r vs iddi so selemani 2022 tzhc 14741 14 november 2022

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF DODOMA)

AT DODOMA

SITTING AT SINGIDA CRIMINAL SESSION CASE NO. 25 OF 2017

THE REPUBLIC

VERSUS IDDI S/O SELEMANI

RULING Date of Order 14/11/2022 Date of Ruling 14/11/2022 Mam bi, J. The accused person IDDI S/O SELEMANI stands charged with an offence of Murder contrary to section 196 of the Penal Code [CAP 16 [R.E 2019], Initially, during plea taking the accused was referred to the Mental Health Institute to determine his sanity when he committed an offence. The Court was availed with the examination report from the mental health institute which indicated that the accused was sane when he committed an i. offence. However, the Report did not clearly show the clear reasons made by the doctors to conclude that the accused was sane. The accused was thus charged with an offence of murder c/s 196 of the Penal Code Cap 16 [R.E. 2019]. The prosecution fact shows that the incidence occurred on the on 4th day of July, 2015 at Chiniyika village, Mkwese Ward within Manyoni District in Singida Region. During hearing, the defence submitted that it appears the accused was insane when he committed the offence he is charged. The learned Counsel for the accused Mr. Chigongo informed this court the report from the prison show that the accused is not mentally ok as he has sometimes been throwing his clothes and remained .He prayed this court to make special findings on the health status of the accused. The prosecution had no objection. Having heard submission from both parties this court made special

findings to address the following key issues: 1. Whether defence of insanity exempt the accused person from criminal liability in this case Whether the accused person is responsible for an offence he stand charged 2. Whether the report from the Mental Health Which is not binding revels the health status of the accused. SPECIAL FINDINGS BY THE COURT: In terms of section 219 of the Criminal Procedure Act, Cap 20, this court made special findings by among others asking the accused some questions. 2 The court has made the Special Findings and found that, from the accused deminor and the way he speaks and answers questions, he clearly seems to be insane. The evidence indicates that the accused might have murdered one Jane d/o JOSEPH, but was insane as not to be responsible for his action at the material time. Basing on section 220 (4) and 219 (2) of the Criminal Procedure Act, Cap 20 [R.E 2019], the Court is satisfied that the accused who stand charged with the offence of murder did murder the deceased but by reason of his insanity As indicated in the preceding pages that initially during plea the defence relied with defence of insanity and the accused was referred to the Isanga Mental Health Institute. Generally, the law gives rights to the accused person to rely on defence insanity if he/she did kill but that killing was the result of him/her being insane. Indeed section 13 of the

Penal Code avails the accused with right to rely on defence of insanity. That section reads as follows; "(1) A person shall not be criminally responsible for ah act or omission if at the time of doing the act or making the omission he is through any disease affecting his mInd­ ia) 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. (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 actor omission". 3 There is no doubt that the accused was properly charged with an offence of murder. However, this court needs to satisfy itself as to whether the accused was sane or insane when he committed an offence. Basing on the report from the Mental Health Institute and court findings, the question is whether the accused was sane or insane when he committed an offence. I have gone through the report which is an expert opinion that does not in any way bind the court, and observed the report does not help this court in determining whether the accused was insane when he committed an offence. One would have expected that the report which was written by the experts would have based its findings on their

research and medical examination rather than relying with the court records. I wish to quote the findings of the doctors as follows: "Iddi Selemani was not suffering from any mentai disorder, and was therefore SANE during the time he committed the alleged crime. He planned the incidence and tried to hid evidence. He knew what he did". Reading between the lines on the above paragraph extracted from the report, one would have expected to report the go further explaining how did the doctors arrived into the conclusion from their professional examination of the accused. Since this was an expert opinion that is not binding, I went further to make more findings as per the enabling provisions of the law. I made a special finding as per section 219 and 220 of Criminal Procedure Act Cap 20 [R.E.2019] in line with perusal of the records and satisfy myself if the accused was insane when he committed an offence. In this regard, I doubt if the accused was really sane as indicated under the report from the 4 Mental Health Institute. I am aware that the report from Mental Health Institute is an expert opinion and does not bind this court. The court as per section 219 and 220 of Criminal Procedure Act, Cap 20 is also duty bound to make a special findings and satisfy itself before deciding whether to support the report or not. Having received the report from Mental Health Institute, the court

is empowered under sections 219 and 220 of the Criminal Procedure Act, to make a special findings of the accused to determine his sanity. The court made the special findings and found that, from the accused evidence, deminor and the way he speaks and answers questions, he clearly seems to be insane during trial and at the moment when he did commit an offence. In the circumstance, as the accused committed an offence that involve killing of a person, It is hereby ordered that he be kept in a mental hospital as a Criminal Lunatic under the superintendent within three years from the date of this order/ruling and submit it together with the proceedings of this court, or a certified copy in respect thereof to the Minister responsible for legal affairs or take other action provided under sections 219 (3) (a) and 14/11/2022 5 Ruling delivered this day of 14th of November, 2022 before the State Attorneys, the accused and his defence counsel.

JUDGE 14/11/2022 6