[1948] EACA 29

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

## AUGEN s/o MANYAKUTAMA, Appellant (Original Accused) Criminal Appeal No. 126 of 1948

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal law—Murder—Provocation—Tanganyika Penal Code, sections 201 and 202.

The appellant's wife confessed to him that she had committed adultery with his brother-in-law, Gabriel. At the time the appellant was under the influence of alcohol and showed no anger at this confession. That night, the effects of the alcohol having begun to wear off, the appellant questioned his wife and she again admitted that she had had sexual intercourse with Gabriel. This time the appellant became angry and beat his wife with a stick. She succumbed to her injuries. The appellant was convicted of murder.

Held (21-7-48) - That the wife's confession of adultery, in the circumstances, could not be held to amount to provocation so as to reduce the killing from murder to manslaughter. Appeal dismissed.

Appellant absent, unrepresented. Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—In this case the appellant was convicted in the High Court of Tanganyika of the murder of his wife. No question arises on the facts as the appellant has always admitted that his wife died from the effects of blows administered by him. The sole point for our consideration is whether the learned trial Judge was right in the conclusion he reached that the wife's confession of adultery to the appellant could not, in the circumstances of this case, be held to amount to provocation within the meaning of section 202 of the Tanganyika Penal Code so as to reduce the killing from murder to manslaughter.

The facts with regard to this confession are also not in dispute. It appears that early in the morning of the day preceding the night when the appellant attacked his wife she made a confession of adultery to him, naming as her paramour the appellant's brother-in-law, Gabriel. At that time the appellant was apparently still suffering from the effects of a prolonged drinking bout, which, notwithstanding his wife's confession, caused him to visit his brother-in-law in order to renew drinking with him. As the appellant himself has stated, because of his condition he was not at that time either angry with his wife or angry with Gabriel. The learned trial Judge accepted the appellant's explanation of his first reaction to his wife's first confession which, to use his own words, amount to this: "On the Saturday morning I was still drunk; I did not realize the implication of what she was saying to me".

The circumstances surrounding the wife's second confession of adultery are also quite clear. Again it is best to use the appellant's own words: "That night. Saturday, I slept with deceased. I woke up in the middle of the night. I had sexual intercourse with her, then I remembered what she had said in the morning. I questioned the deceased and she admitted that she had had sexual intercourse

G

with Gabriel. I became angry because Gabriel is my brother and married to my mother. I was not so much under the influence of drink then. I took the stick and struck her three times on the right side of the head, left side of the head, thigh and buttock. They were hard blows. I did not intend to kill my wife; I did not intend to injure her seriously; I did not realize that if I hit her on the head I might injure her seriously".

From these facts we are of the opinion that the learned trial Judge was clearly right in his view that the provocation received by the appellant could not be described as sudden. Whether or not he fully appreciated the implications of the earlier confession at the time his wife made it. it is certain that he understood it, because it was on his own initiative that brought the subject up again and questioned her upon it.

Even assuming that had his first reaction to the first confession caused him to attack his wife, and that provocation within the meaning of the section might have been held to have been present, it is certain that his actions on hearing a repetition of his wife's infidelity cannot be said to have resulted in a deprivation of self-control caused by sudden provocation and before there was time for his passion to cool (section 201 Tanganyika Penal Code).

We have considered also a further point as to whether any defence is open to the appellant on the grounds that he had no intention to seriously injure his wife. This, in effect, is what the appellant has declared in his evidence, but from the nature of the wounds received, and from the appellant's own admission that he struck her twice on the head with a heavy blunt weapon it is impossible to conclude in-his favour that he had not the intention to inflict at least grievous harm. Every man is presumed-to intend the natural and probable consequence of his act.

The appeal is dismissed.

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