Wangu Vitus @ Enzolene vs Republic (Criminal Appeal No. 603 of 2022) [2026] TZCA 304 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CO.RAM: MKUYE, 3.A., RUMANYIKA. 3.A. And AGATHO. 3J U CRIMINAL APPEAL NO 603 OF 2022 WANGU VITUS @ENZOLENE .............. ............................................ APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ebrahim, J.l dated the 18* day of October, 2022 in Criminal Appeal No. 49 of 2022 JUDGMENT OF THE COURT 25th February & 11th March, 2026 AGATHO, J.A.: The appellant, Wangu Vitus@ Enzolene on 9th April, 2109 was arraigned before the District Court of Chunya at Chunya facing the charge of rape under sections 130(1), (2)(e), and 131(1) of the Penal Code. It was alleged that in the morning of 28thMarch 2019, at 7 a.m., at Isote Hamlet, Mwiji Village within Chunya District in Mbeya Region, a 15- year-old pupil of Mwiji Primary School whom for privacy reasons we shall herein refer her as PW1 or the victim, embarked on her daily journey to school accompanied by her schoolmate, a nine-year-old girl, ML (PW6) whose name is also withheld for same reasons as stated above, noticed a i

man following them. He approached PW1, inquiring about her name, and identified himself as Wangu. PWl's testimony recounted that Wangu, suddenly seized her by the neck and carried her into a nearby farm. There, he allegedly undressed PW1 and himself, and by force engaged in sexual intercourse with her, despite her resistance. The victim testified that she experienced severe pain and bled. Following the assault, Wangu fled the scene. PW1 pulled herself together, dressed up and proceeded to school, arriving in a distressed state. At school, PW1 reported the incident to the head teacher, Masanja Mahana (PW4), who directed her to a female teacher, Rosta Mwanganya (PW5). PW1 explained that she had been raped by the appellant. The teachers took PW1 to the village executive officer, who issued a letter to facilitate a police report. PW1, accompanied by her teachers and later her parents, reported the matter to Lupatingatinga Police Station where she was issued with a PF3 (Police Form 3). Thereafter, she was taken to Lupatingatinga Health Centre and met Dr. Jimmy Wilson (PW2), who examined her and observed perforation of the hymen, presence of semen, and inflammation of the vaginal opening. Tests for venereal diseases and pregnancy were negative.

The police through officer G. 8064 DC Chesco (PW3) mounted investigation. Ultimately, the appellant was arrested by the residents at Lualaje, Mwiji Village. When the charge was read out at the trial court, the appellant pleaded not guilty. Hence, the case proceeded to trial. Six prosecution witnesses testified. The doctor tendered the PF3 which was admitted as exhibit PEI (PF3). In his defence, the appellant denied the charges, claiming the allegation arose from a debt dispute involving PWl's uncle. Having heard witnesses from both sides, the trial court convicted the appellant of rape, sentenced him to 30 years' imprisonment and ordered him to pay the victim a compensation to the tune of TZS 1,000,000.00. His appeal to the High Court was unsuccessful. The matter is now before this Court where the appellant faults the High Court's decision on three grounds of appeal as follows: 1 . That, the High Court Judge erred in law when dismissed the appeal without evaluating deeply the petition of appeal filed by the appellant including to examine deeply the prosecution case and the defence. 2. That, the High Court Judge erred in law when dismissed the appeal without regarding that the % prosecution failed to prove its case as per the law. 3

— ' 3. That, the High Court Judge erred in law when it disregarded the defence o f the appellant In prosecuting the appeal, Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys assisted by Mr. Rajabu Msemo, learned State Attorney appeared for the respondent Republic whereas the appellant was present in person and had representation of Mr. Philip Mwakilima and Ms. Beatrice J. Kessy, learned Advocates. Beginning, Mr. Mwakilima told the Court that there were three grounds of appeal. But in essence there is only one ground of appeal in which the appellant complains that the case was not proved beyond reasonable doubt, and the failure to consider his defence. That is the second and third grounds of appeal respectively. From the above, the issues for determination are: one, whether the prosecution proved its case beyond reasonable doubt; two, whether the appellant's defence was considered by the lower courts. In doing so we shall examine the points highlighted by the learned Advocate. First, credibility of prosecution witness; second, whether the case was investigated; third, when, where and why the appellant was arrested; lasty, consistency of prosecution witnesses (PW1 and PW2). Regarding the issue of whether the charge was proved beyond reasonable doubt, both Mr. Mwakilima and Mr. Msemo were rightly in

agreement that the doctor who testified as PW2 tendered a PF3 which was admitted as exhibit PEI, but it was not read out in court after its admission as seen on page 15 of the record of appeal. In doing so, the learned counsel concurred that the omission was contravention of the law requiring an exhibit admitted into evidence to be read out loud in court. We thus proceed to expunge exhibit PEI from the record as we did in Joshua Kwolesya @Adam v. Republic [2024] TZCA 410. It was wrong for the High Court to rely on such exhibit in its decision. We also note that the High Court Judge referred to the content of that exhibit that the victim's underpants had blood stains. As correctly held in Joshua Kwolesya's case (supra) the remaining oral testimony of the doctor cannot be solely relied upon to ground conviction in absence of other tangible evidence. As for the testimony of PW3 (police officer), Mr. Mwakilima submitted that this witness testified that he went to the crime scene, but he does not say what he found or saw at the crime scene. Mr. Msemo conceded that PW3 did not draw a sketch map which he said was not fatal. In our view this was fatal because the evidence of PW1 and PW6 showed that there was a fracas, that the appellant grabbed the victim by the neck, kicked and pulled her to the farm. Had PW3 drawn the sketch map, it could have shown how the crime scene (farm and damaged crops) 5

looked like to support the allegation of fracas. The learned State Attorney also agreed that the record of appeal on page 16 is silent as to when PW3 went to the crime scene and whether there were crops damaged in the farm. Nevertheless, he contended that that did not shake the prosecution case, as hinted earlier we disagree on the foregoing contention. With respect to evidence adduced by the teachers, PW4 (discipline master) and PW5 (matron) as to whether the victim was a student, PW4 testified on pages 18-19 of the record of appeal that PW1 was his student and mentioned her registration number. However, Mr. Mwakilima observed that these witnesses did not tender any document from the school to show that the victim was a student. No, identity card or admission letter or class attendance sheet was tendered. In our view, the issue here is the credibility of PW4 and PW5. Although Mr. Msemo stiffly contested, we agree with Mr. Mwakilima that in the circumstance of this case, students register or class attendance sheet would suffice to prove that the victim was a student. Otherwise, mentioning student registration number, unsupported with any documentation is illusory even if that was not an ingredient of the offence of rape. Assailing further the prosecution evidence, the learned Advocate submitted that there was no birth certificate to prove age of the victim. However, on page 19 of the record of appeal, PW4 testified that PWl (the

victim) is aged 15 years. We find sense in Mr. Mwakilima's complaint that in the circumstances of this case age of the victim could have been proved by the birth certificate or at least by some other tangible evidence. We reject Mr. Msemo's view that age can merely be proved by merely stating the said age. We are compelled to hold here that where age is contentious, and it is an essential ingredient of the offence, mere mentioning of the age of the victim is insufficient. There must be tangible evidence to prove that age. Just like in Kwolesya's case (supra), in the case at hand, the age of the victim was not proved. In Amani Yusuph v. Republic [2023] TZCA 48 we held that proof of age is even more critical in all cases of statutory rape. For that matter, proof of age should not be casual or superficial. Although we support Mr. Msemo submission that age may be proved by the victim, the teacher or parent or any person who knows the age of the victim, we disagree with his stand that age of the victim was proved in this case. On page 19 of the record of appeal, PW4 testified that the victim is aged 15 years. Moreover, the learned State Attorney's contention that tendering of a birth certificate to prove age is not a requirement of the law is unmerited because such document or other explanation as to the date of birth of the victim constitutes proof. 7

Further, in as much as we agree with the learned State Attorney that proving that the victim is a schoolgirl was not a requirement or ingredient of offence of rape, we are firm that credibility of PW1, PW4 and PW5 would be in shambles if such proof is lacking as these witnesses claimed the victim to be a student. We have ruled that mere mentioning of the student number does not prove that the victim was a student. In Matibya Ng'habi v. Republic [2024] TZCA 34 the Court simultaneously discredited the witnesses and dismissed a claim that the victim was a student in absence of documentary evidence to prove it. On credibility of PW1, the learned Advocate faulted the High Court's upholding of the conviction. He underline that in testing the credibility of the victim, the High Court Judge wondered why there were no questions asked whether PW1 washed herself or not as the doctor said he did not see blood in the victim's vagina but found blood stains in her under pants. We have observed that this question was not answered by High Court. In our view that question relates to failure of the appellant to cross-examine a witness on critical point which as held in the case of George Maili Kemboge v. Republic [2014] TZCA 203 amounts to admission of that fact. However, since the prosecution witnesses seem to have contradicted themselves, they also ought to have addressed that issue even without the appellant cross examining them. It is true as rightly underscored by

Mr. Msemo that that finding blood in the genitals is not an ingredient of rape, rather proof of penetration is a requirement. Thus, the High Court's observation that there were no questions asked as to whether PWl washed herself or not. But we noted that implied that the appellant should have cross examined PWl if she washed herself or not. In our view that was the question the first appellate court ought to have linked with credibility of PWl. That is because PWl as seen on page 13 of the record of appeal saw blood in her genitalia. To the contrary, the doctor (PW2) said there was no blood in the vagina. He said in the PF3 there was blood in the underpants. There was contradiction here that was supposed to be cleared by the prosecution. We thus agree with Mr. Mwakilima's submission that it was the duty of the prosecution to explain how the blood in vagina vanished. Nevertheless, and despite Mr. Msemo's protest, we find sense in the learned Advocate's argument that in some cases where the accused has no legal representation, failure to cross examine on a certain point does not necessarily mean admission. We are fortified by the decision in Michael John Kajela v. Republic [2024] TZCA 1014 at page 17. In terms of the appellant's defence which constitutes the third ground of appeal, Mr. Mwakilima submitted that the lower courts did not consider the appellant's defence. He referred us to page 26 of the record

of- appeal where the appellant claimed to have conflict with the victim's one uncle Juma Upina about the money for tobacco cultivation which he owed to the appellant. The money was paid before the Village Executive Officer, presupposing that he paid reluctantly. Although the learned State Attorney vehemently disputed and sided with lower courts, we think that the defence was plausible. Although the appellant could have probed PW1 during cross examination, we think that the prosecution too could have refuted such allegations during cross examination, which they did not do. In respect of the complaint that the defence was not considered, Mr. Msemo submitted that the appellant testified that the case was motivated by malice. The High Court dismissed the defence on page 67 of the record of appeal as the appellant testified that the conflict was resolved after he was paid the money by PWl's uncle before Mwiji's Village Executive Officer. Moreover, the learned State Attorney submitted that the issue of conflict between the appellant and PWl's uncle is not a point of law, it is evidential. The appellant ought to have cross examined PW1. Therefore, the case of Kajela (supra) is not relevant here. On this point, we think the prosecution too should have asked the appellant about the issue to rebut his defence. For that matter, we disagree with Mr. Msemo's viewpoint and add that Kajela's case (supra) is relevant, considering that the appellant did not have legal representation. 10

Probed by the Court as to how the appellant was arrested, referring to page 16 of the record of appeal, Mr. Msemo submitted that PW3 testified that the appellant was arrested at Lualaje by the residents. But it is not clear he was arrested for what charges. If the teachers reported the matter to village leaders, then the latter should have been called to testify. The learned State Attorney conceded that the record of appeal is silent on the date of the appellant's arrest. Rejoining on the issue of appellant's arrest, Mr. Mwakilima submitted that PW3 testified that the appellant was arrested by residents at Lualaje. He pondered that these residents were not called to testify. As to the date and time of his arrest it is not clear. Upon being further probed by the Court on the identification of the appellant, Mr. Msemo submitted that PW1 said she did not know the appellant, but he introduced himself as Wangu. In contrast, PW6 testified on page 22 of the record of appeal as if she knew the appellant very well before as she referred him by his names and said that PW1 was raped by "Wangu Vitus, and Wangu Vitus is here before this court." Admittedly, the evidence of PW1 and PW6 drew our attention as it reveals inconsistency and contradiction. The victim, PW1 who was allegedly aged 15 years old, did not know the appellant as he was a stranger to her. Contrary to that, and despite her tender age of 9 years, PW6 knew the names of the u

appellant in full. See- pages 13 and 22 of the record of appeal. We note here inconsistency if not contradiction in prosecution evidence that shakes the credibility of PW6. Taking toll of the above disposition, we find merit in the appeal and allow it. Consequently, the conviction is quashed and sentence set aside. We order immediate release of the appellant from prison unless otherwise continue to be held for other lawful causes. It is so ordered. DATED at MBEYA this 10th day of March, 2026. Judgment delivered this 11th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL