SUDAN GOVERNMENT vs. ADAM SALIH TIBIN

 (AC/CP/4/1957)

Principles

·  Criminal law — homicide — culpable homicide not amounting to murder — provocation.

Where a person accused of murder pleads grave and sudden provocation under sec. 249 (1) of the Penal Code (1)the gravity of the act alleged to be provocation must be considered in relation to what preceded it, as well as to the act itself. Although the provocation must be sudden it need not all have immediately proceeded the homicide in point of time.
 

Reference for Confirmation.

The facts are set out in the Note by the Chief Justice.

M.A. Aim Rannat C.J. The Court found that the deceased had committed adultery with the wife of the accused twice before the day on which the homicide took place. On the first two occasions the deceased swore on the Koran that he would refrain from having any sexual intercourse with the accused’s wife. The accused was satisfied and did not report the matter to the authorities.

(1) Sec. 249 (1) of the Penal Code states

Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocations or causes the death of any other person by mistake or accident.

On the day of the incident the accused went to the hut where his wife was living after dark. He suspected that she was committing adultery with a third person. His wife met him at the door of the hut. They quarrelled and he beat her with a stick. Then his wife tore his clothes. He then entered the hut and found the deceased there. They wrestled and the deceased threw the accused on the ground. While he was down and the deceased was on top of him, he stabbed the deceased four times with a knife, and thereby caused his death within a few minutes. The situation of the wounds is consistent with the statement of the accused that the deceased was on top of him. These facts were proved beyond reasonable doubt. On these findings the Court held that the accused was not entitled to the mitigating factors under soc. 249 (1) or sec. 249 (2) of the Penal Code.

I think that the accused is entitled to the benefit of the mitigating factors under sec. 249 (1) of the Penal Code. The Court rejected this defense on the ground that the accused had been aware of the unfaithfulness of his wife on the two previous occasions, and that therefore he could not have been provoked on the third occasion.

In my view this is an erroneous interpretation of this section of the Code. If a wife confesses to her husband that she has committed adultery with another man, that would normally be sufficient to enable a Court to find that the offence committed was culpable homicide not amounting to murder. The question whether the provocation Liven was sudden as well as grave enough to be an extenuation of the offence depends upon the nature of the provocation, its effect upon the person provoked, and in short upon the probability of its producing a similar effect upon other persons. When it is said that the provocation must he sudden, it is not implied that it should have all immediately preceded the homicide in point of time,  for a person may be inflamed by repeated or continuous provocation to a state of mind such that the provocation immediately preceding the act is only the last straw. in such a case the gravity of the provocation must be measured by what preceded it and not merely by what it amounted to in itself.

In this particular case the accused was not a trespasser as the Court thought. He is still lawfully married to his wife, and although they were on bad terms and she had moved to her father’s house, he was still entitled to her fidelity.

As to whether the accused was acting in self defence and then exceeded that right I do not propose to make a lengthy comment.

When he entered the hut there was no doubt that his intention was to

give the deceased a beating or to injure him. It was not a case of a pc son being attacked and defending himself. Therefore in my opinion sec. 249 (2) of the Penal Code does not apply here.

Having decided that the offence committed was culpable homicide not amounting to murder the sentence in such cases here lethal weapons are used is normally 14 years. So I alter the sentence to one of 14 years imprisonment.

Conviction altered to culpable homicide.