N

j~ ;-· ~- .::._,,;' IN 'lRE HIGH COURT OF TANZANIA AT IRIN:GA

ORIGINAL JURISDICTION (DODOMA RffiISTRY) CRIMINAL SESSIONS CASE NO. 31 OF 1977 'IDE REPUBLIC vers1is . ANDOLELYE D/O SAPULA CHARGE Murder c/s 196 of' the Penal Code J1JDG1'IENT . SAMATTA, J.? - Tue accused, ANDOLELYE D/O SAPULA, stands charged with murder, contrary to section 196 of' the Penal Code. It is alleged by Republic that on or about the 26th day of' September, 1976, ). in Iringa Region, the accused murdered her daughter, one Grace d/o Lunocho. lli.e accused has protested her innocence. Happily, a number of facts in this case are not in·dispute. • It is not in dispute that Grace d/o Lunocho is dead and that she met her death on the 26th day of' September, 1976. It is not in dispute, too, that the girl met her death in the hands of' the accused person. Tue main issue in this case is: In,. what mental condition .was the accused whenshe terminated the life of Grace Lunocho? I hold and find as a fact tha;t all the undisputed facts have been proved.~eyond reasonable doubt. be ihe case for fue prosecution may briefl~escribed as follows. On the 5th· day of' December, 1971, the accused gc.it married to one Yohane Lunocho, IW.2. '.l:heir marriage was blessed with a number 1 of children, including Grace Lunocho, fue deceased in this case. From the wedding day to sometime in 1975 the accused behaved . •" . as a nonnal person ••', According to her husband, however, in 1976 .I •

• ., • she started behaving~vcry abnormally. She spoke very little and sometimes she used to sing unnecessarily. - 2 - Acco1-tling to the witness 7 later it became worse than that. At times the accused used to walk at night and talk unintelligible things without any reasen whatsoever. At times she used to harass passers-by without any reason whatsoever. She used to pull some grass · from the ground sayi..r:1g it was medicine. Yohane Lunocho found the situation demanding some treatment; he therefore took the accused to her parents I home. He left her in the hands of her uncle who was also a traditional healer. A week later, however, the accusoo returned to the matrimonial home. According to her husband, her condition was considerably good. But early in September, 1976, her condition deteriorated and she started to do abnormal things as she had been doing before. '.lhe husband went on to tell this court that on the morning ,of 26th September, 1976; he left the matrimonial home for a walk. Vlh.ile he was still having the wall{, he got information that her daughter, · Grace, was dead. He rushed to the river ih the village, There he saw many people, including the accused. He also saw the dead body of his dear daughter, Grace. Later, at their matrimonial home, he asked the accused as to what hnd happened to the deceased. fue accused replied that it was she who ht'ld dropped the

deceased in the riyer, Th.e accused added thnt she did that act when her mind was disturbed. Another witness for the prosecution was an old man called Samwel Mwakyusa. Ho told thj_s court tho.t one day in September, 1976, he vvent to Wikichi village; After he had crossed Ichunilo river and after he had walked a distance of one mile from the river he heard an alarm originating from the river. He went there. 'lb.ere he saw the accused person,. On the ground was lying a dead body o:f a child.. 'llie accused told the witness that she had· dropped the child in the river because her mind by then was disturbed. '.lhe she accused nlso said thet it wr.5"'l10rsfilf who hod removed the child ••• /3 - 3 - :from the river. The dead body was conveyed to the Kibena Government Hospital where one Doctor Mwakaj ila performed post- mortem on it. Tue doctor's report was produced in this court under section 275 of the Criminal Procedure Code. According to that report,there were several minor wounds on the body and the skull was fractured. The cause of death of the deceased is given in the report as shock .following head injury. On 29th September, 1976, the same doctor examined the accused. He found her to be mentally disturbed. _ He accordingly recommended her to be further observed at the mental hospital. Following the order made by my learned brother Chipeta, the accused was sent to Isanga

Institution for medical observation. '.Lhe report made by -the doctor who examined her there was produced in this court. In that report the doctor expressed the opinion that the accused most likely was of unsound mind at the time she committed the alleged offence. '.!hat briefly was the case for the prosecutiono:· an The accused maddunsworn statement and called no witness. Her statement consists of three sentences. I can quote it without making this judgment unduly long. It reads as follows: "When I killed. I was mentally disturbed. I was insane. '.Lhat is all." Upon evidence before me,I am satisfied that it was the accused person who caused the de<tth of Grace. I have come that conclusion after taking into consideration ihe eviderice before me and particularly the evidence o:f Samwel Mwakyus~, which I entirely accept. According to the.evidence o.f that old man, the accused admitted to have dropped Grace who was then aged about two into the river. It is not of little significance that the accused co.nfessed to have done so to her husband, whose evidence I accept. ../4 4 - Upon the evidence before this court, it is safe to conclude, in my opinion, that Grace Lunocho sustained the hend injury when the accused dropped her in the river, It follows that the accused is the one who caused the death of Grace. Is the accused criminally responsible for that denth? That is the question I

proceed to answer. The lady and gentlemen assessors were of the unanimcus opinion that the accused person is not guilty because at the time she killed Grace she (the accused) was legally insane. I respectfully agree wiih that vimv, Not even a shado-.r •of motive is given in this case why the accused should suddenly decide to kill her own daughter, 'Ihe evidence before this court clearly shows, in my judgment, that the accused was legally insane at the time she killed her daughter. The evidence of the accused's husband, Lunocho Yohohe, establishes that from the begihlling of 1976 the accused person was behaving in a very abnormal manner. 'Ihere are also the two reports from Dr• Mwakaj ila and the Isanga psychiatrist, Doctor Mwakaj ila found the accused to be insane, According to the psychiatrist, the accused was most · . likely insane at the time she killed Grnct3~, I accept both reports, In my view the conduct of the accused prior to the death of Grace shows nothing but that the accused was legally insane, I accept the accused assertion that she killed Grace when she was mentally disturbee,. . Like the Lndy 1:1nd Gentleman Assessors, I find the accused not guilty of murder·~ I find that she killed Groce but she did so when she was legally insane. ../5 5 -, Acco:rcl:ingly, I make a special finding to the effect that the accused did the act charged but by reason of insanity is

not guilty of murder of Groce Lunocho. I order that r-1 certified copy of the proceedings of ihis. cnse·be submitted to the Minister responsible for legal affairs·~ In the meantime, the accused is to be kept in custody as a criminal lunatic. 1~ --~~:77',._,,. -~;. . __···--.--4:,f'..-·c----r C~_l ··~ ...." - - B. A. SAMATTA . JUDGE. Right of appeal explained to the accusqd. The Lady and Gentle- men Assessors are thonkec1 nnd c1ischargec1~ t

JUDGE