mwita wambura vs republic 1987 tzca 70 27 april 1987

IN THE COURT OF APPEAL OF TANZANIA AT K3EYA CORAM: MUSTAFA. J.A .i MAKAME, J.A. AND OMAR, J.A. APPELLANT Versus THE REPUBLIC ......... . RESPONDENT RESPQ! (Appeal from the conviction of The High Court of Tanzania at Mbeya) (Mroso, J.) dated 6th March, 1936 in Criminal Sessions Case No, 28 of 1981 J U D GM E N T OF THE COURT MUSTAFA. AS.~ C.J.. The appellant was convicted of murder and sentenced to death by ijhe High Court and he is appealing. The appellant was a serving soldier in the People’s Defence Forqes of Tanzania. On the material da/ a section commander was addressing a seqtion of troops concerning discipline. The appollanb and some other soldiers of his section were present. During the address the appellant rushed off and returned with a sub-machine gun and opened fire into the group. A citizen PW6 at the trial was shot in the lag:, and another persons PW7 at the -trial supptyrted PW<j about the indiscriminate shooting by the appellant* During the shooting the deceased was shot and died of his wounds. Appellant then ran off and spent the night with his girl friend who testified as PV72. The following morning PW2 told the appellant about a rogue soldier who had shot his comrades and killed ^ m fi Qolleague. Therefor it was alleged iiiiCi ap oellanti took out a gun he had hidden under the bed. The appellant was surrounded and arrested by the soldiers. He admitted the killing but said that ha was confusad when he shot and killed. He also alleged that one of the soldiers at -the discipline parade PW6 had called him a mpumbavu and that had provoked him into shooting indiscriminate!'/ into the crowd. Apparently the appellant was sent for observation by a psychi­ atrist specialist- at Isanga Hospital, but the report was not produced in c.ourt by either the Republic or the appellant as it did not assist the appellants claim. The trial judge considered the evidence and was satisfied that the appellant had killed with malice afterthought. He ruled out any provocation. The trial judge was satisfied that the appellant did not suffer from any disease of the mind as to amount to insanity^ In fact there was not the slightest evidence of insanity indicated^ It is well known that in a pleas based on insanity, an appellant has to showf on a balance of probability, that he is insane rather than sane. Here no evidence at all was adduced by the appellant to show that he was insane. Indeed the circumstances preceeding the shooting would show that the appellant was fully aware of what he had done and that it was an unlawful act. Despite Hr, I'wakilasa’s attempt before us, we are satisfied that the appellant was properly convicted as charged. The appeal is dismissed. DAT^D at LBT/A this 27th day of April, . 1987 A.K.A. OMAR JUSTICE OF APICAL I ^ertify that this is a true copy of the original. (J .II. K 3 0 F F 3 ) DEPUTY R'iG-ISTRAR