19800929 TZHC Dodoma

I ~11 C_&M 48 IN THE I-hG-H COURT OF TANZANIA AT DODOMA ORIGINAL -JURISDICTION (Dodotna R c ist ry) CRIMINAL SESSIONS CASE No.27 OF 1976 THE REPUBLIC versus LEG-ANZO NYANJE / CHARGE: Murder: c/s.196 of the Penal Code. - JTJDGIvIENT 10 CHIPETA J. The accused person in this case, LEGANZO 5/0 NYMIJE., stands charged on three counts of murder c/s.196 of the Penal Code. The Republic has alleged that on or about 22nd October, 1974, the accused rnirdered one .iJINA d/o MJYENZI, one JENI d/o LEG.AITZO and one WILSON sb NAZJqGO. The accused has pleaded "not 7:uilty" to each of the three coun:s. The Republic has adduced the following evidence: the accused and the deceased aaa Muyeezi were, husband and wife go] and were residing at Nakutu7a village in Mpwapwa District. Their marriage was blessed with two children,, one of whom was the deceased Jeni Leganzo. The deceased Wilson Mazengo used to reside at-Lupota village, about 2 + miles from the accused's village. According to all the prosecution witnesses who knew the accused before the incidents, among whom are Pasckal (PW.3) who was the accused's ten-cell leader, Salum Chakupewa (W.4) who at one time also used to be the accused's ten-cell leader, and Mhihamo Salimo (PJ.5) who was the accused's 30 mother-in-law, the accused and his wife used to live a happy life and there had been no quarrel between them. The deceased Paa is said to have been of very good behaviour and had no love affairs with other men. r. 49 The accused himself is- said to have ben a vexr good man and had not quarrelled with any person. As far as these wit- nesses were aware, the accused was mentally sound and exhibited no symptoms of insanity. During the evening of 21st October, 1974, the accused was playing a musical instrument locally lmown as v r im ba at his house 9 "end he and his deceased wife were singing to the tune of the rimba", as they often used to do. -- In the small hours of the morning, that same night, asckal (P1.3), whose house was about 40 paces from that 10 of the accused, woke up and heard noises of a fire outside. When he want out to investiaate, he saw that the accused's iuse wasin flames and both its outer and inner doors were wide open. PiJ3 then went to call a neighbour and he and 'the neighbour cl]ed out to the occupants of the burning house, but no one came out. So Pi3 and his neighbour star.ed to raise an alarm. [any people came to the sceno.an.d tried to put out the fire. Their attempts, howevan, failed. The house was thus completely destroyed by the fire. 20 On searching through the ashes, they uncovered two dead bodies that of aa Nuyenzi and. her child Jeni Leganzo. Both dead bodies had cut wounds on the head and were badly mt. The accused, however, was not around. Meanwhile, at about that same hour, one Lehao Madeleniu (PW.7), who had spent the night at Wilson's house, left to go on safari. Wilson escorted him up to a water well, not far from his house, where he 1: etended to go and draw water. There Wilson and PW.7 bade each other farewell and-PW.7 left, 30 After walking a short distance, P117 met a short man whom he did not recognize. Afior exchanging greetings, the man said -that he was going to dpwapwa to'wn. Then the man asked PW.7. V To whom' were von talking?" I - I 50 When PW.7 replied that he had been talking to Wilson, the man told P4.7 to go ahead and thathe wanted to talk to Wilson. PW,7 then proceeded with his journey. But after walking a short distance, Pii.7 hard cries behind him. Fearing for Wilson's safe'ty, he rushed in the direction of the noise. A t the scene neLr the water well, he was joined by other people from Wilson's village who had also heard the cries. In the course of searching-around, they found Wilson lying dead with several cus all ovr the body and 10 was bleeding profusely. That very day, the accused surrendered himself at Mpwapwa police station where he rcportc;d that he had killed his wife, his daughter and a man called Wilson. He was immediately arrested by one Inspector Seif Bakari The accused then led P1.1 to various places connected with the killings. first, he lcd P1.1 to some place where he said he had hidden the axe which he used in killing the three victims. The axe was infact recovered from where he hadhidden it. This was 1-h- miles from the place 20 where Wilson's dead body was found. From there the accused led P11.1 to where he had attacked and killed the deceased Wilson. Thence he led PW.1 to his house where he showed Ff1.1 the dead bodies of his wife ard daughter whom he said he had killed by using the axe before he set the house on fire. On 24th October, 1974, th accused made an extra-judicial statement before a justice of the pce..ce. In that extra- judicial statement, the accused admitted that he was the person who had killed the three docoasd persons. In that 30 statement, the accused said th.t he had killed his wife because she was a harlot and that she used to have an affair with the deceased Wilson. The accused went on to say that his wife and Wilson had conspired to bewitch him and had in fact bewitched him, as a result of which he had a heart disease. He warned her on several occasions that she and Wilson would cause his death, but she did not mend her ways. 51 A few days later he noticed that he had a heart disease. He then went to a native doctor who confirmed to him that his wife and her boy-friend had bewitched him. He was then treated and got better, but the illness started again later. After she gave birth to a óhiid, he took her to her parents and told them that he had failed to manage her and that he was ill because of her. Then he went to Dodoa where he was given native 'medicine, and on his return home, his wife joined him. The accused w9nt on to tell the justide of the peace 10 that on two occasions he had caught her in the act and he warned her. One day, he asked her for so:mal intercourse, but she refused and was rude. So he boc.iae angry. At the crow of the cock, he picked up an axe, cu.; her and the child, set the house on fire and loft for Mpwapwa.: On the way he saw her boy-friend whom he also killed. The doctor who condicted post-mortem examinations on the bodies of the three deceased rorsons observed the- following the deceased Wilson had at least five cut 20 wounds on the head end at least two punctured wounds on the left shoulder., The deceased Anaa had acut woud on the right side of the head and the whole of her skin, fingers and toes we'ecompletely burnt. Likewise, the deceased Jenihad a cut woikd on the head and the entire skin, fingers and toes were completely burnt. In the doctor's opinion, Wilson died due to shock as a result of severe haemorrhage and trauma, while Anaa and Jeni died from the cut wounds and fire burns. - The accused was accordingly cherged. 30 At the request of the d3fOncc, the accused was referrdd to Isanga Institution for examiration as to his m- condition. In his unsworn statement in is defence, the accused said 52 "The tri.th is that I was sick. So I do not have many questions. I cannot reme- mber many things which hapene d. That is all". Dr. J.D.Mziray (DW.1), who was the person who examined, observed and treated the accused, for about 16 months,.was of the opinion that the accused is a psychotic person, and that most likely he was of unsond mind at the time he killed the deceased persons. From the foregoing evidence, and as both learned counsel 10 conceded, there is no dispute thet a woman by the name of Anaa Muyenji, a child by the name of Jeni Leganzo and a man by the name of Wilson Mazongo are dead that they died a vioent death, and that they died at the hands of the accused There can equally be no doubt that, all things being equal, the killings amounted to murder. What is seriously in dispute is whether the accused was of sound mind at the time he killed the deceased persons - as claimed by the Republic, or was of unsound mind at the time - as claimed by the defence. 20 After my summing up to the two gentlemen assessors, they were unanimously of the view th:;t at the time the accused killed the three victims, he was of unsound mind. Having seen and heard the eight prosecution witnesses, I am left in no doubt at all th .t they were witnesses. of truth, and so I accept their evidence. I, therefore, find as a fact that the accused and Iis wife wore happily married, that the accused's wife was faithful to him and that there had been no quarrel between them. If theze had been such misunderstandings between them, and if the accused did in 30 fact take his wife to her parents, as claimed by him in his extra-judicial statement, surely his ten-cell leader (PW.3) and his mother-in-law (P1.5) would have heard about it and would have said so in this Court. The acd's defence is that of insanity. As I under- stand the law, where an pefl pits up such a defence, he must establish such defence on a balance of probabilities. However, that does not moan that the prosecution is thereby relieved of its own burden: 53 the prosecution has still got the burden of proving its case beyond reasonable doubt. In his final submission, learned state attorney sub- mitted th t since the accused had no history of insanity and exhibited no symptoms of insa ity before the incidents, and since the act of burning the house and hiding the axe suggest that he was trying to destroy evidence, the accused nust have been of sound mind at the time he killed his victims. I agree that the evidence of the :crosocution witnesses does suggest th.t the accused was of sound mind before the incident. But that does not rule out the possibility that he was of unsound mind at the time when he did the acts. In my view, the prosecution's evidence must not be taken in isolation. The most revealing is the extra-judicial statement. We know that it is not true that the accused's wife was unfaithful to him. We know that it is not true that he once took her to her parents because she was unfaithful or because she had bewitched him. All the evidence also points to the fact that the child Jeni was sired by him and there was no question about the child having been sired by a person other than the accused. All these ±'acts indicate the mind of a man who has hallucinations and sees imaginary things. These are typical indications of a psychotic persons. For this there is full support in the opinion of the psychiatrist, and in the accused 1 s awn defence. For these reasons, I respec -bfully agree with the gentlemen aseessors that at the time the accesed hilled the three deceased persons, he was, by reason of some disease affecting his mind, incapable of knowing that he ought not to kill them. I accordingly hold that the accused killed the three deceased persons in circumstaecos t1t all things being equal, would have amounted to murder, but as he was insane at the time he committed these offences, under the provisions of section 168(1) of the Criminal Procedure Code, I hereby. make a special finding that by reason of his insanity, the accused is not guilty of any of the offonces with which he has been charged. B. D.CHIPTA JUDGE 54 ORDER aaa. sie provisions of section 168(2)(a) of the Criminal Procedure Codo it is hore1y ordered that the record of these proceodin.s or a certified copy thereof shall be submitted to the N:Lnistor 9 Me,Inwhile the accused shall be kept in custody as a criminal lunatic 0 B.,D CHIPETA JUDG-E Coram A Before Accused present.. JudE;ment delivered in open Court at Dodoma this 26th day of September. 1980 B.D.CHIR]TA JUDCTi Mr0 Karhush State Attorney for Republic. Mr., Chamiaka:o: Counsel for DefcacE, N Curttied true copy of the o:igira.l iI f ISTRICT REhhISTP DODOMA 91 IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPEAL No...... OF 1980 THE DIRECTOR OF PUBLIC IROSECUTIONS.............. APPELLANT versus LEGAZO NYAI\TJE . . . . . . . . RESPONDT (An appeal from the decision of the High Court of Tanzania at Dodoma, by his Lordship, JUSTICE B.D. CI-IIPITA dated 26th September, 1980 in Criminal Sessions case No.27 of 1976). NOTICE OP APPEAL TL4XE NOTICE that the Director of Public Prosecutions appeals to the Court of Appeal of Tanzania against the whole of the decision of the Honourable Mr. Justice B.D.Chipeta given at Dodoma on the 26th day of September, 1980 whereby the respondent was found not guilty of three counts of murder contrary to section 196 of the Penal Code, chapter 16 of the Laws of Tanzania, but a special finding under Section 168 of the Criminal Procedure Code was made. THE APPELLANT and/or a State Attorney on his behalf intends to appear during the hearing of the intended appeal and the appellant's address of service is: The State Attorney, P.s.. Box 963, BODOMA: Dated this twenty-seventh day of Septcber, 1980 S . Ahmed Kharbush ST.TE ATTORPEY TO: The Registrar of the High Court at Dodoma LODGED in the High Court af Tanzania at Dodoma on this 29th day of September, 1980 REGIS TRIJ