[1950] EACA 437

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal, and WINDHAM, C. J. $(Zanzibar)$

## SALEH BIN MOHAMED BIN SALIM SHIKELI, Appellant (Original Accused)

## REGINAM, Respondent

## Criminal Appeal No. 468 of 1955

(Appeal from the sentence of the High Court of Zanzibar, Greene, Ag. C. J.)

Manslaughter—Provocation—Sentence—Zanzibar Penal Decree, section 199— Zanzibar Penal (Amendment) Decree, 1948.

The appellant was convicted of manslaughter and sentenced to 14 years' imprisonment. The deceased had on numerous occasions annoyed and insulted the appellant's wife. He heard his wife and the deceased in conversation suggesting that adultery had taken place and was imminently likely to be repeated and attacked the deceased with a panga. The Judge accepted the defence of loss of control through grave and sudden provocation but considered it a "borderline" case.

Held (22-12-55).—That the Judge had apparently taken into account when passing sentence,<br>both the fact that he considered it a "borderline" case and the savage nature of the attack but not the long course of insulting conduct on the part of the deceased.

Sentence reduced to seven years' imprisonment.

Cases referred to: R. v. Hussein s/o Mohamed, (1942) 9 E. A. C. A. 55: R. v. Juma, (1945) 12 E. A. C. A. 45; R. v. Cheyruat, (1945) 12 E. A. C. A. 72.

K. S. Talati for appellant.

Carrick-Allan for respondent.

JUDGMENT.—This is an appeal against sentence of 14 years' imprisonment for manslaughter in which we allowed the appeal and reduced the sentence to seven years' imprisonment. We now give our reasons for so doing.

The appellant was charged with murder in the following circumstances. He was a married man and for several years prior to the incident in question the deceased had persisted in visiting the appellant's house and associating with the appellant's wife despite the fact that the appellant had on a number of occasions told the deceased that his presence was undesirable and that he was to keep away. During the previous few years there had been a number of specific instances of grevious annoyance and insults offered to the appellant by the deceased, as recorded by the learned trial Judge in his judgment. The house in which the appellant lived with his wife belonged to the wife who was a widow when the appellant married her. Contrary to the appellant's wish his wife had appointed the deceased as a kind of attorney to look after the property. It was from that appointment that the familiarity between the deceased and the appellant's wife developed. On one occasion the appellant had complained to a Mudir of the deceased's persistence in entering his home and paying attentions to his wife and the Mudir had warned the deceased to keep away. Two weeks later the deceased had written a letter to the appellant ordering him to leave the

house and to uproot the crops which he had planted. Another instance causing grave offence had occurred at a coffee party at the appellant's house at which a number of Arab guests were present; on that occasion the deceased was seen to come out of the house during the party, which caused grave annoyance to the guests, and still more to the appellant, and which was regarded by all present as a grave insult to the latter.

On another occasion the deceased offered to buy the appellant's wife from him, which again was naturally regarded as an insult. In short the appellant had been frequently insulted and humiliated by the deceased for a considerable period of time and it appears that the appellant must have come to regard the deceased's conduct with grave suspicion.

The incident which was the subject-matter of the charge took place one evening in July, 1955. The appellant had been away from home and returned after dark, evidently at a time when the wife was not yet expecting him back. As he approached the house he saw the deceased sitting on the veranda; he concealed himself within earshot and, after watching the deceased being served with food and consuming it, he heard a conversation between the deceased and the appellant's wife, which was of an extremely intimate character and calculated to convey to the appellant that if misconduct had not already taken place between his wife and the deceased it would take place at any moment; indeed it may reasonably be said that the conversation clearly conveyed that misconduct had already taken place. Thereupon the appellant rushed forward from his hidingplace and seized a *panga* which was at hand on the veranda and struck a number of blows at the deceased, some or one of which killed him. The deceased was found at the post mortem to have 13 wounds, including three very bad fractures of the skull, two of them penetrating to the brain. Other wounds serious injured the deceased's left leg and both wrists. The learned trial Judge, however, found as a fact that the injuries were inflicted by the appellant whilst deprived of self-control by grave and sudden provocation. He accordingly acquitted of murder and convicted of manslaughter. He must be taken to have rejected the case made for the Crown that appellant was lying in wait to confirm his suspicions and with the object of finding his wife and the deceased in flagrante delicto.

According to the learned Judge's note when considering sentence, the first factor which he took into account was that this was "a borderline case". The other matter which the learned Judge noted was that: "The attack was of a very savage nature which cannot be excused". No other factors to be taken into account on the question of sentence were included in the Judge's note.

At one stage of his argument Mr. Talati appeared to contend that the "mode of resentment" was not a relevant factor to be considered when assessing sentence. We are unable to agree with that proposition. The true rule in this respect is as laid down by this Court in R. v. Hussein $s/o$ Mohamed, (1942) 9 E. A. C. A. at p. $55:$ —

"When once legal provocation as defined in our Code has been established and death is caused in the heat of passion whilst the accused is deprived of self-control by that provocation, the offence is manslaughter and not murder, and that irrespective of whether a lethal weapon is used or whether it is used several times or whether the retaliation is disproportionate to the provocation. The presence of one or more of these factors is of course a matter to be taken most carefully into account when considering the question of sentence, but will not of itself necessarily rule out the defence of provocation."

See also R. v. Juma, (1945) 12 E. A. C. A. p. 45, and R. v. Cheruyat, idem p. 72.

Applying that rule to the instant case, what ought to have been taken into account was not only the severity of the appellant's retaliation but also the long course of insulting conduct on the part of the deceased, culminating in the final provocation, which immediately preceded the attack. On the other hand, we do not think that the description by the learned Judge in his note of this case as "a borderline case" was a factor to be considered on the question of sentence, if by that expression he meant that the facts he accepted as proved could have been held to have established malice aforethought. In so far as this may have influenced the learned Judge in assessing sentence, we must hold that he was taking into account a factor which he should not have done. In any event, on a consideration of all the circumstances of this case we came to the conclusion that the sentence was manifestly excessive.

In conclusion we think it advisable, in order to avoid misunderstanding, to point out that the words "or whether the retaliation is disproportionate to the provocation" occurring in the passage cited above from the judgment in $R$ . $\nu$ . Hussein must now be regarded as inconsistent with the definition of "provocation" in section 199 of the Penal Decree as amended by the Penal (Amendment) Decree, 1948. It follows, therefore, that both for the purpose of reducing murder to manslaughter as well as for the purpose of assessing sentence, the mode of retaliation is to-day in Zanzibar a relevant factor.