Temange s/o Sambi v. R., Crim. Sass. 26-DDM-72, 12/6/72, Kwikima, Ag. J.

 

Temange s/o Sambi v. R., Crim. Sass. 26-DDM-72, 12/6/72, Kwikima, Ag. J.

The accused was charged with the murder of a man whom for a long time he had suspected of having an illicit affair with his wife. The accused confessed to having killed the deceased but retracted his confession at his trial the court held on the facts that the accused had borrowed a friend’s bow and arrows and set out for the deceased’s house 3 miles away, where he suspected his wife had gone. Arriving at night, he heard his wife speaking to the deceased inside the house. The conversation appeared to link the couple in adultery. The accused then shot the deceased in the chest with the bow and arrow, causing his death.

            Held: (1) “The accused confessed to have killed the deceased and then retracted at his trial. When a trial within trial was conducted I was satisfied that the confession was made voluntarily and that its subsequent retraction was an afterthought. I therefore admitted his confession …… in his submission, the learned state attorney urged the court could convict on a retracted confession even if it was not corroborated. He relied in his submission on Tuwamoi v. Uganda (1967) E.A. 84. With all respect to the learned gentleman I doubt if that case means anything of the sort. That case is a follow up of a list of cases including R. v. Keishemeiza 7 E.A.C.A. 277. I have come to understand the rule in Tuwamoi’s case to mean that; “It is unsafe to convict on a retracted confession if there is no independent evidence to support the confession.” That was what I said in R. v. Melanyi (1971) H.C.D. n. 398 and I still say so. I am therefore unable to hold that by confessing the accused has helped the prosecution to discharge its burden of proving his guilt beyond reasonable doubt.” (2) In the circumstances, however, there is sufficient corroboration for the accused’s confession. (3) The question now is whether there was any provocation for the killing. “The accused has related in his extra judicial statement how his wife left him to go to Sepuka in spite of his having refused her permission. The accused later heard that she was putting up with the deceased. The sketch plan drawn by the investigating officer shows that it is three miles from the accused’s house to the deceased’s. In going to the deceased armed with a bow and arrows the accused may not have been going to kill him necessarily. It should be conceded from the outset that the accused suspected that the deceased was cuckolding him. But even [so] the court have repeatedly held that; “Prior

Knowledge by a husband of his wife’s adultery with a paramour does not necessarily and in all cases disable the husband from pleading provocation and reducing the offence to manslaughter, if the killing was done upon finding his wife and her paramour in the act of adultery….. Each case must depend on its own facts, and the question in ……. Each case is whether or not, upon the facts, of the particular case. The killing was done) in the heat of passion caused by sudden provocation ……. And before there was time for the passion to cool (Yokoladi Omer v. R., (1960) E.A. 323). This proposition has been put more succinctly by Lutta J.A. in Nyadundo v. R. (1971) H.C.D. n. 280 when he said; “If the killing was done when the husband found his wife with her paramour in the act of adultery, the husband would not be precluded from setting up provocation as a defence, not with-standing his prior knowledge of adultery between them.” In the current case, the accused simply suspected the deceased. A fortiori, his plea to have been provoked would be justified. In Yolamu Arua v. R., (1960) E.A. 146 it was held; “Suspicion is not knowledge, and to find his wife ….in an act of adultery might well, not withstanding prior suspicion, engender ungovernable rage and constitute grave and sudden provocation sufficient o reduce the killing to manslaughter.” In that case, the appellant had threatened to kill his suspect and when eventually he found him in compromising circumstances with his elder wife, he fought and killed him. It must be pointed out, however, that unlike the accused in the present case. Yolamu did not carry any weapon. The stick with which he struck and killed the deceased was picked up at the scene of the fight. But I am not persuaded that in this case the accused is precluded from pleading provocation simply because he carried a bow and arrows to the scene. For, had he not hears his wife speaking with the deceased at night in his house, I cannot say that he would certainly have killed him. I am unable to rule out the possibility of the accused being enraged beyond control on finding the deceased and his wife in very compromising circumstances indeed; There was the deceased in his house at night with the accused’s wife holding a conversation which could have led any reasonable holding a conversation which could have led any reasonable man to conclude that they were committing, had committed or were going to commit adultery. The prosecution have not shown that the accused had no reason to believe that his wife was closeted with the deceased in his house that night or that he knew so when he set out. I would therefore be reluctant to hold that the accused is precluded from pleading provocation. Accordingly I would agree with the assessors and find the accused not guilty of murder. The accused is found guilty of manslaughter c/s 195 P.C. for which offence I convict him.” (4) Accused sentenced to 9 years’ imprisonment.