19740521 TZHC Mwanza

IN THh HIGH COURT OF TANZANIA •.i' Pio ArELLATE JURISDICTION HIGH COUNT CRIMINAL APPEAL NO.294 OF 1974 Original Crimdial CaGa No. 79 of 1974 of the i)istr.ict Court of Musoma district at Musoma - Before L.J.R. CIIIJA, Esq., Resident Magstrate. RAMADHaNIALLY....... .......O.,,...APPELLANT Versus THE RHPUBLIC . . . . . ......... . . . . . .. .RispONihIcT ThTLGr;iaNT LUGAKNGIRA, aG. J.: The appellant was convicted, of unlayful wounding c/s 228(1). of the Penal Code ad sentenceL to two years' imprisonmot Ne was also rdered to compensate the victim witi-' Shs 200/. The facts were not in d.ispute On 15.2.74 at about 6.00 o m the appellant met tim compi 'iii:nt (E " i) walking to the hospital He snoated at them togive him WdjI Before the two women could re1ise wiat was amiss the appellant took out a cnfe ana stabbed P.o 1 on the arn and chest He then ran away. An alarm as raed and P W 1 was eventually helped to the hospital. When the charge was read over to the accused he said', ".1 dd it because they wanted to kill me at 3 p - a.m Later on ur1ne his aeence, he said, "On that dar I had slept at tim home of ebiro Gebe I woke up at nikt about 3 a m I followea the roa My, mina aa not alright. I found two women and one man on the rois. I siuuted but they. woula not hear. me When I wanted to pass one of th wohn preven'ted 'mc. I had h knife in my pocket and I stabbed her. The other woman and her husband left. I then got a way to pass. I went to rport to magitrate. I then went to report to the Police whtre I was detjeci.:dThe women came later on. On that day my mind was not in its proper frame. I-have been bewitched. In his udginent, ±he ierd trial magistrate remarked that.a.t.rst.a he was under the impression that the appellant was setting up a defence of insanity. He then continuedz If that was so he would have to prove on a balance of probabilitice that he was insane legally at the time of the commission of the offence. I am satisfied on the evidence adduced that he has failed to discharge that burden as he has not given any previous history of insanity and also he appears to have remembered very well what he did by reporting to the Police." after making further remarks on witchcraft he proceedect to convict and senteaoe the appellant as already indicated. The remarks made by the trial magistrate were undouletedly sound in law. The tragedy here is that he failed to follow the procedure laid down once the appellant pleaded insanity. This procedure is clearly set out in section 168-A and was recently elaborated on by Onyiuke, J., in Republic Julias Ngera, (1973) LINT n. 81. For a more detailed discussion of the scope of section 168 A l the judgment of the Court of Appeal in Mbeluke V. H., (1971) E.A. 479, is pertinent. The procedure as elaborated by Onyikke, J., with whom I agree, and as it relates to actual trials as opposed to preliminary inquiries, is as follows (with modifications):- The prosecatin is called upon to adduce avidenoe in support of the charge. The count then considers whether a prima facie case ha -been made out. If a prima fade case is made out the court then follows the procedure laid down in sec. 206(2). 0 . 0 . . /2 2 At this stage (as in the present case) the accused may' allege insanity at the. tinio of cammiosion of the offence. The court then proceeds as per sec. 168A(l) by adjourning the proceedings and ordering the accused's detntipn in a mental hospital. Upon receipt of, a iedical report as per" sec. 168-1(2) the court proceeds to admit it in evidence and then the accused and prosecution are invited to adduce evidence relevant to the issue of insanity. The court then decides, on the evidence on record, in terms of sec. 168-1(4), whetherthe accused. was .sane or insane. at the time of the commission of the offerce. In this case the trial magistrate. was not justified in holding that the appellnt, "on the e71Ltnce adduced," had not estoblished his insanity. The truth is that there was no evidence at all:,, but mere allegations, as the appellant was in fact onied the opportunity to adduce such evidence by reason of non-compliance with the. procedure ,pe,t out above. In fact, in the memorundum of ape.ü,' the, ppel1ant asserte that:. had redica1, papers relating to hi's tr'am.nt whiçh he,,'. was not afforded' the opportunity tto produce I'do not at this stuo place any weight on this llgation but it g,.es to illustrate whit may in fict bppen when procedure is swept aside. For the abo,e reasons, I set aside the conviction and sentence and remit the cse to the tril orrt to be proceceed with in accordance with the above procedure, in this case fiom stage (iv) to the end."'ho'l.d the defence finally fail the court will have to bear in rrLind the fact that the appeliant,has been in jaeiI"irice 21 May, 1974. . I - M W A N ' z A. . ' •K.K.AJG1KINGIRA 2ND APRIL, 1976: ' ' . ACTING JUDGE.