19730418 TZHC Tukuyu2

Ille- oz~-45~~ IN THE'HIGH COURT OF TANZANIA AT TTJKUYU ORIGThTAL JURISDICTION (Dodoma Registry) ORflVIINAL SESSIONS CASE NO. 124 OF 1972 THE REPUBLIC Versus F ILON NWAITEBEIJE JUDG:N..EI'TT The accused, FILON 5/0 M1AITEBEI, is on trial for the murder of his brother ICA.SIMBIIO 5/0 MWAKIBITI. Because of the issue raised in this court, it is relevant to note that the evidence tendered by the prosecution revealed that he also killed his mother, KtJSONBII D/O SMffEGA,. during • the same transaction although he was not formally charged with this second killing. The whole incident bok place in the accused's mother's house in the night of the 17th October, 1 971, in the village of KIWIRA in RUNG-WE district • in Nbeya region. • The accused lived with his mother and brother in the same house. Late one night he visited his sister (P.W.3) who was married and who lived with her husband in LOGDIO village and told her "1 have not reached home but I found mother is dead". P,W, 3, ENITA, hurried to her mother's house to discover the dead bodies of her mother and brother, lying close to each other, on the floor in one of the rooms in the house. She raised an alarm and people gathered. The dead bodies were eventually • taken to TUKUYU government hospital where DR. OTItN (P.w.i) performed the autopsy. The wounds, he found on each of the dead bodies, were of the same pattern. These two uniortuñate persons were slaughtered as if they were animals. On each of the two dead bodies, the Doctor found a cut wound 12 inches long, round the neck, and 4+ inches deep. In regard to KASINBILO, the jugulary veins, the oesophagus and the pharynx were all severed. In the case of the accused's mother, KtJSOMBIIE, the cut went deep into the TRACHEA and cut the big artery -, the AORTA. The jugulary veins, the TRACHEA and OESOPHAG-US were all severed. The prosecutionwas unable to produce direct evidence, that is to say, any eye w±ness to the slaughter but the circumstantial evidence pointed irresistibly and unerrigly to the accused. I have no hesitation whatsoever in finding as a fact that it was the accused who killed his deceased brother, KASIIO. - .. ..../2 - 2- The main issue for consideration in this case, and I directed the assessors accordingly, was whether the accused was insane at the time of the killing so as not to be responsible for his act in terms of Section 13 of the Penal Code. By Section 12 of the Penal Code, "every person is presumed to be of sound mifld and to have been of tound mind at any time, which comes in question until the contrary is proved". The defence has raised the issue of insanity in other words, it has urged this court to hold that the presumption enjoined by Section 12 is to be displaced. The defence has, of course, to discharge this burden of proof but the burden is well Imown and it is to establish the fact of insanity on a balance of probabilities. The accused person has not been referred to a psychiatrist for medical examination as is the invariable practice 'S these days. I directed the assessors that it was not •eseentia1 to obtain such a report and indeed that such a report, if available, was not necessarily binding on them since insanity is a question of fact to be determined by the assessors like any other question of fact. The assessors were unanimous in their views that the accused's mind was deranged at the time he did the act and were even of the view that he was still mentally sick. In considering the question whether the accused was insane, at the time he did the act, I took account of the following factors which I regarded as relant- No motive had been sugc2,ested for what appeared to be a senseless slaughter of one's mother and brother 0 Motive is not, it is true, an essential ingredient of murder but the absence of it tends to strengthen other evidence of insanity. 1 *0 There was evidence that the accused had a previous history of insanity. P,T. 3 (Enita, the accused's sister) and P.W. 4 (a black-smith in the accused's village) testified that at some distant past, the accused was admitted in Dodoma mental hospital where he remained for about 6 months before he was discharged. I take judicial notice of the fact that persons with a ental history are liable to suffer relapses of their mental condition. P.W. 4 also testified that the accused was generally regarded in the community as a person who was mentally unbalanced because of his abnormal behaviour, lastly, the very nature of the injuries found on the two dead bodies, furnished some evidence of the assailant's state of mind. A sane person gould not normally inflict this kind of injury which was more consistent with the killing of animal for food than of a I I human being. .13 A - 3 I have come to the conclusion that the accused was insan at the time he did the act0 In terms of Seetioh 168(u) of the Criminal Pocedure Code, I find, that the accused d±a the act charged but by reason of his insanity is not guilty of the cf fence. I cannot resIst the temptation to conclude this judgment without referring, to the great danger posed to -'óhe community/by the accused. He had pieviously been admitted in/a mental hospital for treatment and presumably dischhrged as fit. It is hoped that whenever it becomes neceeary to dicbarge the accused again, some precautions should be taken by the juthrities to prevent a trepeat perfoance" as was revealed in this case. The accused must be treated for all times in tI's interests of the com-munitk as a potentially dangerous lunatic. ORDER: Accusd is hereby ordered to DC kept in custody as a Criminal lunatic pending the Minister' s Order/under Section 168(3) of the Criminal S Procedure Code. S . Deliered at Tukuyu this 18th day of April, 1 973. A \),AA A/ G. C. M. OMYIUKE S.