final LUGANO TIMOTHEO MAKOBA Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI CRIMINAL APPEAL NO. 20503 OF 2024 (Appeal from the Judgment of the Resident Magistrate Court of Moshi at Moshi dated 9th July 2024 in Criminal Case No. 9398 of 2024) LUGANO TIMOTHEO MAKOBA……….………..….…………….APPELLANT VERSUS. THE REPUBLIC…………………………………….………...…..RESPONDENT JUDGMENT 26th Nov. 2024 & 11th Feb. 2025. A.P. KILIMI, J.: In a criminal case No. 9398 of 2024 before the Resident Magistrate Court of Moshi at Moshi ‘the trial Court’ the appellant herein Lugano Timotheo Makoba was arraigned for the unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code [Cap 16 R.E 2022]. The particulars of the charge detailed that on the 29th day of March 2024, at Pasua Matindigani area within Moshi District in Kilimanjaro Region, the appellant did have a carnal knowledge of a girl aged 4 years old against the order of nature. This girl for the sake of protecting her dignity hereinafter will be referred as “PW1” or “the victim”. 1 The background of this appeal is not hard to establish, according to Vicent Othiambo who testified as a PW3 and a victim’s father, testified that on 29/03/2024 while being in his office situated at his residence doing his school assignments, he sent his daughter to bring him a phone charger. After she went out, PW3 heard the victim crying while saying leave me alone. He did not bother as he thought the victim was with her brother. Upon hearing the crying noises continued, PW3 decided to make a follow up and as he closed his door office, the victim was already in his office while crying and holding her trouser. She then told him that there was a person who inserted his penis (chululu) to her anus. While PW1 continued narrating what had happened, PW2 a boy aged 10 years old and a brother to a victim also entered where PW3 asked him about the man who inserted his penis to the victim anus. PW2 then told him that he just saw a young man fleeing away. They both decided to chase the said young man whom PW2 said he recognized and identified him to be the appellant herein. They failed to catch him and reported the matter to a police station. According to PW2’s testimony whose name is also withheld for the purpose of protecting his identity as he was a minor and brother to the 2 victim, he testified that on the date of incident while at home fetching water he heard his young sister “the victim” crying while saying “sitaki sitaki hivi wewe husikii aibu” upon hearing that, he went fast where the noises were coming from and saw the accused person running away. He then went to his father ‘PW3’ to ask what had happened wherein he found the victim still crying while holding her trouser. The victim then told them that there was one brother who inserted his penis into her anus. They then started to chase the alleged man with no success. As to what happened to her, the victim who was four going to five years testified as PW1. She narrated that her father PW3 asked her to bring his phone charger and she failed to find it. While returning back to inform her father the missing phone charger, she opened a gate where she met with one ‘G’ who called her. He then undressed his trouser and hers where PW1 started crying while telling G to leave her alone. He then inserted his penis into her anus causing PW1 discharge naturally. She further narrated that, it was then her father (PW3) and her brother (PW2) came and found her putting on her trouser. She informed her father that it was ‘G’ who inserted his penis to her anus, timely they started chasing him. PW1 further said that she knew the said ‘G’ as he used to live in a place 3 where they usually buy milk. At the trial court, she also identified the said ‘G’ on the dock to be the appellant herein. PW4 Rehema Alpha Tenga, the victim’s mother testified that on 29/3/2024 at evening hours she was awakened with the crying noise of the victim. She went outside and asked the victim why she was crying, the victim told her that she has been sodomized by one ‘G’. Her father then appeared and the matter was reported to police station then to hospital. PW4 further told the court that she knew the said G to be the appellant as they live in the same street and also identified him on the dock. Further the prosecution procured one Shaban Athumanai Kaniki (PW5) a medical Doctor who examined PW1 after the incident. He told the trial court that he examined the victim equally in her vagina and her anus and found that her hymen was intact but, in her anus, there was bruises in upper area being caused by a blunt object inserted in her anus. He tendered a PF3 which was admitted as exhibit PE1 after not being objected. On the other hand, the appellant in his defence, denied to have committed the offence and stated that he was arrested while at his work 4 place. He said that he was then interrogated and stayed there for 12 days and then brought to the trial Court for the offence charged. In considering of the above, the trial court found the charge against the appellant was proved, consequently convicted and sentenced the appellant to serve thirty years imprisonment. Dissatisfied with the trial court decision and orders thereto, the appellant is in this court praying for his conviction to be quashed and sentence be set aside with the following grounds of appeal; 1. The learned trial magistrate erred in law and fact in finding that the appellant was properly identified/ recognized at the scene of crime while it was the contrary. 2. The learned trial magistrate erred in law and fact when he failed to appreciate the fact that the condition preventing at the crime scene might appear ideal, but that is no guarantee against untruthful evidence. 3. The learned trial magistrate erred in law and failed to note that there was nothing in the record to show that ‘G’ was one and the same person as Lugano Timotheo Makoba, as the two named portray two different people and ought to have been treated so considering that the name “G” is not featured in the charge sheet. 4. The learned trial magistrate erred in law and fact when he failed to note that the principles stipulated under section 127(2) of the Evidence Act Cap 6 R.E 2022 were violated, as there were no question shown to be asked by the trial magistrate geared at obtaining answers as to whether PW1 and PW2 possessed sufficient intelligence of reception of their evidence as propounded by case law, and promises “to tell the truth to the court and not to tell lies”. 5 5. The learned trial magistrate erred in law and fact when he shifted the burden of proof to the appellant. 6. The learned trial magistrate erred in law and fact when he relied on weak, contradictory inconsistent, with material discrepancies and uncorroborated prosecution evidence. 7. The learned trial magistrate erred in law and fact when he failed to consider that the charge was not proved beyond reasonable doubts. When the appeal was scheduled for hearing, parties agreed to dispose it by way of written submissions. The appellant represented himself while the republic was represented by Ms. Ruth Kamola learned State Attorney. The appellant in his submission started faulting the trial court that it failed to record on whether PW1 promised to tell the truth while taking her testimony. He said that PW1 was not a witness to be trusted and her evidence was not be relied upon as it lacks credibility. He argued that PW1 did not tell that it was the appellant who inserted his penis into her anus instead she said it was a person named ‘G’. The appellant denied to be known by nickname as ‘G’. He was of the view that since PW1 told PW2 and PW3 that it was ‘one brother’ and ‘one person’ without mentioning directly that it was the appellant, he was wrongly identified as their 6 identification were made while the perpetrator was running and not on what PW1 reported to them. The appellant further submitted that the appellant was never identified nor recognized as a perpetrator of the offence. He said that PW1’s evidence did not disclose for how long or whether she know the appellant and for how long or how many times she has seen him so as to rule out the possibility of mistaken identity. He submitted that her visual identification evidence were not sufficient as she only said it was ‘G’ who inserted his chululu to her anus. Further the appellant submitted that the distance between the person who was running were never discussed as no one can identify a person through their back while running. He added that the militia men whom PW6 stated that he arrested the appellant, it was unknown as to what the descriptions they gave him concerning the person to be arrested as he never called to testify. He supported his stance with the decisions of Waziri Amani vs. Republic 1980 T.L.R 250, Jaribu Abdallah vs. Republic, 2003, T.L.R 271. Submitting further on his grounds, he said that the trial court magistrate erred in using the appellant words of his first arraignment in 7 court to ground on his conviction as his plea were not unequivocal. He submitted that the appellant plea was taken as a proof of the stated facts but were not in parallel with the laid charge. He was of the view that the learned magistrate ought to have told the appellant to explain and elaborate more on his plea rather than generalizing mere words as the appellant changed his plea when the Preliminary Hearing was conducted by denying all facts but accepting his own particulars and that he was arrested and sent to court. The appellant added that what were supposed to be proved by the appellant was if the appellant did have carnal knowledge with the victim against the order of nature and not if he stripped off her clothes. He supported his arguments by referring the decisions of Laurence Mpinga vs. Republic 1983 T.L.R 166 and Ramadhanu Haima vs Republic, Criminal Appeal No. 213 of 2009, Khalid Athumani vs. Republic 1973 E.A 445. Replying to the above, Ms. Ruth Kamola strongly disagreed with the appeal at hand. Arguing against the first and second grounds collectively, she maintained that the evidence of identification were water tight as the crime were committed during evening where there was enough light which 8 made it possible for the appellant to be identified. Further she submitted that the victim recognized the appellant as someone who lived at their neighborhood where they usually buy milk as per page 3 paragraphs 23, 16 and 17 of the trial court proceedings. The respondent was of the view that since the appellant failed to cross examine the victim on the issue of identification, it was an afterthought thus had no merits. In support of her assertion, she cited the decision of Nyerere Nyague vs. The Republic, Criminal appeal No 67 of 2010 CAT Arusha at page 5, Selemani Makumba vs. Republic Criminal Appeal No. 94 of 1999 (2006) TLR 379 CAT-Mbeya. Answering on ground number three that the person nicknamed as ‘G’ and the appellant were not the same person, the respondent submitted that PW1 identified and recognized the appellant at the dock as she said that the person named ‘G’ was the appellant whom she knew before as her neighbor to a place they usually used to buy milk. She further replied that when the charge sheet was read over, the appellant himself pleaded that he only stripped off the victim clothes and denied to have sodomized her. Thus, the person the victim referred as ‘G’ was the same as the appellant since he admitted to have stripped off her clothes. It was further argued 9 that the appellant failed to cross examine the victim on the said nickname thus he was in agreement with the assertion that he was called ‘G’. Replying on the fourth ground, Ms. Kamola submitted that the trial magistrate did observe the principles laid under section 127(2) of the Evidence Act Cap 6 R.E 2022. It was argued that the trial Magistrate did inquiry about the age of the child as they were of the tender age. He referred to page 3 paragraph 10 of the typed proceedings where the child promised to tell the truth. He was of the view that the assertion that the victim did not know the different between truth and false lacked merits. To cement on the point, the respondent referred the decision of Shani Chamwela Suleman vs. The Republic, Criminal Appeal No. 481 of 2021 [2022] CAT Dar es salaam at page 9. On the fifth, six and seven grounds, Ms. Kamola responding on whether the charge were not proved beyond reasonable doubt, she was of the view that there was no evidence on the appellant appeal suggesting that the trial magistrate shifted a burden of proof to the appellant as once the charge was read over, the appellant entered an equivocal plea. Then the preliminary hearing followed and the appellant were taken to court to prove his case where the case was proved to the required standards. She 10 fortified her point with the decision of Selemani Makumba vs. Republic(supra) on the assertion that the best evidence comes from the victim. shethen concluded that the appeal at hand lacks merits and since the victim was a minor of 5 years, the respondent prayed for the maximum sentence of life imprisonment as per section 154(2) of the Penal Code Cap 16 R.E 2022. Having considered the above rival submissions from both parties, the issue for determination is whether the appeal at hand has merit. Before I proceed, I am mindful this being the first appellate court, its duty is to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact - see: the cases of D.R. Pandya v. R. (1957) 1 E.A. 336 and Siza Patrice v, The Republic, Criminal Appeal No. 19 of 2010 (unreported). However, this being a criminal matter, the burden lies on the prosecution to prove the case and the standard is proof beyond reasonable doubt. In that stance, the case should be taken to have been proved where evidence canvassed by the prosecution against the accused person is strong so as to leave a remote possibility in his favour which can easily be dismissed. See: Magendo Paul & Another vs Republic [1993] T.L.R. 11 219; Jafari Juma vs Republic, Criminal Appeal No. 252 of 2019 and Ahmad Omari vs Republic, Criminal Appeal No. 154 of 2005 (both unreported). I wish to commence with ground number four which in essence the appellant is faulting on the validity of tendered evidence from the key prosecution witnesses. In this ground the complaint is that the trial magistrate failed to note the principles stipulated under section 127(2) of the Evidence Act Cap 6 R.E 2022 on inquiring whether PW1 and PW2 possessed sufficient intelligence to tell the truth and not to tell lies to the court. There is no dispute that PW1 and PW2 were of tender age, aged 4 and 10 years respectively, therefore may require to give evidence without taking oath or making an affirmation but before giving evidence, was required to promise to tell the truth to the court and not to tell any lies. As reflected at page 3 and page 9 of the trial court records, the learned trial magistrate did inquiry about the intelligence of PW1 and PW2. It is very clear from the outset that before recording PW1 and PW2’s evidence, although they made a promise to tell the truth there are missing words as stipulated under section 127(2) where a proper reply ought to 12 have been ’I promise to tell the truth and not to tell any lies’ however that anomaly does not diminish from the fact that PW1 and PW2 promised to tell the truth which in itself means they will not tell lies and this were made prior to the reception of their evidence. PW1 at page 3 when asked, she said “…I promise to speak the truth to you” while PW2 at page 9 in his own words also said “…I promise to speak the truth to you”. All these were in line with section 127(2) of the Evidence Act (supra) which it provides that; “A child of a tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies” Thus, I find this ground raised wanting as the trial court did properly conduct the said test in accordance with section 127(2) of the Evidence Act (supra). Thus, the same is dismissed for want of merit forthwith. Next, I find apposite to deal with the first, second and third grounds of appeal because I see they are intertwined as the appellant is arguing that the appellant was not properly recognized and identified at the crime 13 scene and also it was not proved that he was known as G which was not featured in the charge sheet. Looking at the complainant on whether the appellant was identified and or recognized at the scene of crime, page 3 of the trial court proceedings particularly the evidence adduced by the victim herself and for ease reference, she said the following; “..I then told my father that G put his chululu to my anus. They then started chasing G. I know the said G. He used to live in a place w here w e are buying m ilk. If I can see him I can identify him, he is here before the court (w itness identified the accused at the dock)” [Emphasis is mine] Further to that, at page 10 of the trial court proceedings on how PW2 identified and recognized the appellant, PW2 said the followings; “…I came to know that the accused did so as when I was home fetching water, I heard my young sister crying while saying that sitaki sitaki hivi w ew e husikii aibu. I then com e out suddenly, I saw accused person running, I then went to my father to ask what 14 happened. When I entered inside the house, I found the victim with our father while crying holding his trouser. He then told us that there is one brother who inserted his penis(chululu) to his back (showing his anus). I and my father started to chase the accused as I also saw him while running. I saw him in a distance. W e failed to reach him as he has already reached som e distance …” [Emphasis added] Further to that, the victims’ father (PW3) said the followings concerning recognizing the appellant at the crime scene; “I closed the office, while I was doing so the victim had already in my office while crying holding his trouser. He then told me that there is one person who entered his (chululu) penis to my back(anus). P W 2 w as also com ing so I asked him w ho is that young m an, he told m e that he saw one young m an running. We decided to chase him but in vain…w e identified the accused that the person w ho w as running w as G. We reported that the person who did so is G” 15 [Emphasis is mine]. Finally, from the testimony of PW4 (victim’s mother) has this to say and I quote her; “On 29/0312024 I was at home at evening slept, I heard som e noise of the victim crying, I then w ak ed up, I asked them w hy the victim is crying, when I come out I was surprised to see nothing outside. I find them other side and met with the victim crying, I asked her what happened, she told me that there is one brother w ho sodom ised her by G. I send her so as to attend natural call hence her father appeared, we reported the matter at police station then Hospital. The said G is living in the same street. probably known to him. I know him as w e are living in the sam e street.” [ Emphasis supplied] To start with the evidence of the victim, I have considered them, I have seen that her evidence is that of recognition because she knew the appellant as ‘G’ as the person she used to buy milk from before the day of 16 incident, therefore the appellant was not a stranger to her. Now the issue is whether her evidence of recognition was credible and water tight. I am aware visual identification evidence is of the weakest kind and most unreliable which should be acted upon with great caution. Before the court can act on such evidence, it must satisfy itself that the conditions were favorable for a proper identification. This principle applies also in cases of visual identification by recognition - see Issa s/ Ngara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005, Magwisha Mzee Shija Paulo vs Republic, Criminal Appeal No. 467 of 2007 and Shamir s/o John vs Republic, Criminal Appeal No. 166 of 2004 (all unreported). Guided by the above principle, in my view the above victim evidence of recognition is supported by the evidence of his mother (PW4) when the victim mentioned the appellant’s name as G to her, who also acknowledge that they live with him in one street. I have considered the evidence depicted above from the record, first; the victim reported about the appellant evil act done to her to her father (PW3) and her mother (PW4) immediately after the said incident, this as alluded above, it was her cry alerted them then quickly when the victim was approached said is G who did sodomize her. Therefore, her 17 ability to name the appellant at the earliest possible opportunity in my view cause her to be worth to be believed thus trustworthy (see Marwa Wangiti Mwita and Another vs. The Republic, Criminal Appeal No. 6 of 1995 (unreported). Secondly, the evidence of PW3 and PW2 depicts that immediately after the appellant was mentioned by the victim, they saw the appellant running whom they knew before and the said run was imminent after the said bad act in my view it is relevant to connect the appellant with the said allegation from the victim. As said by PW4 it was evening. According to Cambridge Dictionary evening is defined to mean “the part of the day between the end of the afternoon and night” ( https://dictionary.cambridge.org/dictionary/english). Therefore, it is my settled view for a person whom they knew before under such circumstances they had a prospect of recognize him unmistakenly. Third, I have scanned the evidence on record, the appellant did not cross examine PW1 and PW3 on the evidence of identification, therefore these being key witnesses their evidence is of value because it is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to 18 disbelieve what the witness said. (See Cyprian Athanas Kibogoyo vs Republic, Criminal Appeal No. 88 of 1992 and Nyerere Nyangue vs The Republic, Criminal Appeal No. 67 of 2010 (unreported). Nonetheless, I am aware failure to cross examine is not a conclusive in itself especially if an accused is unrepresented, court has also to consider credibility, probity and reliability being assessed in line with other evidence, including the defence evidence. (See, Zakaria Jackson Magayo vs R (Criminal Appeal No. 411 of 2018) [2021] TZCA 207 (TANZLII) and Issa Reji Mafita vs R (Criminal Appeal No. 337 of 2020) [2020] TZA 404 (TANZLII). Having considered the prosecution evidence as quoted above, I am settled that these witnesses were credible and reliable. Also considering the circumstance and appellant himself seems he knew his defence, for instance the appellant managed to cross examine PW2 whether he saw him doing the act but did not ask any question to the victim who is the key witness. With the above endeavors I am of settled view the principle was correctly applied; thus, I find no need to fault the findings of the trial court in this aspect. In respect to the complaint by the appellant that the record does not show that ‘G’ was one and the same person as Lugano Timotheo Makoba 19 (appellant) and the name “G” is not featured in the charge sheet. To be guided by the law, it is settled that, a charge which is in material conflict with the witness's testimonies materially shake credence of the prosecution case and renders the prosecution case not proved to the required standard. See Saidi Musa Soweni vs The Republic, (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (TANZLII) and Barnaba William Malayo vs Republic, (Criminal Appeal No. 254 of 2020) [2022] TZCA 431 (TANZLI). In my scrutiny it is not correct that the name ‘G’ is not featured in the charge. According to the court record there is a charge which was filed at the trial court on 9th day of April 2024 portrays the said G as alias name, for the purpose of clarity I reproduce the charge hereunder; “IN THE RESIDENT MAGISTRATE COURT OF MOSHI AT MOSHI CRIMINAL CASE NO 9398 OF 2024 REPUBLIC VERSUS LUGANO TI M OTHEO M AK OBA@G CHARGE 20 STATEMENT OF OFFENCE: UNNATURAL OFFENCE, Contrary to section 154(1) (a) and (2) of the Penal, Code (Cap 16 R .E . 2022]. PARTICULAR OF OFFENCE LUGANO TI M OTHEO M AK OBA@G on the 29TH day of March 2024, at Pasua Matindigani area within Moshi District in Kilimanjaro Region, did have carnal knowledge of one “victim” a girl aged 04 years old against the order of nature. Signed at Moshi this 9th day of April 2024. Sgd STATE ATTORNEY” [Emphasis supplied] In view of the above charge and the prosecution evidence adduced at the trial court, witnesses said how they knew appellant in his alias as G, therefore in that regard these witnesses were adducing evidence to prove the charge to the same person they knew as G and since it was alternative name to him in the charge, thus they were proving the offence charged to the appellant himself. (See Salum Rashid Chitende vs Republic, Criminal Appeal No. 204 of 2015 CAT (unreported). 21 Be that as it may, in preliminary hearing conducted on 9th April 2024 the appellant was recorded that he admitted his personal particulars as appeared on the above charge sheet. It is for the foregoing reasons I find the appellant's complaints against the decision by the trial court in respect to identification and the name of the appellant used by prosecution witnesses are unfounded both in law and in facts. Thus, I find these three grounds having no merit and accordingly dismissed. Coming to complaint number five that the learned trial magistrate erred in law and fact when he shifted the burden of proof to the appellant. The appellant argument is that the trial magistrate erred in convicting the appellant basing on his plea which were equivocal without considering that in preliminary hearing he denied all facts except his names and the fact that he was arraigned at a police station and later in court. In my view and as argued by learned state attorney, the plea of the appellant at the trial court was equivocal plea meaning a plea of not guilty. After the trial magistrate considered the evidence from both sides, he comes up with the findings that the case against the appellant was proved to the required standards. 22 What the trial court insisted in respect to the said plea is when it was analyzing on whether the appellant was present at the scene of the crime and identified. I am mindful accused ought not to be convicted on the weakness of his defence but on the strength of the prosecution. (See Christian Kale and Rwekaza Benard [1992] TLR 302). However, according to the duty of this court as the first appellate court, having regarded the evidence depicted above, still I am settled the complaint that the trial magistrate shifted the burden of proof to the appellant in my view lacks merits. Consequently, also this complaint is dismissed for want of merit. In respect to the sixth and seventh grounds which is also in my position to be argued jointly as the learned state attorney did, this is because all verge on whether the prosecution charge against the appellant was not proved beyond the required standard. As alluded earlier it is a trite law that the burden of proof is on prosecution and standard of proof in criminal cases is of beyond reasonable doubts see the case of Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005 CAT at Mtwara (Unreported). Section 154(1) and (2) of the Penal Code(supra) provides for 23 the unnatural offence. The ingredients of this offence is penetration of the male organ to the victim against the order of the nature. As alluded when dealing with grounds on identification of the appellant by the victim, the appellant was identified by the victim and she has narrated bolded on what happened to her, to wit she said “I started crying because he put off my trouser and his trouser. He put his chululu in my back (the witness pointed her buttocks) in my place of puu meaning anus). I then felt pain, I then started to discharge naturally(kupuu)” Thus as said above her evidence was water tight and believed, the words she used canvass that she was penetrated against her order of nature, these words used might be depending on the cultural upbringing of the victim. (see Jumanne Shaban Mrondo vs Republic (Criminal Appeal No. 282 of 2010) [2012] TZCA 257 (25 October 2012). Moreover, the same got assurance after being corroborated by the testimony of the doctor (PW5) who conducted a medical examination and tendered a PF3 which showed an abrasion to the anus of the victim, the evidence was also corroborated with PW3 and PW4 who said they heard the victim crying and when attended she told them that she was sodomized by the appellant, all these proves that the victim was credible 24 witness and thus proved that she was penetrated against the order of her nature. It is for the foregoing reasons I find the appellant's complaints against the decision by the trial court all inconsequential. Having said so, I am satisfied that the Appellant was properly convicted for the offence charged. Thus, I find no reason to fault the decision of the trial court. Consequently, this appeal against conviction is devoid of merit and is hereby dismissed in its entirety. Next, in her submission the learned state Attorney for the Republic contended that although the appellant was found guilty by the trial court but was sentenced to serve thirty years imprisonment, therefore she prayed that the said sentence was not proper as the victim of the offence was a girl of 5 years old and according to section 154 (2) of the penal code [CAP 16 R:E 2022] the law provides for life imprisonment sentence. It is a trite law every charge must contain a statement of a specific offence or offences with which the accused is charged. It is also required that; the statement of offence must make reference to the specific provision of the law creating such offence and its punishment. Further, the charge must contain particulars of offence. The reason or aim of the 25 charge to contain the statement and particulars of offence is to give an accused person reasonable information as to the nature and seriousness of the offence and to enable him prepare his defence. (See sections 132 and 135 (a) of the Criminal Procedure Act Cap.20 and the case of Maganga s/o Udugali vs. Republic Criminal Appeal 144 of 2017, the Court of Appeal sitting at Tabora.) Having entirely perused the record of the court, the appellant was charged for this offence of unnatural offence contrary to section 154 (1) (a) and (2) of the penal code. The particulars of this offence charged were in following form; “LUGANO TI M OTHEO M AK OBA@G on the 29TH day of March 2024, at Pasua Matindigani area within Moshi District in Kilimanjaro Region, did have carnal knowledge of one “victim” a girl aged 04 years old against the order of nature.” [Emphasis added]. Nevertheless, in resolving the respondent concern, I find it essential and logical to reproduce the provision creating the said offence and punishment hereunder; 26 “154.-(1) Any person who- (a) has carnal knowledge of any person against the order of nature; (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life im prisonm ent “ From the above law, I cannot hesitate to subscribe with the respondent view that the sentence awarded by the trial court was illegal. In the premises, I invoke my revisionary powers under section 373 (1) (a) of the Criminal Procedure Act (supra), nullify the trial court’s sentence of thirty (30) years and enhance it to the mandatory sentence of life imprisonment in accordance with section 154 (2) of the Penal Code. In the event, and for the foregoing reasons, the appeal against conviction is dismissed. The sentence is varied as stated above. It is so ordered. 27 DATED at MOSHI this 11th day of February, 2025. X JUDGE Signed by: A. P. KILIMI Court; Judgment delivered this 11th day of February, 2025 in the presence Mr. Kambarage Samson and Ms. Wanda Msafiri Learned State Attorneys, also accused person appeared virtually via Video conference. Sgd; A. P. KILIMI JUDGE 11/02/2025 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 11/02/2025 28