Principles

·  Criminal Law—Mistake of fact—” Baatiya” killing—-Penal Code, s.44—Distinction between supernatural creature and human being with supernatural powers

     Obiter dictum: If a man kills a woman thinking she is a “Baatiya,” his act is not protected by Penal Code, s. 44, excusing those acting under a mistake of fact, if he believed that the woman was not a supernatural creature, but a human being with supernatural powers.

Judgment

      Advocate: Mahmoud Izzel Din………………….for accused

      Facts found by the majority of the Major Court convened at El Obeid, Major Court 64-1964, August 9, 1964:—Accused was employed as assistant driver by one Sayid Hussein in Nyala District, Darfur. Accused arrived at El Obeid about three or five days before the incident and stayed in the house of the cousin of the employer in this town. The accused was of normal behaviour. The lorry on which the accused was employed was sent to a garage for repairs. On November 21, 1963, the accused went to the said garage in the morning and stayed all the day there. He returned to the house where he lived in the afternoon and after having a meal and changing his clothes he went at about 6:30 p.m. to Arous El Remal cinema, accompanied by the other assistant driver, Kamal El Tahir El Mahi, and the house servant, Mohamed Mahmoud Hussein. Inside the cinema, they were joined by Farog Ahmed El Kejeik. It is highly probable that accused might have had some spirituous drink before and during the show. The accused and his companions returned to the house at about 9:30 p.m. Farog and Mohamed Mahmoud got inside the hosh through the back (women’s) door. The servant Mohamed Mahmoud opened the front (men’s) door for accused and the other assistant driver but the accused did not get inside the hosh. He sat outside chatting with another young man who sat in the street near the hosh door.

      The same day, November 21, 1963, the deceased, Asha, Mirghani, left her house in the morning to visit a friend who was in bed in hospital. In the afternoon, she met her husband and told him she was going to spend that night with some friends at Fareeg El Usher. She never returned to her house that night.

Some time about 10 p.m., while accused and his friends sat in the street chatting in front of the house of Ahmed Ali El Kejeik, the deceased passed by. One of the young men, probably Ahmed Hamoda Ireib, knew deceased and he asked accused to go with him after her. They did, and when asked where she was going deceased stated she was going to a shop near by. The accused and his companion followed the deceased to the Khor. There the deceased asked accused and his companion if they would drink araki, and when they agreed, the deceased took out a bottle of araki, hidden in her clothes, and they all sat there drinking. They nearly consumed the whole bottle. The accused’s companion suggested to him that he (the companion) wanted to have sexual intercourse with the deceased and so the accused left his companion with her and walked away. Accused returned after a short time and found his companion having sexual intercourse with the woman on the ground in the Khor. Accused walked away and then went back. His companion left the place and the accused walked towards the deceased. We believe that the accused wanted to have sexual intercourse with the deceased.

      A dispute started between accused and deceased. There was nobody with them at that time. The deceased never hit the accused. The accused picked up the araki bottle and hit the deceased with it in the face, thereby inflicting a compound fracture of the bone just under the right eye about three inches long and two inches deep. He also inflicted an incised injury of the chin about two inches long reaching the bone. The allegation by the accused that he believed the deceased to be a “Baatiya” (female evil ghost) is not believed by the court.

      The accused then dragged the body of the deceased on the barbed wire of the charcoal market Zareiba, took it inside, and then dragged it over the barbed wire at the opposite end outside the Zareiba. The deceased’s firka shirt and libas were torn off her body and were found by the police on the barbed wire next morning. The accused dragged the dead body up to the hosh door of Ahmed Ali El Kejeik and knocked. Hassan Ahmed Ali El Kejeik opened the door and came out. It was after midnight then. The accused’s shirt was soiled with blood of deceased and he had the deceased’s tobe on his shoulder. The dead body of deceased lay on the ground close to his feet and it was completely naked. Accused told Hassan that he had killed the “Baatiya” which was causing ‘trouble to El Obeid people. Hassan took the accused inside and went to inform the police.

      The police went there and the dead body of the deceased was taken to the hospital for medical examination. Examination of the dead body proved the injuries referred to in paragraph 4 above and also proved the existence of abrasions and bruises all along the right side of the deceased’s body. These abrasions and bruises were due to the dragging by the

accused of the deceased’s body on the ground from the Khor to the house of Ahmed Ali El Kejeik. The accused was examined on November 22, 1963, at about 3:35 a.m. as regards alcohol, and he was found to be smelling of drink but apparently sober. The police did not ask for the examination of the body in respect of injuries.

      Later on, the same day, Beshir Mohamed Tahir went to hospital and saw the dead body. He recognised the deceased to be his wife Asha Mirghani.

      M. E. Mobarak P.J., President of the Major Court, dissenting, August 9, 1964:—I agree to the summary of salient facts as stated by the two respectable members of the court except paragraph 4 thereof. I am not so sure that there is sufficient evidence to warrant and support the finding of fact that the accused deliberately hit the deceased in the face with the empty bottle of araki. It is quite possible that the deceased might have got her face hit in the course of a struggle between her and the accused.

      The two members of the court answered the question posed to them about the mistake of fact in the negative. The point was framed under Sudan Penal Code, s. 44.

      From the evidence adduced, including all the statements made by accused, I believe that the accused might have been acting under the honest but erroneous belief that the deceased was a “Baatiya.” No person was present at the time of the act with the accused and deceased. They were together inside the Khor and the place was rather dark. I agree with the two members that the accused walked with the deceased (and another) from the house of Ahmed Ali El Kejeik up to the Khor, when they all, the three of them, sat together and drank nearly one whole bottle of araki. Accused, according to his statement, had already taken more than one bottle of sherry. The least we can say about him at that time is that he was definitely under the influence of drink. The accused left his companion with the deceased to have sexual intercourse with her. In the accused’s opinion this companion did have sexual intercourse with the deceased, although this is not supported by medical evidence. The accused’s companion left the place. When accused walked towards deceased, probably to have sexual intercourse with her, he found her condition had changed. Her hair locks were twisted upwards and her colour was rather greyish. This, in my opinion, may be explained by the fact that the accused’s companion had sexual intercourse with the deceased on the ground. Her hair might have changed its normal position and the dust must have soiled her body. The place was rather dark and the accused, as stated before, was under the influence of drink. Accused stated in court that about one year before the incident he heard several

times that there was a “Baatiya” in El Obeid town. It was about midnight then. Under all these circumstances the accused might have honestly believed that the deceased had turned into a “Baatiya.” He naturally, and acting under such belief, got frightened and started to act instinctively for self-preservation. The deceased might have held the accused or else put her hands on him. It is possible that he pushed her away (or even hit her) in self-defence. The dragging of her body on the barbed wire inside the charcoal Zareiba and again on the barbed wire out of it and then to the door of Ahmed Ali El Kejeik (where the accused lives) supports the view that he might have thought her to be a “Baatiya.” Having injured or killed the “Baatiya” the accused naturally was proud of himself and wanted to show this to others. Nothing was disclosed in the evidence to prove any other possible nature for the acts of the accused. When the accused took the body to the hosh door of Ahmed Ali El Kejeik the deceased was completely naked. Her firka, shirt and libas were torn to pieces and left behind on the barbed wire.

      The acts of the accused after he had arrived at the hosh door of Ahmed Ali El Kejeik are in conformity with his honest belief that the woman was a “Baatiya” He knocked at the hosh door and when Hassan Ahmed Ali El Kejeik came out, he found accused standing at the door with the dead body of deceased, completely naked, close to his feet. The accused’s trousers and shirt were all soiled with blood. He had the deceased’s tobe on his shoulder. The accused looked very much frigh tened and excited. His first words to Hassan were: “I have killed the ‘Baatiya’ which is causing trouble to El Obeid people.”

      Hassan asked accused to cover the naked body. Accused threw the tobe on it. Hassan then made accused get inside the house and he did. Hassan went to the police station and informed the police. In his first statement to the police at about 2:45 a.m. the accused stated that the woman started talking to him in a way which he could not understand and that her shape changed. This shows that he believed her to be something not human. The accused made a similar statement in his confession to a magistrate on November 23, 1963, in the morning. Similar statements were made by him at the magisterial inquiry and in court. All his statements in this respect are consistent with each other.

      Considering all the facts stated above I believe that the accused might have honestly been acting under the belief that he was dealing with a “Baatiya” and not a human being. In other words he was acting under a mistake of fact and he believed in good faith that he was justified in doing what he did.

      This case is similar to the case of Sudan Government v. Abdullah Mukhtar Nur, Darfur Major Court No. 3-1957, (1959) S.L.J.R. I. The facts are similar. In the present case, as well as in the one referred

to, the accused were under a mistake of fact and believed that their acts were justified.

      For all the reasons stated above I am of opinion that the accused is entitled to an acquittal in respect of the charge preferred under Sudan Penal Code, s. 251.

      M. A. Abu Rannat C.J. October 6, 1964:— The facts set out in the summary of salient facts are supported by reliable evidence. I need not repeat these facts here.

      It has been proved that accused struck deceased with an empty bottle on her eye and under the chin and thereby caused her death; that either before or after her death he dragged her over a barbed wire fence for a fairly long distance. It is clear from the evidence that he intended to cause her death. The court found accused guilty of murder and sentenced him to death.

      There is an appeal submitted on behalf of the prisoner by advocate Mahmoud Izzel Din, who contends that the accused committed the act of killing under a mistake of fact and applied for the application of the Sudan Penal Code, s. 44 on him.

      The facts on which the learned advocate is relying are that the accused genuinely believed that deceased was a ghost (Baatiya) and that he killed her as he was frightened by her. He quoted the case of Sudan Government v. Abdullah Mukhtar Nur (1959) S.L.J.R.1.

      Mistake of fact is only a defence if the mistake is one which a reasonable man might have made in the circumstances, and if no liability would have attached if the supposed circumstances had been real. It is also necessary that the mistake should have been made in good faith, i.e., despite due care and attention: Gledhill, Penal Codes of Northern Nigeria and the Sudan 110 (1963).

      In this case, the accused admits that he met the deceased woman out side the house where he was staying, that he accompanied her together with another person who was known to him to a place where the three of them shared a bottle of araki, that the other person committed sexual intercourse with her and then left them. It seems that the accused wanted also to commit sexual intercourse with her and she refused, and then they quarrelled and he struck her with the bottle. In such circumstances, he cannot be heard to say that deceased was a ghost or believed that she was a ghost even if he saw that her hair became disorderly as a result of drink or the quarrel. This case is distinguishable from the case of Sudan Government v. Abdul Mukhtor Nur, supra, as in that case the accused had never met the deceased before, that there was a current belief in the village that a ghost was haunting the neighbourhood, that at the material time after midnight and while he was searching for a lost cow accused saw the deceased dressed in black and carrying a stick, and

addressed her and she did not reply. He then became frightened and beat her until she fell senseless.

      “…A mistake as to the supernatural presents two problems. In the first place, it may be difficult to decide whether the creature that the accused believes to exist (e.g., a witch) is in his own estimation a species of supernatural creature or a species of human being with supernatural powers. If he believes only the latter, his act in killing the creature is clearly murder” (italics added): Williams, Criminal Law 175 (2nd ed. 1961), and authorities there cited.

      I cannot understand how accused, who stayed for a long time with deceased, drank araki with her and another companions leaving her with the companion for some time, and then returning to her and having at least some conversation with her, can be said to believe honestly that she was a “Baatiya”.

      If such cases are allowed to escape the death sentence there will be a grave danger to social life, and I therefore affirm the confirmation of the finding of murder and death sentence.

      Editors’ Note:- See Krishna Vasdev, “Ghosts, Evil Spirits, Witches and the Law of Homicide in the Sudan” (1961) S. L. J. R. 238. And see Sudan Government v. Ebeidalla Kurdi, AC-CP-293-1944. On the possibility of conviction of a lesser offence, see Williams, Criminal Law, s. 39 at 109-110 (2nd ed. 1961).