19990421 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA ORIGINAL JURISDICTION (Arusha Registry) CRIMINAL SESSI_ON CI\.SE No.14/1994 THE REPUBLIC verl?,US JOEL DAVID@ KIDIKA ••• ACCUSED ·,:.'i J U D G M N.M. MUSHI, JUDGE: The accused, Joel David Kidika, .- .....stands charged with the offence , of murder c/s 196 of the Penal Code. The particulars are that the .!.. i:1~· _..,·: . ,_;~ • ' ,, ·•:;_ - . . accused person on 'or abou_t 20th of May, 1993 at Sekei f'.rea in f~rusha ~ . . I' • . District murdered one s'ioni w)o. Da;,id~-, , . . ' . .. . :.· ... ·t.' .·. There is no dispute • a~:, all _! :· that ,. the deceased, Sioni w/o David, was murdered-. According to the po~t mortem exa.m_inp.tion report wfu.ich ... .. . •. . .. ~ ~ .. _._ was tendered· as exhibit P.l., _the body of the deceased had three stub wounds. She had a woULd on the chest, abdomen ar..d on the neck severing the carotid artery. All the three stab wounds were fatal as they led to toreential, as described by the do~tor, ble~ding. The deceased 1 died instailltly as stat·ed by PW~l- Mag:ceth Davif:I 'K:idika, The ~ccuse~, Jqel s/o ?avid, admitted to have caused the death of the deceased who was his motlH~ro '.l'he accused however stated that he committed the'' act wh'en he was 0f i.::iirnur.d mI11d, . Mr. Mwaluko, learned advocate for the··•accused', ·n'otified. the court: that the accused would raise the defence of :insanity.-!3-p pis defencre.;_ · Mr. Mwaluko, further· told the· court'that, ·;i'e;cused had been referred to Isgnga Institution under Section 220(1.) ·of'c. i.A. for psychiasitric examination- an_d a med,ical· report has been m~de in respect with the mental condition of the accused at the time he·· c6mmitted the offenceo The .learned counsel prayed that 'the hi'edicarrepbrt :be'·iitdmitted as evidence. The report· was. accordingly: admitted-'under· Section 220(2) of Criminal ,. Procedure ·Act. ' Mr. Masa'ra,. learned State· .td:torrt~y did not object to :. ;.. .) 1 ' ·.) • the admissibri · of tlie medit:al report. The·' corit~nts of the report shall be referred to latero ••• 2// 2 -: The prosecution called only one_ w:i;'t'h~ss who is Marg:reth David ,:'.\..!. Kidika - PW .1. 'rhis witness who is a si~t er,,of · the ·;c·cused, _ d>old ' • • ., --•·• I .• the court that ori :the\nate~ial day she ~9- gone to asL~t. he,r mother, ·1-; the deceased·, ~ho was sick. This witness said that she fouhd th~ accused at the ple.G..e. In part, J>W.l stateq, and I quote: f. fa- · -~· : · · ' ~.. l 11 On that day ti1'e I accused ~as_ f:alltrng to the deceased telling :; her: • 4i, My mother repiied; 0 Niache mwanangu naumwa. Tena kani_nunulie dawa:~ 11 ~~ ,;.\ .,~ The nccused said; 11 Subiri tutakwenda Mbinguni kuna dawa nzurill _I was very close when the accused was talking to the deceased.· I told the accused not to dlsturb his mother but-the accused said to me: 11 Hape. ndiko kviakc,7 ondoka'11. My mother asked me to· make some tec:.. for her l.:>ecause her. heart was beating very fast. I went in to the hous-2: &nd the accused followed l ~ me ahd said to me: ~: . ..., ·.:- '1, ~ ·, '1 Unawa6iia wale mashetani wanaonis•.1hibua. v{ c,:. I did not sec anything. The accused ·\:;:i-h~ct back and went out and fo;l.lowed his mother. After few minutes ·i \,ias -::alled out". t .. • ., PWl told the court that when she went out srie found the a'qcused pulling out a knife from the neck c!: n~i:: ··r<::~·c)p,.scJ~ She then . ,said •:• that . she held the deceased while raising alarm' ana neighbours respo_nderl. . :\ccording to PW 1, the deceased _died instantly. After the act, the ac.cused ran away. According to Ptn the at:cused had moved from the,. family:" house for no apparent reasoh e.nd went to live at Unga Ltd • . _ The witness !further .,.L .. told the court that the accused was a .sickly person and often fell un-''. conscious arid he was not · in good terms with ·anybody in !.~e .family. It ·.,, . was the opinion of PW 1 that on the materiel day the accused was mentally disturbed. ' ••... 3//- ,· . :- . 3 -: As stated earlier on, PW l was the only prosecution witness ca;l.l~d. 'After that evidence, Mr. Mwaluko:, the learned defence counsel told the court that the accused would not _say anything else in his defence apart :,.;. from what he had stated in his plea and the report from Isanga Isanga .~, r -I'risti tutio"'. The medical report whi~h _'jlas tendered under section 220(2) of Criminal Procedure ii.ct, and. whi_ch is signed by Consultant Psychiatrist Incharge of Isanga Institution, -concludes that the accused was insane at the material time when he committed the offence • . In part, this is that the report states: if Conclusion; The defendant presents a pis~ure ·.of· :an indiu-idual who for so many years has been disturoed in perception, mood, th thinking _anq _J~_ehaviour·. He used to hear imag~nary ----. .voices (audUcrry' hallucinations) includin,g ~hose of his mother wh_ich terrified him that he was. already dead. From such imagina:ry voices he developed se'con;dary delu,<,,_ipns_ of. persectit'ion _( falser beliefs which could not. be correc-tecr by logic that h_e was·---·· tortured). On that basis he developed fear, anxiety and body sensations. He hated rr.ember3. of the family especially __________ his mother and decided. ~o-,guit frof,i°'hom-e. He came back after some years for reconcill.iation but,_he.never got relief. H1:;· · .. ___ t:'..:...-- kept feeling that he was being tor\;ured by his enemy, the mother. . ' He therefore suffe:r\~ct .~. r;reak from :ceality and in such '?- state; attacked an,l killed his vectim. · He was therefore suffering from a mental,_~Jsorder characterized by - intense, perceptional disturbar.ces (ha1lucination_9 ) and paranoid delusioris (false beliefs) in such a degree that he lost contact with·· .. re8.li ty. The concept of ·criminality and th<' a8tual impact his action had upon his victim was overwhelmed by the delusional thinking which deprived'him oi: the .. ability to conform his ....,. conduct to the reouirc>·,r.er..1i,s .r,: tbe J a.w. From the above findings I' am of lhe opini~•r?~-hi.at the accused was insane at the material time when he committed the alleged offence.· In the meantime he is sufferi~g frbm a chronic physcial illness such that he has markedly severaiy deterciorated. However he is mentally stable and therefore fit to enter plea. 11 • On summing up to the gentlemen assessors, they were of the unanimous opinion opinion that the accused was of unsound mind when he killed the deceasedo On careful examination of the evidence tendered in this case, i.e. the medical report whose finding I accept, the evidence of PW 1 which I accept as truthful, I am satisfied that the accused, Joel s/o David, caused the death of the deceased, Sioni w/o David, but he was insane so as not to be responsible for his action at the time he committed the offence. I therefore make a special finding to the effect that the accused committed the offence but by reason of his insanity, he is not guilty of the offence. I • 0 ••• 4// . ! -: .:.;,, I 1,herefore make a spe,cial finding ·',,to ~· the -· effect that the ;, . . ac'cused ; '. . co~mitted the off\~n.c,e Jmt, by r~a~o~· of his insanity, he is 'not guilty of the offenceo i,s ti1e; offence would iiave attractec'. dea:bn- sentence,,: in accordance with the :ptovi,siori of s~btion 219(3-)(a) of,C:t'i~inal · Procedure i~ct; the record ,.of the proceedings will be fo'rviard.ed to ..the Minister responsible for ,Legal_ ;\ffo.t_rs • and '-1.n the meaniihile the .., C' . accused shall be placed :ln custody as a ·criminal' Lunahco N.. M)~I jJJDGE ~ 21.4.1999 Date: 21~401999 Coram; N.M. Mushi 1 Judge Mr. Masar'a - .State J,ttorney for the Republic Mr. Mwaluko- Counsel from T.L.C. for the defence - Absent Accused;- J~~l David Kid:ika - present. i.ssessors: .1. Ham:i:s:i Rajabu 2. Ngururno Terno·a 3. 1',lb Haji Hamisi - Ab.sen-: Judgmen't read in open court.· \\ \ '"""' ------- N .M. M]JSH-r J_li"DGE Assessors discharged. JUDGE 21.4.1999 NMM/hj