant told her that he had sodomized the deceased in response to a witchdoctor's instructions, however the said witchdoctor was not called as a witness to add weight to this. He argued that PW5's testimony that she had first informed what the appellant had confessed to one Lucy Mahanga, a counselor in the area, was also not supported by evidence since the said Lucy did not testify in court. The learned counsel for the appellant thus urged us to find PW5's evidence incredible and unbelievable and the alleged oral confession farfetched, Mr. Mgalula argued further that once the oral confessions advanced by PW3 and PW5 are found to be unworthy of consideration as prayed, the remaining evidence is circumstantial which is not watertight to prove that it is the appellant who sodomized or injured the deceased in the private parts and killed him. He submitted that the evidence of PW4 was only that, the appellant returned home earlier, told him to go fetch water while he stayed with the deceased, was seen bathing the deceased and thereafter took the

deceased to hospital. He urged to consider the other evidence that the deceased had been ill of health at the time, so bathing him was not strange since it is something done to sick children to lower temperatures. At the same time the appellant is the one who took the deceased to the hospital and act which does not augur with a guilty person. He implored us to also consider the conduct of the appellant after the death of the deceased child. That he participated fully at all activities during the funeral and burial. The learned counsel urged us to find the evidence of PW4 to have been improperly recorded since as a nine-year-old, apart from promising to tell the truth it is recorded at page 11 of the record of appeal that he was also sworn in contravention of the requirements of the law on the testimony of a child of tender age. The failure of the prosecution to tender evidence related to DNA profiling to prove that the appellant sodomized the deceased prior to his death further weakened the prosecution evidence against the appellant, he argued. The learned counsel implored us to find that the evidence against the appellant had a lot of gaps and doubts which should benefit the appellant and lead us to find that the prosecution failed to prove the offence charged and allow the appeal. For the respondent-Republic, Ms. Mohamed began by informing us that the appeal was resisted and that the offence charged against the

appellant was proved to the standard required. She contended that the appellant's conviction was based on circumstantial evidence and the oral confessions. According to her, it is not controverted that the appellant died an unnatural death as drawn from the evidence of PW2 who conducted the postmortem examination and its report was admitted as exhibit PI. Ms. Mohamed argued that PW2 revealed that the deceased had bruises on his face, chest and rectal area and was blue in colour and determined that his death was caused by neurogenic shock prompted by enduring severe pain causing the body to fail to function and shut down. Ms. Mohamed further asserted that exhibit PI showed there was serious discharge from the anus of the deceased. The learned Senior State Attorney argued that this evidence augmented that of PW1 who. had first attended the deceased soon after being taken to the hospital by the appellant. She thus urged us to find that the High Court did not err in finding that PW1 and PW2 were credible and therefore rely on their evidence. Ms. Mohamed contended further that the next issue for consideration is who was the perpetrator who caused the death of the deceased. She argued that the evidence of PW4 who was found credible and truthful by the trial court, revealed an undeniable pattern of events pointing to the appellant as the perpetrator. The learned Senior State Attorney asserted that the evidence of PW4 and the appellant himself in his defence shows that at the 7

time the appellant was left with the deceased the child was alive. PW4 testified that when the appellant returned home, he sent him to fetch water and on coming back, the deceased was crying without stopping, which prompted the appellant to bath him and then take him to the hospital. This fact was supported by PWl's evidence, that she treated the deceased on the fateful day. It is in evidence that the child never recovered. He died in hospital. Furthermore, Ms. Mohamed submitted that the circumstances surrounding the injuries sustained by the deceased show they were occasioned when he was in the care of the appellant and no one else. That the fact that the appellant's defence did not expound on the deceased baby having any injuries prior to taking him from the care of PW4, undoubtedly, ascertains the baby being without injuries then. This should thus lead to only one conclusion that, the injuries sustained by the deceased, including the protruding large intestine, bruises in the neck and anal area must have been occasioned when in the care of the appellant, she argued. Therefore, proving that he was the culprit and no one else, she asserted. The learned Senior State Attorney also impressed upon us that malice aforethought can be inferred from the nature of the injuries sustained by the deceased. Penetration of the anus of a child, aged one and half year caused the large intestine to protrude as testified by PW1 and PW2 and revealed by

exhibit PI, leaves no doubt that the perpetrator meant to cause death or serious grievous harm, she contended. Ms. Mohamed submitted further that the circumstantial evidence pertaining to this appeal leads to no other conclusion that it is the appellant who murdered the deceased. Notwithstanding that, she argued that the oral confession made by the appellant to PW5, falls within the threshold of conditions for admissibility and reliance and is corroborated with the evidence of PW4, PW1 and PW5. She cited the case of DPP v. Nuru Mohamed Gulamrasul [1988] T.L.R. 82 to cement her stance. According to her, the evidence of PW5 was found to be credible and relied upon by the trial court in finding the offence charged against the appellant proved beyond reasonable doubt and cited the case of Jumanne Issa and Another v. Republic, [2022] TZCA 328 TANZLII and Goodluck Kyando v. Republic [2006] T.L.R. 363. On the oral confession testified by PW3, she conceded that in the absence of a cautioned statement, such statement of admission should not be considered a confession because it was not properly procured within the boundaries of the law. The learned Senior State Attorney concluded by stating that, the deceased was in the care of the appellant prior to suffering injuries that led to his death and the appellant failed to explain how and where those injuries which caused his death came from. She urged us to find that the case against 9

the appellant was proven to the standard required and thus, dismiss the appeal in its entirety. The appellant's rejoinder was brief, essentially reiterating his earlier submissions and prayers. We have given due consideration to the record of appeal and submissions from the learned counsel for the appellant and the learned Senior State Attorney for and against the appeal. The parties do not dispute the fact; first, that Beatus Pamphil, aged one year and the half died an unnatural death. Second, the cause of death as testified by PW2 and exhibit PI was neurogenic shock caused by enduring severe pain. Third, on the material day, immediately before his death, the deceased was in the care of the appellant. Suffice it to say, upon going through the fourth ground of appeal which was the only one not abandoned by the appellant's side, the underlying point of contention for our determination is whether or not the offence charged against the appellant was proved beyond reasonable doubt. We also wish to reiterate the fact that this being the first appeal, it is configured as a re hearing, casting the Court with a duty to re-evaluate the entire evidence on record, scrutinizing it and thereafter, arrive at our own conclusion as stated in Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007 (unreported). 10

Having scrutinized the evidence for the prosecution, since there was - no eyewitness to the commission of the atrocity that led to the demise of the deceased, undoubtedly, their case relies heavily on circumstantial evidence. We find it pertinent at this juncture to reaffirm the basic principles governing conviction relying on circumstantial evidence. In the case of Jimmy Runangaza v. Republic [2018] TZCA 188 TANZLII, the Court stated thus: 7 / 7 order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt (See Simon Musoke v. Republic [1958] EA 715). Sarkar on Evidence 15th Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following tests which are:

1. the circumstances from which an inference o fguilty is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be o f a definite tendency unerringlypointing towards the guilt o f the accused; and
3. the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else li

(See also, Herman Faida v. Republic [2021] TZCA 405 TANZLII). In the instant appeal, as alluded to earlier, the evidence on record particularly, Pw4's and the appellant's defence shows that the contending parties do not dispute the fact that on the material day, before the appellant took the deceased to hospital, the deceased was under his sole care for some time including giving him a bath, and he had no bruises or injuries. This fact is discerned from the evidence of PW4 and that of the appellant in his defence. At page 17 of the record of appeal the appellant stated: "On the fateful day of21/3/2021 during the morning hours, me and my wife we went to work so we get the money to take the child to hospital. As we left, for work we left Beatus and Brighton with another child Jackson to look after them. Jackson is my nephew. We worked up to 11.00 hours. I told my wife I willleave to go to take the child to the hospital as I got Tshs. 10,000/= as the payment. I arrived home and found the child still restless as we left in the morning. He was fine with no bruises. Before I took him to the hospital I bathed him and took the child to the hospital, at Dareda Mission... "[Emphasis added] During cross examination by the learned State Attorney for the Republic, the appellant further stated: 12

"I took the baby from Jackson John while he was still alive. At the time I took him he had no bruises..." Indeed, the appellant's testimony clearly shows that on arrival at home he had taken the deceased under his care without any bruises or injuries. The appellant testified that he was the one who took the deceased to the hospital on 21/3/2021, a fact also affirmed by PW1. The record of appeal reveals that thereafter, when examining the deceased, PW1 found that the deceased had rectal intestine out and had bruises on the anal area which was also swollen. PW1 also determined that the deceased anal area was penetrated. Evidence which was essentially supported by that of PW2. There is no explanation provided by the appellant on how on arrival at the hospital the deceased was in that condition. The appellant's defence was that he did not know how it happened. The cause of death as per the oral evidence of PW2 and exhibit PI was neurogenic shock having suffered severe pain. Considering the chain of events aforementioned, we agree with the High Court Judge and the learned Senior State Attorney, that reflecting on the surrounding circumstances leading to the death of Beatus, and the appellant being the person who had him under his care up to the time he arrived at the hospital, with no evidence of injuries or bruises prior to going to the hospital, there is only one plausible conclusion, that it is the appellant who caused the injuries and harm that led to the death of the deceased

Beatus. We are also of the view that the conduct of the appellant after the incident does not in itself absolve him for being the perpetrator of the offence charged, since at the time as a stepfather, the best scenario for him was not to raise suspicions and do what was expected of him to take part in the burial and funeral services. We have also considered the argument by the learned counsel for the appellant questioning the admissibility of the evidence of PW4 aged 12 years, who despite having promised to tell the truth and that he was also sworn. While we agree that the procedure might seem to be strange, the Court has ventured to interpret the provision of section 135(2) now, then 127 (2) of the Evidence Act in various cases. In Issa Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 (unreported), we stated that, the said provision permits a child of tender age to give evidence on oath or affirmation or to testify without oath or affirmation, but upon promising to tell the truth, not lies. We are also of the view that in any case where a witness of tender age gave sworn evidence having promised to tell the truth and not lies does not vitiate such testimony particularly when section 135(2) now, then 127 (6) of the Evidence Act is considered. In the present appeal, the trial court found PW4 to be a credible witness and we find no imperative circumstances to move us to depart from the said finding.

The learned Senior State Attorney did impress us to also consider and find that the oral confession to PW5 was properly procured and admitted and that it reinforced the circumstantial evidence already discussed. This Court had discussed on various occasions the status and import of such a confession. In the case of Patrick Sanga v. Republic [2010] TZCA 340 TANZLII, we observed that: - " Under section 3 (1) (a), (b), (c) and (d) o f the Evidence Act, Cap. 6 a confession to a crime maybe orai, written, by conduct, and/or a combination o f aii o f these or some o f these. In short, a confession need not be in writing and can be made to anybody provided it is voiuntariiy made". Furthermore, in Posolo Wilson @Mwalyego v. Republic [2018] TZCA 635 TANZLII, the Court stated: "... it is settied that an orai confession made by a suspect, before or in the presence o f reiiabie witnesses, be they civiiians or not, may be sufficient by itself to find a conviction against the suspect." What we draw from the above decisions is that an oral confession is admissible and may be used to convict an accused person (see, Mabala Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010 (unreported), DPP v. Nuru Mohamed Gulamrasul [supra]). In the present appeal, the High Court discussed in passing the said oral confession 15

finding that the appellant made it before PW5. In his defence, the appellant denied telling PW5 anything related to the incident on 22/3/2021 let alone confess committing the offence. We have perused through the evidence on record, PW5 at page 13 of the record of appeal stated: - "As I spoke with Emmanuel, I learned that the mother was not at home and the child was with his father as his caretaker about 11 years Jackson was not aroundI wanted to know if there was anyone who harmed the baby : At first, he did not want to talk to me, but after I insisted, we sat to talk. Emmanuel Safari confessed to me and asked me to keep it as a secret He told me he had sodomized the baby after he had visited the witch doctor who told him to sodomize the male child in his house. So that he could get wealth The test for an oral confession to be given value as laid down in the cases cited hereinabove is for it to be made before a reliable witness, be it a civilian or not. PW5 is a civilian. Throughout her testimony, she was very adamant and consistent even when cross-examined by the learned counsel for the appellant. She stated that the appellant had confessed to her on sodomizing the deceased. We have found nothing to doubt her evidence, and the way the High Court Judge referred to her evidence as corroborating 16

some facts such as being the one to identify the deceased during postmortem examination led us to infer that her evidence was found to be credible. Moreover, although PW5 is one of those mentioned by the appellant when cross examined that he had misunderstanding with. We agree with the High Court Judge that this was an afterthought because the learned counsel for the appellant did not cross-examine PW5 on the alleged complaints underlying the alleged misunderstanding between the appellant and PW5. We are guided on this by our well-established stance. In Nyerere Nyague v. Republic [2012] TZCA103 TANZLII, the Court observed: "As a matter o f principle, a party who Fail to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said." We have also considered the fact that what was confessed to PW5 augurs with the findings of PW1 and PW2 on the cause of injuries sustained by the deceased and his death. We also agree with the learned Senior State Attorney that malice aforethought was proved when considering the force used causing such extreme pain to the deceased of such tender age leading his fragile body to shut down. From the evidence of PW1, PW2 and exhibit 17

PI such action could on all possibilities have resulted to death or grievous harm in the circumstances. In the end, we find that the appellant's defence did not raise any doubt, however, all the ingredients of the offence against the appellant were proved beyond reasonable doubt. All in all, we find no merit in the appeal and dismiss it. DATED at ARUSHA this 03r d day of March, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. 1 NGWEMBE JUSTICE OF APPEAL Judgment delivered this 03r dday of March, 2026 vide video link in the presence of the Appellant in person, Mr. Philbert Msuya, learned Senior State Attorney for the Respondent/Republic and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL