R. v. Magara Crim. Sass 98-A-70; 13/7/71; Kwikima Ag. J.

R. v. Magara Crim. Sass 98-A-70; 13/7/71; Kwikima Ag. J.

The accused was charged with murder c/s 196 of the Penal Code. the accused in his extra judicial statement stated that while at the house of their host, he bought pombe known as “moshi”. On the next day he bought some more and while they were drinking the accused seduced the deceased. The decease agreed to his request and they left for a shamba to have sexual to this request and they left for a shamba to have sexual intercourse. In the course of having sexual intercourse, the accused held the

deceased by the neck and after the act the deceased was not able to rise again. On realizing that she was dead, the accused dragged the deceased to a nearby bush, took away her vest, head scarf Shs. 8/50 which was in her wallet and tobacco wrapped in a piece of paper. Medical evidence did not establish with any precision whether or not the force applied on the deceased was great or not. The main issue was whether or not the accused had killed the deceased with malice aforethought. The learned State Attorney argued first, that the act of sexual intercourse was unlawful in the case and second, hat the accused had concealed his crime and this was an indication of malice on his part.

            Held: (1) “The accused furnished the only explanation as to how the deceased met her death. Having accepted his statement which cannot be said to be in anyway exculpatory, I cannot hold him to have intended the death of his lower especially when the prosecution fail to show motive or use of excessive force as they have failed to show in this case.’ (2) “………. It is not a criminal offence to sleep with a woman other than one’s wife. While conceding the learned State Attorney that adultery is a matrimonial offence and for this reason an unlawful act, I cannot go so far as to say that this would be enough reason for a court of law of infer malice aforethought in such circumstances. [Citing SHARMPAL SINGN v. R. (1962) E. A. 13]. (3) Accused found guilty of manslaughter.