19870731 TZHC Dar es Salaam

) ; ', . "\:'..,., ,..;. ...,.,. . a t ~ EG GALAAH o;TIGIHAL JUPJSDICTIOIT ( Dar eo Salaz-,m Regis try) CRIMINAL SESGJ:OHG CASE no.7/84 The Republic Versus NOI-IAMED I1HT3E0 JUDGEMENT l'1APIGAIJO 1 i!.• The accused Ivlohamed Mrisho ~s charged with the murder of his father Mrisho Forodha, contrary to section 196 of' the Penal Code. The incident uhich gave rise to the charge took place on 25/10/81 at Pi~go Chalinze in the 0istrict of' Bng2moyo of the Coa~t Region. The accused has pleaded not guilty to the charge. rl'here is sufficient evidence thet the accused stabbed VJ.ris-ho Forodha on the cheat on the aforementioned day. ThiG took place inside the house of' l'r.richo at Fing·o. Isack Mrisho(P~J1) was present nt the scene and he ~1.as. recounted before this Court what actually happened, and this is his story. The incident took place at wid-day. The accused called at the i:1or.1e of' M:risho and told the ui t:ness that he was cor:1ing from Dar es Salaam. He ~nked tiie witness whether his father was present and the witness replied in the af':firmative, adding that he was having a siesta inside the house. 'I'he accused then entered the house leaving the ;,-Ti tness o..::tside • Five minutes later the -ui tness heard. Zaina, the wi:fe of the said lfrisho t crying. The witness rushed into the house to investigate. He heard Zaina saying that the accused had killed r1is . .f'ather. He saw Mrisho standing up and then dropping to the floor. At the same tir.1e he saw the accused dashing :from the house and f'leeing. He examined Mrisho and he oboervecl a wound on the left side of his chest. Mris.ho wao bleeding profusely and he died within a short ti1~1e. The witness -examined the surroi.:nding.s and he saw a knife lying adja_cent the doer. He observed that· the l-J1if'e 11a.o smeared with blood. The wi tneoo then went to the ho1:1e of' Abdallah Mrisho (PU2), the other son of the deceased, to announce the death of the decec:ised. _I" 2 All that evidence is not in dinpute. Likewise medical evidence contained i:n exi1.ibi t P2 that IY'.irisho I s death was due to inteneral haer.10rrhac;e followine -the stab. I accept that evicence astrue. Tho accused has. met the charge by pleading insanity and r.r,:r. Euhula who defended hi1:1 has subi:1i tted th.at the acc~sed was, at the time of killin~ the deceaaed, suffering :from. a nental illness af'f'ec-ting hicr.1ind and that he was incapabable of understanding what he wns doing or of lrrrnwing tnat he ought not to do the act. In his evidence on affir~ation the accused told this court ti:wt he doec not recall ldlli:ng hio father and where he was on the day of the incident. He st~ted that he was formerly a locor.ioti ve dri ve-r-,·li th TAZJ.u-Ui... He said he left the employment i::.1. 1981 upon oeing taken mentally ill after he was atto.cked and bitten by a dog. Thereafter he uent to a place called Tumbi for tradi tio::,al treatr.1ent and thence to Huhirnbili Medical Centre where he was admitted in tne psychiatric ward for several mont:1s. He ,·rent homeon being discharged only to f;r.nd himself in police custody at the Bagamoyo Govern:-::ient hospital O It wao at that hoapital that he waa tolcl that he was being ouapected of killing his father. He added, for good measure, that lrisrequest f'or per□ission to go h01:1e to attend the funeral of the decensed wns refuoed by the police. The teatirnony of Abdallah Erisho (:i?~I2) supports the accuse.e's account in regard to his mental af'f'liction. According to i'... bdallah, the accuaed had been suffering from a raental illne □ s for two years before t~c incident~ Four months bef'ore the incident he had been taken to Muhimbili Medical Centre for trea traent • This ·,·ms after traditional treatr,1ent had failed. Abdallah has also told the Court that the accused had been kindly dispoaed to the deceased and he recalled oneoccasion -.:,,hen theacc·uoed car.1e ho1:,e and prc::.entGd a 10,000/= to the deceaoed. I I In conse~uence of the order of this Court dated 30/11/84 l the accuoed wao sent to the Isanga Institution for Medical I observ·a tion. Dr. Michael of tl:w t Institution has since written to the Court a report, exhibit DI, oaying that he doeG not subscribe to the view that the accused did not, b"low 11 tb.e nature and quality of what he was doing when he l:illed the deceased". • .• /3. J 1I11. his opinion the accused is a person of sound mind an.cl was of sound mind when he committed the offence. I understand tho doctor to baoe his opinion on two consi- deration! first, the violent behaviou~ of the accused appeared to him to be selective wi:::.icn he says is inconsistent of any k.nown psychotic confusiancl. state; secondly, the fact that the accused £led from the scene and. :i:1id hiDself soon, after the killing which he thinks is also incunsistent with such a nontal state. I respect tho opinion of Dr. I-hchael but I am fully aware that in the la Gt analyr3is the question whether the accused ,·1as of unsound mind or not r:mot be answered by this Court. As I charged the assesoors,· the conclusion of the d6ctor is a-mere opinion and is not binding on this Court. I direct myself, c1.s I did the assessors, that the que.stion of, insanity or otl1.erwiGe 1:mst be decided on the ·whole evidence available b~fore -this Court, including that furnished by the doctor; and the accused should succeed in his plea if upon conoi0eration of such evidence the court arriveo at the :finding that it in more,l-f likely than not that at the time of killing of the deceased the accused was leg8lly inscine i ._e • that through a dieease affecting his mind he uas incapable of understanding what he wac doing, or of k.'1.owing that he ou 6 ht not to do the act. The aosessors have a::.~:..~ived at exe.ctly such a finding and on the tohili ty of the evidence adduced be:fore this court I ai:i sa tiof'ied tho t the assessor.s are right• In the final event I find that the accused killed the de cased Nrisho Forodha • ·I find the t he was insane so as not to be recponsible for his action Gt t>e ti1:1e when the killing took place. By reason o:f his inoanity he is not guilty of the offence. A certi:fied copy of the record of the proceedincs shall be subi:1i tted tc, the I'1inister and in the rneanti □ e the accused shall be kept in custody as a crirainal lunatic. r Judgement delivered. Mr. Shio for the Republic -Mr. 3hio for £-'iuimla f'or the accused. ~~~- Accuned present. D. F. MAFIG.AlifO~ ·-JU:OG2 317·7/87