R. v. Lukanfubila s/o Kahema, Crim. Sess. 224-M-69; 6/3/70; Kimicha J.

R. v. Lukanfubila s/o Kahema, Crim. Sess. 224-M-69; 6/3/70; Kimicha J.

The accused is charged with murder c/s 198, Penal Code. The deceased was a young girl aged 10 years. Her father was a friend and neighbour of the accused. They lived in the same

Village and their houses were close together. The accused was married. The deceased with another young girl, Tabu, used to sleep in the house of the accused and they did so for a very long time. The sequence of events that culminated in the death of the deceased was as follows. The deceased and Tabu went to sleep to the house of the accused as usual on the night of 10^th July 1969. The accused’s wife was drunk and went to bed early. She was already asleep when the deceased and Tabu arrived at the house. Soon after their arrival the accused tried to wake her up but she appeared to be fast asleep and id not wake up. Then the accused sent the deceased outside the house to collect some sweet potatoes and bring them in. she did so. He then sent her outside for the second time, this time to collect some cassava and take it into the kitchen. She did so. On her way out of the kitchen she met the accused at the door. He held her by the arms and took her back into the kitchen and raped her. She at first shouted but he shut her mouth with his hands. After he had raped her the deceased felt much pain. She was bleeding profusely and could neither stand nor move from the spot. On seeing this the accused told her to remain where she was and he went and warmed some water and washed her vagina. The washing did not lessen the pain and she kept on bleeding. The bleeding continued for three days, and finally the deceased was taken to Nyakalilo Health Centre on 14/7/69. She complained of stomach ache and was bleeding from the vagina. The hymen was ruptured. She was treated and she spent the night there. She was discharged in the following morning because her father wanted to take her home. She did not get better and died on 16/7/69. The medical evidence was that the cause of death was external haamorrhage due to the tearing of the vagina walls.

            Held: (1) “After the summing up the two assessors who sat with me in this case returned an unanimous verdict of guilty to manslaughter. They believed that he accused reaped the deceased but that he did so without the intention to kill her or to cause her grievous bodily harm.” (2) “After considering the evidence as a whole I am satisfied that the deceased’s statement to her parents and neighbour that she was raped by the accused was true ……I find that the prosecution have established beyond reasonable doubt that it was the act of the accused that caused the deceased’s death and that his act was unlawful.” (3) “But I am in agreement with the gentlemen assessors that it cannot be deduced from the accused’s unlawful act that he committed it with the intention either to kill her or to cause her grievous bodily harm. Defilement of young girls in not a rare offence in this are but this case would appear to be the first in which the victim lost her life. There is no doubt that the accused expected the deceased to sustain injuries but not of the degree of severity that actually occurred. I therefore find that malice aforethought has not been established against the accused.” (4) “For the above reason the accused is acquitted of the murder of the deceased and is instead found guilty of her manslaughter and is convicted accordingly.” (5) Accused sentenced to five years imprisonment.