R.v. JAPHET FUNGAMEZA (1968) HCD 462

Crim. Sass. 163 BUKOBA-67, 3/10/68, Bramble J.

Accused and three other Field Force Unit members were on duty at Murongo Ferry, each armed with a rifle. On the night in question they all talked around the camp-fire before returning to their tent. The accused testified that on of them, Elias, had brought the pombe, “Moshi”, to drink. A series of quarrels broke out between accused and Elias. In the first of these, accused called Elias a “Muha”, and Elias replied that accused “had a cut finger,” after which there was some mutual pushing, broken Up by brother constable. The quarreling continued in the tent with Elias allegedly saying to accused “the vagina of your mother”. Later, Elias tried to snatch from accused a hurricane lamp in whose light accused was writing a letter. Accused was ordered to take the lamp outside the tent, which he did. After a while the accused was heard to challenge anyone inside the tent, who was brave, to come out. When one of the constables left the tent, accused began shooting. Two of the constables, including Elias, escaped, but the third was killed. Accused was charged with murder.

            Held: 

Accused is guilty of murder. The pushing and the swear-words used during the quarrel and the snatching of the lamp were not sufficient provocation to “bring it within the definition so as to reduce the charge of murder to manslaughter”. If any provocation existed “It was not such as to warrant the accused using a lethal weapon like a gun nor was it such as to arouse the passion of an ordinary man. The accused himself being a policeman would be expected to act with more discretion than any citizen can be expected.