19780505 TZHC Iringa

- 23 - )-/ IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGIN.\L JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO.143 OF 1976 THE REPUBLIC IIff.iSIi ESTA D/O SEKIBAHO MU R DE Rc/s 196 of the Penal Code. J U D G M E N T CHIPETA The. accused in this case, Esta d/o Sekibaho, stands char -joG with the offence of siurder c/s 196 of the Penal Code. The Republic has alleged that on or about 10th November, 1975, the accused murdered one Lupumuko s/o bson. The ac:ucecl denied the charge. The evidence of the orosecution is that the accused morri-.d on-c Abson Luhoneko (P,N.I) sometime in 1969. After some tim. P 0 W.1 left his village to go and look 10 for , employment in Tanga. When he returned to the village in March, 1975, he f c-un the accused pregnant. He then reported the matter to a :c-n—coll leader one Mwema (P.W..6). When POW.6 and other elders asked her as to who had made her pregnant, the accused named ne Ibrahirn, who is a young brother of P.W. 1. When Ibrahim was askd about it, he den led the accused's allegation. The alders then decided that they should wait till the accused delivered so thet they could s e whom the child 20 would resemble. Oi 30/7/75, the accused gave birth to a male child who was ncu-ecd Lupumuko, the deceased in this case0. It was later decided that on or about 10th November,, 1975 the elders would see the child so as to resolve the issue of paternity of the child. However, on 9th November, 1975, the accused disappeared from the village with the child. She ilien conic to Irinqa township, this time without the child, 30 and tek up a job as a house maid of one Mwatanqa d/o Athumani (p,W,4) According to P.W,4, the accused at the time was very wak nd had sev'ral scars on her back whIch suggested that she had b en b.sten, Otherwise she looked normal. On 27/12/75, P 0 w,1 located the accused in Irinqa township. When he asked hr as to where the child was, she said that she would explain at the police station. So P.w.1 took her to police station. On 5/1/76, the accused led the police and other 40 pec;plc: tea river called Mgega where she said she had killed the child and thown his body into the river, ' At that point she showed them rocks aainst which she had twice bunqed the child by h oli a rj his legs. - 24 - The police and villagers tried to look fur the dcccl body but could not finJ it as there was a lot of water. The dad body has never b :efl found to-date. On 21/4/76, the accused made an extra-judicial satro tL: a justice of the p cce, one Joshua Kisiku (p0w,3). In th::t statement the accused said that while h'r husband was away she was made pregnant by her brother-in-law. After the child was burn h. r brother-in-law denied paternity of the child and 1isappare. from the village0 10 Thereafter P,W,l used to b-at h r from time to time. Sc) t.n: she escaped frm the village with the child and slept in ;h. bush. Next -iay sh reached Mgega river0 She then took the child and bunqed him against rocks twice, end the child died. After killing the child she was so annoyed that she Jeciled not to return to h ;r husband. She then came to Irinqa where oh. was employed as a house maid. A month later a p.'rson from h - r home disc(-;v-lrt--,,l h- r 20 in I"iiemboni area in Iringa township, and as he noticed that she di1 not hovc; thu child, he s-nt a report to h :r home0 Then h ir husband njd one Peter Mabiki came an.l arrested her and took harte ac-lice station, In her unsworn statement before this Ccurt the accused gave almost the same statement as what is in her extra- judicial stateoent. She siJ thit she married her husband in 1969. They lived tog.ther till December, 1970, when he disappeared laving ii :r with a pregnancy of three months0 30 She gave birth to a child whom she alone managed to bring up. She had to f-2flç1 .ur herself as hr husband was not sending h .r any money. Later h -r moth. r-in-law discovered that the accused waspregnTnt and they Were in bad terms. Her moth'r-in-law then wrote to h:r sc•n, In March, 1975 9 h-er husband returned to the village 40 and fcund h.dr with a pregnancy of five months. When a ten cell leader ash :d the accused if she was pregnant, she admitted that she was pregnant, and named Ibrahim, her brother-in-law, as the pars •n who ma1e h r pregnant. But when Ibrahim was asked hadni:.a1 th-: allegation. The ten-cell leader then decided to wait till she delivered. The accused went c-n to say that sh and her husband us ;d to quarrel and fight very often, and after she delivered her husban us-el to be at h - r very often. At one stage he assaulted 50 her s badly that she had toqo to hospital and later reported to a tan-call leader who, however, said that he was nut her ten- cell 1 a tir an-ri so referred her to one Essau. Essau told her to wait till their relatives came to SeC whom the child resembled. But ':h - rlatives of her husband never came. Meanwhile her husband c.ntinuad to be angry and used to heat h-pr everyday, and used ic say that he did not want that child. One day, he h .dat h rr up very much. So she left the village ;;ith the child at a bout 3.00 p.m. nd a slept in the bush, 60 In the bush she fed the child and washed it. Then she slept. When sh woke up, she took the child and bunqed it against rocks and so ki1ld him. She then threw him into the water. Sic decide1 not to go to her relatives. She caught a end come to Iringa. Then some woman at Miombuni area employed her. - 25 - After ono month sh. sent word to her home to say that h was at Irinqa 0 Then h r husband ml a ten-cell 1 :air cdll..:J Pd..r Mabikj came and took her to police station0 When they ask.d ht:r where the child ws, she told them that she had killed him0 Then they took her to Malan'jali where she went to show thrn th scane When the accused was first brought bfore this Court, 10 ea :h.. application of th defence, the accus:±d was committed to Isnnja Institution fcr examination as to her mental con lition. The psychiatrist's report was tendethd in evidence by the ef;nc.. The psy hi etr i s t s report states that on admission th accued was co-operetive and attentive, and talked rationally andre1vently. The psychaiatrist observed that from her hist'ryth re was possibility that she hed gross stress which l::J to duprssi a0 In his opinion, the fact that she was made pregnant by hr br thor-in-law, Sand as her husband used to beat her, 20 these tnditicns were enought to cause her depressive illness0' The psqchiatrist concludes 'his report by saying that in0 his Opiniifl the .accued was of unsound mind at the time she commi'te the off nca. In his final submission, the learned state attorney suhmittd thet the accus ki11Ll the deceasc;1 with malice afcroth.urht and that this should be inferredfrom the fact that she agr .S t' have lft he husband and that on, the Way she not ' 30 only ki1id th child but 'lisposei of the body by throwing it intc,a nv r 0 In his submission, the defence cannot be h'ard to say ':h t. the accused was insane at the time because, except for the :;j.inion of the psychiatrist. which is net binding, there is no ovi coce that the accuse:.i was ever insan since all those whc knaw h .r said that She his n•ver h en of uns.und mind0 He a 7Jod th0t what she said t0 the justice of the peace and in this Court clearly showed that she knew exactly what she was.. doinq. Sb narrated everything in great detail, and when' sho came t: Ininga she startJ working nermal.y, thuYs. showing that . 40 she kn,.ni what she was doing and that she was doing wrong 0 In the learned stateattorney's submission, her defnce was na mo::u than that she acted under an angry impulse which is no ras n fur committing homicide0 In his final submission the 1- arned counsel f.r the dafcnc submitted,that the killing was not with malice afoe- th.u.bt0 In his submission, the opinion of an expert must not be lightly ignored. I,aarnel cc.unsel alded tht the fact that 50 she sl::.pt in the bUsh', that she fed and washed hr child hef Ore su...;denly hung i,ng him against rocks; and that she never reported the mett'r to authrities; and in vi.w of the psychiatrist's report, it is abundantly cl'ar that she was incapable of under- stendin;what she was doing or o kncwinq that she ought net to 0 kill hr child0 As in the course of the trial one of the two assessors h.rself, and So the trial proceede.i with the aid of one ass..sr:r, Isumrned up the case to the remaining assessor. 60 Th gentleman assessor. found that the accs.ed was not of uns"uri.1 mind, and that sh.: killed the child with malice afure- thouqht. Thc gntle,man assessor said that he had formed that opinion hoc aus Lb accused had narrated everything th at happened without fcrd:tin anything0 If she hal ben insane, he said, she could not hey r.mombered sc much, and in his view, .h;r ci 'niluct contradicts Lhe psychiatrist's rpoLt H also observ:&d that even h :r mbloyor foun.J her to be normal. -26- As conceded by both sides, there is no dispute that a child by the name of Lupumuko 5/0 Abofl is dead, an.i that the accu:ed is the person who killed him. What is in dispute is whethr the accused killed the deceased with malice af ore- thou'ht, or she 'lid so at a time when she was of sucl" unsound mind as not to understand what she was ding or that what she wes eLlng was wrLng. As cLndeded by both sides, where an accu';ed prscn sets up a defence of insanity, he must establish that defence io cr a balance of probabilities. This, however, does not mean that the burden of proof that lies on the prosecution is thereby any the less0 The. prosecution still has the duty to prove every ingradient of the offence beyond reasonable doubt0 On the evidence before me, I am prepared to accept the stry of the accused that Absofl, her husband, was very angry with her dishonesty and that he often severely assaulted her. Her t:stimony on this point is borne out by the evidence of Mwatflgn Athumani who said that she saw several scars 'on the 20 back of the accuieci. I, therefore, cannot accept ASOfl'S protes'Laticn of innocence on this point. The conduct of her husbnd towards her, the fct that her brthr-in-law denied responsIbility for her pregnancy and the fact that 'the thatter drage:l on for months without being resolved, I am satisfied, must have caused her great stress and depression. I, theref era, respectfully agree with the 1,syc'hiatrist'S observation that the circumstances caused the accused gross stress and deressive feeling. 30 But that alone does n,'t necessarily mean that she -. was insane at the material tiIm?. One must go further and examine the evidence closely. - As Lbserved by the learned state attorney an-I the gentleman assessor, the accused recounted the events both in this Court and in her extra-judicial statement in chronological order, and in some cases sh-.. gave th days of,the week, the dates and the bLur. In my view, this clearly shows that at all 40 maLarial times the accused never lost her memory. All' the withesses say that she behaved normally. The psychi.atriSt himself says that on admission to Isanga Institution she was /and co-oiY.rotive, attentiv,/ratioflal and relevant in talking. Frcm this evidence I am in no doubt at all that at all material times the accused knew what she was doing and where she was. That however, is not the ntI of the matter. As was 50 pointo.i ut by learned counsel for the defence, insanity under section 13 of the Penal Cuie has two legs. The first is a situation whore the accused does an act cr.omitstc- do an act at a time when, as a result of some disease affecting his mind, he is incapcic of understanding what he is cluing. The second leg is 'ehera the act is done or c-mission made when, as a result of some dis.asa a:Efat.ing his mind, he is-incapable of knowing that he ought nc-i to .."o the act or make the omission. Frm my finding that at all material times the accused 60 knew and understood what she was doing, she cannot be said to have hen of unsound mind in the first sense of the term insanity. The qu stien now is whether the accused was insane in the second sense of the term, that is, whether, the accused was, thrugh some disease affecting her mind, incapable, of knowing that she ought not to kill her child, The general opinion of th psychiatrist is: that she was of uns und mini at the tim sh dii the act. The opninions of all hc's:.; who knew h.r well is that thd accused was never insan.: e.n. th t at no irn_ ii she act like an insane perSdn. Now, the up±niuns of experts are not binding on a court of l ie: is called uun to decide the question of the exisLnce or n.n-existance c.f a particular fact, such as the S1t.': mind of a particular p."rs. n at a given time. However, aro co::'.ctly pointed out by 1 :,arn d. lefenc,2 counsel, the opinion io of an exp mt must always be given the highest respect possible. For my port, far be it frL.m mc to disregard the opinion of an exart ;:.thLut cogent reas. ns, With that in view, I now iroce.:l to c(,nsidOr the cvi .ne t.uching upon th4 question wheth-r, at the time she kill.: 'i h .r own, chili, th: accusd was, through some disease affectie.! h r mini ,incapab1e of knc;.wing that she ought not to 20 It has b en submittoi by the defence th t the fact that she slept in the bush and th.:n fed ani washed her chiLl before suddenly bunging him acainst rocks indicated th .t the accused never kill the child an that sh did not know that she ought n..... . kill the chill. With respct, I do not think that that or people al.n establishes th'• fact of insanity. It is not unusuaiLor who are dr.:ss t.. iisappar and- l.p in the bush. Equally, it is angjy not unc im..n for murders t ponder, over their victims fate b.efo::o oo:'ceeding to kill them. . . 30 It was also submitted by the defence that the fact that r.;h ios indifferent end :lii not report to the authoritieè go tc in.icate that th' accused did not understand what she WOS d..inç •r know that .sh.ught not ,to :lo it. Aqfl, and with resp..ct, I disagr-e. It is not quite 'true that the, accused ws in•.lidfrent. Havinq killed the child sh' did not lav the dead h.ly there0 She proceeded to dispose of it by throwing..i.t intcthT; river, . And thet is rn t all . having thrown the dead. body ie'cc The river, she ma.le two dCcisicns: thefirst was not to go te her relatives or return to her husbani. The'se'nd was EE to catch abUs and come to Iringa town - a place tens of miles away fr' n her home, - Surely that cannot be said to he' .evidence of indifference It is the c nduct of a person whoP is on the run in a bid 'Co escape; the c.niuct of a person with a guilty mind Indeed, her failure to report to authorities also infere- ntially tends to in.licate that she hal a guilty conscience and did not want to own up at that time. She would not even tell her empicyar when asked as to how she got th scars on her 'back. 50 On a full consideration of all the evidence on .ecord I am in no doubt at all that dt the time thC accused killed her child she was quite capable of knowing and' did know that she ought nut to kill thchild 'I, thereforC,with respect, cannot accept the bare opinion of thepsychi atrist that the accus.d was of unsound mind at the time she did the act. All the ovidenac: points to the fact that she was sane at the time. Fof these reasns, en:1 with respect to the defence, all I hold that the defence of insanity has nut h.en established - let alone on a balance of probabilities. I 'am satisfied on the evidenc.: that the accused 'killed the chili. SO as to ri.l herself of th:.'.t cancet' that had virtually ruined her marriage and btought her suffering. The killing, it is plain, Was don under an angry impulse, That does not excuse the dommission of a homicide in the abs...nce of legal provocatIon. - 28 - 1 • • On these grounds, I respectfully agree with tiie gentlman assessor that the killing was with malice af era- thourht. I accordingly hold that the rosecuticn has proved its ca;-a beyond reasonable doubt. I, therefore, find the accused guilty of the offence of murder as charged, and duly convic$. hor forthwith, / B. D HIPET .L C' * JUDGE Delivered in open cou5,t at Irinqa this 5th day of May 1978. B. D. CHIPETA JUDGE Mr. Msechu: My Lord, I have nothing to say. 22 Mr. Makingwe: I have nothing tdd sy, '1y Lord, Accus.o.: I have a child at home who is all alone0 My parents depm.i a me. I have two young sisters who are at school and I had to support them h:cause my parents are very o]th I have ben in reiian1, custody fbr noarly three years. :( That is all. // B. D. CWIPETA 5/5/78 JUDGE SENTENCE: You, Esta d/o Sekibaho, stand convicted of this very serious ofonce for which there is but only one penalty, and that is death. I accordingly .setence you to death, and you shall sufif or doath by hanging. - / B 'Di, CHIPEA 5/5/78 JUDGE Right of Appeal explained. B. • CHI1ETA! 5/5/78 JUDGE Gentleman Assessor(s) thanked and discharqed B ? , CdPET\ F. 5/5/78 JUDGE -.