republic vs bakari ahmed fimbo 2023 tzhc 23810 7 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT PAR ES SALAAM CRIMINAL SESSION CASE NO. 257 OF 2019 REPUBLIC VERSUS BAKARI AHMED FIMBO JUDGMENT (Findings of the Court) S.M. MAGHIMBI, J: In this case, the accused person one Bakari Ahmed Fimbo was arraigned in court charged with the offence of Murder contrary to Section 196 and 197 of the Penal Code [Cap. 16 R.E 2019] (''the Penal Code"). He was accused of intentionally killing one Tumu Ahmed Fimbo, his biological sister on the 30th day of July, 2018 at Mkongola Village within Rufiji District in Coast Region. On the 23rd day of March, 2020 when the matter came for Preliminary Hearing, Ms. Dyness Simkoko, learned Counsel representing the accused person then, informed the Court that her client appears to be mentally sick. She therefore requested the court to send him to a Mental Hospital for Medical Examination under the provisions of Section 219(1)&(2) of the Criminal Procedure Act, Cap. 20 R.E 2019. The court, having made i some observations of the accused like remaining silent when he was called to plead, satisfied itself that the accused should be sent to Isanga Mental Health Institution in Dodoma for examination on his mental health. On the 30/09/2020, the report of the Institution was issued confirming that at the time of commission of the offence, the accused was mentally challenged. Pursuant to the provisions of Section of 219(2) of the CPA, the matter was scheduled for hearing. The prosecution brought four witnesses while the accused person in defence paraded four witnesses. The first prosecution witness was Jawadu Hamisi Mlanzi, a male of 32 who testified as PW1. His testimony was to the effect that he is the accused's neighbor who lived in the neighborhood for 32 yrs hence he knows the accused. On the fateful day, the 30/07/2018 at around 1700 hrs he went to visit his mother who also lives in Msala. That it wa his mother who told him that she heard some noise from the neighbours house, PW1 went to neighbors house (the accused's house). He went there worried because he knew the accused has some mental illness and he lives alone. PW1 also testified that the accused's family lives with his relative Jumanne Athumani Fimbo (PW2) and that the deceased was the accused's sister. 2 PW1 further testified that when he reached the accused's house the accused chased him away and he then went to get his relatives Jumanne Ahmad Fimbo and Ali Ahmad Fimbo and informed them what happened. They all went to Bakari's house and when they reached there they found him tying his goats and he was wearing a trouser and a singlet. When asked what happened the accused just greeted them and went inside his house. It was PW1 who observed some marks like someone was pulled and there was also some blood spots. The marks led to the side of his house so when he followed it he found a dead person, a body of Tumu Ahmad Fimbo, the accused's sister. As to the condition of the body, PW1 testified that he found the body wounded on the head, under the belly button and on the feet. The left leg was amputated and was placed on the neck. After seeing that body he called his relatives and the accused came out holding a basket (tenga) and he was completely naked. He followed me and threw the tenga to him, PW1 ducked and the tenga passed above him and the accused continued to come closer to him and he decided to run away. PW1 testified further that as this was happening the accused's brother called Jumanne was trying to hold him and PW1 ran back to his mother's house 3 and asked them to leave the place because their neighbor was not in a good condition. PW1 then went back to the scene of crime where he found the Village Chairperson and some doctors had arrived and they started examining the body. PW2 was Jumanne Ahmad Fimbo, a male of 40 years who was the accused biological brother. His testimony supported the fact the accused has a mental illness from the year 2015. They knew about the illness when he started beating his wife and some of his children and as a family, they had to separate him with his wife. They took his wife and family to Shamba and the accused stayed back and was living alone in the house. PW2 also testified that the deceased is his sister elaborating that on the 30th July 2018 while he was at home in the evening, PW1 came and asked him to go to his brother's (accused) house because there was problem. When they reached there they found him tying his goats. He then came from the goat house and went inside his house and after a short while he came out naked carrying a tenga which had some gallons and nets and he threw it on PW1 who ducked and the tenga did not hit him. Thereafter PW2 caught the accused along with his other brothers. They then tied him with ropes on his hands and feet and thereafter took him inside the house and PW1 told him 4 to go and see the deceased body which was within the compound, going there he found his sister Tumu's body. PW2 also testified that Tumu's body was injured by a sharp object on the head, stomach and feet where there were big wounds caused by a sharp object. They then sent a child and call the Village Chairperson and some other people from the village came, when they reached there it was already at night and some doctors had come. They took the deceased's body to the hospital where it was kept it was taken to Msala Dispensary and the accused was also taken to the Dispensary and was locked there. On 31/07/2018 in the morning came some policemen from Kibiti and they went inside to see the deceased body, examined it and took the statement of witnesses. PW2 was then called inside and asked him to confirm whether that was his Sister's body where he identified. The police then took statements and gave them the body for burial. He also testified that he knew the accused killed their sister because his trousers were covered with blood. On cross examination by Mr. Mosha, PW2 testified that the accused and the deceased never had any quarrels. They used to love each other because it was Tumu (deceased) who raised the accused. On the accused's mental condition, PW2 testified that it used to be on and off, sometimes he will be 5 okay and sometimes he will go crazy. When he is insane he used to beat his wife a lot, the same beating was extended to his children and he will say words they could not understand including a lot of insults. The accused was taken to Msala Dispensary so that he could be taken care of and that he used to get medication from there, they will inject him some sleeping medicine. But that did not happen very often. PW3 was a medical assistant who worked at Kibiti Health Centre. He testified to have examined the body of the deceased on the 31/07/2018 and it was her relatives that confirmed it was their sister's body. The body had some injuries on the left side of the face, a wound inflicted by a sharp object and there was also a wound on the stomach and the legs were seriously injured while the left foot was amputated. The wounds were inflicted more than 18 hours before he examined the body and his medial conclusion was that the cause of death was over bleeding that was caused by the big cut wound on the forehead. He tendered a post mortem examination report (PMER) for the examination as exhibit P2. (EXP2). PW3 also testified to have had a thorough examination of the accused and realized that he had mental illness. Because PW3 was not an expert he 6 advised the relatives to take the accused to Mental Health Institution so that he may get proper examination. PW4 was G7298 D/CPL Emanuel, a male Police Officer of 34 years old. He is the one who did the investigation of the case including examination of the deceased's body, arresting the accused and taking statement of witnesses. He testified to have found the accused tied with ropes on his feet and hands and also realized that he was not normal in the head because when he asked him questions, he will just look at him and sometimes he looked like he wanted to cause fracas. He also drew a map of the scene of crime which was received as exhibit P3 (EXP3). He concluded that the accused committed the offence when he was insane and even at the time, he took the accused to the dispensary he was not mentally okay. In his defence the accused testified that in the year 2015, he started being sick where his heart used to beat fast and he would feel like making noise. That his relatives took him to the dispensary for treatment, was treated and continued with medication and he was okay. He went on testifying that in the year 2017, that condition came back and was taken to the same hospital and treated but his wife went back to her parents and his children stayed with his relatives while he was living alone. 7 That in 2018, on a date he could not remember, that condition came back without him knowing and that is how he did the things that the witnesses said he did. He testified to have become conscience while at the police station. He was asked if he knew why he was there and they told that he killed my sister. He cried a lot because he claims to have really loved his sister who raised him and he refused to eat and was taking medicines. In 2020 he was taken to Dodoma Mental Hospital and was examined and interrogated. He told the doctors what happened and how it happened and that he did not have any conflict with his sister. He was given some medication and went through a lot of examination of his body but the results were not given to him. Up till now he is progressing well because at the prison that condition never came back but he was using medication for about six month and later on he was stopped to use them. He did not deny the report EXP1, because at some point he is okay but sometimes he is not and that on the incident date he was not okay and didn't know what he did. At the conclusion of the evidence Mr. Moshi urged the court to rely on the EXP1 as part of defence evidence as well because the exhibit shows that at 8 the time of commission of the offence, Bakari Ahmed Fimbo has mentally challenged by a condition called post-ictal psychosis. Having heard the evidence of both sides, it is undisputed that as per EXP1, at the time of commission of the offence, the accused was suffering from a mental disorder termed as post-ictal psychosis. This fact was supported by all the prosecution witnesses which included the accused's brother PW2 and his neighbor PW1. The Doctor (PW3) confirmed to have examined the accused immediately after the incident and observed that he had mental illness. The same was with PW4 and all the oral testimony was supported by the expert report from a Mental Institution received as EXP1. Under the circumstances, the evidence on record suffices to make a conclusion that at the time of commission of the offence, the accused person was mentally ill. Having so found, it is now to see what the law says under such circumstances. Section 219 of the Criminal Procedure Act, Cap. 20 R.E 2022 ("the CPA) provide: (1) Where any act or omission is charged against any person as an offence and it is intended at the trial of that person to raise the defence ofinsanity, that defence shall be raised at the time when the person is called upon to plead. 9 As I stated earlier on in this judgment, the procedure and under the provisions of Section 216 of the CPA was followed, the accused was referred to a mental health institution and the report thereon was tendered as EXP1. The next question to be answered is what is the position of the law in cases where the accused is found to have mental disorder (insanity) at the time of commission of the crime. The answer to that question is found under Section 13 of the Penal Code which provides: ”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 was 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. Whenever an accused person or his counsel raises a defence of instance, that defense will then require the accused to prove, by clear and convincing evidence, that at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. io It is therefore trite law that the critical and decisive point in time for ascertaining the state of mind of the accused person in order for the defence of insanity to be valid, is the actual time when the offence was committed and not otherwise. Thereafter, the court will also have to see whether he was in that state of mind as to be entitled to the benefits of Section 13 of the Penal Code. With all the above in mind, it is undisputed that the issue of insanity is a question of fact and not law and can only be inferred on each case basis by looking at the circumstances of the particular case particularly the conduct and state of mind of the person at the material time. In the decision of the Court of Appeal of Tanzania in the case of Hilda Abel v. R (1993) TLR 246 the court held: "The onus of proof rests upon the accused to make out his plea of insanity; and the standard of proof is on the balance of probabilities and not merely raising a reasonable doubt as to the sanity of the accused". What can be gathered from the holding of the court above is that when the defense of insanity is raised, the issue whether the accused was insane at the time he committed the alleged offence to the extent that he was incapable of knowing that what he was doing was wrong or contrary to the ii law is to be proved by the defence side and not the prosecution. As held, the yardstick for determination is on balance of probabilities and not proof beyond reasonable as required to prove the guilt of the accused. Therefore, although the evidence on record is to the satisfaction of this court that it was the accused who killed the deceased Tumu Fimbo, the evidence is further that on balance of probabilities, given the EXP1, the accused's state of mind was insane. On that finding, pursuant to the provisions of Section 219(2) of the CPA, I find the accused not guilty of the offence of murder that he was charged with. Section 219(2)(3) (2) Where on the evidence on record, it appears to the court that the accused did the act or made the Commission charged but was insane so as not to be responsible for his action at the time when the act was done or the omission was made, the court shall make a special finding to the effect that the accused did the act or made the omission charged but by reason of his insanity, is not guilty of the offence. However, having so made the above findings, since the offence the accused was charged with involved physical violence and would have subjected the 12 accused to the sentence of death, the consequential remedies are pursuant to the provisions of Section 219(3)(a) of the CPA. The Section provides: (3) . When a special finding pursuant to subsection (2) is made by the court it shaii:- a. where the person against whom a special finding is made was charged with an offence under the Penal Code involving physical violence or damage to property for which, but for his insanity, at the time of doing the act or making the omission he would on conviction be liable to sentence of death or to suffer imprisonment for a term not less than seven years, order the person to be kept in a mental hospital, prison or other suitable place of custody as a mentally disordered offender; As per the provisions cited above, since the accused person was charged with the offence of murder upon which on conviction he would have been subjected to sentence of death, this court order that the accused be kept in a Mental Institution as a mentally disordered offender for further observations and treatments. Pursuant to the provisions of Section 219(4) of the CPA, /further order that at the expiration of a period of three years from the period of this court's order; the superintendent of Mental Health 13 Institution shall make a report in writing; to the Minister; of the condition, history and circumstances of the accused. It is so ordered. Dated at Dar-es-salaam this 07th day of December, 2023 SALMA M. MAGHIMBI JUDGE 14