19740606 TZHC Singida

/- IN TZ 'JIGH COURT cF rNZANIA AT SINGIDA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE No.7/73 THE REPUBLIC VERSUS MAKALA S/O LYANGA C•h arge Murder c/s 196 of the Penal Code. J U D.GM E N T MNZAVAS J. The accused is charged here that on the 27th day of January 1972 at Mteketi village, Iramba district in Singida region, he murdered one, Nsumbu d/o Kitundu his wife0 The accused admitted killing the deceased but added that at the time he killed her he did not know what he was doing as he, according to his defence, was suffering from insanity. Mpanda Mkurnbo (PW1) brother in-law of the accused and brother of the deceased related to the court how one night in 1972 he heard an alarm coming from accused's house saying that Makala (accused) had killed his wife. He ran to accused's house and on arrival he found his sister, the deceased,lying outside her house in a criticalstate with multiple stab-wounds on her body and her intestines protruding. It was his evidence that on interrogating his sister as to what had happened.to her she replieU that it was her husband who had attacked her with a knife. The witness and other villagers carried his sister to Kiomboi Government hospital where she succumed to her injuries soon after they had reached there. The witness later identified the body to the doctor as that of his sister Nsumbu d/o Kitundu. He told the court that he has known the4 accused for a long time and that he has never known him to be mentally sick. Police Constabl Ismail (PW2) related to the court that he was contacted by the villagers and told that the ccued•had killed his wife and that he had run into the bush. According to his evidence he participated in looking for the accused but that they failed to trace him. Some days later, on 6/2/72 1, thaccused was arrested and handed to him 0 According to his evidence he put the accused in custody and that next morning he sent him to Kiomboi police station. The withess told the court that he talked to the accused but that he did not answer. on being cross-examined by the learned defence counsel and the court he said that the accused appeared mentally normal to him. Micumbo Tiswa (PW3) another relative of the deceased testified to the court that he has known the accused for a long time as his neighbour. He also told the court of the alarm from accused's house on the material night and his visit: to the house. He related to the court how he saw the deceased lying on the ground injured and how he helped in the carrying of the deceased to Kiomboi hospital where she died. He told the court in cross-examination that one of accused's children is suffering from epilesy. Of the accused he said that he has never known him to be mentally abnormal.: Like Mpanda, (PW1), this witness told the court that the accused and his wife lived very happily and that he was most surprized to hear that the accused had killed his wife. Inspector Masanya Nyingo (PW4) investigated the case. He told, the court that the accused ran into the bush after he had tabbed his wife and that he remained there for two weeks before he was arrestedo' : . .. . .12 - 2 According to his evidence when he interrogated the accused the accused replied that he did not know that he had killed as he was insane at the time. When cross—examined by the defence the inspector said that one, Kiyunyu d/o Lyang.a, sister of the accused told him that the accused was a mad man - And that he had been mentally confused for about a month prior to his killing the deceased. When cross—examined by the 2nd assessbr the witness.said that acc u s ed*s brother in law (husband of Kiyunyu) also told him that the accused was suffering from insanity. On re—examination the witness told the court that Kiyuriyu told him that the accused used to run about aimlessly but that he used to be not violent. Finally when the witness was interrogated by the court he said that on ihterrogating the accused he appeared to him to be mentally abnormal. Post—mortem report on deceaseds body was produced ujs 275 of the Criminal Procedure Code0 The report is to the effect that the deceased body had multiple stab—wound on the neck, trachea, right arm and abdomen. The cause of death was qivcn as shock and haemorrhage. In his defence, given iinsworn, the accused told the court that he killed his wife while he was inSane0 He said that he had no quarrel whatever with his wife and that he was surprized that he did wha eL The learned defence councel produced Specialist - Psychiatrist's repor: dic on the accused's mental condition. The report was admitted under sectofl 168A of the Criminal Procedure Code and marked as "defence Exhibit A"0 According to accused's clinical history his son is an epileptic and that his sister is a mental case. The doctor says in his report that at the mental instithtion the aceused manifested his hysterical behavirurs such as tremors and tantrums0 The doctor also says: "The nature of the injury,,several stabbings on the shoulder, neck, chin, abdomen and loin, shows undue violence and destructive tendency typical of acts committed by those with abnormal mental states". As to his opinion about accused's mental condition the mental Specialist says: "My opinion is that the accused was of unsound mind at the rtaterial time and he had been mentally ill quite sometime prior to the mu:der 0 After rv Cumming up to the gentlemen assessors they were both of the view that the accused was not mental in the legal senne when he attacked and killed his wife. The second assessor was of the view that accused's mental state came in after he had killed his wife. They accordingly found the accused guilty of murder as charged. This case is not free from difficulty 0 We are told by two prosecution witnesses (PW1 and PW3) who apparently are relatives of tie deceased that as far as they know the accused has always been mentally normal. Recrut police constable Ismail (PW2) told the court that in his view the accused appeared mentally sound to him 0 We have evidence that the accused took to his heels and hid himself in the bush immediately after he had killed his wife0 This evidence would, as mentioned by the assessors, appear to suggest that the accused knew what he had done and that it was wrong and therefore his decision to run from the arms of the law. Against this evidence we have the evidence of the deceased's brother (PW1) and that of Mkumbo (PW3) that the accused and the deceased lived happily and that they knew of no quarrel between the accused and his deceased wife 0 We have the evidence of Inspector Masana to the effect that accused's sister and his brother in law told him that the accused had been mentally unound a month prior to the killing. The inspector himself told the court that he found the accused to be mentally abnormal when he interrogated him 0 We also have the et,idence of the specialist psychiatrist that in his opinion "the accused was of unsound mind at the material time and that he had been mentally ill quite sometime prior to the murder." That the accused was insane in the medical sense of the term at the material time and that he had been so insane for sometime before he killed his WifE: I have no doubt at all. But to relieve an • 0 .0 0 00 • 13 . accused from Criminal responsibility it must be shown by the defence on a balance of probabilities that the accused was at the time he committed the offence legally insane within the rules of McNaughton's case s This is to say that the defence must show on a balance of probabilities that at the time the aacsëd kiiied I,-is Wife he did not know what he was doing or if he knew what he was doing he did not know that It was wrong. The killing of the deceaed by her husband is totally unexplained and in my opinion inexpleble expect upon the basis that at the time of the killing the accused did not know what he was doing Such a brutal and vicious attack without rhyme Or reason is only consistent with a twisted mind 0 With respect to the learned state attorney it is my view that the accused was insane in the legal sense of the term when he attacked and killed his wifee I accordingly make a special finding underedtion 168(1) of the Criminal Procedure Code that the accused MAKALA S/O LYANGA did murder his wife NSUMBU D/O KITUNDU as charged but by reason of his insanity as aforesaid is not guilty of the offene It is ordered that the record of these proceedings or certified copy thereof be submitted to the Second Vice—President as Minister for Justice, and in the meantime the accused is to be kept in custody at Isanga Mental Institution, Dodoma as a Criminal Lunatic 0 cJ SINGIDA N0S. NA4S 6/6/74 JUD6- Lushagara for the Republic Mbezi for the Accused0