19891218 TZCA Mwanza

4 -~ ... J 1 lN TEE COURT OF APPEAL OF TD.'ZAIUA ! I t. (~1 AT MWANZA M!J{flMEt J.A. 1 OM/.R 1 J.A. 1 And MFALILA, J.A..) I CRJMINAL .APPEAL N0.124. OF 1989 BErliEEN KUL'lf.A. KIJJEMA. • • • • • • • • • .A.PPELLlu'Vr And. THE IlEPUllLIC. • • • • . • •. · •· •. • • • • • RESPONDENT (A;ppeal from the conviction of the High Court of Tanzania. at Tabora) {.cb.ipeta1 J it) · dated the 30th day. of l,!ay, 1989 in Criminal Sessions Case No.100 of 1985 'JUDGMENT OF THE COUR11 MAK:AME1 J .A. : At his trial in. the High Cou;rt sittpig at Tabora ( Cll.ipeta1 J.) it was common ground that the appellant killed his wife I-:In.!iICTm KIJL1lA at Sha.buluma Village in Shinya.nga District on 25th Febrluiry1 1984- The controversy was only over ·whether or not the killing was done. - i f, with malice a.fo2·ethought. The hose'cution oontended _that there was malice aforethour)it, whereas the appellant asserted that he mi.a :insane wlien he committed the deea.. The learned trial judge, after· a. careful review of and analysis of'"'t1ie evidence, agreed-with both his'assessors that the - t ~I . appellant was oompos mantis ldien he killed the deceased and so he •1 convicted the appellant of Mu;rder and· duly co_ndemned him to dea.th. In this aPi)eal before ·us the appeilant was advocated for by /. .. Mr. Rugarabamu, learned ·counsel,· while Ur. Dilaro, lea:t:ned Jta.te : •··. ·•· . . -.• Attorney, represented the responde~t Republic.in OPPosition of the J. appeal. .... . •,1 •• :-&.""':!".' --==-.-...:~•. ~..,..,,~.---=--,----· =-~~r..----~•~-----~---~ ~ i 2 .. Mr. Ruga.ra.bamu continu~d to press the defence that his client s, insane at the material time and that, 1:103:eov:_er., in tha.~ sto:.te of mind, the appellant ~s provoked by the presence of the deceased_ in the-a.ppellant 1 s room, in which the appellant was sleeping a.lone, so late at n~t. . There is on record evidence establishing that· some time prior to the 1.mhappy incident the appellan~ was afflicted by .some ment!U __., ·disea.s~, referred to a.a 'Chemba. Moyo•~· The Republic has conceded as much. Th_e testimony of Fw.1 ·SAM.AIU. K'ULWA, the a.ppelbnt I s . d.a.~erJ-that .·of tlie a.ppellant's--rieighbour, PW. 2 Jl'.lROJJ.. TLh.l.NY.A.i and . . ·. . . ... . the evidence of nw.1 l~vmmA. KULWA, the a.p:;_,ell~:-_• s so~j. went to show that the appellant was not well ment~ly. He ha4 ·been behaving . . abnormally and had to resort to a medicinema.ti for treatm011t before the incident. J.n the fatef'ul even~ the appellant· and the deceased retired to bed each in· his or her o~ ·room. Pl·T~ 1 was a.roused· from sleep by some cries in the •a.ppell~ts I room and when she went there s}ie. fol.l;lld . . . the appellant :pressing_ the deceased 88a,inst a pillar. She t~ied to intervene by pulling off the appellant but the latter pusb.e~ her off and said "Leave meJ I will kill you too11. Th~n .the appellant a.nd the ·1··' ' deceased rushed out of the house, and shortly afterwards i;he deceased . oolla.psed outside PH.2 1 s house and _died. She ha,d. stab -wounds. · • II PW.3 JIDAl-WEl NG 1lf.il&A was the Ward Secretiµ-y f_or the area at the material time. He told the trial Court that on 26th February, 1984, that is the ·morning immediately afte; the killing tll.e a.:;,pella.nt reported to him _that he had killed the de.ceased at Sha.buluba, ,ihioh is som~ ten )!liles from the- ifa.rd Off-ice. The appellant told ldm that ;,.> •• ·_•: ·•• 4 . . . . . . .. , . " . . :.. . he killed her because . she. had killed his child .and no1i' he had decided ~ to surrender hlmself to the Government bo~use he was be:i.11:-:: ,lool-:ed . \.," . l ;, •.1,.T·,; -3 -The appellant also added that he had to ~ al-iay and hide until .. , r -'. ;: There w.a.s also put in evidence a. 1•eport by a psychia.trist .,, lll:xh.P.2 aoco:.:-ding to llhiah the appellant wa~ sane whe~_he killed. r. - . )J::·· Another m_edical report,· a PF.3 filled fivo dn.:fs after tlle killing, . ' .' · · · psy,chopa.thiQ · · said that the appellant was . L · · · · . l11th delusional· icler.s T_.:'.~ r_-- "otherwise he is mentally ok'1. ;.~ ~ f ~. When called-uj)on to defend· himself the appellant, who of course {() I had an advocate, elected .to say noth¼-'l€• r~. <~ i Going by the evidence we a.re unable to agree with f~r. Ituearab_amu 1-lho urged us to fault the High Court decision. The ·1ea:rn0d tl•ial judge correctly directed himself on the lau regarding ~ accused - person's burde11 of proof where the defe:1ce ·put .forward is -that of. "' insanity-....Jli:th that in mind··he--looked at the evidence and xeaahed . . the oonolusion that at the material time the appellant wo.s not insane. When PW.1 tried to stop him from att~cking the daces.sad the appellant threatened to kill PW. 2 too, which means he knelt that _he . - ira.s killing the .deceased. He immediately- 1-rent into hiding, as he told PW.3, obvU>usly because_ he kne~_he. had something to hide f'r?m, · not quite :the conduct of an insane _person _who did not ~ol-; that . what he had· do_ne was wrong, and then _he trekked the tEm miles to PW.3 1 s office to make the report·the nature of which only goes.to I 1 oonfil.'m that he appreciated llhat he lu..d done. · The foregoing, coupled with the mediccl reports-referred to, ·make us agree uith the trial Court 'that the appellant failed to show, albei~ on a balance o°' probability thai; he was more likely 1 insane- tlimrsa.na a.t the materia:Ctime. ,...,, V 4 ,.. .. The lezxned judge went on, gra.tilitously "8.43. -it were, u.nd. -. oonsidereci the issue· ~f pr~voca.tion, · uhich ws not raised by the -· Defence. Ile obse~-ved that there',ra.s no ev-iderice·of·a q'Ua:l.'xel pri9r to people in the house going to bed, a.nd t!:e a.i:,pella.nt did not teU _P_W,] th3:~ he· had be~n ~o~~~ :r,~. Ruga.ra.bamu urged us to . . m. find that the mere presence of the deceasealthe a.ppellant•s~r~om · so late at night would ~ve pro~ed tb.e deoea.sea.. Then tl1ere was the quarrel over money the a.ppello.nt told the psycb.ic.tr_ist . . . •. Like th~: trial Court. we are not s:::.tisfied that a.bout ' . . there . n~. enough reliable material_ from which <to hold that the_ a.ppella.nt killed under lezaJ. provocation. The appellant had some )Dental probl0ra but in .our view, the- lea.rned 'tri~ ~ e was right in the cu·oumstanoes to hold .that the· appellant- was not insane within the meanina of the law. We aocordingly- dismiss the a.ppecl.. ..;. -- llATED at J\ffi4,N'7~ this 18th. day of Dec~mber, _.1989 • .. L. m. I.f2(1;I,ffil JU§'EICE OF' L.PPE/J.; A..M.-A. ONJ:R . JUSI' ICE OF AEPEAL _1.1a. :r.IT!'ALILA JU&rI<m OF Ju>Pm.L I certify that this is a. :true copy of the original., .J~?7 ;::{. :?JL (s•. s. k.U.r1.GE) .. ... - DEPl1l'Y Blil1Th'Tru.a . .I J ~----_.?J