Criminal Sessions Case 33 of 2022 Special Finding Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL SESSION CASE NO, 33 OF 2022 (Originated from P.I No. 19/2021 in the District Court of Sumbawanga) REPUBLIC VERSUS EMMANUEL JOHN...,......................... ...................................... . ..ACCUSED SPECIAL FINDING 2C: June, 2024 MRISHA, J. The accused person in this case stands charged with an information of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022. It is alleged that on the 15th day of September, 2021 at Masolo Village within Nkasi District in Rukwa Region, the accused person whose name is Emmanuel John, murdered the deceased persons Nkamba Juma aged one (i) and half year and Giti Juma, also a child aged four (4) years old who were playing with their fellow children around their home, by attacking and beating them with a stick on different parts of their bodies. i Upon being called to plead to the said charged offence, the accused through the aid of Mr. Charles Kasuku, his learned advocate, raised a defence of insanity under section 219 (1) of the Criminal Procedure Act, Cap 20 R.E. 2019 (the CPA) [Now R.E. 2022]. That necessitated the court to make an order that the accused person be conveyed to Mental Hospital for medical examination, as per section 220 (1) of the CPA. The order was made on the 2nd day of August, 2022 by my learned brother Hon. Nd unguru, J. before the matter waslater reassigned to me. However, when the matter resumed on this 26th day of June, 2024, the prosecution Republic tendered a medical examination report which upon been read, reveals that at the time of the commission of an offence of murder of the abovenamed deceased persons, the accused person was insane. That was unveiled after a Plea of Not Guilty to the charged offence was entered and the said report admitted by the court as Exhibit Pi without any objection from the adversary side. From there, the court proceeded with the hearing of the case starting with the Preliminary Hearing and recording of evidence from the four (4) prosecution witnesses namely Washa Machungwa, Lucas Lubinza, Dr. Wilnard Msinjili and No. G. 6216 D/C Masunga who testified as PW1, PW2, PW3 and PW4 respectively. 2 The evidence of those witnesses clearly depicts that they have implicated the accused person herein as the only person who murdered the two deceased children named above by attacking and beating them with a stick on different parts of their bodies including their heads, thus causing serious wounds, skull fractures and blood stains which consequently led to their instant unnatural deaths. This is supported by the Postmortem Examination Reports tendered by PW3 and admitted into evidence collectively as Exhibit P2 which depicts that upon the autopsy been conducted on the bodies of the deceased persons, it was ascertained that the cause of the said deceased persons deaths was due to head injuries. Upon closure of the prosecution case, the defence side which was led by Mr. Kasuku, relied on Exhibit Pi and submitted that the said exhibit shows that at the time of the commission of an offence, or omission thereto, the accused person was of unsound mind (insane). Hence, it is their view that under such circumstances, the said accused person cannot be found as been guilty of such commission, but be dealt with in accordance with the provisions of section 219 (2)(a) and (b) of the CPA, read together with those of section 13: of the Penal Code. That was all from the defence side. 3 My careful examination of that document depicts that upon been medically examined by Dr. Enock Eteregho of Isanga Institution, the accused person was found to be insane at the time of the commission of the alleged offence. The foregoing persuades me to invoke the provisions of section 13 of the Penal Code which the defence counsel has urged the court to refer to in the course of making its special finding regarding the accused's fate. The said provision is to the effect that: "13. -(1) A person shall not be criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind- (a) incapable of understanding what he is doing; (b) incapable of appreciating that he ought not to do the act or omission; or (c) does not have control of the act or omission..." My understanding of the above provisions of the law is that as a general rule a person cannot be held criminally responsible for the act or omission if at the time of the commission of the act or omission, he was through any decease affecting his mind either incapable of 4 understanding what he was doing, he was incapable of appreciating that he: ought not to do the act or omission, or that he could not have control of the act or omission. To prove any of the above criteria, it is upon the accused person to lead sufficient evidence which justifies existence of insanity on the balance of probabilities (See Agnes Doris Liuridi v. The Republic [1980] T.L.R. 46, Majuto Samson v. The Republic, Criminal Appeal No. 61 of 2002 and Francis Siza Rwambo vs The Republic, Criminal Appeal No. 17 of 2019 (CAT at Dar es Salaam, unreported). In the latter case, the Court of Appeal stated that: "It is trite law that insanity being a matter of defence, the onus to establish it lies on the accused person" [Emphasis supplied] However, it is not every time the accused person will benefit from such kind of defence. This is especially where the accused though his mind might have been affected by the decease, such decease does not in fact produce upon his mind one or other of the effects referred to in subsection (1) of section 13, Penal Code. I am fortified in that position by the provisions of subsection (2) of section 13, Penal Code which is to the effect that: 5 "(2) A person may be criminally responsible for an act or omission although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects referred to in subsection (1) to that act or omission "[Emphasis supplied] Back to the present case, it is not in controversy that at the time of commission of the offence of murder which he stands charged before this court, the accused person Emmanuel John was insane. That is justified by the evidence of PW1, PW2 and PW4..whose evidence clearly shows that his conducts and capacity to respond to some normal questions, was not normal which suggests that he was insane. More so, there is the documentary evidence which is Exhibit Pt relied by the defence side which shows that the said accused person was insane during the time of committing the crime as the psychiatric history reveals that he used to attack people including the deceased persons whom he bit with a stick, without any apparent reasons. Such evidence also reveals that the said accused person upon been interviewed by medical experts of Isanga Institution, he seemed to show the features suggestive of a mental disorder, known as Catatonic Schizophrenia which impaired his reasoning. 6 Flowing from the above evidence, it is crystal clear that despite there been a proof that at the time of the commission of the offence of murder, the accused person was insane, yet he was suffering from a decease which affected his mind to the effect that he was incapable of understanding what he is doing, or appreciating that he ought hot to do the acts which consequently led to the demise of the abovenamed deceased persons. In the light of the above reasons, I am inclined to agree with the evidence of the defence counsel which was not disputed by the prosecution side regarding the insanity of the accused person Emmanuel John at the time of the commission of the offence of murder with which he stands charged before the court. Having found so, I make a special finding to the effect that the abovenamed accused person did the act charged, but by reason of his insanity, is not guilty of the offence. He should, however, be kept in Mental Health Hospital which is Isanga Institution, as a mental disordered offender. Meanwhile, the Officer In charge of the said Institution is directed to make a report to the Minister responsible for legal affairs of the condition, history and circumstances of such lunatic at the expiration of 7 a period of three years from the period of this court's order, as per section 219 (4) of the CPA. It is so ordered. 26.06.2024 DATED at SUMBAWANGA this 26th day of June, 2024. 26.06.2024 8