Furaha Sijaona Mwasumbe & Another vs Republic (Criminal Appeal No. 78 of 2023) [2026] TZCA 339 (24 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A.. RUMANYIKA, 3.A. And AGATHO, 3.A.) CRIMINAL APPEAL NO 78 OF 2023 FURAHA SIJAONA MWASUMBE......................................................1 st APPELLANT NWAKA SIJAONA MWASUMBE ............................................... . ...... 2 nd APPELLANT VERSUS THE REPUBLIC ....... . .......................................... . ................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nonqwa, J.) dated the 13th day of December, 2022 in Criminal Appeal No. 155 of 2022 JUDGMENT OF THE COURT 4th & 24th March, 2026 AGATHO. J.A.: The Appellants, Furaha Sijaona Mwasumbe and Mwaka @ Nwaka Sijaona Mwasumbe were charged with and convicted of the offence of gang rape. The offence was committed contrary to section 131A (1) (2) of the Penal Code, Cap 16 R.E. 2019. The prosecution alleged that on 4th day of February 2022, at Nkunga Village within Rungwe District in Mbeya Region, the appellants, one after the other, did unlawfully have sexual intercourse with one Abia Msafiri, a woman aged 48 years old.

According to the prosecution, on 4th February 2022, in the evening the victim, PW1 was at Ibilio area at Nkunga village. It was a market day. At around 09:00 pm in a bid to board a motorcyclist to transport her home, she encountered the first appellant, a person she knows and recognises as Furaha. The victim asked Furaha to share a boda-boda ride home with her, a request which was readily consented to by the 1st appellant While on their way, Nwaka hopped in the ride uninvited. Having sat in the front, PW1 asked Furaha who that was and Furaha responded that it was Nwaka, the 2n d appellant. Knowing Nwaka's immoral behaviours, PW1 was displeased but Furaha calmed her down saying that all will be well. PW1 recalled that the road was muddy on that day so at some point the three of them disembarked from the motorcycle and decided to walk. They reached near a bridge and the second appellant blocked their way from in front saying that they should pass through a shortcut, PW1 disagreed. They continued walking whereby they passed by a shop whose keeper is one Happy as they wanted a cigarette. While there they met one Juhudi Saimon, PW2. PW1 went on narrating that they kept on walking until they reached a place called Josho, that was around 10:00 pm. The second appellant grabbed her (PW1) by the neck and called the first appellant saying "Furaha tayarinim esham taitinjoo tum bebd'. Meaning Furaha, I have held 2

her tight, come we carry her away. They both grabbed her to a sand mine place and laid her down. The second appellant held her tight while the first appellant undressed her and started raping her and after him the second appellant did the same with the help of the first appellant. The victim testified that she could not shout because they held her neck tightly leaving some scratches around it. According to the record, on the following day, 5th February 2022, PW1 informed PW4, Hebron Mwanyumba about the incident. The latter summoned villagers including the appellants. After being summoned, PW4 asked the appellants what they did to PW1 on the previous day and they refuted even meeting the victim let alone raping her. That being the situation, the victim went to report the incident to the police station, where she was given a PF3 and later went back home. Upon arriving home, PW1 allegedly found the first appellant with his sister, Amina who had gone to ask for an apology for raping her, the apology which was not accepted by PW1 anyway. PW2 confirmed that PWl's account that on 04/02/2022 at 09:00pm while at Happy's shop there arrived PW1 in the company of the two appellants asking for cigarettes. He saw them clearly as the shop was illuminated by a bright tube light. 3

PW3 Msafiri Ndigha, (the victim's father) stated how he was summoned by a village leader, (PW4) who informed him that his daughter (PW1) was raped by the appellants, who denied such allegations. PW4 explained how PW1 approached him on 5th February 2022 at 08:00 am to report that she was raped on the previous night by the first and second appellants. PW5, a pastor explained how the first appellant approached him on 15th March 2022 at around 07:00-08:00 am seeking his help to go to PWl's parents to ask for an apology. The witness testified that he went to the parents as asked and they told him to wait till they discussed the matter as a whole family. PW6 was a clinical officer who testified that PW1 went to the hospital on 05th February 2022 with complaints of being raped. She examined her and found that her vagina had whitish milky like substances and bruises. Despite encountering objections from the appellants, she successfully tendered a PF3 which was admitted as Exhibit PI. In their analogous defence, the appellants stated that there is a family land dispute between them and PW l's fiancee, one Raisi who is their brother from another mother with whom they share a father. After a trial in which six prosecution witnesses featured, the trial court found both appellants guilty of gang rape, convicted and sentenced

them to life imprisonment. In addition, they were ordered to pay a sum of two million shillings as compensation to the victim. They hurriedly filed a first appeal to the High Court efforts which proved futile. Aggrieved and still determined to vindicate their innocence, the Appellants have appealed to this Court with two memoranda of appeal, main and supplementary. Upon scrutiny we noted that in each memorandum of appeal they have raised four grounds of appeal which are identical in both memoranda.

1. [That], the first appellate court erred in law by dism issing the appellants' appeal without considering section 127 (6) o f [the Evidence A ct] Cap 6 R.E. 2019 (now Section 135(6) o f Cap 6 R.E. 2023), specifically: (a) PW1 claim ed she was raped a t night and then notified PW4, but PW 4's testim ony [did] not confirm receiving PW1 on the fateful night. (b) PW1 stated the rape occurred a t a place where people mine sand, but PW2, PW3, and PW4, who corroborated her story, did not m ention that she told them the allegation occurred there. (c) No sketch plan map was tendered by the investigator from the police station to prove the distance from the neighbouring house or to confirm if the area m entioned by PW1 was the true place visited.

2. [That], the first appellate court erred in law by dism issing the appellants' appeal w ithout considering that PW1 was a Har, as she did not go to her dom icile and went to PW4 the next day, casting doubts on her evidence since she did not explain these aspects. 5

3. [That], the first appellate court erred in law by dism issing the appellants' appeal w ithout considering that the evidence o fP W l and PW3 contradicted its e lf regarding the first appellant attending PW3 fo r forgiveness, as Solomon was not called to prove this, and PW5 was never m entioned by PW1 or PW3.

4. [That], the first appellate court erred in law by convicting and dism issing the appellants' appeal retying on PW1 's evidence but rejecting the issue o f visual identification done by PW1 a t night through m oonlight, specifically: (a) No bodaboda rid er was called to prove ifP W l, the first appellant, and the second appellant boarded his/her m otorcycle. (b) The identification by PW2 is doubtful because PW2 is not the owner o f the kiosk, and the said Happy was never called to support PW1 's evidence. (c) PW 2's evidence on identification is doubtful as he m entioned the nam es o f NWAKA, but the said NWAKA (m entioned tw ice) failed to differentiate the said names. When the appeal was called on for hearing, the appellant fended himself whereas the respondent Republic was represented by Mr. Alex Mwita, Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys assisted by Mr. Dominick Mushi, learned State Attorney.

The appellants adopted their grounds of appeal and preferred the learned State Attorneys respond first to the grounds of appeal and thereafter they will rejoin if need be. In her reply submission, Ms. Mollel submitted that the grounds of appeal centres on failure of the prosecution to prove the case beyond reasonable doubt. She contended that the prosecution through their witnesses and the evidence adduced as visible in the record proved the charge beyond reasonable doubt and the appeal is devoid of merit. She, thus, urged the Court to dismiss the appeal for lacking merit. In their rejoinder, the appellants beseeched the Court to consider their grounds of appeal, allow the appeal and set them free. On his side, additionally, the second appellant submitted that there was no sketch map of the crime scene tendered in court by the investigator. In the instant appeal we are enjoined to determine the following issues central to the grounds of appeal: one, whether prosecution witnesses were credible; two, whether the appellants were properly identified; three, whether the prosecution failed to call material witnesses; lastly and overall, whether the case was proved beyond reasonable doubt.

We propose to begin with the last issue whether the case was proved beyond reasonable doubt. According to the charge sheet, the appellants were charged with gang rape contrary to section 131 A (1) and (2) of the Penal Code. The ingredients are penetration, lack of consent and that the appellants were the perpetrators. As for penetration, Ms. Mollel submitted that PW1 - victim at pages 16-20 of the record of appeal testified that she was raped by the appellants. Explaining the non-consensua! sexual intercourse, the victim stated at page 18 of the record that the second appellant held her tight while the first appellant undressed her and raped her. Confirming penetration, PW6 (clinical officer) testified at page 35 of the record of appeal that she examined the victim and found that her neck had scratches and her vagina was discharging dirty whitish milk like substances, and there were some bruises. The witness added that the victim was complaining of some pain. PW6 opined that the vagina was penetrated with a blunt object. See- page 40 of the record of appeal. Another ingredient is lack of consent to which the learned Senior State Attorney submitted that the victim testified that she was raped by the appellants, whom she knew before the incident. She was accompanied by them and they took the Boda-boda together. On page 17 of the record of appeal, PW1 said recalling what the second appellant said "Furaha

tayari nim esham taiti njoo tum bebd', which literary means Furaha come I have already held her tight. Thereafter, they took her to a place where people mine sand, laid her down and whereas the second appellant held her tight the first appellant undressed and raped her. Subsequently, the second appellant raped her too. The victim testified that she was held tight on her neck that she could not scream. See- page 18 of the record of appeal. Corroborating the above testimony, PW3 testified that when he went to PW4's home it is where he found the victim lying down while her neck was badly injured and could not talk properly. See-page 24 of the record of appeal. That evidence was further corroborated by PW6's testimony that when PW1 came to her for examination, she saw scratches on her neck and she complained of pains. As to who the perpetrator was, that is essentially about identification of the culprits. Central to that the appellants assailed the lower courts' decisions that they were not properly identified as PW1 said she relied on moonlight to identify them. Ms. Mollel submitted that, the appellants were properly identified considering the evidence of PW1 that she knew the appellants prior to the fateful night. She proved that the appellants jointly raped her. In her view, the identification was watertight. In his defence, DW1 testified on page 45 of the record of appeal that he knew the victim. DW2 too on page 50 of the record testified that

he knew the victim. DW3 also testified that the appellants knew the victim. To show that they spent relatively blonger time together, and there is no room for mistaken identify, on page 17 of the record of appeal, PW1 testified that on the material date they boarded a boda-boda and stopped at the grocery store to buy cigarettes. It was PW2's testimony that he saw the appellants together with the victim at the grocery store on the fateful night (as seen on pages 21-22 of the record of appeal). He testified further that there was a bright tube light at the shop (grocery store) which helped him to identify them. Besides that, argued Ms. Mollel that the time spent from the grocery to the crime scene and at the crime scene, the victim observed the appellants for some time. See- page 18 of the record of appeal. The learned Senior State Attorney implied that the principle in Waziri Amani v. Republic [1980] T.L.R. 250 applies squarely in this case. PW1 testified on page 17 of the record of appeal that she knows the second appellant and described him as being short and black. The victim identified the appellants by recognition. We thus agree with Ms. Mollel that PW1 recognized the appellants. Our stand is fortified by the principle that identification by recognition is more reliable than identification of a stranger as held in Hando Hau @Hau Petro v. Republic [2022] TZCA

Reacting to the appellants' complaint that the prosecution witnesses lacked credibility on: first, PW1 did not report to PW4 on the same day instead she reported in the morning of the next day, Ms. Mollel submitted that PW4 testified that she was not well as she fell down when she was telling him her ordeal. However, we noted that the record is silent as to where PW1 slept the night of the incident PW1 also said she was going to her in-laws, but it is not clear if she reached there. Nonetheless, on page 18 of the record of appeal, she said after the incident she left for home. It is unclear which home was she referring to. Is it to her matrimonial home or to her parents' home? The learned Senior State Attorney conceded that the victim mentioned the appellants in the morning of the next day after the incident to PW4 at his home. At page 28 of the record of appeal, PW4 testified on the victim reporting to him about the ordeal that the appellants raped her. On page 18 of the same record, PW1 testified that she reported it to PW4 who then called villagers and the appellants. The latter denied the allegations of rape. Here the question is whether reporting the incident on the next day means naming the assailant earliest opportunity? There is no explanation where the victim spent the night after the incident. However, we took note that due to the ordeal the victim sustained pains on the neck and her genitalia. She was in bad shape on the material night,

which we found to be justifiable cause for not reporting the incident on the same night. We are aware of the principle in Marwa Wangiti Mwita and Another v. Republic [2002] TLR 39 that failure to name the assailant at earliest possible opportunity undermines witness' credibility. But in circumstance of this case as above explained, we find reporting of the incident in the morning of the next day was proper. We thus dismiss the issue of the victim's failure to report the incident at earliest possible opportunity. On credibility again, the appellants complained that PW2, PW3 and PW4 did not mention in their evidence that the incident occurred at the sand mine. We hastily find this to be devoid of merit because these witnesses were not eyewitnesses. Nor is there any evidence that there is no sand mine in the village. Connected the above was the allegation that the investigator did not tender sketch map of the crime scene. This in our view lacks substance. First, because no police investigator testified, and second, that the sketch map is not necessary where the crime scene is undisputed. Here the question of distance between houses and the sand mine is superfluous as there no evidence to suggest there were houses nearby. Moreover, the incident occurred at night, and according to PW1 the

culprits held the victim and carried her to the sand mines where they raped her. We thus dismiss this complaint for lacking substance. Regarding claims of forgiveness which Ms. Mollel recited, we think it was aimed at advancing the prosecution case by showing the first appellant's confession and remorse. The appellants fault the lower courts decisions in that there was contradiction between evidence of PW1 and PW3 regarding the first appellant seeking forgiveness to PW3. They contended that PW1 and PW3 testified that when the first appellant was seeking forgiveness one Solomoni was present But this individual was not called to testify. We think that was an issue of failure to call material witness. We shall address this later. But here we find no contradiction in the evidence of PW1 and PW3. They were in fact consistent in mentioning Solomoni. The learned Senior State Attorney referred us to page 19 of the record of appeal where PW1 testified that the appellants were called to the leaders to answer the allegation of rape and denied it. However, according to PW l's evidence, the first appellant sought forgiveness which is reflected on pages 18-19 of the record of appeal. Ms. Mollel argued that PW l's evidence of forgiveness seeking by first appellant and his sister Amina is corroborated by PW3's testimony on page 25 of the record of appeal. 13

The appellants also attacked the evidence of PW5 (the Pastor) who testified that the first appellant sent him to go and apologize to the victim on his behalf for he was not mentioned by any other prosecution witness. On this issue, a starting point is page 31 of the record appeal where PW5 testified on the first appellant's forgiveness pursuit. However, Ms. Mollel Conceded that PW5's evidence was not corroborated by PW l's testimony as the latter never mentioned PW5. In our view, even if we consider PWS's testimony as incredible and dismiss it still the evidence on record insurmountable. Besides, and interestingly, the first appellant did not seriously challenge PW5's testimony. There is plethora of authorities including George Maili Kemboge v. Republic [2014] TZCA 203 that failure to cross examine on a critical point implies its admission. In the case at hand, failure of the first appellant to refute the allegation of him seeking forgiveness amounts to concession. As to the complaint that material witness, the boda-boda rider was not called to testify, it was the learned Senior State Attorney's view that he was not material witness. Besides, PW2 testified that on the fateful night he saw the victim together with the appellants. Moreover, in cross examination the appellants testified that they knew Juhudi (PW2). We agree with Ms. Mollel that the boda-boda rider was not a material witness. We take that stance because PW2 testified that he saw the victim and the

appellants at the grocery store where they wanted to buy cigarette. That aside, the boda-boda rider did not ferry them to the crime scene. Nor did he witness the gang rape incident. Along with the foregoing, the appellants complained that Solomoni who is said to be present when the first appellant went to seek forgiveness to the victim's parents was not called to testify to corroborate the evidence of PW1 and PW3 that the first appellant and his sister indeed went to seek forgiveness for what he did to the victim. We do not have to belabour on the issue because the evidence of PW1 and PW3 was in as far as the question of forgiveness is concerned credible and unshaken. We think that what Solomoni would have testified was substantially covered by PW1 and PW3. That is settled on section 152 of the TEA which provides that for the prosecution to prove their case there is no specific number of witnesses to be paraded to testify. Moreover, we affirm that it is not the number of witnesses that proves the charge rather the quality of evidence adduced. See- Gerson Geteni v. Republic [2024] TZCA 52. Furthermore, in our jurisdiction, it is an established principle that an adverse inference cannot be drawn for failure to call a witness who is not material. See- Juma Masanja and Another v. Republic [2025] TZCA 488. In the premise, we cannot draw adverse inference on the prosecution side for failure to summon the boda-boda 15

rider and Solomoni who in our view were immaterial witnesses. We accordingly dismiss this complaint. Lastly, and in view of what has been stated hereinabove, we are satisfied that the prosecution proved the case beyond reasonable doubt. In the upshot, the appeal is dismissed for lacking merit. DATED at DODOMA this 23rd day of March, 2026. R. K. MKUYE U. 1 AGATHO JUSTICE OF APPEAL Judgement delivered this 24thday of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney, for the respondent/Republic, via virtual court and Mr. Shafii Kassim, Court Clerk; is hereby certified as true copy of the original. JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL 16