N

' - TT S -. 44' • 4 - - - V IN THE coufft O? APPEAL OF TANX/ AT DAR. ES SALAAM (AN. MALIL' JA , LUBUVA, J.A.,'ndAMATTA, j.A.) CRIMINAL APPEAL NO 64 OF 1996 Between -.MUSSA---&ALUMU APPELLANT 44 .5 AND THEREPUBLIC ...... • (Appeal from the Conviction of the High Court of Tanzania at Mtwara) f. (Kaziiot.., J.) dated the-16th day Of Marbh, 1993, S S S S in Criminal Sessions Case No. 46 of 1991 S ) • - - ------- JUDGMENT-OF THE- COURT - A .11 5) •-• SAMATTA,, JA..: .• •0• ' ~S V - The appeliai-it was coniricted by the High €ei ' t, sitting at Mtwara, d f the murda1 ti February 17, 1991 1, of Mwanajuina Kaboa, and was sentenced to deaths Fé now appeals t o this ' Court against both convibtiOn and seiteice. C ootpass. The area in dispute at the trial lay in a very narrw It was commr ground that Mwanajuma Kab,a was - • 0S\5 the wife of the appellant and that the couple used t live tágether at Malanje Village, in Newala district. They hé - .. a baby aged three months and used to live with a nine-year .I'child in their matrimonia1,hme There were n6mis- S .-- - . undr&tandings between the spcüses, at lea&t none were to their close relatives Who gave evidence in the caze. -S -. - •. ._t4 • J • J- S - • - ¶ 555 55 * - -- -. /1 4 I I 4 2'. - .. s also c4mmon giound that oii the morning of- February, 17, i.. ,. . ' . i591 ,the appéilaxi'b half-brother,. Shaha Salum, who gave , J.. èvdeñce as FWI at the trial, received information, that - there was serious trouble at the appellant's house. The jI. rushed to the house and Thund it locked from insides A number of peiple had gathered outside, The appe]lant, ho 1a&inside±he house, turned, down their request that he 4pens the doer, The people tried 'to break open the door but the appellant reacted violently threto; he stabbed one,of them with a knife. The village leaders were summoned to the scene but they, t4, failed to open the dor, The very • unusual situation' dethande. ie.ervices di' ac'ourageous man. Happily, there was such a persàn in the órow, That perssn was another brother of the appellant - Ibrahim Mussa Mkaniajange * 'He stealthily entered the houe,thixough a window, When he save' the witness the appellant threw his knife at him stabbing him on the backi PW2, hoWeverj not to be cowed •- by this act • He grabbed the, appellant and,, afEer' a short struggle, he felled him down and called in those outsida - the house forihieir assistanca. The people rushed into the house and tied the appellant with a rope. A ghastly scene was awaiting th•se people. Lying on the bed was, the appellant's wife. She was beyond human 'aid; she had succumbed two fatal"stab wounds, mne on the neck and the .ther on the chest. The three-nionth old babywas clutching" its mother's back. It was partially covered 'with j Also present in the house was the nine-year'old child. ' Neither the child nr the babyhad been harmed. The - appellant was escorted to a CCM office in the village where Detective C.rp.ral Hamisi (PW3) later in the day - - tried to inter.gte him, The ppiicernan got xthing useful j •:( I - -b '' " -. -' - -- - .''• 3 -- -'-. - ", -• -.- J!--.-. . 1 1: '"-' • LI frbm him4 .Oescribiiig the appellant's mental condition at the'materia1.time, the Corporal told the High Court the _I. .J_J_JVVJ_LJ.. - "I questioned the accu.4eds He could not talk clearly. He . appear1ed c6rifUsec1. Ifailed to recordhis statement an the first day." - It was also. not in dispute at the trial that two days later the Corporal tried to interrogate the appellant again. This iii he was able to extract a short account from him. The appeuant, according to. the w,itness, said - - that -on the' fateful day his friend gave him some bhang, which he proceeded to smoke. He did not recollect what transpired after he had done so. To the trained police investigator, the appelnt- appeared to have suffered a mental breakdown. On September. 3, 1991, the appellant made an extra-judicial statement before a Justice of the Peace. This is what he said: . "I remernber.eteen. 16/2/91 and,27/2/1, myself, my-frien. and one $a.si.s/. Ally Mapesa together with my fiend's uncle went toMbuyuni village to 5eig chaza. On the first day we didn't complete the saleand we returned ti home. We went again on the nex'tday and we completed the sale. I inquired my companions a...to whether 'we were returning home after the. sale. They - . -.- replied -that they were .unwilling -to .. return back and- then we departed. -- .. - . decided to g home but whIle oii the. ..... - . - way my .conditionchanged and Ibecamec-- - coxi-fused. As . a result I failed to negotiate my way home and instead I energed /7 Nkupete village. T'iere I .../4 •' - I was assisted .j villagers wh tied me with ropes an4. I was returne4 home, Wheh I reached•hbme I became'sober,.. • and ropes wei''thte. from my body S and slept. • On the folloWing morning my : condition changed.again as was on 'S • Lh.7previous day,:, I locked th _1 d000f my house and preveflted thy * • wi to get 6uti I did not know • 'what..I was doing AS a reIt I - stabbed my wife with a 1nife.on herchest and shedied instànt1y.. Then a few minutes. police. motor vehicle came And the dead - bödwere -taken inVo motor vehicle. • Thedeceased's bodyzaS sent to a Health Centre and sent to a polite station NewaLä where I Was locked i.p. On the flect morning I r/S • tàkën tO'cOux * that I be remandec That 'ib ail Pursuant to ah order made by t} High C1urt under 22O(1) f the Criminal PrOcedure A qt, . l985, on 1st September, 1 992, the Psyohiatz'ist I-eharge 6f 1sngatrtitu4ion reported to the Court on the appellants conditions Secatise of he •importancu of the repoxt we.attach to the determination of the instant apal, we propose to' quote - Its body - in extenso..' It reads as follows: "Mr. Mussa Sa)iith states that he had. - repeatedly been aáingbhg'inhe' past which at sothestages*Iéd 'him' into confusional states. The above 4 information has been corroborated by Mr. Rashidi Hamisi Mnamwate, Mr. • I * •,• •• ': ' • •. Samlj Lulanga, Mr. Awadhi Mchinjj and Mr. Chjbwana MfaUnie Malela. On admlss2..n to this Institution, Mr. Mussa Saluin was coriscious, j alert, well built an& dresSed in Institutional lothjn. He was .. * observed to have.hadno signs and symptoms Which are suggestive f• mental illness todate - . : •. As a fesult of the above findings, Mr. Mussa Sajum had been suffering from recurrent short episodes of -r self-Induced mental I].ness which. . had resulted from the Bhang Sm oking . A victim of such disorder has full- insight Into his actions, but has ' no 14' trfr'. 4 • • pu,i S. Pu tIthte 4. misd Ralt epons.bily.Inan •. - :1 ir emotiop,s. to hv had-ne . afl,j At the time.of murder Mr - Salum ivo o was reta1 illness • •,(B •. 1. .hang PSYChOSiswhich, inmy 'opinion,, ws.actve.?nj. Vrd.pn February 17 1 LLLi nd not inrfere With hp ab1ity pon Ii my re ult of hai flel 1l1nss b abal24a1capaI •' to know and appreciate the'óonsequèn5 -f is Conduct an tat uph CO, - • - I base dpi : - f1: , . ... . ' ,• 77 7 hre is :ome indication.suggetive - k pre-mëditatio in that he first locked inside himself w.th his wife so that. tiobody could,;nterfe'e,. with him and secondly h W& doing in • . . exasper'aticth "Atakayejaribu kufungua • • . mlang iake basi atmchoma kisu . • . .----. mkewe" as reported by Mr. Ibrahim; Musa r4kamujange and. "Nilimwita akiwa ndanl ya Nyufliba yake allitika • na kuhikemea kwa sauti kwamba 0 endapi nitaendela kupigá kelele kwa kumwita basi atamchoma kisu •. mkewe na yeye mweriyèw&' as rep.rted • . . by Mr. 'Awadhi MóhirLji. He knew what hè' was doing because he admitted himself in his Police • . .• . Statement as qutd'verbat.in -... . 0' • 'Ni1imjeruhi Ibrahim Musa Iwa kisu .• sehemu za bega'.la kushoto WaiatL nikifanya haya lflpwa nikiambu na akili yangu kuwa nzuri." . This report was admitted in vidence and marked as..Exh..P5. At the trial the appellant gave evdencë, His story was essentially similar tc the.. one he to].d the Justice of the PeacG. . •. • .. 0 •. 0 , . 0 •, • 00 ' ;. 0 . • Both gentlemen assessors expressed:the.opini.n that the appellant kil1d the decetse1d while he was in control of his mental facul -Ejes and, that hb was guilty of murder J 0 •. • • as charged.. The aearned trial: udge shared .thse view. In tk'ie course of his judgment he said adth ipinjoh has :b eehba ed n: . b1hed fact. I find it established tha on ' • •0 • 0,•,, 'S •'' O •••'' •, 0 •. . 0 IF IL ,. 1. ... J / 1 7 - 6/21 91 the accused smoked bhàng and became mentally confused. In his report, which I:accept, thdoctor fl was of th viev' the- menta1 djsease did not iJipair the accused .ôapacity let to know4nd apreciateth consequences of his act. Th4.s view that the accused was in dontrol of his senses and capable of knowing thé6tisequenbes oisco -idüct can be gathered from the evidence of PWI, PW2 and.the àccued himself. All- three have stated that acused . locked hse1f in apd threatened to: kill the deceased 4.; force was used.. The accused wa vn rationa. at the time when t,,4p pepple wanted to. break into the.house, to use hits QWfl words: They 4epided.to get;into sVe .our. live4 because of, the coIditonVI had been' on 16/2/91 .". Briit his eyi4ence he. gave full .ácc91nt.qf.imself, the villages he visited, the ditance from ................ Mkupete to Malanje, the names of peple he met, the time he arrived at his relatives house and th period . he-tayed .theree lie-even rmembere.i. pep1e got.inwhichàhpws.,clear pre'rned -bat1on tO kil1. I hold on 4. the eitidence that te acquse1's mind was mental1r disturbed âe o the effect of bhan but tagree,ing,withthe views,,.f •., the dctôr F5.fd as a fact that; although the mind qf the accused was mntallyeffected,tat mnta1,il1ness did not, interfre with his ability to reason. I 'urthr. 'find on the evidence of Exh. P5 which I accept tI'at the accused knew an - - . 8 - appreciated the consequences of his conduct. I therefore reject the defence of insanity caused by bhang psychosis." - The appeal against the learned trial Judge's decision '4 is based upn the followingthree grouxds: 1 • The Trial Judge erred in law in finding - the Appellant guilty by getting the. support of the testimonies of PWI and Fv2 while he himself discredited their V testimonies and held that they 5a47 lied. 2, The Trial Judge erred in fact and in law in admitting tke Psychiatrist's report 4. which was iased on the written statements of persons whowere not called as witnesses -that the redibili.tiescould7 be V tested. . V V - ,• Y :.L.V. ... :.VV H VL •. The. Trial udge erred in law and in fact 34 V in finding That the Appel).ant knew and V V appreciated at the timOf i1x,, : - -- . V his wife the consequences of his act, 41 b.sing on the testimonies of PWI, PW2, •PW3,Eth. P5 and that. ofthe Appellant. V .- ••.• V - We shall deal with these groundsin the same order they are put. We proceed theref ire todealwith the first . '... :. rCV:t . V ground. In their eVidence both PWI and PW2 asserled, inter - alit, 'that the appelLant - uséd to 'su:ffë±' from a kind of V;•V j . V.. •._.V: VV1 mental disease,. . desorXbedthe :. V 5 ?; V. .While accepting: theire.st of the - .woitnesses!V evidence, V -- V.the iearneatrj± - Jüde- - holding A • ,:. -::.:'j' •. --:. thaton that aspect of the, case the two. witnesses had lied. V V .4. • :. .. . . .., ..•.. ,I.V,V V Vy;H. • - :. '•' V' :- - - V ,, •.-':: .• V'V' ,,V.• V 'V•° ; V •V i -. . . - :, .: ' 1VV.•V . V r - -V--V.--- V- ,- -•.-' --- V-'- . ---_________ ______ :: -- V---r---- - U _9_ On 46ehalf of the apellan Mi Semgalawe,' who adthessed us with pertinacity # contended that the learned trial Jiidge misdIrected himself in law in accepting certain parts of PW1 and P42ls evid(incei The learned advobate sünitted that, ha'ing found as a fact, as he did.; that the witnesses had lied on one aspect of the case' the learned trial Judge was bound in la.i to reject the reéb. •f' the witnesses' evidence. While citing no authdrit in support of that proposition,;the learned advocate further contended that, according o-t1ie law, where a portion •fi evidence of a witness is rejected by the court for being false, the c.urt is bound to reject the rest of the witness' evidence. Mr. ffalabs9a, Senior State Attorney, iibciitted that the learned trial Judge had not erred 1n f 1 eh trdi the Wyiddnoe •: ki átot Ike Se1'awe' 0 14 eh4i bl d?e dO j.J$ f'a1d in . n P.T2 t r4 - r -dvoat -"- ' raI4# ith rôEouii i' 'i- '1 '- 'r it is ge hr- ain t-ij do.1bt thai' ''The 'xiit Oilai sU t is ihra 11I ?x'adticci i:c this c6ut'y It ' ii'iP Y in .7' £LV 1ars. d ten -le tru-i %'é râhe1' itriesd"ha 116 t I.& thdC'tase does eAt rm c61 e cin of 1 ?hdiof -? vts '. 1StÜ1 eti a±oWitb t6Jflse itnGS' eeidefl6 On c, . mJnt .J- o eIode 'ari6ng eC e whethér spe&f an hiôh thó witñs liedô f:in .ri:r' prefrur r€spe to fh: .l2re ,- • - _I _-___ - -t 1----.-- -. - - 10 F to the root of his story. As Mahesh Prasad. Tandón and - Rajesh Tandon corredt].y observe .ir1,heir book, ]nterpretatin of Statutes and Legislation,.7thed, at p.102 (cting BhawanTana Patil v State of Ma1t'shtra (1914) I c 571): V The naxim falsus in uno falsus_fl orinibu is not to be blindly .invoked in appraisihg ei V evidence adduced in .. Courts wklére . V witnesses seldom te2± the whole tri,ith.j but !ften resort to exaggerations, enitDellish ments arid 'padding up' to support a Story - V however true in the main. It is . theV V function o the Court to disengage the V truth1from falseho64 and to accept what it finds to be trU àiid reject the rest. It is only where ituth and .falsebood are V inextricably pixed up,.poilutingbeyond V V refinement, down - to the core, th& entire 4 V •.- VVV ,. V V fab'j,O of the; narration given ba V witns that te Court ight - be jstiZied V ,-. VV4n - ectixg V hi8. 'ev±4e4c in tot•V ! V V 1:.71 V VV * ' With great repedt tôVMr. Semgalawe, we are of the firm V "opinion that both logic and Oommonsense . rebel against V V -. V •. r -V :... the idea tha - ttib maxim referred toaboveVshould be treated V V V,.__1VV _VVJ V -, •_V 4, V as having the status VVIf :a ru law V9 a ruQ,of practice. Many guilty accused-would .go soot Iree. 3n4 many..Ljust -claims • - - in civil 3.itigation would be defeated if th 'maxim were s. V •V V •V,* VV. .V L-- V treated by courts.. No rie would ,caltbat, jtstice. Consequently; -.iri spite of.4the soldierly curage-;with which V - 4 V Mr. Smgaaw addressed US .fllVVLthe oit'; :we áre ndble t; - Vfind any merit in the cQmplaint raised,in .the First GrdUd V Vf Appeal. In our .pirion,the learned trial Judge wa VV VVV V V 40t -bound.4 to reject the evidénceof' PWI and PW2 In to-è V. V V • V V . : 41 - V '4 ;_J,V• V 4-V j I as contended by the learnedadvocate. We now turn to the complaint,in the Second around bf Appeal. We can, we think,, deal with it fairly briefly. - It is not disputed that in his report, Exh. PW5i the I sychiatrist InCharge of Isanga Institution relied partly statements made to th.0 poiice b persons who were not called as witnesses at hé trial and whpse credibility, therefore, was not tested. Mr. 966gaiawe submitted that - - the learned trial Judge erred in law in admitting in evidence a report made under such circumstances.. The 1 l earne d advAcate cited no authority in support of that 6ubuli5si4n. , We kn'w of no statutory provision or authority which renders a psychiatrist's report partly based On statements sf persons'wh6 are later not called as Witne8SeS at the trial inadmissible. On principle, it seems to us that sucli aut expert should have the right to use whatever 'süro of j.nThrmation available th him which any prudent expert in psychiatry would regard as being of probative value in L reaching opinions on i5sus iikelj to be relevant at the trial. The value of a psychiatrist's 6pixdokiL like the value ofn ópihithi 6i any other ep±'-t ri'di sti g partlr, tipn - - the materialup.n which the pinion is based. The criticism against Exh. P145 made.by Mr. Serngalawe goes to the weight to be attached to the report and .not to its adrnissiility. We therefore find no merit in the complaint against the admissih in evidence of the report. That conclusion H brings us face to face with the csmplaint in the Third Grud of Appeal. - .../12 4*4 •0__ - - *------ .0 •'. O - - ' / The finding by the learned trial Judge that the • i- . appellant had failed to establish his defence 0 . of iisanit has exercised.our minds quite considerably. Of.course, the learned trial Judge was'perfectly,right ' to direct the gentlemen assessors when, he summed, unc the case to them that where a defence of insanity is. raised '. théonus of proof rests upon the accused and that that t'bUrdefl is discharged if it is shown, on a balance of probabilities, I that the accused was through a disease affecting his minds , incapable of understanding what he was doing, 'or of knowing that he ought not to do the act or make the onissi-.z. The • . learned"trial''Judge accepted..the Psychiatrist's .pinion, expressed in Exh. P, that at the time he killed the deceased,. the appellant was not legally insane..Was th'learned trial Jdge right t.'accept that. .pirion andonclude, as he didp. .. .. . that the killing of the dècéa5ed constituted murder? •0' . .,-. .t.. . . ' ä-btentio. :i4 is trite; ot' this question.we nàw 'turn ôu •0 J . . . h•rxbok 1at tO use an Amerbn.expr ession,.that a'ôouft ' .f ,].aw is not b.und by an expert' s .pinion.. A court is not. bound to accept even the unanimous opinion of experts. 'While itwill pay great attention to an opinion of an expert, the court will keep. the final decision in its own .. hands. It must bring its own mind to bear .n 'the matters :'. testifie1-torr reported on.An opinion of an expert can: be no substitute for the judgment of the court. see Fie)4's Law of Evidence, 10th ed., Vol.111, p. 2866. To.turn to the instant case, Mr. Semgalawe "criticized the' 'learned trial Judge's findings on the issue of the appellant's mental status at the time of the deceased's killing. He 'submitted v that, contrary to, what is stated by the 'learned trial , Judge • , o , • . 0 0 • .../13 0, - - I • 0 .. -• • 0 0 • 3 • 0 0 • _____ I • * V - - 13 - . in his judgment, no witness at the trial testified to the effect that the appellant threatened to kill the deoeased if the door was forcefully opened. The learned advocate also contended that the admission made by the appellant bef.re the Justice of the Peace did not demonstrate that the appellant was legally sane at the time of the killing. '.-. Mr. Malamsha, on the •ther hand, pressed upon us to uphold the learned trial Judge's findings, He submitted that the following factors established that, althotigh he was unable to control his emotions, the appellant knew • - what he was doing at the time he stabbedV thedceased: (1) the appellant attacked only his wife - he did not attackthe other two persots in the house (2) he refused to open the door, and (3) the attack on the deceased was .• not airn1ss, it was specifically directed at vulnerable parts f the body. We have given -&nXjOUS and careful cnsiderationto these arguments. 'tn the end, w'a are satisfied that the finding that the appellantwas not igat±y inian at the materlal' time is not supported by V theevadepceon recrd. W are Of that opinion for the - foll6wih4 reaos. Fi}st, r4r Semgal?awes critioisth if the V' - xérence'in thela'ned trial ud? judgment to the V alleged threat by the appellant that he would kil1'the' V deceaed if the door was forcéfülly opened izwithpect - .;;--- te the learned Judge, valid. There was no such- evidence I - at the trial. It is quite possible that the - learned trial Judge was misled by the refrthce to the alleed'thréat • in the Psychiatrist's report. - NeitherPV11.norPW2sàid' anything in the witness-box regarding the alleged threat. 14 _________ mi - V - •. • • -. - • I- - • - V • :. :- - • - :- V - : t Aparently the threat was mentioned in a statement to t1ié 4 T: police. Secondly, the learned trial Judge merely held that the appeflan.t_knew ahd appreciated the consequences of his acts. He did not proceed to consider whether the appellant knew that he ought not to do what he did to the deceased. As indicated earlier, the learned trial Judge rejected the evidence of PWI and PW2 to the effect that prior to the fateful day the appellant used to suffer periodically from • somekind of a mental disease. With respect, we think there was no basis for that rejecti•n. The. evidence of - the two witnesses was, on the point, very consistent with • -' the. rest of the evidence adduced by the prosecution in : the case. The two witnesses were, as rightly observed by - - -I- -- ----- the learned trial Judge, interested persons in the case, but that fact did not, in our opinion, const.tute a warrant • for eject.thg..their evidence--on, the mental status, of the • appellant. There is no rule of law or practice which perrnitsr the evidence of near relatives to be discounted because of their relationship to an accusedi see Rex v Lutakomba ' anot (1936) 3 EACA 43, 44..45. It seems to • us that had the learned trial .Judge asked himself the •,. .1 .. • question whether the evidence laid in the . r. scales in this .....- • case demonstrated that the appellant did not know that he • • ought not do what he did to the deceased, he would most proably have answered it in the affirmative. . Thirdly, . 3 • -_ the learned trial Judge made no reference to the iiaportant evidence of Detective Corporal Hamisi to the effect that • - T.. when he re-arrested him a few hours after the killing of Ali the céased,_ the appellant_was in such a state of confusion that he (the C.rporal) was unable to interrogate him. . 4 1 YI 777 •0 . 0-* •. all the circumstances surrounding the killing Fourthly ( of the deceased strongly suggest that at the material .. time the appellant was a victim of temporary legal insanity: (a) there was Jnotive for the. lçilling; ' (b) the appellant made no effort to hide his role in the killing of the deceased; (c) the appefla?it locked himself in the house where the dead body of his wife was, ly1ng the appellant made no attempt to hide the dead body; he made no. attempt to escape; and (f) he attempted to kill his brother when the latter entered the house, • Bearing in mind all the above factors, we are uable to 0 • • share the learned trial Judg&s conclusion that the ,. •. presumption of sanity, provided for under s'.12 of the • renal Code, was not rebutted in this case.. While payihg -. due respect to the Psychiatrist's report, we are of the opinion that the gentlemen assessors and the learned trial : Judge ought to have ghed conclusions different from those reached in that report, and find the appellant not guilty because of insanity. - I For the reasons we have given, we allow the appeal, quash the conviction and set aside the sentence of death imposed thereon. Under S. 219(2) of the Criminal P r oc edur!e Act, 1 985, we hereby make a special finding that the appellant did kill the deceased, Mwajuma Kaboa, but by reason of his insanity is not guilty of the murder of the said Mwanajuma Kaboa. We order, in terms of paragraph (a) of subsection 1 3 of the aforementioned section, that . - a certified copy of the record of the proceedings in this case be submitted to the Minister for the time being responsible for legal affairs. Meanwhile we order that : 0 ,. S -. • • 0 . . - ? , ? / the appellant be kept in custody as a crim t- V41 •t. DATED at rrk Z3.3AAN t1ii yt0.i i97. - I .- :4S I c JUST ICE OF 4kY 7 7, - - -- - . --1 V -. k '• ' '•.'• . - • p ,. 4' - 1. - ' '4i. * '••• -, 4 • Jt FPE' ' .•, .• • • -. -tr - . •-. • •-.-• ,• L • .• • 4 • 1'.• 4. ti •:, j r.4( •. - - c - -- - ••-:-- •. : -:jI • .-:• • , ,. - -: . - • •4 . S , I •- . -.. I,. •, .• . •,• -•• • ;f, .,. ,_• '•• 5- 4.-d';J '4 ? I ' •..- .' ?b I- i$• 4"' 4- - .- •. - - - -- •• - —