Principles

·  CRIMINAL LAW—self-defence’ — May not be claimed by aggressor—penal  Code, s. 55.

A person myy not claim self-defence  In a homicide case when he was the aggressor and provoked the attack the defence against which required a killing

Judgment

Babiker Awadalla, J., July 10, 1957 :— This case Is not the simplicity it appears.

From a perusal of the whole proceedings there can be no doubt thit deceased lost his life after a drunken brawl with his brother the accused and In accused’s own house.

But with the medical evidence as it is, I think it is absolutely impossible to arrive at a conclusion as to the exact cause of death with the facility disclosed in the proceedings.

According to deceased’s own dying declarations the facts are as follows

‘I arrived from zalata afew days ago and stayed with my brother Ahmed Mohamed Zien on the evening of Wednesday last we were drinking merissa with us were Suleiman and Bireima after we drank my brother ahmed said to me you had better go home

I replied, ‘I will go next morning’. I got up with the intent to go into the rakuba in order to take my clothes. Before I could enter, he caught up with me and slapped me on the face. We grappled and fell to the ground. We got up and fell down again. I was on top and trying to get up when he stabbed me once in my stomach. I felt my intestines coming out, and I fell down senseless. I continued senseless for some time. After that Suleiman came and lifted me up. My brother Ahmed (accused) also came and said to me, ‘1 caused you injury, my brother. It is God’s will.’

“When it was night he (accused) told me he was going to Ed Dam Gamad to report.

“          The altercation between myself and my brother was not a serious one —just a joke. We had all been drinking merissa but were sober. Accused is my elder brother. We had no dispute before this incident.”

The only reliable witness, Suleiman Fadlalla, supports deceased almost in every detail. There is no doubt at all that it was accused who stabbed deceased; but as the medical evidence shows that there were bruises on accused’s neck, it is only fair to believe accused in that he only stabbed deceased after the latter started to strangulate him.

But the real mystery in the case is the medical evidence. The post mortem report on deceased hows that there were two injuries;

I.                   An incised wound 3 1/2 inches x 1/2 inch reaching the abdominal cavity and terminating at the umbilicus with the intestines protruding thereout and torn;

II.        A congested spleen with a lacerated wound3 ½ inches x 1/2 inch on the posterior capsule, which resulted in severe hemorrhage into the abdominal cavity.

In this report the cause of death is given as hemorrhage resulting from the injured spleen.

Furthermore, in his viva voce testimony in Court, the same doctor described the above injuries as given in the report, and asserts that the in jury to the spleen was caused by an act quite independent of the one that caused the incised wound. In this testimony the doctor also describes both injuries as “fatal,” adding that the injury to the spleen was This last statement by the doctor in my view greatly obscured the issue as to the cause of death and the Court ought to have examined the doctor further on the point in order to clarify the obscurity but, unfortunately, it let the matter rest at that To describe both injuries as fatal does not perseimply that the incised wound was partly responsible for the death. The first ingredient in a homicide charge is the “causing of death”, and there is a great difference between describing an injury as fatal and alleging that such in jury was the cause of death.

An injury may be .fatal but may not have resulted in death because it was accompanied by a more fatal injury. Accused person may deliver a mortal stab in the abdomen and another one right into the heart. Both injuries are fatal, but the heart injury, even though it follows the abdomenal injury in point of time, will cause instantaneous death. So in this case this mysterious injury to the spleen, of which the cause is unknown, may have. been the exclusive cause of death. This may be so despite the fact that the doctor describes the abdominal stab as fatal, because perhaps the mortal effects of this wound had no time to materialize, being intercepted by the quicker and more effective action of the spleen injury.

This leads us to a further and highly important query: When where and by whom was this injury to the spleen caused?

There was no mention at all by deceased that he suffered any other injury at the hand of accused. nor is it mentioned anywhere by the witnesses that deceased was kicked by accused or thrown by him against any hard and protruding object. To believe the medical evidence would mean that the injury to the spleen should be presumed to have occurred accidentally in the scuffle. Such a presumption is in my view untenable.

The doctor stated that apart from the wound the spleen was healthy It is a matter of common knowledge that a healthy spleen is not enlarged. and it is only an enlarged spleen that goes below the ribs in such a manner as to be exposed to injury. A healthy spleen is so securely situated as not to be susceptible to injury by a blunt instrument. I am told that the contractile character of the spleen tissues make any incised wound on this organ appear as a lacerated one, and this is especially so if death follows, and there is a long interval beween the injury and the examination, as was the case here (injury 20th, examination 23rd). It is therefore very difficult for me to understand the doctor’s evidence bearing in mind:

(a) that the stab wound was on the left side of deceased body (i.e. the same side as the spleen)

(b) that the dimensions of the two injuries are all coinciding and, save for the depth, are exactly the same;

(c) that the stab wound in this case was delivered by a man who was lying on the ground face up and so the direction of the knife would be upwards.

Perhaps a careful cross-examination of the doctor might have. mad it possible for the Court to come to a conclusion that deceased’s spleen was injured by the stab.

Again it is not possible for me to understand how a finding of guilty of homicide could b arrived  at in the absence of any medical evidence to the effect the death was at least accelerated by the stab wound All that the doctor says is that the stab-s was fatal As explained above, the the epithet fatal is merely descriptive of the nature of the wound rather then informative of the effect on the life of the deceased in the particular case

To give the accused the benefit of the doubt revealed in the medical. evidence i think the only finding possible in this case is one of attempt

This brings us to the injury. “Were death traced to the stab, would accused have been guilty of murder or culpable homicide?” In other words, is accused guilty under Penal Code, s. 259 or s. 260? On this point, I again disagree with the Court as to the existence of any extenuating circumstances. The Court treated the stab as an excessive exercise of the right of private defence, though it was accused who started the assault in the first instance. With all respect, I do not think this is justifiable, for “It is an accepted proposition of law that a person cannot avail himself of the plea of self-defence in a case of homicide when he was himself the aggressor and wilfully brought on himself, without legal excuse, the necessity of killing.” 2 Gour. Penal Law of India 1313 (6th ed. Verma 1955)

M.A. Abu Rnnnat, C.J  July 10, 1957:— 1 agree and have made the necessary order.

This useful and informative note by Babiker Awadalla, J., should be brought to the notice of the President of the Major Court.