R. v. Kayanda. Crim. Sass. 268-B-69; 9/1/1970; Bramble J.

R. v. Kayanda. Crim. Sass. 268-B-69; 9/1/1970; Bramble J.

The accused was charged with murder c/s 196 of the Penal Code. The house of the father of the accused was broken into a Shs. 2,000/- and other things were stolen. The father of the accused spoke to him and he went to look for the thief. The prosecution’s main witness testified that the accused met the deceased in a road with a hand-bag. He told him that he suspected his hand-bag and the deceased asked the accused whether he had lost anything. After reaching near a bush the deceased started to run; he dropped the hand-bag; the accused picked up the hand-bag and ran after the deceased. The deceased stopped and said if you continue to follow me I will stab you’. The deceased had a knife with him. The accused picked up a stick near a camp and followed the deceased. The deceased hid himself in the bush and while the accused was passing he heard the grass move suddenly he turned back and saw the thief holding a knife and was about to stab the accused and the accused hit the deceased with the stick which he was holding. The deceased fell to the ground. He was caught and taken to the road. He later died from the blows.

            Held: (1) ……. “The first point for consideration is whether the accused had any right to attempt to arrest the accused Section 32 of the Criminal Procedure Code provides that a private person may arrest any person who in his view commits a cognizable offence or whom he reasonably suspects of having committed a felony ….. The accused was looking for a thief. He spoke to the deceased and told him that he suspected him. At that stage he made no attempt to arrest. Apparently he walked some distance with the deceased and the deceased ran away in the bush dropping the hand- bag which he had …… The accused was acting lawfully under the provisions of section 32 of the Criminal Procedure Code and if it can be shown that he did not act unreasonably or did not use more force that necessary having regard to all the circumstances then I think the killing of the deceased was excusable.” (2) “The fact that the accused was armed with a stick only which he seemed to have picked up on the away when he was threatened shows that he instrument was not unreasonable…….” (3) “The question of malice aforethought is removed where the circumstances of provocation or self-defence or in case where a person is acting on the lawful authority and has used only reasonable force. As I have held the accused was acting lawfully and used only reasonable force. I must concur with the general verdict of the assessors that the accused is not guilty of offence charged.” (4) “I find the accused not guilt and he is acquitted.”