19860326 TZCA Dar es Salaam 3 1

/ / / IN THE COURT OF APPEAL OF T,.;.NZANIA CORAM: ·NYALALI, C.J.; MUSTAFA, J~A. And MAKAME, J.Ao CRIMINAL APPEAL NO. 27 OF. 1984 VERSUS THE_ REPUBLIC ........... .,.·., •••••••• o RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dodoma) (Maina ,, J.) · dated the 8th day of May, 1984 in Criminal Sessions Case No. 55 of 1982 JUDGMENT Op THE COURT MAKAME, J.A.: The appellant AWIHAMBI LUIVIAMBO was, a· grandfather j..rl th a menage of four wives and seventeen childi;en. He got hirn~lf involved with P .. W,.1 MSEYI SIMANGO, a Std. VI pupii, as a ·r?.sult of which P. W. 1 bore hJ_:n a chi.ld~ e.. baby-girl called SECHt. Seche was -only eight months old when she got killed .in the pre$ence of her two parents.· Following his trial by ·the High Court dttirig at Dodoma _(Maina, J.), the child's father, the appeilant,- was found guilty of murdering the little girl and was consequently sentenced to suffer death by hanging. He is appealin9 t~ this court and is being represented by Mr. Raithatha, learnect counselo On behalf of the respondent Republic Mr. Safari, learned State Attorney, is resisting the appeal. In his own Memorar.dum of Appeal the appellant urged that the killing wa,s in fact accidental and that P.W.1 was influenced into testifying falsely against him. In his supplementary ~e~orandum Mr. Raithatha urged that the learned trial judge erred i~ not ' inquiring into the issue of the appellant's insanity, frnd he argued the point before us. 2 The evidence adduced at the trial showed that the.appellant and PoWo1 were v~ry fond cf ~ach other and that the appellant dearly loved the deceased. It also showed that the appellant was a placid person of even disposition .. Mr. Raithatha urged that'iri ·view of that and in the absence of motive the )cil'ling was inex.plicable and P.W.1's credibility should have been considered more carefully. The trial court.should have delved into the possibility that the appellant was temporarily· insane and Mr. Raithatha drew our ;attention to some portions of the testimony of, P.Wo2 MOSES LIB~\N&GA, at the material time the CCM Branch Secretary of Ndurugumi Village, Mpwapwa District, where the death occuredo P.W.2 said: "People were pouring water on accused till ~e resumed consciou.snesso I asked if he recognized me.. He said ~e did., I asked what he did but he said'that all he · rf:!rnembered was ·that some people were gr.abbing the deceased from him and that he threw tne deceased under · a bed to save the child from death., ! told him that. the child had died". And "PoW.1 Mseyi said that: t:-1ere was no quarl'.'el between her and the eccusedo I thought thG accu~ed was confused mentaliy when he did the act and so I sent him to Police Station"., Only the appellant and P .. W.,1 were present \;hen the child got killed. We respectifully ag~ee with Mro Raithatha that the evidence was that the appellant and P.We1 ware On such · good termso It is for the same reason that we, on Our part, cannot imagine why P.W.1 should went to testify falsely against -n her child's father and a man she obviously love(.,, We are _unable to accept the appe~lant's contention that PoWo1 was persua~ed to lie again;t himo We note, on the other hand, t:-1at P.W.1 was quite fair· and she said a. lot of good things about tho(', ~ppellant that he had always been good to her and ·that he ver," much .loved the childa We are satisfied, as was the learned trial judge': that P.w.1 was a witn8ss of truth. According to PnW.1, who was still livi~1g in her parent's hOmestead, the appellant was visiting her tr.,at fatE;!ful afternoon • • (I O O O O .. , / 3 •. 3 ' - He told her he was going into the house she was occupying and .when she went there she fotuid that he -had 16cked himself ih. He opqned for her and followed her into the bedroom where he asked her if she loved him ... She told him she did, whereupon the deceased an:1ounced that he woul_d kill the child. and then commit suicideo 1?.W.1 asked him why he would want to do that, but_the abpellant,merely repeated what h,; had said;, P.W.1 tried to run . a~ay nut the appellant caught up. wi.th her, felled her down, slapped ihet:-~ and grabbed th~- child from her. Then, 11 '1he accused ·held the 'deceased's arm and one leg and he hit the deceased on a bed leg :twiceo The deceased cried out only once and then kept quiet. I ran away from the house and I raised alarm". When people went to the house in answer to l?.W.t's cries they found that the door had been secured from insideo TheyJ¥oke it open and found th8 appellant dangling from a rope. The little girl's dead body was under a bed~ In his evidence in court the appellant gave a significantly that different version. He saidLwhen PoW.1 found him in the house she made the fire arid then said she was going back t( a local dance which was going on in the village and where she had been. He called her to the bed, to talk to her, but instead she walked past him a'nd wanted to go out. He grabbed the kh~nga P.W.1 was using to carry the deceased on her back .. The khanga gave, and the child : fell Off, hitting her head on the leg of the beda The deceased bled from the nose and died in the appellant's arms. When he found this the appellant became so sad that he decided to end his lifeo He tied a rope on the beam of the house and hanged himself. He did n)t know what else happened until he regained consciousness, later during the night. As we have said, we find P.W.1's version credible and it was the one accepted by the trial court. ~oing by it, the appellant announced-before hand, despite P.W.1 1 s assurance that she still loved him, that he would kill the dE.ceased and then kill himself., So he had made the decision. The medical report, •••ea•a/4. i ..-- 4 that the deceased's skull had sustained two fractures, would seem to support P oW .1 1 s assertion tha_t the appellant hit the deceased' s head twice on the head, and· tend to disprove the appellant's version. of accidental fall. Bashing a little child's head so violently can only have been intended to cause death-or grievous bodily harm. Mr. Raithatha has canvassed the idea that the question of the appellant's mental condition should have beert gone into . . .J- in view of P.W~2's evidence above quoted. As Mr. Safat:'i rightly pointed out, that evidence was the only suggestion on record that the appellant was insaneo However }1r. Safari eventually conceded that the learned trial juQge should have referred the appelLant to a Mental Hospital. The relevant section,in the Criminal Procedure Code would be Section 168A, _besause/~tr~vidence was given of _the· appellant's ii:1sanity for it to come under Section 168(1). Und,fr the said section 168A, the trial c~urt MAY adjourn the proceedings and orde~ detention in a mental hospital for medical examination, but only if it appears to the court that t~e person charged may have been insaneo The learned trial judge directed his mind on the matter and remarked: "The accused does not raise the defence of insanity and I found no evidence that he was in any way insane"..-' so the position here is that it is on record that it did not appear to the judge that the appellant may hav~ been-insane etco What both learned counsel are ur4Jing us,- in tl,!ffect, is to hold that it should have appeared to the learned trial judge that the appellant may have be~n insaneo With respect, iwe dO not think we have enough material on record that would eompel us to hold soo The scanty assertion by P.W.2 was no necessary evidence to make it appear to the trial court that the appell.ant may have been insane etc. This man was recovering from an un.successful attempt to kill himself and he might have been having hallucination after his stupor. On the other hand he might have tt.ished to say •Ooooooa/5. 5 something to prepare the ground for his future defenceo We dO not know •. What we do know is that we are not entitled, ·in the , circumstances, to fault th·e fact that it did not appear to the ·trial court that the appellant may have been insane., We·are also·aware that the learned trial court did not put'the issue of insanity to the gentlemen assessors .. - Insanity was not . raised by the Defence, and the learned trial judge found. no evidence of insanity at·all. Mr., Raithatha wondered why the appellant sh.ould · have decided to kill his little girl .. We may wonder also but then, "Wonders ·are many, but the greatest of them all is Man"~ The conviction of the appellant was in our view soUnd, on the evidence, and so we dismiss the appeal. DATED at DAR ES SALAAM this 26th day of March, 1986. Fo Lo NYALALI CHIEF JUSTICE A.· MUSTAFA JUSTICE Op APPEAL L. M.. MAKAME JYSTICE OF APPiAL I certify that this is a true copy of. the Original. REGISTRAR COURT OF APPEAL OF TANZANIA~