KATWALE & Another v. R. Crim. App. 320 – M – 70, 6/11/70; Kisanga, Ag. J

 

KATWALE & Another v. R. Crim. App. 320 – M – 70, 6/11/70; Kisanga, Ag. J

The appellants, who are husband and wife, were jointly charged with doing grievous harm c/s 225 of the Penal Code. They both pleaded guilty and were convicted and sentenced to 3 years imprisonment. On the material night the appellants were sleeping in different house. The complainant entered the female appellant’s house and raped her. She attacked him with a panga and wounded him. She raised an alarm and the first appellant, her husband, came. He too attacked the complainant with a panga and wounded him.

            Held: (1) “The particulars of the charge and indeed the medical examination report state that of the 6 out wounds inflicted on the complainant only one amounted to grievous harm. It is not apparent from the facts which appellant inflicted this particular cut wound. This point is significant because if the particular wound was inflicted by the second appellant (the wife) before the arrival of the husband (the first appellant) then the husband could not possibly be held responsible for it. Similarly, if it was inflicted by the husband the wife could not be held responsible for it unless there was common intention between the two at the time it was inflicted. Such common intention could not be inferred from the given set of facts.” (2) “The fact that an appellant has already been in custody for some time is a consideration to the taken into account in deciding whether or not to order a re – trial (but) this is not the only consideration. That decision would have to depend on consideration of all the facts and circumstances of each particular case. In the present case the wife was entitled to defend herself against the invader who raped her at night. The very fact of rape also must have gravely provoked her and her husband into attacking the complainant for trespassing on their matrimonial rights.” (3) Appeals allowed: convictions and sentences set aside. No order for retrial.