19720124 TZHC Singida2

e WC IN Tild HIGH CCkJhT OF ThdJZJÜTIA OftIGI fThTJ(' ODOL Thd&ITJY) Criminal Sessions Case o. 3'9 of 1971 II The Reublic p versus LICK J Char Hurdor c/s 196 ol' the fenal Code, T TI F\ ri r' v m C) Li Li L Li 1I i L .i. • C T The accused Lameck Kiteka is charecl with murderind his wife by staJbin: . her with a thife in the chest penetratiuir; riht into her heart. Both in a free and voluntary statement to a justice of the oeace and in an unswora statement from the dock 9 the accused has admitted havinf stabbed his wife and so caused her death, and, om the navcure and locatjon of the injuries inflicted, tocther th the rebuttable presumption that a man intends the natural and probable consequences of his acts, the only reasonable acceptable conclusion is that, at the moment when he stabbed her the accused probably intended to kill his wife or he at leasb intended to cause her grievous bodily harm. Ho question of self - defence arises in this case but the defence has ar;ued that at the t:Loe the accused infliëted the fatal blow he was drunk. The defence also brou'ht forward a de:.ence of provocation. From the evidence there can be no doubt that the accused was under the influence of alcohol when he fatally stabbed the deceased. Eut the evidence clearly shows that the accused was not under such intoxication as to excuse him from criminal liability. L. :Therd is nothing im either the prosecution case or the defence to Suf:est that the accused WOS so drunk as to be unable to lorm an intention, ior is there evidence G0 suppe t that the oused was rendered insane by the drunk he took and that he was when he killed his wife. In these circumstances I totally agree witli cne eso oo:s that the d.c oco of iuoxicaion cc Thot on the facts of this case, be available to the accused. Comin; to the defence of provocation the defence arthoent is that notwithstanjin' that the accused killed the deceased with iiiallce aIorethoud, he did so while acinrp unaer crave and suaden provocation, in the heat of pasoin, and while deprived of his self control. ( It is common ;rou.:d in this case that the narriame between the accused and the decease was not altodether a very happy/one.. From the evidence it can be said with some certaimity that of the two the deceased shared droater blara for tl:1O their dOIOOS tic risunder stand infs. Hare thai tuo times she left the matrimonial home and went to live with neiphhours or with her mother. When she left the matrimonial hone .and went to li' ie with her nothe the accusod followed her and persuaded her to return to him. She became violent and. assaulted the accused. She was charded with assault and was convicted and imprisoned for six months. - ...........t. I-. P- Apart from the a1eove previous reisndorstandings the only edence of what happened, and how and why the accused cee to kill his wife, is his own long extra-judicial state.aent, corroborated by his very brief unsworn statement iror.i the doclç. I may say at once that this extra-judicial statement has, to my mind a ring of truth and ettopts to conceal nothing. In it the accused, after relating to the antecedent history to which I have already referred toaboe, he toid the justice of peace how he experie- nced domestic quarrels with the. deceased, how on the fateful night he cane back hone at about reidnight and how he was servod with cold stiffporridge by his wife. He related to the Justice of the Peace that he asked the deceased to prepare fresh ugali for hiei as the one she had given him wa already very cold. in this request the deceased is said to have told the accused that S. was not going to cook fresh ugali for him and told the accused to cook hiaself or find another person to cook for him. After saying this the deceased left the house and nro:.:it to one, Jackson's house where she forced the door open and got in. The accused followed her and, according' to his extra-judicial statement, got into the house of Jackson and held the deceased by her arm and asked her to follow him home. As he was doing so the deceased olently pushed him and he hit his head against the wall which got 1~ _f 11 It was at this juncture that the accused pulled his knife and stabbed the deceased once in her chest. After summing up to the assessors all of then were of the opinion that the refusal by the deceased to cook I'Ugalill for the accused could not under ilviranba customs amount to orovocation and they found the aceused g uilty of murder as chared. g I tend to agree with the gentlemen assessors that the refusal by the deceased to cook food for the accused could not, by itself, amount to legal provocation. But in my view whether an act can be said to constitute sufficiently grave and sudden a provocation, for the purposes of section 201 and 202 of the Penal Code should always be considered in the light of anteccent aggravating circumstances over a period, if such exist, so that a culminating "last straw" may be considered as provocation sufficiently grave, which might not have been so considered if it had been the first act of its kind. o here the deceased's refusal to cook for her husband, 7 r running away from the house toJuckson's house and her pushing the accused and thereby causing him to suffer injury on his head being the last of many such wrongful acts were un ry view sufficiently grave and suddn provocation to a wronged husband in the accused ' s walk of life to make him lose his self control and attack her. Clearly this is not very easy case to decide and it is with great reluctance that I have decided to differ with the unanimous opinion of the assessors. I however have doubts as to 1i other the facts warrant a conviction of murder. I at least entertain reasonable doubt. The accused is entitled to the benefit of that doubt. I there f ore hold that the accused killed the deceased with 'alice aforethought but while acting under such grave and sudden provocation as to reduce his offence from murder to manslaugI'iter. I find him guilty of the lesser offence of manslaughter c/s 195 of the Penal Code, and I accor- d ingly convict him. SINGIBA. 24/1 /72 Besouza for the Republic. Mangat for the Accused.. ll S . IlITZA/AS. JU1Yl . ,.,...