R. v. Fita s/o Mihayo Crim. Sass. 173-Shinyanga-69, 8/10/69, Bramble J.

 

R. v. Fita s/o Mihayo Crim. Sass. 173-Shinyanga-69, 8/10/69, Bramble J.

 The accused stands charged with murder c/s 196 of the Penal Code. The basic facts are that he lived together with a woman for a period of about 4 to 8 months. On returning home he found her in the bush with another man. He out the man, the deceased, with a panga inflicting a deep wound on the head. The doctor was of the opinion that death was due to shock caused by the head injury. The accused said he met the couple in the act of sexual intercourse. He admitted he attacked the deceased. The defence is one of provocation in that the accused alleges that P.W. 2 was his wife. The question for decision is whether the accused and P.W. 2 were married.

            Held: (1) “The law is clear. If two people are living in concubinage for a considerable time they can be considered as being married ad in circumstances such as these the accused would be entitled to raise the defense of provocation. In this case. However, the period in which the parties lived together was about 8 months. It is difficult to describe it as a considerable time. I have however put the questions to the assessors for them to

Consider in the light local custom and they are of the unanimous opinion that the couple were married giving as their reasons for this decision that many people had taken women in the way in which it was done in this case and they referred to it as ‘Mtende’. They pay the dowry later. A man in this status is entitled to claim for adultery according to the custom. The evidence was that the accused and the woman lived together for a short time and subsequently got the approval of the woman’s parents. P.W. 2 said that no arrangement was made for the payment of the dowry but the accused say that he made arrangements with her parents for the payment of the dowry. If there is any doubt about this arrangement I should accept the evidence of the accused. In the circumstances I cannot but accept the unanimous opinion of the assessors that the parties were married according to custom.” (2) “On a charge of murder a husband is entitled to raise as his defence the fact of provocation through an act of adultery by the wife on circumstances suggesting adultery. The only evidence in this case is the evidence of the accused and P.W. 2 P. W. 2 denies she was committing adultery. Having regard to all the circumstances there must be doubt whether she was having sexual intercourse with the deceased. She admitted that day he had asked her for sexual intercourse and the only question was whether they were in the act or merely sitting down. Again the evidence is not absolutely clear and any doubt must be resolved in favour of the accused and I agree with the unanimous opinion of the assessors that the parties were found in the act of adultery. Accused acquitted of murder and convicted of manslaughter.