Barikiel Daniel vs Republic (Criminal Appeal No. 341 of 2023) [2025] TZCA 845 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MKUYE. J.A.. KAIRO. 3.A. And MDEMU. 3.A.1 CRIMINAL APPEAL NO. 341 OF 2023 BARIKIEL DANIEL........................................................................ APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT [Appeal from the Decision of the Resident Magistrate Court of Arusha at Arusha (Kisinda. PRM - Ext. Jurist Dated the 17th February, 2023 in RM Criminal Appeal No. 97 of 2021 JUDGMENT OF THE COURT 25th July & 7th August, 2025 KAIRO, 3.A.: This is a second appeal by Barikieli Daniel who was first convicted by the District Court of Mbulu sitting at Mbulu for raping a girl of 10 years old. Having found guilty as charged, the appellant was sentenced to serve 30 years imprisonment term together with three strokes of the cane subject to medical examination. His first appeal before Kisinda PRM with Extended Jurisdiction to challenge the decision was fruitless. Hence, this appeal. It was alleged before the trial court that, on 29th May, 2020 at

Mawedan village within Mbulu District in Manyara Region, the appellant did have sexual intercourse with the victim (the true identity hidden) or PW1 contrary to section 130 (1) (2) (e) and 131 (1) and (2) of the Penal Code, Cap 16 RE 2019 (the Penal Code). The prosecution sought to prove the case through eight witnesses whose account gives rise to the following story; that on 29/5/2020, around 12.00 hrs, PW1 accompanied by her sibling, one Martine Vicent (PW6) were going to fetch some water at 'Korongoni area". On the way, they met the appellant whom they knew very well, being their neighbour. The appellant grabbed a bucket from PW1, handed it to PW6 and asked him to proceed to Korongoni. According to PW1, the appellant took her to a nearby farm, undressed her and himself and thereafter, took his manhood and inserted it into her vagina. She cried for pains but no one heard her. After satisfying his lust, the appellant left her and she followed PW6 at Korongoni. When asked by PW6 as to why she was crying, PW1 answered him that, the appellant has whipped her (amemchapa). At home, PW1 did not tell anyone about the ordeal she suffered and proceeded to sleep while crying. Her aunt, one Yohani Wilson (PW3), with whom she was staying, returned from her errands on that night, noticed that she was crying and asked her what was wrong. The victim did not

tell her anything. On the following day, PW3 asked her again, but continued to keep mum. It was not until PW6 told PW3 that, PW1 was punished by the appellant, that is when the victim revealed the ordeal she underwent. PW3 called the victim's mother, one Ruth Daniel (PW5) and PW1 told them that she was raped by the appellant. The incident was reported to Haydom police station where a PF3 was issued so that the victim could be taken to the hospital for medical examination. At the hospital, she was examined by Samwel Madangi (PW7) who observed that, the inner part of the victim's vagina was bruised and according to him, the bruises were caused by a blunt object. He accordingly wrote his report which was admitted in evidence as exhibit PE2. The case was investigated by H.3444 D.C. Lutengano who also recorded the appellant's statement and drew a sketch map of the scene of incident admitted in evidence as exhibit PE3. When arraigned to court for trial, the appellant denied the allegations. He pleaded alibi defence claiming that, on the date of the incident he was not at home, but was in the farm at Mawedan harvesting with his relatives. He insisted that, the case was fabricated against him. Despite his denial, the trial court convicted and sentenced him as alluded to above, thus he is before us armed with the following grounds:-

1. That, the first appellate court erred in law and in fact in not finding that there was contravention o fsection 127 (2) o f TEA.
2. That, the first appellate court erred in law and in facts in not finding that, there was delay in reporting the incident
3. That, the first appellate court erred in law and in facts in not finding that, PW1 and PW6 were not credible witnesses in terms o f section 127(6) o f TEA.
4. That, the first appellate court erred in law and in facts in not finding that there was delay in arresting the appellant.
5. That, the first appellate court erred in law and fact in not finding that exhibit P2 and exhibit P3 were not read after it had been adm itted as an exhibit.
6. That, the first appellate court erred in law and in facts in failing to consider the defence evidence.
7. That, the case against the appellant was not proved to the required standard o f law. At the hearing of the appeal, the appellant appeared in person unrepresented. On the other hand, Mses. Janeth Sekule and Blandina Msawa, both learned Senior State Attorneys and Tusaje Kapange, learned State Attorney represented the Respondent Republic. It was Ms. Msawa who submitted on behalf of the other counsel and was categorical that, the respondent was opposing the appeal. 4

When invited to amplify the grounds of appeal, the appellant prayed to adopt his grounds of appeal together with the written submission and allow the appeal. We wish to put it dear that, we shall be referring to the appellants argument as presented in the written statement of arguments in the course of determining this appeal. Before responding to the grounds of appeal, Ms. Msawa informed the Court that, when preparing for the appeal, she noted that grounds number 2 and 4 were new as were not discussed by the 1st appellate court and thus, the Court is barred from dealing with them. On that note, she submitted, she will not address them. However, we are of the view that, the grounds, though not directly raised at the trial and in the 1st appellate courts, they fall under the proof beyond reasonable doubt of the prosecution case which was questioned at the 1st appellate court. On this account therefore, the Court is mandated to look and determine the matters raised therein. We shall therefore come back to determine the grievances raised in the two grounds later when discussing ground number 7 regarding the proof of the prosecution case to the required standard. Ms. Msawa started by addressing grounds number 1 and 3 whereby the appellant's grievance was two fold: one, that section 127 (2) now section 135 (2) of The Evidence Act, Cap 6 R.E 2023 (TEA) was not

complied with before taking the testimony of PW1; and two, it was an error for the 1st appellate court not to find that PW1 and PW6 were not credible witnesses in terms of section 135 (6) of TEA. Arguing for the first limb, the appellant submitted that, PWl's promise was incomplete as she only stated "I prom ise"when asked by the trial court without specifying what was she promising. He referred us to page 10 of the record of appeal for verification. The appellant therefore beseeched the Court to find out that, section 135 (2) of TEA was not complied with and thus, PWl's testimony was wrongly admitted and relied on. He cited the case of John Mkorongo James vs Republic, [2022] TZCA 111 TANZLII to support his arguments. In response, Ms. Msawa refuted the appellant's contention arguing that PW1 promised to tell nothing but the truth which, according to her, suffices for the purpose of complying with the provision at issue. She went on to submit that, even the 1st appellate court was satisfied that, the law was complied with when addressing the issue at page 90 of the record of appeal, the stance which she concurred with. The learned Senior State Attorney further argued that, the promise to tell the truth by PW1 means she promises not to tell lies. Besides, she argued, section 135 (7) of TEA further provides that failure by the child

of a tender age to comply with section 135 (2) of TEA still, does not mean that her evidence is inadmissible provided the same is found credible under subsection (6) of the same provision. Taking the argument further, Ms. Msawa, submitted that, when assessing PWl's credibility, the court looked at the testimonies holistically and was convinced, rightly so in her view that, the evidence was coherent and in harmony with other prosecution witnesses' evidence, thus credible. Besides, she contended, her testimony was corroborated by PW6 who identified the appellant being their neighbour. She added that, the fact was also conceded by the appellant himself. In conclusion, she argued that, grounds number 1 and 3 were meritless on those bases. The question to be addressed under the grounds at issue are two folds: one, whether or not section 135 (2) of TEA was compiled with before the trial court received unsworn evidence of PW1 and two, whether the testimonies of PW1 and PW6 were credible. In addressing the first limb of grievance, our starting point is section 135 (2) which is at issue. The same provides: "135 (2) A child o f a tender age may give evidence without taking oath or making an affirm ation but shall before giving evidence promise to te ll the truth and not lies".

As to how PWl's promise complied with the provision at issue, we find appropriate to quote what transpired in court before PWl's unsworn evidence was recorded. According to the provision and practice, the witness is required to be examined to test his/her competency and know whether he/she understands the meaning and nature of oath before it is concluded that his/her evidence is to give unsworn and after giving a promise to tell the truth and not lies [See: John Mkorongo James (supra)]. In the case at hand, PW1 was asked the following questions:- "Qn: Are you Schooling Ans: Yes, Standard V at Maweden Primary School Qn: Do you promise to te ll this court nothing but the true Ans: Yes, I promise Section 127(2) o f Evidence Act, Cap 6 complied with" Looking at the questions asked to PW1 before giving her promise, we are of the view that, it falls short of the threshold stipulated in the provision for giving an incomplete promise without stating categorically what was she promising. When the question of non-compliance with the section is at issue, the Court at various occasions has given the correct construction of the provision by giving a guidance on the example of questions to be asked to the child witness before reaching at a stage of promising to tell the truth and not lies. In Godfrey Wilson vs Republic,

Criminal Appeal No. 68 of 2018 (unreported) the Court gave the following example of questions as guidance in that regard: " i) The age o f the child ii) The religion which the child professes and iii) whether or not the child promises to te ll the truth and not lies. Thereafter, upon making the promise, such prom ises must be recorded before the evidence is taken." [See also: Issa Salum Nambaluka vs Republic, Criminal Appeal No. 272/ 2018 (unreported)]. Though we are of the view that, there was no full compliant, nevertheless, we agree with Ms. Msawa's submission that, non- compliance does not render the evidence inadmissible (135 (7) of TEA) contrary to what was submitted by the appellant provided the witness is found credible under section 135 (6). On that account, the grievance in the first limb is meritless. As regards the credence of PWl's testimony, we propose to address it when dealing with ground number 7. The complaint in ground number 5 was to the effect that, the 1st appellate court erred for failing to find that, exhibit P2 and P3 were not read out after admitting them in evidence.

Ms. Msawa conceded to the complaint and submitted that, the record of appeal does not suggest otherwise. She added that and correctly so as per the record, that the 1st appellate court had already expunged exhibit P2 for being improperly admitted following the pointed-out infraction. She referred us to page 88 of the record of appeal for verification. Ms. Msawa went ahead and implored the court to expunge exhibit P3 as well for the similar irregularity. She however added that, despite the expungement, no hole was punched in the prosecution case as the remained evidence was still sufficient to sustain conviction. We do not want to be detained in this ground. The record is clear that, both exhibits P2 and P3 were not read over after being admitted so that their contents could be known by the accused and enable him prepare his defence (pages 20 and 21 of the record of appeal). Failure to comply with that procedural requirement renders the exhibits concerned to suffer expungement for being improperly admitted as rightly submitted by Ms. Msawa. [See: Robinson Mwajisi, and Three Others vs Republic [2003] T.L.R. 218 and Jumanne Mohamed and Two Others vs Republic, Criminal Appeal No. 534 of 2015 (unreported). Since exhibit P2 was already expunged, we proceed to expunge exhibit P3 for the infraction pointed-out. Coming to ground number 6, the complaint is centered on failure 10

to consider the appellant's defence. Responding, Ms. Msawa refuted it forthwith. The learned Senior State Attorney submitted and rightly so in our view that, the appellant's defence of alibi was considered at Page 93 of the record of appeal despite the fact that, the appellant neither raised the defence before the closure of the prosecution case nor filed a notice raising it as required. We therefore find the appellant's complaint unfounded and dismiss it. The appellant's complaint in ground No. 7 is to the effect that, the prosecution case was not proved beyond reasonable doubt to which Ms. Msawa refuted. The learned Senior State Attorney argued that, in proving the offence the appellant was charged with, the prosecution is required to prove three ingredients: first, penetration which she submitted to have been proved by the victim and corroborated by PW7. She referred us to pages 11 and 19 of the record of appeal to back up her submission. She went on to submit that, the second ingredient is the age of the victim whereby the victim should be 18 years old or below. It was her submission that, PWl's age was proved by the victim herself and her mother and referred us to pages 10 and 15 of the record of appeal. As for the third and last ingredient, the prosecution has to prove that, the accused (the appellant) was the offender and according to her, the same was proved as well. 11

In elaboration, Ms. Msawa argued that, the appellant who was mentioned as the offender by the victim was a neighbour to PWl's family and thus, very well known to her. The fact that they were neighbours was corroborated by PW6 and echoed by the appellant himself when testifying. She went on to submit that, the incident occurred during the day around 12.00 noon and therefore, he was properly identified by PW1. She further argued that, the victim mentioned him to PW3 and PW5 on the following day. She added that, the matter was reported to the police station and according to PW4, the appellant was apprehended on 4/6/2020 in Hanang after being mentioned. She argued that, the mentioning of the appellant by PW1 and PW6 together with his apprehension was not challenged by the appellant. She dismissed the appellant's argument that, PW4 did not tender an RB to verify his apprehension arguing that, the absence of the RB does note negate the fact that he was apprehended. But further that, the appellant did not cross examine PW4 on that aspect when testifying. As regards the contradictory accounts between PW3 and PW5 as to how and where did PW5 got the information concerning the incident, Ms. Msawa argued that, the contradiction, though exists, does not go to the root of the matter which is the fact that, PW1 was raped by the appellant. She therefore beseeched the Court to find the contradiction minor and 12

disregard it. When probed by the Court as regards the delay by PW1 to mention the offender until the following day while the victim knew him very well, Ms. Msawa submitted that, the victim was in shock following the incident and that is why she did not disclose the incident immediately. Further when asked why the appellant was apprehended five days later after being mentioned, the learned Senior State Attorney submitted that, the appellant had absconded and was arrested at Haydom. In conclusion, Ms. Msawa argued that, the prosecution case was proved beyond reasonable doubt contrary to what was submitted by the appellant, as such ground no. 7 is without merit as well. She prayed the Court to find the appeal meritless and dismiss it in its entirely. The complaint in ground No. 7 made the parties lock horns as to whether the prosecution case was proved to the required standard; the appellant argued that it was not while Ms. Msawa on the other hand arguing that it was. We wish to state categorically that we have no qualms with the proof of the first two ingredients of the offence in this case. However we should confess that, the last ingredient as to who was the offender exercised our minds following the delay by the victim to report the incident 13

at the earliest opportune time and the lie PW1 told PW6. It is on record that, the incident occurred on 29/5/2020 noon hours. Immediately thereafter the victim followed PW6 at Korongoni where he proceeded to fetch water after being ordered by the appellant. On seeing her crying, PW6 asked the victim the reason. The victim told him, that, she was whipped by the appellant, but no reason was given as to why PW1 lied to PW6 on such a grave incident. We asked ourselves if the witness who tells lie on a material point should still be believed in respect of other points. Our answer is in the negative. [See: Bahati Makeja vs Republic, [2011] TZCA 380 TANZLII. The Puzzle did not end there. PW1 told the Court that, when she went back home, she did not tell any one of the incident and decided to sleep over without revealing it. Though PW3 asked her what was the matter after seeing her crying on the very day of the incident, PW1 remained mum. Again, on the next day, PW3 probed from her if there was any problem, but PW1 continued to hold back the information. To say the least, we consider her attitude strange. Her decision to stay mum was corroborated by PW3 when testifying (page 13 of the record of appeal). It was until when PW6 told PW3 that the victim was whipped by the appellant that's when she narrated the incident and mentioned the appellant to be the offender. Despite the overt strange attitude of PW1, 14

the record is silent as to the reason of her delay to report the incident and her failure to mention the offender immediately. The Court, in an akin scenario observed the following in Festo Mawata vs The Republic, Criminal Appeal No. 229/2007 (unreported):- "Delay in mentioning a suspect without reasonable explanation by a witness or witnesses has never been taken lightly by the courts, such witnesses always had their credibility doubted to the extent o f having their evidence discounted." When probed on the manner the victim acted, Ms. Msawa told the Court that, the victim was in shock. Sincerely speaking, we find the explanation unplausible in the circumstances considering abhorring and disgusting the offence is. But further, the record does not suggest the reason given. We say so for the following reasons: One, nowhere in the record shows that PW1 was warned or threatened to be harmed if she would reveal the incident. Two, the victim testified to know the appellant very well, yet she slept over with the information. Three, she lied when asked by PW6. Four, even when probed by PW3 for the second time on the next day, she continued staying mum, while in our view, the night would have cleared her shock if at all she had the same as seemsto be suggested by Ms. Msawa. On those bases, we state with nohesitation that, the fronted reason for delay is not convincing and are mere words 15

from the bar as they are not supported by the record of appeal, with much respect to the learned Senior State Attorney. In the premises, we are of settled view that the unexplainable delay in reporting the incident and naming the suspect to her aunt (PW3) immediately when she met her cannot be taken lightly, instead has a serious adverse impact on the victim's credibility and the prosecution case as a whole. Moreover, the Court has been consistently of the stance that, failure to name a known suspect at the earliest available and appropriate opportunity, as it happened in this case, renders the evidence of that witness highly suspect and unreliable. [See: Venance Nuba and Another vs The Republic, Criminal Appeal No. 425 of 2013 and Yust Lala vs Republic, Criminal Appeal No. 337 of 2015 both (unreported). In Yust Lala vs Republic (supra)the court observed:- "... In our considered view, the lapse o f time between the alleged rape and the time when the witness mentioned the suspect raises doubt on the credibility o f PW1...." Applying the above authority to the case at hand, PWl's delay to mention the suspect has raised doubt on her testimony and dented her credibility. The law is settled that, where there are doubts, the same should be resolved in favor of the accused, who is the appellant in this 16

case. Though it is a settled principle of law that the best evidence in sexual offences comes from the victim - [See: Selemani Makumba vs Republic, [2006] T.L.R 384], the applicability of the principle pre supposes that the victim demonstrated unquestionable credibility of her evidence which is not the case with PW1 in the matter at hand as we above demonstrated. We are further aware that, sitting as a 2n d appellate Court, the Court would rarely interfere with the concurrent findings of the courts below save where there is a misapprehension of evidence or misdirection on a point of law occasioning failure of justice. [See: Yassin Ramadhani Changa vs Republic [1999] T.L.R 489]. In view of the doubtful evidence of the victim, we are settled in our mind that, the two courts below have misapprehended the evidence resulting to miscarriage of justice by incarcerating the appellant basing on doubtful evidence of PW1. For that reason, we are entitled to disturb the concurrent findings of fact and conclude that, the offence was not proved beyond reasonable doubt. Before we end, we wish to recapitulate a quote given by the Lord Chief Justice of the King's Bench, Sir Mathew Hale, an English Jurist, which we think is an important" food for thought"\Nhenever determining sexual offence cases, as quoted with approval in the case of Martin Jacob @ Mlila vs Republic [2024] TZCA 447 TANZLII] that: - 17

1 1 rape is an accusation easily to be made and hard to be proved and harder to be defended by the party accused. Thus, the allegation o f rape requires to be addressed cautiously by examining the evidence carefully, lest injustice is occasioned to any o f the parties to the case." With that in mind, we allow this appeal, quash the conviction and set aside the sentence imposed on the appellant. We further order that, the appellant be released forthwith unless held for some other lawful cause. DATED at ARUSHA this 7th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. 3. MDEMU JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2025 in the presence of the Appellant in person and Mr. Philbert Msuya, learned State Attorney for the Respondent/Republic both through Virtual Court, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 18