19000517 TZCA Mbeya

IN THE COURT OF ~\?PE1\L OF· TANZANIA ( CORAJV.[: CRIMINAL APPEtL NO.129 OF 1989 BETWEEN ZABLON NZIKI.J • • 0 • . • • • . • • APPELLANT . AND THE REPTJBLI C. • • . . . . . . . • .RESPONDENT (Ar>peal fror:1 the conviction of the High Court of Tanzpnia at Mbeya) (Mroso~) dated the 6th day of June, 1989 in Criminal S.essions. ' Oas~ No.95 of 1987 . !!JJDGMENT OF THE COURT .. MNZAVAS, J • .l\.J..: The appellant, Zablon Nzikup was convicted of the murder of one, Alatukemela d/ o Nziku by the High Court in Mbeya (Mroso, J.). and sentenced to suffer death by hanging. He is appealing ·-· against both the conviction and the sentence. M:r~ Tukunjoba who advocated for the appellant before us argued tl1at the appellant was suffering from insanity at the. time he killed the deceased~- It was the learned Counsel's submission that the trial Court e::-red in rejecting appellant's defence of insanity. We were invited to allow the appeal on ground thctt the appellant wss lece.lly insane at the ti.me he comrni tted the offence. Mr. Sengwaji, learnsd Senior 3tate 1~ttorney, argued that although appellant's relatives testified in the High Court that the appellant had been of unsound mind for a long time, ••.• /2 - -: - ---- 2 there W8S, it wal!! subr.ai ttccl, evidence thc1t Clt tho tine ::if the ki llint:: tho a:;;1Je ll2.nt knew the nature of his 2ct and that the act w-si.s wron(E: To fortify his areuncnt tho learned Soni ::ir St::::te Jttornoy referred the Court to the ~sychiatrist's report exhibit ?.3. Tho ovidcnco amply i1:1~)li cated tho a~Jpcllr-.nt with the murder of tho d.ccoe:sed. Ee c0nfcs:3ed ta his brotl1or, I-:::assani Fzilru, (.PW.l); two deys after tho dis2.:,)02rancc of the deceased that ho hcd killed her with a J2n~~. Safineti Mha:)a, (I''.?.2), told tlw lower o-ourt th2t she wns )resent when tho ;:;~Jpellant confessed to her husband, (P-:7.1), that he had killo'd the deceased with a pane;a. Both witnesses, (P't/.1 and :;:1;'{.2), testi~icd that "tlhc. appcll9.nt said he had killed tho deceased because she had complained ngninst him in their local C. C.I!I. Office which led to his being fined SJ:.:.s • 8 50/ -. Thero is also evidence th~t . on being arrested he, on intcrr0catiari by Dcte cti vc Scr,~ent Thomas, (p:_,_, .3), confessed ' killing the de ceased. ..·.nc: vbat is more it vP.S the appellant who led the vill.s.gers 9 i11:cluc.in8 F.V.l and ·2N.2, to where the deccascd's body was lying; in her shambi:\. Later the a~)ell2nt led Detective 3crGcnt Th;)m~s to where he hc.1d hidden tho J2.no;3 ho used in cJ:ciLJ.i. ttins th0 Th0 3~,)~L)cll:i.nt did 11Jt only c:mfess th~t he hQd killed the deccc<.soc1; he ':":lso ,}':i.vc reasons why he clccic.cd tJ kill hcir :.md s.\1)v1Cd to tho villa:r.;crs where the bocly was and I where he h2.d hid.den the ~nmcr,a he us.3d in inflicting the fatr1l wounds. / 3 1:ientally ?.bnorr.:-:::.1 sin co. 1965 8S narrot:::d by his full brJthcr, ICJlebu Nzilcu, (C::>Urt ,_,...,it1c::ss). 3ut it is ono thin 6 to sr:.y C-Ji.-;1.t:ii ttcd tho offence ind qui tc ::::.n)thcr th::it ho .v:-.s le{;'1lly 1 ins~no ~nd therefore not crirain~lly rosJonsible for his ••• "'I 2.cts. For· :::n ~ccu 5Gd }JC rs :m to be f -:>und n.Jt to bo crimins.lly res~J0nsi blc fJr his 0 .ct Jr ::mission it must be si.1ovm. th::.t at th0 tL-10 of doine t11c act or m2kin 6 tho onission he w2.s, ' because Jf cl.:ise.:1se 0.Ifo ctin.z his mind, inc2.:}2.blc :if unC.erstand- ing whnt he w~.s doing or if he knew wh2t, ho •IT'.S ~..._oing he clid not know th:'!t it wcs wron;g - Sc cti on 13 of t.'.10 ?021;:.l Cocle. In the :Jroscnt case, c.nr.J: tf'.kins into :\CC)unt tl1O ovidchce adduced in the IIigh Court it cnnnot, wi_th :-?.ny stretch of the im~ginciti :m, be SA.id th,·.t t:.10 .3.pl)clLmt w'1s lce;~lly ins.::.ne so as not to be crioin~lly rcs~onsible for his killing the deceased. On the evidence we·~ arc fp,r frJm being ;1crsu::::(:.cd by the argument tJ:.1.2,t the le~.rnocl .tri~l Ju:~_ge erred in finding the appell':'.nt c;uilty of nurdcr. - 4 ·- The ap1)eal h2.s no rncri t :1nd we 8CCordine:;ly clismiss it in its entirety. D,-;T~D at i':!.BEY,·, this l 7th dny of May 1 1990. JYSTICE OF N. s • mrrn :l vLs JU3TICE OF _.'~??E•.i~ I certify that this is a true copy.of thG original., ~/I ( J. n. rrisoFFE) SENIOR DE?UTY R':i:C-ISTR .,R