The killing of another human being, in itself, is not murder. Indeed, killing of another taken alone, is not a crime. It would have to be accompanied by an element of unlawfulness to be punishable.

An accused person before court on charge of murder will not be convicted by merely being proved to be responsible for the killing. The accused person may himself admit to the homicide, like Arvinderjit Singh did, yet shall be acquitted if the prosecution stops there. On a charge of murder, the prosecution must prove that the accused committed the killing unlawfully and with “malice forethought”.

Malice forethought is actually a meaningless technical phrase used by lawyers to describe the intention with which the accused must have caused the death of the deceased in order to be guilty of murder. The phrase is meaningless because the intention to kill required for murder need not to be malicious or premeditated.

Malice a forethought is said to exist in any of four instances:

  • When the accused person intended to cause the death of the deceased.
  • That the death was not accidental but resulted from an act of the accused which was meant to result in the death or grievous bodily harm to the deceased. In this case, though the cause did not particularly intend to kill, the intent to cause grievous bodily harm is regarded as blame worthy as the intention too kill.
  • Malice aforethought is also said to exist where the accused knew that their actions towards the deceased were likely to cause death or grievous bodily harm but still continued the actions in disregard of the risk. In this case, the accused did not care whether death or grievous bodily harm would result even though they knew it was highly probable that it would.
  • The fourth instance is when the accused killed the deceased in the process of committing a criminal offence. For instance, if the accused is a robber who had broken into the house of the deceased, he commits murder when they kill in the process of the robbery. Or if the accused was escaping from lawful custody or resisting arrest, he commits murder if they kill during that process.

Usually, however, there lacks any of the four classes of intention listed above, yet the killing still carries an element of unlawfulness. A driver who runs over a pedestrian while driving recklessly cannot be found guilty of murder. But the killing of a pedestrian still possesses an unlawful element which makes it punishable. Such type of killings fall under the category of manslaughter.

Manslaughter is a classification of any killing that is unlawful but which is not murder. Usually, such a killing fails to be murder due to the absence of malice aforethought. The types of killings that are covered by manslaughter are varied and range from killings caused by recklessness and those caused by negligence. All that the prosecution needs to  prove is that the killings are the result of unlawful act for which one is accused of manslaughter. The punishment ranges from one day imprisonment to to life. Murder, on the other hand, carries a mandatory death sentence.

Arvinderjit Singh faced the possibility of conviction for either murder or manslaughter. He would have been guilty of murder had it been shown that he had, without any justifiable cause, intentionally taken the life of Samuel Kanambiu. As said earlier, Arvinderjit put forward his right as a policeman to use firearms and his right of private defence as the justifiable cause of taking Kanambiu’s life.

Had the court found that he lacked the intention  required for murder, it would then have to consider whether there was any unlawfulness in the killing of Kanambiu that could make Arvinderjit guilty of manslaughter. For instance, the court would have had to consider whether, though he had a right to use a firearm against Kanambiu, he had done so unnecessarily.

On the question of intention, the court found that Arvinderjit Singh had the malice a forethought requisite for murder. In his judgment, Justice Bosire said: “ I earlier set out facts which are not in dispute. Relying on those and what the accused said, it is quite clear that the accused deliberately shot the deceased. He said he intended to disable him by shooting at the deceased’s stretched hand. He missed and hit the vulnerable parts of the body. It may be that the accused intended to shoot the deceased’s  stretched hand. It may be not. What is clear is that the deceased aimed and fired and intended to cause at least grievous bodily harm”. That even if the bullets had met the stretched hand of Kanambiu, considering that a firearm was being used, it would have definitely caused grievous bodily harm.

That being settled, the only issue that remained to be solved is whether the killing was unlawful. It was for the prosecution to prove that Arvinderjit had no justifiable cause to kill Kanambiu. Arvinderjit, having put forward two causes as his justification, it was for the prosecution to disprove these causes. Arvinderjit’s life therefore hung purely on the reason he killed Kanambiu.

Only the defence lawyers seemed to recognize the winning of the murder case. Byron Geogadis and Salim Dhanji wasted little time on the other points of the case. They zeroed in on the reason for the killing. They harped and harped on the power of the police officers to use firearms and on Kanambiu’s possession of a knife. Their evidence went largely unchallenged.

The prosecution could only have succeeded concentrating on the issue of justification. That way, they would not have handled this critical issue as they did. Had they managed to prove that the accused had acted even slightly excessively, they could have secured a finding on manslaughter.

But so be it; the defence was more brilliant than the prosecution. The prosecution was case lousy from the start and the facts of the case were already largely in favor of the accused. Was the judgement fair?