[1943] EACA 23

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and MARK WILSON, Ag. C. J. (Tanganyika)

### REX, Respondent (Original Prosecutor)

# LUTAKUWA s/o KASOGORO, Appellant (Original Accused) Criminal Appeal No. 13 of 1943

### Appeal from decision of H. M. High Court of Tanganyika

Criminal Law-Murder-Provocation-Tanganyika Penal Code, Sections 191 and 192—Benefit of doubt.

This was an appeal from a conviction of murder. The facts are sufficiently set out in the Judgment and the appeal is reported upon the only question which arose for decision thereon, namely whether the trial Judge was right in holding that the circumstances in which the killing took place did not support the defence of provocation put forward under Sections 191 and 192 Penal Code.

Held (18-2-43)—That upon the evidence the appellant must be given the benefit of the reasonable doubt entertained by the Court of Appeal and that it ought to have been held that the accused had acted under grave and sudden provocation.

Conviction for murder quashed and conviction for manslaughter substituted.

Sentence of death set aside and sentence of ten years' imprisonment with hard labour substituted.

#### Appellant absent, unrepresented.

Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by MARK WILSON, Ag. C. J.).—The appellant was tried and convicted on a charge of murder. The act of killing was admitted and the only question for decision on the appeal is whether the learned trial Judge was right in holding that the circumstances in which the killing took place did not support the defence of provocation put forward under Sections 191 and 192 Penal Code.

The only two surviving eye-witnesses of the fatal quarrel are the first prosecution witness, Sozi binti Kamuhanda, and the accused. They tell substantially the same story, though there are minor differences. The deceased apparently came after dark one evening to the homestead of one Mayunga (or Maganga), whose cattle-herd the accused was, to complain about some matter in connexion with the joint herding of the deceased's and Mayunga's cattle. After, some preliminary talk from outside the fence the deceased became aggressive and tried to burst his way into the boma, which in the absence of the owner, Mayunga, was occupied only by Mayunga's wife, who was lying ill, the old woman Sozi (P. 1), and the accused. The old woman ran to the gate to keep it closed, so that the deceased should not force his way in. Deceased persisted and eventually tore down the gate. Accused came running to the gate and in the subsequent mêlée the deceased was speared by the accused.

The old woman admits she did not see the actual stabbing, but her account of what she did see is not substantially inconsistent with accused's story of the actual encounter, which was given by him in a voluntary extra-judicial confession to the District Commissioner (to whom he gave himself up next morning), to which he adhered at the trial. He says that deceased abused him in insulting and obscene terms while he was still inside his hut and also called him a dog; that when he came out to go to where deceased was tearing down the gate deceased greeted him with further abuse and taunted him with cowardice, calling him a woman. Accused says he then became angry and went out through the gate which deceased had just succeeded in breaking down, that he levelled his

spear at the deceased, who thereupon raised his stick and struck thrice at him. and that he warded off the blows and then stabbed the deceased once with the spear he had in his hand. He then ran away and went to the District Commissioner to report the matter.

The learned trial Judge considered the facts at considerable length in his judgment. He rejected the accused's defence of provocation on two grounds, as it seems: (i) that the words uttered by the deceased that night amounted to mere vulgar abuse, not sufficiently insulting to deprive a man of the accused's class of the power of self-control; and (ii) that the stabbing was not done in the heat of passion.

In making his finding that the language used by the deceased to the accused was mere vulgar abuse, not amounting to insult within the purview of Section 192 Penal Code, the learned Judge said: -

"The assessors, to whom the effect of the provisions of Sections 191 and 192 of the Penal Code was explained, are unanimously of the opinion that the words of abuse in question were not such as to deprive a man of accused's class of the power of self control. From this opinion of the assessors. I understand them to mean, that they do not consider that the words uttered by the deceased amounted to anything more than mere vulgar abuse of a kind not uncommonly used by people of the accused's community when they become angry. If this is so, then in view of the Judgment of the Court of Appeal in Rex v. Hussein s/o Mohamed (9 E. A. C. A. 52) the alleged abuse in the present case cannot amount to provocation in law such as to reduce the killing to manslaughter.

Apart, however, from this aspect of the matter, a consideration of the facts as shown in the evidence of the first prosecution witness and of the accused himself shows that while the accused acted with great restraint when first abused he obviously eventually (as he says) lost his temper. And in view of the deceased's aggressive behaviour and language outside, it would seem not unnatural for a native who ordinarily carries a spear to take his spear with him as a weapon of defence when going out in the night to cope with a quarrelsome visitor who had already tried to break into the homestead.

As to the finding of the learned trial Judge that the fatal stabbing was not done in the heat of passion, the facts as established by the prosecution show that the whole affair—the arrival of the deceased, his aggressive and successful attempt to break down the boma gate, his abuse of the occupants, the exit of accused from his hut and his encounter with deceased in the gateway—took place in rapid sequence. Whether it be accepted (as accused contends) that his anger blazed up when he was first abused, or whether (as the learned Judge suggests) he remained comparatively calm until he actually met deceased in the gateway, does not matter very much. The learned Judge has accepted the accused's story that he did not spear the deceased until the latter had aimed three blows at him with his stick, and in our opinion that must at least raise a reasonable doubt as to whether or not there was legal provocation. Those three blows with the stick, even though successfully parried so that they caused no injury, were none the less wrongful acts and to a man like accused, already irritated by the abuse and truculent behaviour of the deceased, they must have been likely to deprive him or any person of his class in like circumstances of his power of self-control and cause him to act as he did in the heat of passion with the weapon which he had in his hand.

For these reasons we do not think it safe to allow the conviction for murder to stand. Giving the accused the benefit of what we hold on the evidence and the findings to be a reasonable doubt, we allow the appeal, alter the conviction of murder to one of manslaughter under Section 185 Penal Code, and sentence the accused to ten (10) years' imprisonment with hard labour.