IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

CRIMINAL SESSION NO. 27 OF 2021

REPUBLIC

VERSUS

ANTHONY ARBOGAST ASSENGA

JUDGMENT

MASABO J.:-

Antony Arbogast Assenga, the accused herein, has been arraigned in this

court and being read over charged with the offence of murder contrary to

section 196 of the Penal Code [Cap 16 RE 2022]. It was alleged that on

12/2/2022 at Mrere village at Mashati within Rombo district he murdered his

wife one Happiness Sianga Nyerere.

When the matter came for plea taking and preliminary hearing on 12th

February 2022, the information of murder was read over and explained to

the accused person and upon being required to plea thereto he replied

"shikamoo". His counsel, Ms. Lydia Mongi, learned counsel, raised a defence

of insanity and prayed the court to invoke the provisions of section 220(1)

of the Criminal Procedure Act [Cap 20 RE 2022] and commit the accused

person to Isanga Mental Institution so that he can be medically examined to

determine the status of his mental health at the commission of the offence,

a prayer which was supported by the prosecution.

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Invoking its powers as prayed, the court ordered that the accused person be

detained at Isanga Mental Institution. A report from Isanga Mental

Institution filed in this court show that, in compliance with the court order,

the accused person was transmitted and committed at the institution on 6th

April 2022. A medical examination performed on him by the institution

revealed that the accused person, Anthony Arbogast Assenga, was suffering

from a mental disorder, alcohol induced Psychosis and he was therefore

INSANE during the time he probably committed the alleged crime.

The procedure to be followed after receipt of the medical report, is as

stipulated under section 220(3) which states that:

Where the court admits a medical report signed by the
medical officer in charge of the mental hospital where the
accused was detained, the accused and the prosecution
shall be entitled to adduce such evidence relevant to the
issue of insanity as they may consider fit.

In line with this procedure, upon the receipt of the medical report duly signed

by Dr. Enock Eteregho Changarawe, a Physiatrist at Isanga Mental

Institution, this court invoked the provision above to allow the prosecution

an opportunity to adduce such evidence relevant to the issue of insanity.

The prosecution called two witnesses, PW1 G2392 DCPL Isack and PW2

Elisante Boniphace Mlanga. PW1 testified that on the material time he was

working at Rombo OCCID's office. On the fateful day he received a

notification from OCS Mashati that, there was a murder incidence at Mrere

village at Mashati, Rombo. In the company of fellow policemen, PW1 went

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to the scene of the crime. On arrival at the scene, he found many people

around including, the deceased's and the accused's relatives who led him to

the room where they found the deceased's body lying on bed. They observed

that the body was of a female person and had a wound on the throat

suggesting that the deceased was cut with a sharp object. When they
inquired on the cause of death and the suspect, the accused person's brother

and uncle told them that the accused is mental unwell. There are times he

conducts himself like a lunatic threatening to kill people with machete and

wooden clubs. When this information was being relayed to PW2, the accused

person was already confined at Mashati police station. It turned out that

after killing the deceased, he went to Mashati police station and reported

that he had killed bandits. PW1 testified further that, after they had taken

the deceased's body to hospital where she was confirmed dead, he passed

at Mshati police station and tried to interrogate the accused person but the

responses he got from him was irrational signaling that he was mentally

unfit.

PW2, a retired police officer was the investigator of the case. On 12/2/2022,

he interrogated the accused while at Rombo Mkuu police station but the

interrogation could not proceed to completion due to the accused person's

unusual conduct during the interrogation. His answers were irrational and as

the interrogation was still going on, he climbed on a table and tried to hang

himself on a ceiling fan found in the interrogation room and as a result, the

interrogation was terminated.

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Accorded an opportunity to address the court on whether he intended to

bring evidence, the defence counsel Mr. Martin Kilasara, replied that he did

not as he intends to rely on the report and the evidence rendered by the

prosecution witnesses.

The law directs that, after the court has received the evidence, it must make
a special finding whether in the light of the report submitted and the

evidence rendered, the accused person committed the offence when he was
hence so as not to be responsible for his action. The directive is set out under

section 220(4) and 219(2) of the Criminal Procedure Act, which states that:

220(4) Where on the evidence on record, it appears to the

court that the accused did the act or made the omission
charged but was insane so as not to be responsible for his
action at the time when the act was done or omission
made, the court shall make a special finding in accordance
with the provisions of subsection (2) of section 219 and all
the provisions of section 219 shall apply to every such
case.

219(2) Where on the evidence on record, it appears to the

court that the accused did the act or made the Commission
charged but was insane so as not to be responsible for his
action at the time when the act was done or the omission was
made, the court shall make a special finding to the effect that
the accused did the act or made the omission charged but by
reason of his insanity, is not guilty of the offence.

Thus guided, I have carefully considered the report and the evidence from

PW1 and PW2. From the testimony of these two witnesses, it has been well

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demonstrated the accused had unusual conducts which suggests he was

mentally unfit. In my firm view, their testimony has ably corroborated the

medical report that the accused person was insane at the time he committed

the offence. Therefore, I am of the finding that when committing the offence

of murder against which he now stands charged, the accused person

Anthony Arbogast Assenga, was insane and by the reason of his insanity he

is not guilty of the offence.

Pursuant to the provision of section 219 (3) of the Criminal Procedure Act, I

subsequently order that the accused person be transferred and kept in a

Mental Hospital as a criminal lunatic and that he be dealt with according to

the law.

DATED and DELIVERED at MOSHI this 31st day of March 2023.

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