MWIHAMBI LUMAMBO v REPUBLIC 1984 TLR 336 (CA

MWIHAMBI LUMAMBO v REPUBLIC 1984 TLR 336 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Mustafa JJA and Makame JJA

March 26, 1986

CRIMINAL APPEAL 27 OF 1984 B

Flynote

Criminal Practice and Procedure - Insanity - When section 168A of the Criminal

Procedure Code may be invoked.

-Headnote

The appellant killed his eight month old daughter in the presence of the deceased's

mother for no apparent C reason. Then he attempted to commit suicide by hanging

himself. He was convicted of murder by the High Court. He appealed arguing that it

should have appeared to the trial judge that he may have been insane.

Held: (i) The evidence available did not make it appear to the trial court that the

appellant may have been D insane;

(ii) in the circumstances we are not entitled to fault the fact that it did not

appear to the trial court that the appellant may have been insane.

Case Information

Appeal dismissed. E

No case referred to.

Mr. Raithatha, for the appellant

A. J. Saffari, for the respondent F

[zJDz]Judgment

Makame, J.A. delivered the following judgment of the court: The appellant

Mwihambi Lumambo was a grandfather with a menage of four wives and seventeen

children. He got himself involved with P.W.1 G Mseyi Simango, a Std. VI pupil, as a

result of which P.W.1 bore him a child, a baby-girl called Seche. Seche was only

eight months old when she got killed in presence of her two parents. Following his

trial by the High Court sitting at Dodoma (Maina, J.), the child's father, the appellant,

was found guilty of murdering H the little girl and was consequently sentenced to

suffer death by hanging. He is appealing to this court and is being represented by Mr.

Raithatha, learned counsel. On behalf of the respondent Republic Mr. Safari, learned

State Attorney, is resisting the appeal. I

1984 TLR p337

KISANGA JA

A In his own Memorandum of Appeal the appellant urged that the killing was in fact

accidental and that P.W.1 was influenced into testifying falsely against him. In his

supplementary Memorandum Mr. Raithatha urged that the learned trial judge erred

in not inquiring into the issue of the appellant's insanity, B and he argued the point

before us.

The evidence adduced at the trial showed that the appellant and P.W.1 were very

fond of each other and that the appellant clearly loved the deceased. It also showed

that the appellant was a placid person of even diposition. Mr. Raithatha urged that in

view of that and in the absence of motive the killing was C inexplicable and P.W.1's

credibility should have been considered more carefully. The trial court should have

delved into the possibility that the appellant was temporarily insane and Mr.

Raithatha drew our attention to some portions of the testimony of P.W.2 Moses

Libanaga, at the material time the CCM D Branch Secretary of Ndurugumi Village,

Mpwapwa District, where the death occurred. P.W.2 said:

People were pouring water on accused till he resumed consciousness. I asked

if he recognized me. He said he did. I E asked what he did but he said that all he

remembered was that some people were grabbing the deceased from him and that he

threw the deceased under a bed to save the child from death. I told him that the

child had died.

And P.W.1 Mseyi said that there was no quarrel between her and the accused.

I thought the accused was confused F mentally when he did the act and so I sent

him to police Station.

G Only the appellant and P.W.1 were present when the child got killed. We

respectfully agree with Mr. Raithatha that the evidence was that the appellant and

P.W.1 were on such good terms. It is for the same reason that we, on our part, cannot

imagine why P.W.1 should want to testify falsely against her child's father and a man

she obviously loved. We are unable to accept the appellant's contention that P.W.1

was H persuaded to lie against him. We note, on the other hand, that P.W.1 was

quite fair and she said a lot of good things about the appellant - that he had always

been good to her and that he very much loved the child. We are satisfied, as was the

learned trial judge, that P.W.1 was a witness of truth.

I According to P.W.1, who was still living in her parent's homestead, the appellant

was visiting her that fateful afternoon. He

1984 TLR p338

KISANGA JA

told her he was going into the house she was occupying and when she went there she

found that had A locked himself in. He opened for her and followed her into the

bedroom where he asked her if she loved him. She told him she did, whereupon the

deceased announced that he would kill the child and then commit suicide. P.W.1

asked him why he would want to do that, but appellant merely repeated what he B

had said. P.W.1 tried to run away but the appellant caught up with her, knocked her

down, slapped her and grabbed the child from her. Then, "The accused held the

deceased's arm and one leg and he hit the deceased on a bed leg twice. The deceased

cried out only once and then kept quite. I ran away from the house and I raised

alarm". C

When people went to the house in answer to P.W.1's cries they found that the door

had been secured from inside. They broke it open and found the appellant dangling

from a rope. The little girl's dead body was under a bed. D

In his evidence in court the appellant gave a significantly different version. He said

that when P.W.1 found him in the house she made the fire and then said she was

going back to a local dance which was going on in the village and where she had

been. He called her to the bed, to talk to her, but instead she E walked past him and

wanted to go out. He grabbed the khanga P.W.1 was using to carry the deceased on

her back. The khanga gave in, and the child fell off, hitting her head on the leg of the

bed. The deceased bled from the nose and died in the appellant's arms. When he

found this the appellant became so sad that he decided to end his life. He tied a rope

on the beam of the house and hanged himself. He did not know F what else

happened until he regained consciousness

As we have said, we find P.W.1's version credible and it was the one accepted by the

trial court. Going by it, the appellant announced before hand, despite P.W.1's

assurance that she still loved him, that he G would kill the deceased and then kill

himself. So he had made the decision. The medical report, that the deceased's skull

had sustained two fractures, would seem to support P.W.1's assertion that the

appellant hit the deceased's head twice on the head, and tend to disprove the

appellant's version of accidental fall. H Bashing a little child's head so violently can

only have been intended to cause death or grievous bodily harm.

Mr. Raithatha has canvassed the idea that the question of the appellant's mental

condition should have been gone into in view of P.W.2's evidence above quoted. As

Mr. Safari rightly pointed out, that I evidence was the only suggestion on record that

the appellant

1984 TLR p339

KISANGA JA

A was insane. However Mr. Safari eventually conceded that the learned trial judge

should have referred the appellant to a Mental Hospital.

B The relevant section in Criminal Procedure Code would be Section 168A, because

here no evidence was given of the appellant's insanity for it to come under Section

168A(1). Under the said section 168A, the trial court May adjourn the proceedings

and order detention in a mental hospital for medical examination, but only if it

appears to the court that the person charged may have been insane. The learned trial

judge directed his mind on the matter and remarked:

C The accused does not raise the defence of insanity and I found no evidence

that he was in any way insane.

So the position here is that it is on record that it did not appear to the judge that the

appellant may have D been insane etc. What both learned counsel are urging us, in

effect, is to hold that it should have appeared to the learned trial judge that the

appellant may have been insane. With respect, we do not think we have enough

material on record that would compel us to hold so. The scanty assertion by P.W.2

was not sufficient evidence to make it appear to the trial court that the appellant may

have been insane etc. E This man was recovering from an unsuccessful attempt to

kill himself and he might have been suffering a hallucination after his stupor. On the

other hand he might have wished to say something to prepare the ground for his

future defence. We do not know. What we do know is that we are not entitled, in

the F circumstances, to fault the fact that it did not appear to the trial court that the

appellant may have been insane. We are also aware that the learned trial court did

not put the issue of insanity to the gentlemen assessors. Insanity was not raised by

the Defence, and the learned trial judge found no evidence of insanity at all.

G Mr. Raithatha wondered why the appellant should have decided to kill his little

girl. We may wonder also but then, "wonders are many, but the greatest of them all

is Man".

The conviction of the appellant was in our view sound, on the evidence, and so we

dismiss the appeal.

H Appeal dismissed.

1984 TLR p340

A