19730928 TZHC Dar es Salaam

ZN Pff XIH COUiP OP PANZANfl AT amaXIMAXX LOLOGOtO CflXMXLUL 3I0 C$R N0.58 OV 1 9 7 2. PW RUPUBLIC , , •• , 0 4 . ye tz MFHONQE 3/0 IMiCI$ w o a I a CthU: Ndez 0/e 196 of the Peni C.de. BLRQN, J. On the 25th Novamher f 1971 Shomari sb ondo, heiriafter referred to as the deectsd was slashed in the nook with a knife in the pombe elub owned bnd ruA by P ancis Thomao (P.w.5) in the liege of Tnungo in the Ngerengere distrtot. He was immediateLy rushed to the Tunungao Dpenary, where he wa given first cid treatment and on th advice of the Rurai Iedica1 ALd iii charge of the pefliary, he woo taken to the Ngerengere Noopital where he died that same night. There was only one eye itnes to the eotwil azeault f Wuiieh sf0 3ama.. He testified thet at about 5 psn* whilst the deceased was sriing and dancing with the so used, a fortyar old con of Francia j, the owner of the pombo club, tho accused without any warning or even utteri.ng a word, suddenly pulled out e knife thioh was thrust in the waistband of the shorto he was wearIng and cut the deceaae4 in the left sIde of the neck, Althoudh there was only one actual eye-wltnos, a number of other witnesses including the aceuseds father, his brother $ilvona, (?.U.2) his sister Nary htella (P..3) and his ooue.n Selemani s/o &aidi (P.W.4) all tetified that on hearing the outcry rained they rtu3hed to the scene and found the accused standing bra dishing his knife, which be used to tap palm wine and nearby the deceased was standing with a cat wound, in the neck from w hich blood, wau flowIng. * The aocuae4e father ordered the accused to drop the knife, but the accused refused. And the witnesses described how the accused was dirarmed* elemani seied and held the acouved from behInd whilst his tther seised his arms and by biting the arm that held the knife, the accused Ict go of and drOppød the knite. £fte dropping the knUe the accused rn ay. He we s pursued by his brother Silvona # who caught him and knocked him down. However, befora anyone could come to Slivona's assistancc # tho accused eucceeded in freeing htrnlf and he tied and escaped. On the 2th November a post-mortem ezemina'tion on the body of the deceased was performed by fr. XarMarkab at the Morogoro Goverflment 1Opito In his poet-mortem samination report tho doctor described the cut wound in the deccaeed!s neck as " long by 2" deep — that the arteries and veins including the jgbiar voin t had been severed* And the doctor gave the cause of death as shock and haemorrkiage due to the cut wound in the neck. The accused was arreitsd in I4atombo on the 5th January, 1972 and on the 7th January, 1972 J4rs. Katiti (?,.9) who woe then an adminetrative 44913 officer stationed in Morogoro, in her capacity as Justice of the Peace recorded an extra-judicial statement from the accused, which he produced as Zxhibit C. The statement was made and recorded in 3wabiia* in this statement the accu3ed describes himself as a peasant ouitivator and a palm vine tapper. On that fateful day which he stated was in December, but could not remember the date, he was sharpening his knife preparatory to going out palm tapping. This was in father's pombe club. The deceased was at the time standing near him. And when he finished sharpening his knife, he 'startlingly' and I am literally translating the Swahili word he used and 9hall revert to it subsequently in this judgment, out the deceased in the neck with the knife. In his statement he goes on to say that there was neither quarrel nor grudge between him and the deceased and that neither had abused or insulted the other. After committing this act he fled to relatives in Kasonga. On the 5th January he gent from Kasonga to relatives in Ma'tomba, who hnd,d him over to the police there, who in turn handed him over to the police offier who had come from and took him to the Morogoro Police Station. It is thus abundantly clear beyond a shadow of doubt that the accused killed the deceased. Aad the only defence raised is that of insanity, which I now propose to consider. By section 12 of the Penal Code, "avery praen is presumed to be of sound mind 7 and to have been of sound mind at any time which comes in question, until the contrary is proved. And, by section 13 of the same Co4e7 "A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding ,hat he is doing, or of knowing that he ought not to do the act or make the omisaion.. But a person may be criminally reponsib1e for an act or oision althoub his mind is affected by disease, if such S disease does not in fact produce upon his mind one or other , of the effects above mentibned in reference to that act or omission. w This defence of insanity is thus on the defence to establish. In the lower court when committed for trial on the charge of the murder of the deceased, the aoeu;ed in answer to the Statutory caution reserved his defence and stated that he had no 'witnesses to 41 call either at the preliminary enquiry or at his trial by this Court. On the 23rd October, 1972 when the accused first appeared before this Court on the information laid for the murder of the deceased, he pleaded not guilty, and on the application.of his learned couns1, the trial was adjourned and the Court made an order that the accused be sent to the Isanga btitutiOn, Dodoma, for examination and observation as to his fitnew3 toL stand trial and as to his state of mind, when he allegedly killed the deceased. . . .14 The acotised was daly sent to the tana inrrtitution, Dodoma o wheie he was admitted on the 28th C)ctcbez, 1972, He was detained thare u.xitjl the 28th Jugiet1 1973, when the Conoaltant ?eybiatriet pr. Pendacli who is in charge of the Ins3titation j pronoL&nced him fit to staiid trial. Intrinsically the vey act ite1f - the sudden stabbing of the doccased raises dobt, an to the accused's srnity at the time. All the witnesses stated that there was no ill feeling between the accused and the dceased, and the accused in hic extra- judicial atatsient confio this. Abdullab J&wa the only eye- witness, stated that whilat the accused And the deceased were zinging and dancing tocther he suddenly without any warning or even uttering, a ward, etbbed the deceased in the neck* although the accused, in his extra—judicial statement says that he was sharpening his knife at the time, I do not accept hia recol1etion of the incident and for obvioua reasons prefer Abdu.11ab Jumas version supported as it is by the evidence of t accused's father francis, who stated that when he came home from his shambu, he now the accused and the deceased oinging and dancing together , utids the pombe club. Iz. Pendeeli who had the accused under obcrvation for about ten mønths, states in his report prodioed an EXhibit X, that the accused suffered from de1uionø and he had viione of people appearing dressed in strange clothes and also of people long since dead, ie wac liable to attacks of what the doctor terms fugue when he would not be fully conscious of what he was doing, and that once in such state he walked from Morooro to Dar as Salaamo The accused's father Francis confirmed the doctor's view that the accused was mentally sick. He stated that tho accused suffered from bouts of mental illnea when he uould talk nonsense, and he had once sent him to a native doctor for tredmnt, but to no effect. Tho doctor diagnoad the accused's disease as psychomotor epi1epey, althoub he did not actually fall into epileptic fits. ir. Pendasli in his report suggests that the consumption of alcohol could have triggered oft something in the accused's mind, which ceased him to knife the docea4d. The accused himself in his extraadicj1 states 'nikakurupuka kumpiga kiu oha shingo. The dictionary definition of kurupuka is "to be startled, roused ) surprised - e.g* as of enimals hearing a noise." The accused, would then appear to be saying that his own action took hm by surprise, in other words, that he acted on some unoontrollabl.e impulse, which woalct raise the defence of automation. 1thaugh medical science has made great strides in research of the working of the human brain* I am not pezsuaded that the workings of the mind of even a rationsi person is fully understood. It is abundantly clear that the accused is and was suffering from a disease of the. mind. And I am quite prepared to accept Dr. Pendasli's AUMSaig diagnosis of psyohmotor epilepsy. flthough there is no eidenoe that the acoued t the time oonewned any aloohol, though he my well have acne - aa the incident oecired during a drinking oGnsion at the pombe club t I am of the vie that the exoitement of the uinin ind dancing tigeed of?, to use the doctoe expreaeion ; zomething in the owed dieeaeed minti and ueed him to strike the deceaed with the knifo h "iae holding in the neck, tithOUt anj QO1UiGUE3 intention or even procedin coneciote thought in the d'o mind. I therefore have no heoitation in accepting the doctor'e opialon that the accused was suffering from iianity at the tinie, And like the or I am JUatiS,fied that when the aoteea fte].1y aeeatilted the ded he ia ineane at the time in both the medical and 1ca1 connotationof the term. Accordin1y I make a ipecia1 finding as prVided. for in section 166(i) of the Criminal Procere Code, that the aocwed killed homeri Kondo as ohared on the infortion, but by reason of his inoaniiy, he is not gailty of the offence of murder as charged in the aid infoziation and make an orter in the termo ar, folloa. • OflDR: The record of the proceedingz is to be submitted to the r4niter of Juitice for his neoeaeary direction, and in the meantime, the acctzeed i4 to be detined in custody no a cthninal luna ic, d/— Philip Biron, 28th Septembert 1973. I