"Accordingly, in terms of Rule 34 (1) (b) of the Tanzania Court of Appeal Rules, 1979, it is ordered that upon the appellant
being received at Isanga pursuant to the order of the Resident Magistrate Tanga, the Medical Officer thereat shall examine the appellant
and send to this Court a report on the appellant's mental condition and an opinion whether he might have been insane at the time
of the said killings, in terms of Section - 220 (2) of the Criminal Procedure Act, 1985. Upon the report being received, the Court
will convene for admission of same in evidence, for consideration of the contents thereof and final disposal of the appeal/'
Pursuant to the order the appellant was medically examined as to his state of mind at the time of killing the deceased. A report was
supplied. Pursuant to that report Mr. Loomu - Ojare abandoned ground No. 2 and argued ground No. 1. He argued that the evidence of
PW1, PW2, PW3 and PW4 should have alerted the trial court to have some suspicion on the mental condition of the
&
appellant at the time of killing the deceased. The appellant's behaviour at that time was not that of a sane person. Mr. Loomu -Ojare
further argued that, to some extent the issue of insanity would appear to have attracted the attention of the court as depicted on
pages 7, 10, 14, 15 and 19 of the proceedings. But the court did not take the necessary steps to order the appellant to be medically
examined as provided for under section 219 of the Criminal Procedure Act, 1985. Instead the court decided to rely on the evidence
of non experts. It was also the learned counsel's submission that the trial court should have considered the defence of insanity
even if it was not pleaded by the appellant, and that the medical report would have clarified the true position. Furthermore he said
that since there is now a medical report to the effect that at the time of killing the deceased the appellant was insane, a special
finding should be made to the effect that the appellant did the act charged but by reason of insanity is not guilty of the offence
as provided for under Section 219 (2) of the Criminal Procedure Act, 1985.
9
On the other hand Mr. Mulokozi, learned Senior State Attorney,
replied that, the appellant should have raised the defence of insanity
\ at an appropriate stage instead of raising it after the prosecution had
V
closed their case. The learned Senior State Attorney further replied that, there was nothing which would have prompted the trial court
to suspect the mental condition of the appellant at the time of killing the deceased. The learned Senior State Attorney further argued
that, had the appellant been insane the church authority would not have appointed him its cashier. However, the learned Senior State
Attorney conceded that, under normal circumstances it is not normal for a sane person to behave in the manner the appellant did at
a reconciliation meeting before church elders.
We are aware of the difficulties in which the learned trial Principal Resident Magistrate with Extended Jurisdiction was, in failing
to direct the assessors and to address her mind on the defence of insanity. Normally, where an accused person intends to raise the
defence of insanity at the trial he must raise it at the time when he is called upon to plead. This is provided for under Section
10
219 (1) of the Criminal Procedure Act, 1985 (hereinafter referred to as the Act) which states:-
"219 (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 of insanity, that defence shall be raised at the time when the person is called upon to plead/7
In the instant case when the appellant was called upon to plead he did not plead insanity, instead he simply said:-
"I killed by bad luck"
This was not clear enough
to make the court assume that the
appellant was raising the
defence of insanity. It was very
unfortunate indeed because
the appellant was represented by an
advocate.
11
But during the trial it was apparent that there was probably something wrong with the appellant's mental state at the time of the
\ killings. This can be entered from the nature of the questions by the assessors who kept on asking the witnesses on the mental
condition of the appellants the time of the killing. It would appear the assessors were doubtful whether the appellant was in sound
mental condition at the fme of killing the deceased, after hearing evidence on how the appellant killed the deceased. It is common knowledge that insanity <an
be inferred from the circumstances and the conduct of the accused at the material time.
In HILDA ABEL V R (1993) TLR 246 this Court held, inter alia:-
"Insanity wthin the context of section 13 of the Penal Code is a question of fact which could be irferred from the circumstances
of the case and the conduct of the person at the material time."
12
In the instant case the abrupt furiousness and what followed thereafter would have prompted the learned trial Principal Resident \
Magistrate to doubt about the appellant's sanity at the time of the killing and would have ordered the appellant to be medically
examined on his mental condition at the time of the killing as provided for under Section 220 (1) of the Act which provides:-
"220 (1) Where any act or omission is charged against any person as an offence and - it appears to the court during the trial
of such person for that offence that such person might have been insane so as not to be responsible for his action at the time when
the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given of such insanity, adjourn
the proceedings and order the accused person to be detained in a mental hospital for medical examination."
13
The medical report to be supplied under Section 220 (2) of the Act, though not binding, would have shed some light on the mental condition
of the appellant.
In summing up to the assessors the learned trial Principal Resident Magistrate touched on insanity remotely where she said:-
"Coming to the defence case the accused person who was re-elected church cashier, - simply admitted to the facts that he killed
both his wife and a daughter, and that he was confused after being given medicine by a traditional medicineman in order to become
rich."
She did not direct the assessors on the legal position on the defence of insanity. But in their opinion the assessors said that the
appellant was not insane at the time of the killing. We do not know what their opinion would be if they were properly directed. In
that situation, it is also doubtful what the verdict of the assessors would be.
14
In her judgment the learned trial Principal Resident Magistrate briskly considered the defence of insanity and said:-
"The act of the accused person leaving the reconciliation meeting furiously after returning the church money he had as a cashier
in my view cannot be said to have affected his mental ability to form the "mens rea" for the murder. I must therefore,
with respect, agree with assessors that the accused killed with malice aforethought within the meaning of Section 200 of the Penal
Code."
Here we pause and ask: would she come to the same conclusion if she had properly directed the assessors on the defence of insanity
or if the appellant had been medically examined on his mental condition at the time of the killings? We do not know whether she would
have come to that conclusion.
Lastly, as we have already observed, in the course of hearing the appeal the Court ordered the appellant to be medically examined
his mental condition at the time of the killing. The medical report
15
from the Consultant Psychiatrist Incharge of Isanga Institution, Dodoma, Ref. No. 6956/2004 dated 24th September, 2004 is to the effect that the appellant was insane at the material time when he committed the offences.
It is common knowledge that the Court is not bound by the medical report from Isanga Institution, Dodoma. However, in the circumstances
of the case, we find no good ground for not accepting it.
Had the learned trial Principal Resident Magistrate with Extended Jurisdiction ordered under Section 220 (1) of the Act the appellant to be medically examined on his mental condition at the time of the killing, and had she considered the report,
we do not think she would have convicted the appellant of murder. Instead, under Sections 220 (2) and 219 (2) of the Act she would
have made a special finding that the appellant killed the deceased but by reason of his insanity he was not guilty of the offence.
16
In the event, and for the reasons stated, we quash the conviction and set aside the sentence, and substitute with a special \ finding
under Section 219 (2) of the Act that the appellant killed the deceased but by reason of his insanity he is not guilty of the offence.
Under section 219 (3) of the Act as amended by Act No. 9 of 2002, it is hereby ordered that the appellant be kept in a mental hospital/prison
as a criminal lunatic.
To the extent indicated, the appeal is allowed.
DATED at ARUSHA this 5th day of November, 2004.
17
D. Z. LUBUVA JUSTICE OF APPEAL
H. R. NSEKELA JUSTICE OF APPEAL
S. N. KAJI JUSTICE OF APPEAL
I certify that this is a true copy of the original
S. A. N. WAMBURA SENIOR DEPUTY REGISTRAR
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