IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAM
(CORAM: RAMADHANI, J.A., LUBUVA, J.A., AND MROSO, J.A.)
CRIMINAL APPEAL NO. 150 OF 2003
HASSAN HEMED BAKARIccccccccccccccc APPELLANT
VERSUS
THE REPUBLICccccccccccccccccccc RESPONDENT
(Appeal from the Conviction and Sentence of theHigh Court of Tanzania at Mtwara) (Lukelelwa, J.) dated the 17th day of November, 2003inCriminal Sessions Case No. 52 of 2001-----------JUDGMENT OF THE COURT
LUBUVA, J.A.:
The High Court, (Lukelelwa, J.) sitting at Mtwara, convicted the appellant, Hassan Hemed Bakari @ Moroco, of murder contrary to section 196 of the Penal Code and sentenced him to death. He has appealed to this Court against conviction and sentence.
The case against the appellant was largely based on the evidence of Mwalimu Arabi Hassani Nalinga (PW1) and his brother, Jumbe Hassan Nalinga (PW2). According to PW1 and PW2, on 12.12.2000 at about 5 p.m. they were at the house of one Mama Tumbo together with the deceased and one Sudi Namweta drinking the local brew, Chibuku. While enjoying their drink, the appellant appeared and started grabbing the drink from the deceasedfs group who were seated on a bench. The appellant drew out a knife with which he stabbed the deceased on the stomach and ran away.
In his defence, the appellant admitted killing the deceased. He claimed that because he was drunk, he did not know what had happened. He further stated that he did not take any drink at Mama Tumbofs place. Although he did not expressly say so, it was implicit from his defence that he had been drinking elsewhere. After the incident, the appellant fled to another village because he was beaten by those present at the scene. Convicting the appellant, the learned trial judge rejected the defence of intoxication. He held that the appellant killed the deceased with malice aforethought.
In this appeal, Mr. Rweyongeza, learned Counsel, represented the appellant. In the one-ground memorandum of appeal the complaint is that the trial judge misdirected himself in fact and law in rejecting the appellantfs defence of intoxication. In elaboration, he contended that in dealing with the issue whether the appellant was drunk at the time of the incident, the learned trial judge got mixed up in his reasoning regarding intoxication and insanity. As a result, his reasoning was clouded, which, possibly influenced his decision to reject the defence of intoxication. Had the trial judge properly directed himself on this point, he would have found that the appellant was drunk when he killed the deceased.
Furthermore, Mr. Rweyongeza contended that the evidence of PW1 and PW2 regarding the conduct of the appellant when he killed the deceased was conflicting. Therefore, he said the finding by the trial judge that the appellant was not drunk when he killed the deceased was based on unreliable and conflicting evidence. PW1 and PW2 did not give the exact picture of what transpired immediately when the appellant met the deceased at the scene of crime.
In illustration of the discrepancies in the evidence of PW1 and PW2, he cited the following aspects. First, PW1 and PW2 conflict with each other on whether the deceased picked the bench on which they were sitting. While PW2 said the deceased picked the bench to wade off the attack by the appellant, PW1 denied seeing the deceased do so. Second, PW1 and PW2 also conflict with each other on what the appellant uttered when he arrived at Mama Tumbofs place. Third, whether the appellant appeared to be drunk when he joined PW1, PW2 and the deceased at the scene, the evidence of PW1 and PW2 was also in conflict. According to PW1, the appellant appeared to be drunk but PW2 when cross examined stated that he could not tell whether the appellant was drunk or not.
On such conflicting evidence of PW1 and PW2 who had also been drinking, the defence of intoxication raised by the appellant could not be ruled out. The appellant should have been found guilty of the lesser offence of manslaughter, Mr. Rweyongeza, prayed.
Mr. Ntwina, learned State Attorney for the Respondent Republic, firmly resisted the appeal. While he conceded that the trial judge may well have confused intoxication with insanity in his reasoning, nonetheless, he arrived at a proper conclusion. He further submitted that from the evidence of PW1 and PW2 which was accepted by the trial judge as truthful, the conduct of the appellant at the time when the offence was committed was such that a proper inference was made that he knew the nature and quality of his act. He also submitted that there was no material contradiction in the evidence of PW1 and PW2. The learned State Attorney went on in his submission that soon after the appellant arrived where the deceased, PW1 and PW2 were seated drinking, he uttered words to the effect that he was looking for the deceased. Thereafter, the appellant stabbed the deceased and disappeared which indicated that the appellant was aware of what he had done. In this situation, he said, the defence of intoxication was not available to the appellant, it was properly rejected.
The fact of the killing of the deceased was not disputed. The only issue in dispute was in relation to the defence of intoxication. Dealing with the defence of intoxication, the learned trial judge stated inter alia:
In fact, the accused person did not manifest any insanity, or abnormality of behaviour when his plea was taken and during the trial. This explains the reason why this court had no material to base on in order to send the accused person for medical examination to a Mental Hospital.
This apparently is the basis of the complaint by Mr. Rweyongeza that the trial judge mixed up insanity with intoxication which possibly influenced the decision to reject the defence of intoxication. From the extract of the judgment, we agree with Mr. Rweyongeza that the learned judgefs reasoning was clouded such that insanity as provided under the provisions of sections 13 and 14 of the Penal Code was confused. It is common knowledge that intoxication as provided under section 14 of the Penal Code can cause temporary insanity so long as the intoxication subsists. On the other hand, insanity under section 13 of the Penal Code is caused by any disease affecting onefs mind which renders such a person incapable of understanding the nature of his act. Section 216 of the Criminal Procedure Act, 1985 and the Mental Diseases Act, Chapter 98 of the Revised Laws, 2002, Edition provide for the procedure to be followed in cases of insanity under section 13 of the Penal Code. This relates to insanity of an accused person who may be committed to a mental hospital for medical examination. In the instant case, the learned judgefs reference to a mental hospital suggests that had he been satisfied that the appellant was intoxicated he would have committed him (appellant) to a mental hospital for medical examination. However, that would be improper because normally insanity which is caused by intoxication is only temporary, lasting for the period of intoxication at the time of committing the offence and not at the time of trial as the trial judge erroneously took it to be. However, as happened in this case, the matter did not reach that stage. The appellant was not committed to a mental hospital.
In that situation the question arises whether the rejection of the appellantfs defence of intoxication was influenced by the judgefs mix up of insanity with intoxication. Upon close scrutiny of the record, we are unable to find any ground in support of Mr. Rweyongezafs complaint on this point. This is easily gleaned from the record which shows that the learned trial judge based his decision on the conduct of the appellant at the time of the offence. We are satisfied that the decision to reject the defence of intoxication was based on the evidence of PW1 and PW2 and not the judgefs perception of intoxication and insanity.
From the conduct of the appellant when he stabbed the deceased, the state of the mind of the appellant can be assessed. That is, whether the appellant was capable of forming the intent to kill or cause grievous harm to the deceased. It was generally agreed that the only direct evidence from which the conduct of the appellant at the time of the offence could be gauged was based on PW1 and PW2. These witnesses were with the deceased while drinking the local brew at the house of Mama Tumbo when the appellant arrived. The learned trial judge accepting the evidence of PW1 and PW2 as credible held that the appellantfs defence of intoxication was not available. The reason was that from the evidence of PW1 and PW2, the appellant was not drunk, he knew the nature and quality of his action. At this juncture, we pause to consider whether there were any discrepancies in the evidence of PW1 and PW2 which the trial judge did not address. As Mr. Rweyongeza submitted, the learned trial judge did not address the issue whether the evidence of PW1 and PW2 gave the whole picture of what exactly had transpired at the time the deceased was stabbed. We agree with Mr. Rweyongeza that there were material discrepancies in the evidence of PW1 and PW2. First, according to PW1, he did not see the deceased picking up the bench on which they (deceased, PW1 and PW2) were sitting to ward off the attack by the appellant with a knife. However, PW2 stated that he saw the deceased raise the bench in order to protect himself from the appellantfs attack. Second, PW1 and PW2 also differ in their evidence regarding what the appellant uttered when he arrived. These are material variations in the evidence of PW1 and PW2 who were seated on the same bench together with the deceased. If one says the deceased picked up the bench and the other says the deceased did not, it means that either one of them is telling the truth and the other is not. It casts doubt on their credibility.
We do not accept Mrs. Kabisafs submission that the discrepancies in the evidence of PW1 and PW2 were not material. It is our view that the discrepancies regarding the deceased picking up the bench, what was uttered by the appellant upon arrival at the scene and whether the appellant appeared drunk were material. Having regard to such discrepancies, which, if the learned trial judge had addressed, we think he would have found that PW1 and PW2 had not assisted the court in showing the state of the mind in which the appellant was when he committed the offence. It was doubtful that with such evidence it was positively established that the appellant stabbed the deceased with the intention to cause death or grievous harm to the deceased. Once it is shown that the evidence of PW1 and PW2 raises doubt that the appellant was in control of his faculties when he committed the offence, as a criminal charge, it would follow that the doubt should be resolved in favour of the appellant.
To recapitulate, in this case on one hand, there is the evidence of PW1 and PW2 as against the defence of the appellant that he killed the deceased when he was so drunk that he did not know what he was doing. On balance therefore, with regard to the prosecution case against the appellant the available evidence was that of PW1 and PW2, which we have shown and held to be unreliable. In the circumstances, we are satisfied that had the learned trial judge closely evaluated and considered the evidence of PW1 and PW2 in this light, he would have found that the appellantfs defence of intoxication was plausible. It means that the appellant was not in a condition to form a specific intent to cause the death of the deceased.
In the event, and for the foregoing reasons, we allow the appeal, quash the conviction of the appellant for murder, set aside the sentence of death and substitute therefore a conviction of manslaughter contrary to section 195 of the Penal Code. The appellant is sentenced to ten (10) years imprisonment.
DATED at DAR ES SALAAM this 31st day of August, 2005.
A.S.L. RAMADHANIJUSTICE OF APPEALD.Z. LUBUVAJUSTICE OF APPEALJ.A. MROSOJUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )DEPUTY REGISTRAR
