19850603 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZiNIA

ATDAR ES SALAAM CORAM: MUSTAFA, J.A0; KISANGA, J.A. AND OMAR, V J.A. 0 CRIMINAL APPEAL NO 0 27 OF 1980 BEThEEN ' ANTHONY NASIBU. • • 0 APPELLANT' AND THE REPUBLIC. 0 0 0 00 0 0 RESPONDENT (Appeal from the Conviction and sentence on the High Court 'of Tanzania at MorogorO) (Kimicha, J.) dated the 16th day 'f April, 1980 - in Criminal Sessions Case No.50 of 197

JUDGMENT OF THE COURT MUSTA J J.A.: The appellant was convicted of murder and sentenced to death. He is appealing. ' V At the trial he pleaded insanity. The trial Judge found he was not insane'. On appeal bef9re us Mr. Lukwac'O for the appellant again raises the same plea. The prosecution evidence, accepted' by the trial Jüdg'e established that On 19th September, 1977, P.W.1, the brother of the" appellant, managed to secure a room in the house where 'he V was living for the appellant tc occupy. P.W.1 cleaned and swept the rOom, and testified that the floor was even and there was no hole. P.W.1 saw the appellant, 'and the dáceased, a woman, enter the appellant's room that night, and alsc heard them talking tc each other early the following morning. P.W.1 was occupying 0 V another room in the same building. , On 23rd Scptember P..W.1 had o cCa sidn to visit the appellant's roOm to get some drInking water in the absence Of the appellant. When P.W.1 entered the appellant's room, he was assailed by a strong and foul smell V -2- As a result thejjj- e- . was called. The appellant was sent for. It was then discovered' that under the appellant' s bed, hidden by an Overhanging sheet. th was a shallOW mound of 'earth. When dug in.to , a dead body Of a woman was exposed. The woman was the one who had gone into the appellant' s'roO'n on 19th September. Accârding to the medical evidence,

deah was due to strangulation 0 The appellant said he knew nothing about it. However according to P.W.6, a co-villager of the appetlant, P.W.6 had come to visit the appellant On Or about 20th September had and the appellantput up P.W.6 and another co-villager in the appellant's room 0 . The appellant told P.W.6 that the floor of and the room was full of holes Lhe had filled the holes with earth taken from a nearby latrine, which gave off a badsmell. P.W.6 did experience the foul smell in the room, but accepted the reason given by the appellant for it. The appellant pleaded insanity and was sent to Isa.nga for medical Observation. A Doctor Nbatie gave evidence. He stated that he qualified as a medical doctor in Dar ès Salaam in 1977.. He.did not say if he has any specialist psyohatric qualification. He merely confirmed his written report which he had submitted to the CoUrt and asserted that the appellant was most likely of unsound mind when he committed the offence. In the report submjtted by the doctor he stated inter alia. "The report by the psychiatric nurse confirms my earlier speculation that the accused was most likely Of unsound mind hile committing the murder". He then refers to the conduct of the appellant both during and after the killing and inferred that he was unlikely to have been sane. He did not say what he meant by "sane", whether in the medical, popular ur

legal sense. .. • .. / 3a 4 —3- It was clear that the circumstantial evidence adduced irresitibly pointed to the appellant as the One who had killed the decease&, The trial Judge considered and rejected the opinion expressed by the doctor. He and his assessors Were satisfied, from the conduct Of the appellant, that he knew what he was doing when he killed, especially as he trLed to hide the body after the killing. In our view the medical evidence p^jf1-.;,rMd by the doctor was of little value. We dO nut know On what grounds, apart from the appellart' s conduct, that the doctor concluded that the appellant was likely to have been insane. We dO not know what were the findings of the psychiatric nurse On which the doctOr based his Opinion. We agree with the trial Judge that the c'.'nduct uf the appellant was clearly indicative of the fact that the appelianc knew what he was doing. wH'e.n 1e killed. The appeal is dismissed. : DATED atv'DAR ES SALAAM th]J3rd day of June, 1985. 1' A. MUSTAFA

JUSTICE OF APPEAL R. H. KISANGA

JUSTICE OF APPEAL A. N. A. OM1R

JUSTICE OF APPEAL I certify tha' this a true copy Of the Original, - / V P.'MQsi-ii)i SENIOR-- UT2tRE'thSTRAR.