Mohamed Omary Salahange Seif Sharifu Vs Republic Criminal Appeal No 13552

s IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO CRIMINAL APPEAL NO. 13552 OF 2024 {Appealfrom the decision ofthe Resident Magistrate Court ofMorogoro at Morogoro dated 2"^ May 2024 before L W. Mwamkoa, SRM) MOHAMED OMARY SALAHANGE @ SEIF SHARIFU @ MPEMBA APPELLANT VERSUS REPUBLIC RESPONDENT JUDGMENT 01/08/2024 & 22/08/2024 KINYAKA, J.; Before the Resident Magistrate Court of Morogoro at Morogoro hereinafter the "thai court", the appellant was charged with six counts. The 1^, 2"^, 3^^, and 4^^ counts were Cruelty to a child contrary to section 169A (1)(2) of the Penal Code Cap. 16 R.E. 2022. The fifth count was Causing Grievous harm contrary to section 225 of the Penal Code Cap. 16 R.E. 2022. The 6^^ count was Wounding contrary to section 228 of the Penal Code Cap. 16 R.E. 2022. The appellant was convicted of all counts. The trial court sentenced him to serve 5 years' imprisonment in jail for each of the 1^, 2"^, 3"^^, 4^^, 5^*^, and 6^^ counts totaling 30 years which were ordered to run consecutively. % s In addition, the trial court ordered the appellant to pay compensation to the victim of TZS 500,000 for each convicted count. Aggrieved by both the convictions and sentences, the appellant filed his petition of appeal in which he raised a total of eight grounds as reproduced hereunder: 1. That, the trial court erred both in law and in fact in admitting the evidence of PW4 after medical examination just .merely projected the scars found on the body of the respondent to be punctured by sharp object and marked to be the Exhibit PI; it is thus contrary to section 3 (2) of the Evidence Act, Cap. 6 R.E. 2022 that requires the evidence adduced in criminal case to be proved by the prosecution side beyond reasonable doubt. Your Honour it is a wrong due to reliance on the projection and a mere punctured of evidence to convict the appellant and It is stated in the case of Republic v. Kerstin Cameron (2003) TLR 85 which held " The prosecution has a duty to prove the charge against the accused beyond aii reasonable doubts and the accused oniy ought to be convicted on the strength ofevidencd') 1. That, the prosecution witness failed to give proof of cohabitation done by the appellant and the mother of PWl, it is thus remain to be a matter of preponderance to probability that can't prove the guiltiness of the appellant as stated in the case of Republic v. Joshua Alfred / (2006) TLR 109 that, "A matter of cohabitation in a Criminal case / {■ shouldnot only reiy on either relation ofparties but the actual conduct the amalgamated to the commission of the offencd'] 3. That, the trial Magistrate erred both in law and in fact in relying on the repudiated /retracted confession of PWl and imposing conviction to the appellant without full consideration of the circumstance that it was true done by the appellant being a step father to the accused. Your Honour, may it please to refer the case of Republic v. Anness Magina (unreported) that held "It is of the opinion that confession repudiated in a Criminal Offence has to consider a highest ievei of degree to prove a convictiod') 4. That, the trial court erred both in law and fact In considering the testimony of PW3 who alleged the only matter by being informed by PWl that the appellant was not a good person and did not have an eye witness of the offence, which is contrary to section 127 of the Evidence Act (Cap 6 R.E. 2022); that entitles an eye witness of the offence before amalgamating to conviction. Your honour, may it pleases to refer the case of Crospery Ntagalinda v. R., Criminal Appeal No. 312 of 2015 CAT Bukoba (unreported), the Court of Appeal stated "Every witness is entitled to credence and his testimony believed and good ha- reason and sufficient to prove the allegation^' That Your Honourable Judge having affirmed by the reiation of PW3 and the Appeiiant is just a fiance thus arises the question of doubt; 5. That, the triai Magistrate erred both in law and fact in connecting the grievous harm to the victim that was deliberateiy caused by the Appeiiant by having a fact that there is no slight justification that grievous harm was caused by the appellant to the body of PWl; 6. That, it raises a question of doubt as to the relation status between the Appellant and PWl who is the step father to the PWl hence forth this would amount to false allegation to the Appellant which was not raised to a matter during proceedings; 7. That, the Magistrate did not follow the procedure laid down under section 127 of the Evidence Act before taking the evidence of a tender age chiid as can be seen on the trial court's proceeding; and 8. That, this case was not proved to the standard required by the iaw that is beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person fending for himself whereas the respondent was represented by Mr. Josberth Kitale, learned State Attorney. The appellant took the floor and informed the Court to consider his grounds of appeal, determine them and do justice. As a lay person, the appellant submitted that he was not able to speak on legal matters. He prayed for the appeal to be allowed. Mr. Kitale, opposed the appeal. On the appellant's ground, he conceded that section 3(2)(a) of the Evidence Act Cap. 6 R.E. 2022 hereinafter, the "Evidence Act" and the case of R. v. Christine Cameroon (2003) TLR 85 gives a duty to the prosecution to prove the case beyond reasonable doubt. He contended that the evidence of PW4, a medical doctor was based on the report after he had examined PWl and found that the victim was burnt, his tooth bitten, his elbow joint was broken, his front penis' skin was pierced by using nail, and his right testicle was crushed, and found with scars In his body. He submitted that the role of a doctor when testifying was to give expert evidence and not to establish who committed the offence as held In the case of Wilfred Andisai Mmari v. R., Criminal Appeal No. 164 of 2020, CAT on page 17. He added that PW4's testimony corroborated the evidence of PWl and PW2 whose evidence established how the appellant committed the acts against PWl. He opposed the second ground by submitting that the same was unmerited as the charge which was before the trial court was not that the 5 appellant and PWl's mother were cohabiting under the same roof, but whether the appellant ill-treated PWl. He contended that the prosecution proved the charges by presenting PWl, PW2, PW3 and PW4 who proved that the appellant was living with the children, PWl and PW2 and before the death of PWl's mother, the deceased was living with the appellant. He added that in his defence on page 32 of the typed proceedings, the appellant admitted to live with Beatrice Tarius, PWl's mother who had died. Mr. Kitale prayed for the Court to find the third ground with no basis and misplaced as according to section 127(1) of the Evidence Act, it is the accused person who can confess and not the prosecution witness or victim. He submitted against the fourth ground that PW3 was a competent witness as per section 127(1) of the Evidence Act and was not disqualified as a competent witness. He refuted that PW3's testimony was a hearsay but she stated what she did after the appellant was arrested including taking PWl and PW2 to the police and later on to the hospital after they informed her of the ill-treatments of the appellant to them. He added that, PW3 did not notice the scars as the appellant did not allow her to be close to PWl and PW2 as reflected on page 17 of the proceedings. He prayed fe- e to the Court to be pleased to find PW3 a reliable witness as held in the case of Goodluck Kyando v. R (2006) TLR 363. He submitted against the 5^^ ground that the prosecution proved the offence through the evidence of PWl and PW2 who testified how the appellant ill-treated PWl. He contended that the testimonies of PWl and PW2 were corroborated by PW4 whose evidence and report established the scars that PWl was found with. He prayed for the Court to find absence of any other reason for PWl to name the appellant as the person who ill-treated him, and to find PWl and PW2 as reliable witnesses. In opposition to the 6^^ ground, Mr. Kitale contended that the appellant did not ask PWl any question as to existence of any dispute between them that would lead PWl to mount untruth allegations against him. He pointed out that in the appellant's defence on page 32 of the proceedings, there is nowhere the appellant complained of any dispute that would lead to PWl mounting untruth allegations against him. He argued that the appellant's failure to ask questions or cross examine PWl on any existing dispute, estop the appellant from raising such an Issue before this Court relying on the case of Nyerere Nyague v. R., Criminal Appeal No. 67 of 2010 page 5 of the decision. He opposed the 7"^ ground by submitting that it is clear from the testimonies of PWl and PW2 on pages 10 and 15 of the proceedings, respectively that their testimonies were taken after compliance with section 127(2) of the Evidence Act which allow a child of tender years to testify in court upon promising to speak the truth and not lies, and their promises are reflected on page 11 and 15 of the proceedings. He relied on the case of George Jonas Lesilwa v. R., Criminal Appeal No. 374 of 2020 CAT on page 18 to buttress his argument that the trial court complied with the requirement of section 127(2) of the Evidence Act. He argued that even if the Court finds non-compliance of section 127(2) by the trial court, he urged the Court to consider section 126(7) of the Evidence Act as amended by Misc. Amendment Act No. 11 of 2023 which states that notwithstanding any other law to the contrary, failure by a child of tender age to meet the provision of subsection 2 shall not render the evidence of such child Inadmissible, which was applied in the case of George Jonas Lesilwa (supra) on page 13. He prayed for the Court to find that the testimonies of PWl and PW2 were taken in compliance with section 127(2) of the Evidence Act. He submitted against the ground that the prosecution proved the case beyond reasonable doubt as per the requirement of sections 3(2)(a), 110 4? (1) and (2), and 111 of the Evidence Act. He contended that the prosecution evidence was based on the testimonies of PWl and PW2 who were eye witnesses and who testified how PWl was iii-treated by his father and how the appellant was treating PWl by using locai medicines, how he restricted their movements and restricted them from attending school. He argued that the testimonies of PWl and PW2 were corroborated by the testimony of PW4. Being aware of the position of the iaw that reiiability of a witness is found in the victim's reporting the incident at the earliest opportunity as held in the case of Marwa Wangiti Mwita v. R., (2002) TLR 39, Mr. Kitale submitted that the delay in reporting the ill-treatments to PWl was explained by PWl and PW2 and corroborated by PW3 that the house that they were living had a wall which the appellant made sure that children do not meet neighbours or other people. He prayed the Court to find the that the delay in reporting the crimes did not affect the credibility of PWl as per the case of Godson Dan Kimaro v. R., Criminal Appeal No. 54 of 2019 on page 12. He concluded by submitting that the prosecution proved the offences beyond reasonable doubt through the testimonies of PWl, PW2, PW3 and PW4 as well as the PF3 admitted in evidence as Exhibit PI. He finally prayed for the appeal to be dismissed. In rejoinder, the appellant submitted that there was no any exhibit which was presented before the trial court such as nails and wooden logs allegedly used to burn the victim. He complained of the delay to report the Incident from 2023 when the alleged Ill-treatments were committed to 2024 when they were reported. He contended that the allegations were total lies after the biological mother of PWl and PW2 died as If It were true, the children would have reported the same when their mother was alive. He argued that the children were trained to speak lies. He argued that there was no wall surrounding the house he was living In as It was a rented house. He further submitted that he was not arrested by the police but he went to the police to report on the death of his wife. He argued that PW3's evidence was a total lie as according to him, the said witness wanted to take his properties. He added that It was Impossible for one to see a scar especially after three months and confirm that the scar was from a certain wound. He reiterated his prayer for the appeal to be allowed. Upon completion of the parties' submissions, I am enjoined at this juncture to determine whether or not the present appeal Is merited. The appellant's first ground Is a compliant that the evidence of PW4, the medical doctor was merely a projection that the scars found on the 10 victim's body was caused by sharp object contrary to section 3(2) of the Evidence Act that require the prosecution to prove the criminal charges beyond reasonable doubt. The oral testimony of PW4 and the medical report(PF3) admitted in evidence as Exhibit PI, established the source of the scars found on the appellant's body. The appellant did not dispute that PW4 was a qualified medical officer. His duty as a medical officer was not to testify on the person who committed the offence, how and when he committed the offence, but what he found in examining the victim and the sources of the scars found on the victim's body. As a medical practitioner, PW4 possessed skills and knowledge to find the source of a scar including whether the same resulted from a burn, piercing or crushing on a human body. The evidence as to who committed such acts and the manner in which they were committed, were duly testified by PWl and PW2. The evidence of PW4 corroborated that of PWl and PW2. 1 do not find merit in the first ground of appeal. The second ground is on the appellant's complaint that the prosecution witness failed to provide proof of cohabitation done by the appellant and the mother of PWl. This Court won't be detained in this ground as considering the nature of the offences the appellant was charged with and convicted of, there was no justification for the prosecution to prove 11 cohabitation between the appellant and the biological mother of PWl and PW2.1 find the second ground to have been misplaced. The complaint in the third ground is in respect of the trial court's reliance on the repudiated or retracted confession of the victim to convict the appellant. Again, this ground is misplaced as there was no repudiated or retracted confession of PWl. Further, in criminal law and procedure, it is normally the accused who confesses on the crime he committed and not the victim. The third ground is also without merit. The appellant complained in the fourth ground that the testimony of PW3 was a hearsay and that there was no eye witness who witnessed the offence that would ground conviction of the appellant. I agree with the appellant that PW3 did not witness the ill-treatments alleged to have been imposed by the appellant to PWl. PW3 was informed by PW2 of the ill actions and conducts of the appellant upon PWl. However, the testimony of PW3 reflected on page 17 of the proceedings was centered on the incidents after the appellant was arrested for theft of iron sheet and PW3's intention to bail him; and her escort of PWl and PW2 to the police to report the incidents and PWl to the hospital for medical examination. It is true that PW3 did not witness the ill-treatments of PWl by appellant. But PWl and PW2 witnessed the same as per their testimonies reflected 12 on pages 11 through to 12 and 15 of the proceedings, respectively. PWl, PW2 and PW5 testified that PWl and PW2 lived with the appellant under one roof at Kimamba even after the death of their biological mother. PWl, PW2 and PW3 testified that PWl and PW2 were shifted to Ludewa to live with PW3.1 find PW3 was a competent witness in terms of section 127(1) of the Evidence Act which provides that: 127(1) Every person shall be competent to testify unless the court considers that he is Incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme oid age, disease (whether ofbody or mind)or any other similar cause. PWl and PW2 were eye witnesses who witnessed the misdeeds committed by the appellant against PWl. PW2 testified how she witnessed the appellant ill-treating PWl. PWl, the victim testified how he was ill- treated by the appellant, and the scars found by PW4 when the latter conducted examination on his body. In view of the above analysis, the complaint that there were no eye witnesses who witnessed the offence that would ground conviction of the appellant, is unmerited. The sixth ground is the appellant's complaint that the trial court erred to find that the grievous harm to the victim was deliberately caused by the appellant. The testimony of PW2 clearly established that they witnessed 13 the appellant Ill-treating PWl and inflicting grievous harm to him. The testimony of PW4 and Exhibit PI corroborated the testimonies of PWl and PW2 upon medical examination. The manner in which the misdeeds were committed by the appellant upon the victim, reveal the appellant's intention to inflict pain, harm and torture to the victim which led to a danger of permanent disability such as on the victim's reproductive capability after her testicles were crushed by the appellant. In the circumstance of the offences committed by the appellant, what was crucial was his commission of the offence of causing unlawful grievous harm which caused the victim suffering and injuries which were duly established at the trial. It is the appellant, the perpetrator of the crimes, who would be in a position to justify the commission of the crimes. Even if there was such justification, which I have found none, sections 169A (1) and (2), 225 and 228 of the Penal Code does not require justification of commission of such offences to constitute the offences. Sections 169A (1) an (2), 225 and 228 (a) of the Penal Code provides: 169A.-(1)Anyperson who, having the custody, charge or care ofany person under eighteen years ofage, Hi-treats, negiects or abandons that person or causes femaie genital mutilation or carries or causes to be carried outfemaie genitai mutilation or procures thatperson to be assaulted, Hi-treated, neglected 14 or abandoned In a manner likely to cause him suffering or Injury to health, Including Injury to, orloss of, sightor hearing, or Umb or organ of the body or any mental derangement, commits the offence ofcruelty to children. (2)Anyperson who commits the offence ofcruelty to children Is liable on conviction to Imprisonment for a term of not less than five years and notexceeding fifteen years or to a fine not exceeding one million shillings or to both and shall be ordered to pay compensation ofan amount determined by the court to the person In respect of whom the offence was committed for the Injuries caused to that person. 225. Any person who unlawfully does grievous harm to another Is guHty ofan offence and Is liable to Imprisonment for seven years. 228. Any person who- (a)unlawfully wounds another, or (b)N/A Is guHty of an offence and liable to Imprisonment for three years. It is from the above provisions of the Penal Code, I strongly hold that there is no ingredient as to justification of causing grievous harm but only that the accused committed grievous harm and wounded the victim causing him injury or suffering. The sixth ground fails for being meritless. 15 The seventh ground faults the trial court for taking the evidence of the children of tender age v\/ithout complying with the procedure laid down under section 127 of the Evidence Act. Section 127(2) of the Evidence Act provides: 127(2)A child oftender age maygive evidence without taking an oath or making an affirmation but shaii, before giving evidence, promise to teii the truth to the court and not to teii any iies. It is not disputed that PWl and PW2 were children of tender age as they were both under the age of 14 years when they testified at the trial. Before taking the evidence of PWl and PW2, the trial court asked questions to the children and recorded their answers with a view to establish if they understood the meaning of oath or they would promise to tell the truth and not lies as reflected on page 11 and 14 through to 15 of the proceedings. On page 11, the excerpt of the proceedings reads: "Court: Whatis your name. PWl:f^y name is Godbiess Kimwaga Kizanga Court: Whatis your religion and whether you understand the nature ofthe oath 16 PWl:Iprofess Christian reiigion. Idon'tknow the meaning of oath. Court: Do you promise to teii this court nothing but the truth and not to teii iies. PWl:Ipromise to teii the truth oniy. I wiii not He. " On page 14 through to 15, the extract reads as follows: "Court: What is your name. PW2: My name is Moreen Aiien Shoo. Court: Whatis your reiigion and whether you understand the nature ofthe oath PW2:1profess Christian reiigion. Idon'tknow the meaning of oath Court: Do you promise to teii this court nothing but the truth and not to teii lies. PW2:1promise to teii the truth oniy, I wiii not He." From the above extracts, it Is clear to me that the trial magistrate complied with the requirement of section 127(2) of the Evidence Act before taking PWl and PW2 testimonies. Turning to the eighth ground, the appellant claimed that the prosecution case was not proven beyond reasonable doubt. In establishing the offences the appellant was charged with, the prosecution case was built mainly by the evidence of PWl, PW2, PW3 and Exhibit PI. It was testified 17 that the appellant caused grievous harm and wounded PWl causing him suffering and injuries as testified in the testimonies of PW4, PW2, and PWl, the victim, of the scars and the damage to his right testicle, malunion of his left elbow joint, and his upper jaw and lip. The testimony of the appeiiant, DWl did not cast doubt on the prosecution's evidence. DWl testified that he found the victim with scars when he met them in Moshi but PW4 testified that the scars were ninety days old or more. This was within the timelines when the appellant was living with the children. Considering the testimony of PW4 coupied with that of PWl and PW2, I have no reason to fault the decision of the trial court which found the prosecution to have proved the offences the appeiiant were charged with beyond reasonable doubt. The appeiiant complained in his submissions before this Court that PWl and PW2 were trained to speak lies as he was a step father, and if the crimes were committed by him, the children should have reported the incident when their mother was alive. I do not accept the appellant's assertions. The reason being that it has been established through the testimonies of both the prosecution and defence witnesses that the children lived with the appellant when their biological mother was alive and after her death and they were living with him after he shifted with 18 them to PW3 in Ludewa. At all the time, the appellant was a step father to the children. He did not become their step father after the death of their biological mother. Nonetheless, I have analyzed the testimonies of PWl and PW2 on pages 11 through to 16 of the proceedings. I have found nothing but truth and consistence In terms of their narrations of the Incidents and the manner they happened which were similar. There were no contradictions in their testimonies even when they were cross examined by the appellant. I find that PWl and PW2 were reliable witnesses and their testimonies were credible. On that basis, the eighth ground of appeal is meritless. I have also examined the appellant's complaint that no exhibit such as nails and wooden logs allegedly used to harm the victim were presented as exhibits before the trial court. I find the time and circumstance of the commission of the offence by the appellant against PWl made It Impracticable for the prosecution to obtain and produce tools used to maltreat the victim. This Is based on the evidence adduced at the trial that the offences were committed by the appellant against the victim in private at his home where he used to live. The evidence further revealed that the offences were committed some months before the Incident was reported after the appellant was arrested for other accusations. It is the <ss- 19 appellant who was In position to know the whereabouts of the tools that he used to commit the offences. Additionally, tendering an exhibit is not a mandatory legal requirement in proving the offence against the accused person especially when the prosecution has adduced other strong evidence connecting the accused person to the commission of the crime. This position was emphasized in the case of Mashaka Juma Ntatula vs Republic (Criminal Appeal 140 of 2022) 2022 TZCA 506 (15 August 2022), where the court observed as follows; '7/7 the instant case, as was rightly submitted by both counsel the panga, T-shirt, socks and the pairs of shorts and trousers which were physical objects recovered during investigation were not tendered in court as exhibits. Nonetheless, looking at the circumstances of the case it is our considered view that failure to tender those objects did not render or did not mean that the witnesses who testified on such exhibits were not credible. Thus^ we agree with Ms. Mienza that despite the fact thatthe said objects were not tendered in court, there was ampie evidence from PWl,PW2,PW8andPWlO incriminating the appeiiant As such, much as the said objects might not have been tendered in court, the cruciaiissue to be looked at would be whether the evidence available on record proved the case against the appellant - (See Abuu Kahaya te 20 Richadv. Republic, Criminal Appeal No. 577of2017(unreported)." [Emphasis is added]. In the present case, I have pointed out above that there was sufficient evidence to impiicate the appeiiant from both PW2 who witnessed the appeiiant inflicting the bodily harm on the victim and PWl who testified on how the appeiiant maltreated him. Their evidence was corroborated by that of PW4, a medical doctor who had examined PWl and found among other things that the victim's body had scars evidencing that he was burnt, with his front penis' skin pierced by using nail. Having so stated, I am without sane of doubt satisfied that even without the said exhibits being tendered by the prosecution during the trial, there was cogent evidence enough to convict the appeiiant of the offence of causing bodily harm. The appellant's complaint in that regard is therefore unmerited. Further, it is not true that PWl and PW2 did not report the incident at ail. According to the evidence on record, PWl and PW2 did so to their mother when she was alive but their mother could not do anything and was apologizing on their behalf whenever the appellant tortured them. Additionally, PWl and PW2 testified on the reasons of their delay to report the crimes to other persons as their movements were restricted and the 21 fear inculcated by the appellant upon them that he would definitely know if they tell anyone about the harm he inflicted on the victim. Though the offence in the present matter was not a sexual offence, the circumstances of the crime and the evidence adduced before the trial indicate a sense of fear inculcated to PWl and PW2. I therefore fully subscribe to the decision of the Court of Appeal in the case of Godson Dan Kimaro v. R.(supra) where it was held on page 12 trough to 13 that: "A9 /7e/cy in Selemani Hassan v. Republic, Criminal Appeal No. 203 of2021 (unreported), delay In reporting an Incident of sexual offence due to fear of reprisal or shame does not affect the credibility of the victim. The charge of a sexual offence Is not undermined by the silence ofthe victim If such silence Is fully explained. As Indicated earlier, the appellant Interjected the defence of general denial and suggested that the charge might have been a result of the grudges PW3has against him. Apartfrom this line ofdefence being general; self-serving and weak, the claim that the charge was fabricated was not raised In cross-examination of PWl and PW3. The claim was plainly an afterthought The courts below rightly rejected the defence upon due consideration." 22 Lastly, I have noted that the trial court convicted the appellant to five years' imprisonment in jail on the sixth count. However, section 228(a) provides for a sentence of three years' imprisonment. Although the appellant did not specifically raise the ground on this point, but in his petition of appeal, he specifically stated that his appeal was both against the conviction and sentence. Further to that, I am aware of the duty of superior in both ensuring proper application of law and rectification of the errors committed by the lower courts. In Joshua Mgaya v. Republic, Criminal Appeal No. 205 of 2018, on page 18 through to 19 of the decision, the Court made the following observation: "In our view, although it would be desirable by the first appellate court to invite the parties to express their views in relation to enhancementofsentence in deserving cases, we do not think the substitution ofthe sentence by the first appeiiate court by imposing the appropriate and mandatory sentence after dismissing the appeal was fatai and prejudicial to the appellant. A similar issue arose in Simon Kanoni Semen v. R, Criminal Appeal No. 145 of2015(unreported). In dealing with the issue, the Court relied on Marwa Mahende v. R[1998] T.LR 249 wherein it was stated: 'We think, however, that there is nothing improper about this. The duty of the courts is to apply and interpret the iaws of the country. The superior courts 23 have the additional duty ofensuring proper application of the laws by the Courts below..." For this matter, having been inspired by the foregoing position of the law, I find it incorrect for the trial court to sentence the appellant to five years' imprisonment on the 6^^ count. Invoking the revisional powers of this Court under section 372(1) of the Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter, the "CPA", I hereby reduce the sentence of five years in respect of the 6^^ count to 3 years' imprisonment pursuant to the powers of this Court under section 366 (1)(ii) of the CPA. In totality of my above findings, I hold the appellant's appeal lacks merit and is hereby dismissed save for the order setting aside the sentence of five years imposed on the appellant by the trial court that I have substituted with a sentence of three years' imprisonment in jail, consequently, the appellant shall serve a total of 28 years' imprisonment in jail basing on the order that the sentence of 5 years for the 1^ , 2"^, 3rd^ 4th gp(j 5th counts and that of 3 years, imposed in respect of the 6^^ count, shall run consecutively. The sentence shall run from the date of conviction of the trial court. 24 It is so ordered, DATED at MOROGORO this day of August 2024. o4:<\ H A KIN KA JUDGE 22/08/2024 Court Judgement is delivered in the presence of the appellant in person, Mr,Shaban Kabelwa, State Attorney and the court clerk, Justa Tibendelana. Right of Appeal fully explained. O (J S.P.i Kihawa X m. DEPUTY REGISTRAR uJ 22/8/2024 25