Furaha Lingson Mwampashi vs Republic (Criminal Appeal No. 616 of 2022) [2026] TZCA 293 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. 3.A. And AGATHO, J.A,) CRIMINAL APPEAL NO. 616 OF 2022 FURAHA LINGSON MWAMPASHI...............................................APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.) dated the 26th day of July, 2022 in Criminal Appeal No. 131 of 2021 JUDGMENT OF THE COURT 3,d & 11“' March, 2026 RUMANYIKA. J. A.: On 31st March, 2021, the appellant, Furaha Lingson Mwampashi, was arraigned before the District Court of Chunya, accused of raping a 58-year-old woman on March 24th, 2021. The prosecution alleged that, the victim, who knew the appellant before as co villager, was alone in the valley along River Chunya, busy searching for some gold-remnants, around 16:00 hours. The appellant is alleged to have invaded and strangled the victim by the neck, fell her x

to the ground and had her carnal knowledge, without consent. That upon satisfying his desire, the appellant took on heels. That, as it was broad day light and she was familiar with the appellant, the victim positively identified him as her assailant. Distressed, she immediately knocked at the door of her tenant (PW4), telling her about the unfortunate predicament, who similarly informed the victim's son (PW2). The matter was reported to the police, where the victim was issued a PF3 and later, clinically examined by PW3. The medical doctor noticed whitish substance and bruises in the victim's private parts. Two days later, the appellant kneeled down before the victim seeking forgiveness, where some villagers apprehended him, without much ado. He was formally charged with rape, contrary to sections 130(1), (2)(e), and 131(1) of the Penal Code on March 31, 2021. Following a trial, the appellant was convicted and sentenced to thirty years' imprisonment and six strokes of the cane. His appeal to the High Court bore no fruit on July 26, 2022. Dissatisfied, the appellant has lodged this second appeal, presenting two memoranda. They comprise a total of six points of grievance (two in the main and four in the supplementary memorandum of appeal). They are paraphrased as 2

follows; One, petition of appeal was not considered, two, improper evaluation of the evidence, three, improper identification of the appellant, four, failure to tender copy of sketch map of the crime scene, five, PW5 not credible regarding the alleged appellant7oral confession and six, the defence evidence was not considered. At the scheduled hearing of the appeal, the appellant entered appearance in person, without representation. Mr. Alex Mwita and Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys together with Mr. Dominick Mushi, learned State Attorney represented the respondent Republic. The appellant, at the outset let the State Counsel respond to the grounds of appeal so he could rejoin later, should the need arise. Mr. Mwita supported the conviction and sentence upright, contending as follows: For the complaint that the appellant's petition of appeal was not considered, it was asserted that it is against the record. It was argued that, like the victim, who immediately named the assailant as Mwamunyange, the appellant also in his evidence stated it to be his famous name, as it appears on pages 28 to 29 of the record of appeal. Therefore, Mr. Mwita urged us to regard the victim as a credible eye

witness. Much as, it was also argued, the victim's evidence was supported by her co-street members. That, ability of the victim to name the appellant immediately, showed assurance and reliability of her evidence. Moreover, Mr. Mwita cited the Court's decision in Trazias Evarista @ Deusdedit Aron v. R, Criminal Appeal No. 188 of 2020 [2021] 97 to reinforce his point, on a contention that credibility of a witness's evidence is not assessed in isolation. But when one is testifying in court in the witness box and in relation with evidence adduced by other witnesses. He urged the Court to dismiss the lacking complaint. As regards complaint on the alleged contradiction between evidence of PW1 and the medical doctor, on the timing for the examination, Mr. Mwita admitted that, indeed the medical doctor stated that he attended the victim on 26/03/2021, as shown in the PF3, while the victim did not state the date. However, it was contended that, if anything, the contradiction did not go to the root of the case, prejudicing the appellant, because the doctor's findings established that the victim was penetrated. Next is the complaint on the alleged failure of the prosecution to produce a sketch map of the crime scene. On this one, Mr. Mwita 4

contended that it was not such a material piece of evidence for them whose absence may dent the prosecution case. Much as, it was argued, the victim was penetrated against her will, in the wild and reported the matter immediately. That, the victim's evidence was supported by PW5 who noticed some marks of violence/force on the victim's body, suggesting that indeed she was sexually assaulted. Another complaint is on the evidence of PW5 lacking for the latter's failure to reduce the alleged oral confession of the appellant into writing. Mr. Mwita contended that, indeed it was not reduced into writing but the fact remains that the appellant sought the victim's forgiveness in the presence of PW5, following the incident, amounting to oral confession, which also counts. He cited the Court's decision in John Shini v. R, Criminal Appeal No. 573 of 2016 [2020] TZCA 1747 to cement his preposition. The last complaint concerns the appellant's defence evidence not being considered. Mr. Mwita contended it is against the unfettered findings of the learned Judge, that by any stretch of the imagination, the appellant's evidence did not cast any doubt on the prosecution case. He urged us to also dismiss this complaint. 5

In rejoinder, the appellant disagreed with Mr. Mwita's submission. He asked the Court to allow the appeal and to restore his liberty, without more. On the first ground that the first appellate court failed to consider the appellant's petition of appeal, we need not belabor on it. As such, this contention is not borne out by the record. Our perusal, particularly at pages 82 to 86 of the record of appeal reveals that, all four grounds in the petition of appeal were actually dealt and resolved. The appellant may have been discontented with the resultant findings of the court, but this different from saying that the grounds were not considered, as alleged. Therefore, this complaint is dismissed. As regards the complaint that the first appellate court failed to properly evaluate the evidence on record, this also will not detain us than it is necessary. Specifically, it concerns the alleged material inconsistency between the testimony of PW1 and PW3, on the naming of the perpetrator and the timing of the medical examination. We shall come back to this point later. As regards the complaint on the appellant's defence evidence not being adequately considered by the two courts below, the bottom line is the settled law, that in criminal cases the burden of proof lies upon

the prosecution. As such, the standard is proof beyond reasonable doubt. Notably, in sexual offence cases, a conviction may be founded on uncorroborated testimony of the victim, if found to be credible. Generally, the findings of a trial court on credibility of witnesses may not be doubted on appeal, unless the record discloses some compelling reasons for interference. It is so because the trial court is better placed to see and hear first-hand oral accounts of the witnesses. We have prefaced this part of our judgment with these few remarks, for a purpose. Upon perusal of the record, it is evident that the trial court undertook a detailed evaluation of the evidence, as it is exhibited from page 41 of the record of appeal, onwards. Then the learned Judge concluded as such, in favor of the Republic, that PW1 was credible and witness of truth. It was also resolved that the prosecution case was proved to the hilt, based on, among others, that the victim credibly identified the appellant and that the former reported him to PW4 at the earliest opportunity. Much as it is undeniable fact that PW1 knew the appellant before the incident, and that the offence occurred in broad daylight. Therefore, the issue of non-consideration of the defence 7

evidence is neither here nor there. As such, this complaint is unmerited and dismissed. As regards the alleged contradiction on the appellant's actual name, that by naming him Mwamunyange the victim may have meant somebody else other than the appellant, this complaint also lacks substance. It is so because the record shows that, at times the appellant himself admitted it to be his famous name, as is appearing on page 29 of the record of appeal. In the circumstances, therefore, the reference to either name by PW1 brings no uncertainty as to the appellant's identity. Therefore, the complaint is dismissed. Concerning the PF3 which indicates that the medical examination was conducted two days after the incident, indeed, we find no inconsistency at all in the evidence regarding the date of the examination. The discrepancy, however is inconsequential in our considered view. In any event, however, it is settled in our jurisprudence that rape may be proved even in the absence of medical evidence. We have observed so on different occasions such as in Tulizo s/o Kahulo v. R (Criminal Appeal No. 338 of 2017) [2019] TZCA 342. It is both logical and common sense, in this regard that, in any judicial proceedings clinical findings only constitute expert opinion which is

neither conclusive of the issues nor is it binding on the courts. As such, this complaint is dismissed. The appellant also faults the learned Judge for having not held that non-production of a sketch map of the crime scene dented the prosecution case. This ground, however, is also without merit. While a sketch map may only assists a trial court to appreciate the physical location where the charged offence is alleged committed, its production is nonetheless a mandatory requirement. See- Thomas Dolofen Mbele v. R (Criminal Appeal No. 299 of 2023) [2025] TZCA 1114, and Pili Aron Mwabeza v. R (Civil Appeal No. 538 of 2021) [2024] TZCA 1214, from a long list of authorities. Applying the principle above to the instant case, it is worth noting that PW1 provided such a detailed and sufficient testimony of the incident. She identified the appellant and narrated the circumstances of the said sexual assault. Much as she reliably reported it to the other people, immediately. Therefore, it cannot always be a correct position of the law that non-tendering of the respective sketch map in evidence for proof of the incident is fatal to the prosecution case. Therefore, this complaint also fails.

With regard to the trial court relying on evidence of PW5 that the appellant orally confessed the guilty before him, as it is appearing on page 23 of the record of appeal and its credibility, we do not find any merit in it. Notably, PW5 entertained the matter by virtue of his position, as the hamlet chairperson in that locality. He had no authority to record any kind of a formal cautioned statement, as is done by the police officers. After all, we know no any legal requirement that every oral confession be reduced into writing, especially when it is made before a person, as is the case before us, with no statutory authority to do so. However, it is a trite law that oral confessions made in the presence of reliable witnesses, including civilians, may be sufficient to found conviction. It is said that PW5 was none of them. See- Geofray Sichizya v. DPP (Criminal Appeal No. 176 of 2017) [2020] TZCA 159. Moreover, we note that the evidence of PW5 was corroborated by PW1, PW2, and PW4, who confirmed the appellant to have admitted commission of the charged offence, by seeking forgiveness from the victim immediately. Moreover, there is no indication that PW5's oral account was fabricated. As such, also this complaint is devoid of merit. 10

In the upshot of it all, it is clear to us that the appellant has not established any legal basis to overturn the impugned conviction and sentence. The appeal is lacking in all fours. It is hereby dismissed. DATED at MBEYA this 10th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. X AGATHO JUSTICE OF APPEAL The Judgment delivered this 11th day of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. v \ • • C. M. MAGESA \ U DEPUTY REGISTRAR / j ' COURT OF APPEAL