19720124 TZHC Singida

uion COURT OF P $TGLØA OIUGILAL QflXDLCP1011 !\01 (Dodoina izy) CRIMINAL SSSSIONS CAS! 10. 31 O1 1971 THE flJ'PUBLiC Versus LMCK 3/0 XX?ZA 1.: IWRDZR c/e 196 of the Pera1 Code. AT: 24th .7atrnar7, 1$72 OORAk: MNZAu1A, Judge; Nr. D 3o*ea - $tte Attorney fr the Republic; ifr. !angit Q Counsel for the AocuEed. I: s .*cd - precent. interpreter — go iaxweU - 11h into Xiswahill and vice verea. iZAAS . The aceqeed, Larneck eJo Xiteka t is charged w ith 4e murdering bi 4te by atabbing her with a knife in the chest penvtrating right into bar hart. .l3oth in n free and vuntzi statement to a juctice of the peact and in on unswarn etatarnent from the dock 1 the accused har ed.rited bving 4bbe4 hic wife and ac cuecd her death; and, from the nere and locatioft of the injtarieo inflicted, toetbor with the rebut ttble prosumption that a man intends the naturel and probable oonaeqaenoes of his aot, the only reaoib1e ac-ceptable concluon is that, at the moment whall he stabbed her the aoou*d probably ifttendod to kill his wife or be at laaet intended to 0aue her grLvour bodily harm. No question of eelf— fence arisea in thio ocee but the 4efence has argued that at the time the aconeed infliota4, the tatl blow he was drunk. The def-nce ulo broht forward a defance of provocation. im The evtdenae, thera can be no doubt that the acoasoa was Under the Influence of alcohol when be .ftal1y stabbed the deoeane4. But, the evidence alerJj øbowe that the aocueed wan not under ouch intoiiø*tiOfl -as to ezcuae him 1,roto cDim:thal 14 ibi1ity. here in notbig In either the proaecut ion case or the defcnc to eugest that the aconeed wee eo dpunk as to be unable to form an intentIons Nor is there ev4onoe to eueet tbt the aooueed was rendered ineane by the drink he took and that be was £nean' when he killed his wife. In these circumetences, I totally agree with the atieerorn that -the defence of intoicatiofl cannot, on the facta of this cane, be available to the eOcod. Coinj to the defence of provocation, the defence argument is that notwithatan4ing that the accused killed the deo,aed with malice-aforethought, he did to while acting undr grve and sudden provdcation # in the hent oZ passion, and while deprived of bin acif—cozitrol. It is. oomn ground in this e4ao that the marriao between the accused and the deceased was not a1toetber a vezr happy one* From the evdence it can be said with sonic ceri*&nty that ot the 'two, the deceased ebere4 groater binme for the1* dornet Ic msundertandinge, L pore then two timee she left the ztrirnoniai bone and went tq live with zieighbourn or with her mother. When she left the a$rimoiiial home and iint to 1Ivs with nez' mother, the aecuned followed her nd s*d&t. rtizrn to h. 'I .3 _ 2 he becwne violent and assaulted the ecound. ho we i0harged with 3ea4t and Was oonVictod and 'impDioned for cali x non the. tpart from the above prevoue iniounderetauin, the only ovidcnoe of whet happened, and how and vh yl the aooueed came to kill big wife., is 1ia oin long etra—jud&tal ettoient, oorroborated by his very brief uoz tatentent forn the dock, I may s ay at onoe thtit this etrajudicial itatement has, to iy rniid, a ring of truth and at ternpte to conceal nothinge in it the aoceed., after relating to the entecoent history to which I have already ref ercod to above, be told the juetice of the peace bo he experbnced dørneitio qaarrals with the deeaeed, how on the fateful night be crne bank home at about minih and how he was eervo4 uith cold tt poitde by his wife. Ua related to the Jutico of the Peace that he aeked the deeaeed to pre3re freeb "agalill for him ua the one abc had given him was already very cold. To thie ruet, the deceaeed Ia said to have told the accused that she aao not going to cook freeh ugal.i for hita and told 'the cue t aelf or ttnd aa*&aanether >eron to l000k -for hiu. After ea-ying this, the deceaecd left the .boue and went to one s Juckeon's cuac where ehe f'oreed 'the door open end got in, The cctM followed her g4, cording to hie eztra—judioial atatement, t into 'the bonae of Jackeon and held the deceased by her arm and ek4 her to follow him home. As he' wac doing eo the deeeaed violently puehed him and he hit his bead againat tho wall which got inure4. It wee at thie jwicturc that the accused pulled his knife and etabbed the deceased once in her cheat. After aumming up to the aeeoorn, all of them were of the opinion that the refusal by the deceaeed to cook Ngalill for the accueed could not, Under yiramba austona g amount to provocation and they found tho tccixeed guilty of lurder ac charged. I tend to agree with the. gentlemen aseoceore that the refusal by the deceased to cook food for the accued could not, by itself, amount to legal 'provocation. 1ut, in my viow, whether an at can be said to constitute euff icienil7 grave and sudden a provocation for the puroee of section 201 and 202 of the Penal flode ebould alwVs be considered in the 1iht of tocedent aggravating circumetancos over a perIod, it such eie't, so that a culminating "Iset otraw' may b coneidered an provocation auffioiently grave, hich might not have been so conidored if it had bsn the first act of its kind. o, here the deceased's refusal to ok for her hubntl, berrunning e away from the hou.ae to Jaccson's hence and her pushing the accused and there- by caaoing him to suffer injury on his head being the la't of man7 much w'ul ants were, in nW view, sufficiently grave and suddan provocation to a wronged husbd in the aocuaed.'s walk of, life to make him loose bi seU-control end attaok her* lear1y this is not a very oaae to decide and it is with greAt reluctance that X have decided to d.1Ier with the nimou.a opinion of the asoossoDs, I however have doubta as to wh4Ther the facts warrant a oniction of murder. I t at leaet entertain reasoflable doubtt he accused is entitled to the benef it of that doubt, I 'therefore hd that the aQcue.ed 1t1led the 4eceaed with a1ie—aThrethout bt while acting under vuch grave and sudden provocation as 'to reduce his offence from Kurder to Xanolaughtor4 I find him aninty of the lesser offence of , analauiter 0/s 393 of the Penel Code, and I accordingly convict him. SINGIDA V L & VMZAVAS &4at LJW 97 ! .13