SUDAN GOVERNMENT vs. EL BALEILA BALLA BALEILA  and OTHERS

 AC-CP-218-1958

Principles

·  Murder-Section 251, S.P.C- Provocaton-Section 249 (1).S.P.C

“Grave and sudden provocation” under section 249 (1)[1] of the Sudan Penal Code is to be judged by the standard of the reasonable man taking into account the normal life, mentality and standards of the locality of the accused.

Reference for confirmation under section 251 C.C.P:

On 3rd March 1957 at 3.30 p.m Sudan Railways Train No.94 was on its way from Kosti to Rabuk. At the curve at Kilo 376 some Arabs were driving their cows across the railway line from east to west. At that moment the said train emerged from the curve and ran over the animals. It waded through killing them right and left (some 80 cows). It was finally derailed. The driver was the Deceased. Some six or seven arab herdsmen came running towards the Deceased. They speared and stabbed him to death. A major Court at Kosti presided over the Mudawi P.J acquitted five of the six of the accused. It convinced the first accused of provocation said: “ Did a. I cause the death of Deceased whilst he (A.1) was deprived of the power of self control by grave and sudden provocation? No. In dealing with the question of provocation the Court has to answer in general three questions:

(a)             What were the facts alleged to have caused the provocation ?

(b)            Whether such facts are capable in themselves of causing provocation to a reasonable man, and;

(c)             Whehter A.1 had in fact lost his self control by grave and sudden provocation and under that spell he had committed the offence.

As to (a) the facts in the opinion of the Court are as follows:

“A.1” was a herdsman whose duty is was to look after some of the cattle that were run over by the train. The cattle were not owned by him but belonged to his father and brother. That day whilst A.1 (with other boys) was helping his cattle to cross railway line near Kosti Bridge

train No.94 surprised them and killed maimed a number of cows and bulls including some of the cattle that were under the care of A.1.” Such were the proved facts that were said to have provoked A.1. We now come to the next question, (b). In our opinion such facts are incapbalbe of causing provocation to a reasonable man. Gernerally the act of the Deceased to be provocative must be addressed to the person of A.1, or in a limited number of cases to people related to him. Provocation acts were never extended to cases  of injury to property and it will be a sad day if the extension was effected. A man may be allowed in certain circumstances to cause death in defening his property but after the damage is done and time for defence is over we do not recognise any protection-absolute or qaulified –for one who proceeds to kill. Our answers to the last question (c) does not affect the situation either way but for the benefit of the confirming authority we shal proceed to discuss it. In our opinion A.1 had sufficient time to cool after the accident took place. He was seen reasoning with the Deceased and PW.2 just before the offence was committed. Pw.2 stated evidence: “A.1 and A.1 came to us whilst Deceased and myself were standing near Farmalla…they were discussing the accident with us.” This and other facts show that though A.1 was excited he was in a position to discuss and argue at first. We believe this can not be the attitude of a man labouring under a grave and sudden provocation.

The confirming authority held that there was a sudden provocation and reduced a finding of murder to a finding of culpable homicide not amounting to murder.

M.A.Abu Rannat C.J:

I entirely agree with facts set out in the Summary of Salient Facts which are supported by reliable evidence. The only point at issue is whether A.1 Baleila Balla was deprived of his selfcontrol by grave and sudden provocation at the time of the commission of the offence.

The facts constituting the provocation are these. At the time of the incident , the Deceased was driving a train from Kosti to Rabak Railway Station. After the train left Bridge, it killed about 80head of cattle. Some of these cattle were in charge of A.1 and they belonged to his father and his brother. The Accused (A.1) was a shepherd, twenty years of age and unsophisticated, regarded the cattle as his family’s wealth. At the same time the Accused heard and sal that the a relative of his by name Kircha was injured by the train. Kircha who was a boy of ten years of age, was not called by the Court to give evidence, although it was not sufficient to constitute grave provocation? In my view they provoke a  person in the position and mentality of the Accused. The “reasonable” man referred to in the textbooks is the man who normally leads such life.

In the locality and is of the same standard as others. In my opinion the facts of this case are distinguishable from the hypothetical case given as and example by the learned President of the Court. The example given by the learned President is this: “ if ‘A’ was driving his brand new Cadillac car, and Deceased, a driver of a lorry, accidentally collides with it and destroys it, are we to give ‘A’ the benefit of provocation, if he loses his self-control and kills Deceased? Of course we should not. We believe that the position of the ‘A’ in this case is not very much differecnt from that of the owner of the Cadillac.”

With respect to the learned President, the Accused in this case is unsophisticated nomadic Arab who knows little about the world, while the owner of the Cadillac is at least a man who knows much about the world. The real test is whether an ordinary Arab of the standard of A.1 would be provoked or not. I have no doubt that he would be highly provoked.

The next opinion is whether the provocation was sudden. The evidence shows that all the shepherds who were present were highly provoked and asking for the driver who damaged and killed their cattle. The driver did not come forward and he was at first hidding himself in one of the compartments. The other railwaymen were afraid and ran away or disappeared. When the driver appeared, he was brought to the ground by the cattle owners and was badly beaten and stabbed. I do not think that there was sufficient time for the Accused to cool down. At least the evidence on this point is not watertight and the witnesses were not reliable. I compared their statements in the case diary and at the trial and found much inconsistency. Had A.1 not confessed the probaibility is that he would have been acquitted or at most convicted for a much lesser offence.

I therefore alter the finding to one or guilty of culpable homicide not amounting to murder under section 253 P.C.

Sentence:

The Court failed to give an opinion on reasons for sentence. Although the accused is a boy of 20 when the offence was committed, the Courts are bound to pass a deterrent sentence to protect public servants engaged in duties relating to public utility. I should therefore give him the maximum sentence of Life Imprisonment as from 4thMarch 1957.

As to other accused, I confirm the findings of Not Guilty of any offence.

(Order accordingly)