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.. IQ IN TI-Ei COURT OF PPEIi1 OF TANZANIA AT DJR ES S1JkA11VI (OPM: CRThIINAL APPEAL NO 77 OF 2000 - BETWEEN LUCAS ALPHONCEO APPELLANT AND THgRPTJBLIC. REPONDENT (Appeal from the decision of the High Court of Tanzania at Morogoro) () dated the 21st day of April, 1991+ in - - Criminal Sess ions Case No. 31+ o9 3 J U D G E M E N T MUNU: In Criminal Sessions Case No.. 3+ of 1993 the Appellant, Lucas Alphonce, was charged with-the offence of murder c/s 196 of the Penal Code, Cap. 16 of theRcvised-Lhws of Tanzania in that on the 5th iovcmber, 1990 atLwle Village, Mgcta, within Morogoro District • in Morogoroflegion, the appellant murdered one Rose Kalisti. The mother of the deceased, Sipirina. Kalisti deposed as PW.1. She stated that on the material day she sent the deceased to a flourmill. he trip to the flour mill took unusually long, and as dusk fell, .1: Dw u the deceased who was then a small child way, Sipirina heard her daughter ause she/as expectant, she could reached the scene of L 4 - 2 accused was arrested by the village militia because the mother of the deceased, a co-villager of the accused, identified his voice as he fled from the scene of crine shouting: nJ aman i mimi nimeshaua jini; nendeni N ROW mkaliangalie hapo chini - meaning he had killed an evil spirit and people should go to view it. At the time of arrest, in his extra judicial statement, and in his sworn defence, the Appellant admitted the killing saying he killed an evil spirit, known as a kipembe, in his locality. He narrated how, on his way home from his farm where he had harvested bananas and was taking them home on a trolley, he encountered the 11 said harmful evil spirit which he fatally stabbed. He said that he rportod the 1ilIing to his ten cell 16MAY and to his mother, Ate his supper aidsI,'1itwss later awakeicd and arrestc4- by the militia. It twas thn that he ias told that he had in fact stabbed the deceased. When the accscd ITYcarad in couft for plea taking, his advocate applied that ho be sent to Isanga Psychiatric iflt1tUtion for examination of his mind at the time he committed the offence. The medical report from Isanga stated that the accused was of unsound mind when he killed the deceased. The learned trial judge nonc-theless rjectd 'the psychiatric report on the dcise' He convicted tie acCused ofhnrder an fiarged nd sentenced him to death by hng•in. The Appellant is now appealing against the conviction andsen'tence. . .. - -3- In this appeal, Mr. Chuwa, learned advocate, represented the appellant. The Republic was represented by Mr 0 Mlipeno, learned State Attorney. The appellant s advocate filed four grounds of Ommak Implow appeal, to wit: The learned Judge erred in law and fact in rejecting the defence of insanity. The learned Judge erred in law and fact in rejecting the defence of mistake of facto The learned Judge erred in law in not granting the Appellant the benefit of doubt for lack of motive to kill the deceased 4 0 The learned Judge erred in law and in fact in not evaluating or considering the L)oQtors: Repprthi,c is; scientific explanation o' the mind ' and actions of the accused person. In an. Additioual Ground of Appeal the conplaint is that the learned trial judge erred in law in sentencing to death the Appellant who - '-. was under the age of 18 years. In arguiig the appeal:, M Chiwa co1isQ1ida'ed £rounds 1, 3 and 4, and tackled grourrd2 and' th additionar grbund of appeal separately. Counsel submitted that at the time of the killing the appellant was uf'iing' from iflanhlr rthe reo'i 'from Isanga Psychiatric Institution. He faulted the learned trial Judge for not finding the defence of insanity probable and for differing with the psychiatrist's report without -- .1 9 3 3 • jjj::r 2u ?CpTLI2c1 li ul -CT. -; I•X L. - :j f• JL( rTT !i 1C)L L TC T 21TfJ1f 1 '7 :.•r - j - 'j c r - ir: J;iJi r; ,: •iL;LL.. T2:L r jr CcJ JI • cj J 3 (4 LcT - i4ç T iy 4 1 Lri 'r -C - 9 •-. r -J '- - - - - - • _j• J: ;,••••• • - '_J :- • 1• • ; ;•• _(_) •- .-•-, •#4* - - •- -, -',-• • - • .• •- 4 4 4 - LF - Counsel observed that the psychiatric report of the appellant of rightly stated that the appellant had a history/mental disease which ought to have made the defence of insanity more and more probable. As for the circumstances of the killing, Mr. Chuwa pointed out that the conduct of the arpeilant showed that he was suffering from unsoundness of mind during the killing because if he were not insane at the material time, he would not have disclosed the killing to his mother, or even show the militia who arrested him where he had dumped the knife The appellants advocate cited the case of The Director of Public Prosecutionsversus Omari Jabili Criminal Appeal No4 210/1992 Court of Appeal of Tanzania £unreporte in which a father had suddenly and without motive hacked his own son to death. In that case, Mfalila, J.A., in a dissenting judgement, held that the defence of insanity was probable by stating: am therefore satisfied that since. • here is nà dthèr rat idnI xp1±iation for the rèspo. • . : 'udent's callous actof hackisg his :own son to( death. and taking into account his mental history whereby during tFese seizures he wduld suddenly become violent and attack - • , people as' is , e videnced by his ylolent • attack on his siste' for, which according to DW.2 he was imprisoned as a criminal lunatic, the r6sp 6ri deht rnudtrhav atthcked his son' when in .such a cqnc1it.ion wherrby he had no ability to control his actions ... The - • '. ~ . 'L. 6dt was one 't' €he Df iaie irresistible iinpiflLàs due to Mental disàss after which he. would become ; -as normal 'as' • anyone. ... Indeed. I believe this is what the learned trial •judgè .- •. V• VV - , - TI *• V V VV - VV •VVV - - - )i i:iJi tui VLL jV) ' V - : -J f1 7VV V . rJ' _V, J - VV VjVV VVVVC t ... ;; •VJ .V 41V VVVV.1VV .! V*VUVV*V_1 , t. V V V 31• . ..'V.1 V JVVI 4 ,L- VV V V V •VVVL J ' JA , - V• 1 V - 5- in the web of the McNaughten rules. see •.. I would for these reasons dismiss the appeal and using the revisional jurisdiction of this Courtn I would set aside the order of the high Court and enter a special finding under Section 219 (2) of the Criminal Procedure Act ,. and further order that the respondent be kept in custody as a criminal lunatic. In this case the Appellant hacked the small girl in the dark on the wrong perception that he had killed a harmful object called kipembe. Like in the case of Jabili the psychiatrist's report stated that the appellant was insane when he commited the offence for it states: The accued isufeing a rrrent mental illness schizophreniau with persi- stnt iaual. srmtorns in the form of passivity pheaoriena, ipainent, of judgot- and. self.cr;iticism.: • ....: .2. •Theprise.mr;iited was not motivated. Af'tr t crime he $1plyhew the • weapon in al . biJL ançi walked home. And when arrested he never showed any resistance . - k, He h ±'eord ofLadmisslon 'in a ' psychiatric hospital..becpuse of a . mental illness in the .199Q'& • •e .. - 5 S . ' & -. • ç9J SQL r; j- TV S. $ S 5 6- In view of the above extract from the psychiatrists roport, Mr. Mlipano learned State Attorney conceded to the appeal for the reason that the defence of insanity was probable. dbdbl The issue is whether the defence of insanity advanced by NPPMV the appellant was 13rohablo We are of the view that the defence of insanity was probable and ought not to have been rejected by the learned trial judge. We find similarity in the dissenting judgement of i'4falila, J.A,, in Jabili's case for in that, and in this case, the deceased were suddenly dismembered without a motive by persons with a history of mental diseases and recurrent schizophrenic impulses • Given the psychiatric report on record, the learned t±ial judge ought to have accepted the said report which states clearly that the appellant was of unsound mind when he committed the offence. We find that the hissing sound the appellant said he heard before stabbing the deceased, was a result of the schizophrenic impulses the appellant suffered from at that momonte We are not the least persuaded that the trial judge had cause to disregard the psychiatrist report of the appellant. In this are fortified by the appellants conduát bfore and after the killing for upon hearing hissing sounds in response tO his - "UsikU, usiku usiku - nani wewe - call in the darkUess , thc appellant oiievigthat ai evil sirit was dvancig tw.±'ds him with a view to harn hm he fatally stabbed - 1S\ S - - - - - -- -:- fly S SS 5 5 IS S I; - . ••\- -- .5 5 - • 5, -S ; - S pn f5 .rLfl 0 bIP.i ,J, C -T1 : -i• 2 . J( ;J' :; mç5 •: • ' T I' .'-r-c- ' --': - - •,, - c- 7T1 r' L' . ,LT3,, 1 'L1 f OT 4J U)cTT'J4 IL c - ri': c qT2L ç- }- ;.CrJ 'LT -C '- - -- i - - -- 5 -- :- 5, .. .-- S Al — l S •S S• -. J, S - . p -7- child. After the killing the appellant called out for people to go and see the evil spirit, jini, he had eliminated. He did not hide the Ijfe. He dumped it and when the militia demanded it, the appellant showed them the dumping place thereby enabling the 1ife grow to be recovered. The ippollant did not attempt to escape most likely because he was not aware of the crime he had committed which was proof of his unsoundness of mind at the time of the commission o the offence. We further find that the learned trial judge misdi'ected himself when he imported the issue of witchcraft in this case. That is because witchcraft connotes a situation where a person intentionally kills another in order to revenge allegedly because the deceased had bewitched the suspect's child, family member, friend or some other person. We have in mind the case of Rvorsus (i9a)i 1+:cli that b.lief:in i.tcirt. x tin áses or sufdei The learned trL3 de the.--c""De of Re rorsus .Kine. 8 EOAUC..A, .96; in 41aidh a for mirder. wa aiis bhe:thet CourtofAppoal. aste.rfl Aria th grmnd of sudden provoeatioa ie:c urt held that. ;. cQ the evidence the apeilants were ' - ntitLi'd tobb holdtoha&e actd ' under,,grae : and sudden proypc. .:. In the present case the appellant, Lucas Aiphonce, was not witch ................-. -. ..., ,. hunting. He had nothing against the eleven year old child whom he . ...,: . mistook for an evil spirit caflcr . t *: 1. ;••: ._ L.j;'' -. * ;-1 - OL .'35 CTT ILTC CTT sTq (OW JJ T T;k uc :c . •f VTLo-. jL L4J ra Li 4 . , J-;*•l•i ç-q j. ..TTJJ4 L jfrjr 11 ()IJ c .. j1 r t:V(.J • . ::'C -'J --'. -."-r •- -• . .-. p I