19710826 TZHC Dodoma

HIGH COURT OF TML3A1'T AT DODOMA ORI{A1RISDICTION (Dar es .Siaan, Registry) Criminal SessiOns.Case No. 16 of 1971 RPUTBLIC versus SILA S/0 MBAVJMBILI 2: MURDER - Contrary to section 19.6 of the Penal Code; J U D G M E N T MNZAVASJ. - Sila Mbavunbili, the accused in this case, s t a n d s charged with Murder contrary to section 196 of the Penal Code. The Republic allege. that the accused on or about the 17th June, 1970, murdered one, Yohanna s/c Festue. The accused in his unsworn statement did not deny killing the deceased but put up a defence of insa- nity . Lukas (P.w.j) related to the court that on 17/6/70 he was with the accused and the deceased who was a child of 5 years old at the house of )ne - Reboka 1, bavumbili (P.w. 2) According to his testimony, when they 11 were there (outside the house) the accused asked the decess ed to bring him some water to drink. The deceased went into the house and brought him (the accused) water. As he was handing. the acc.:Lsed water, the accused who was holding a panga suddenly slashed the deceased with the panga on his head and the deceased fell down. Luka said that he tried to intervene but the accused picked a bow and arrows and startod chasing him. He took to his heels and hid himself from the accused.. Rebeka (P.w. 2) related to the court that the accused is her full brother. She said that she was on safari when the deceased was attacked. In her testimony she told the court that the accused left their home when he was still young and stayed sway for about 15 years. She said the accu- sed came back home only two years ago and that she did not imow whether the accused has ever suffered from mental illness. Mariam (P.w, 4) told the court that the deceased was her nephew •nd that she identified his body to the doctor who performed post-mortem xaminat ion. Dr. Nushi (P.w.5) gave evidence to the effect that the deceased had a cut wound across the upper hemisphere of his skull and that the vault and brain matter were cut through almost in half, He said the deceased died from fractured skull. The accused in an wasworn statement said that he did nod know that he had killed someone, He said he was greatly shocked when he found himself, in remand and later before a magistrate who read the charge of murder to him, He said t]:ist he has twice been in Mirembe mental Hospital suffering from insanity but he did not remember the years he wont there. According to his defence, his brother - one Michael Mbacrumbli and his sister Mary Mbavrabili - are the ones who have be-witched him and hence his mental sickuess. He says they are be-witching him in order to moJte him incapable of.cla.iming his cattle which they have stolen. The learned counsel for the accused produced to the court psychia- trist's report regarding accused's mental condition, The report (xh. C) which was admitted under section 166(3) of the Criminal Procedure Code, is to she effect that the acoused has twice, in 1967 and agan in 1968, been admitted and trted.in diremhc Hospital suffering from schizophe- nic iline.ss,. which is a mantel disease. According to the medical report the aocused was on both occasions treated with eloctric.shock and drugs.. The Psychiatrist is of the opinion that the accused com-nii'l- ted.tho offnco while he was ..... ...... - 2 - suftoring from mental illness. AfteD summing up to the assessors the whole of the evidence both assessors were of the opinion that the accused killed the deceased while he was insane and that he did not know what he was doing when he committed the offence. As I have already mentioned the. accused asked the deceased, a child of 5 years old, to bring him water. As the child was complying with his request, the accused, out of the blue, picked up a panga and brutally slashed the child to death. This most i.mcomprohei.sible act of the accused added to the medical report (Exhibit C) that the accused has tee been a victim of insanr clearly suests that the accused was mentally abnormal when he inflicted the fatal blow. The unanimous opinion of the assessors is compatible with the opinion of the pschi.st that the accused was insane when he inflicted the fatal blow. I am also of the view that at the time the accisod killed the deceased he wasinsane that he did not knowwhat he was doing or if he knew what he was doing he did not knowiat he was doing was wrong. I accordingly make a special finding under section 168 (1) of the Criminal Procedure Code that the accused, Sila s/o Mbavumbili did murder Yohanna s/c Festus as charged but by reason of insanity as afore said he is not guilty of the offence, Under sectjon 168(2)(a) of the CrimiiL Procedure Code, I make an order that the accused be kept in Isanga Mental Institution as a criminal lunatic, It is further ordered that certified copy of these proceedings be submitted to the second Vice-President as Mjniser for Jtice. Delivered in court this 26th day of August, 1971. Ll N . Mr. Kilindu for the Republic; Mr. Mangat for the Accused.