Principles

·  Criminal Law—” Likely - and “probable “—Penal Code, s. 248 (b)—Consider all circumstances _Shot gun wound in thigh—” Likely”

·  Criminal Law—Private defence—Penal Code, s. 55—Defence not available to the aggressor—Armed man demanding explanation of insult is an aggressor

·  Criminal Law—Medical care—Penal Code, s. 246, Explanation 2—Relevance of probable result of proper medical care in homicide cases

·  Criminal Law—Dia—Deceased from tribal area recognising dia but offence took place in town—Sentence reduced after dia accepted

 Deceased and other pedestrians shouted at accused as he passed them in his car. Accused turned back, stopped his car, called to the deceased and his companions to approach and demanded an explanation of their words. When deceased and his companions came near, accused stepped out of his car, armed with a loaded shot-gun. Words were exchanged, and the accused threatened with his shot-gun the deceased and his companions standing in front of accused. When deceased moved, accused, thinking he was being surrounded. shot the deceased from five paces. The shot struck deceased on the thigh three or four inches above the knee, and caused his death. Deceased’s companions would not allow one witness to take deceased to, the hospital and he bled to death. Accused was convicted of culpable homicide not amounting to murder under Penal Code, s. 253. Before the Chief Justice accused applied for reduction of sentence on grounds that dia had been settled with deceased’s father, living in a tribal area, although the offence had taken place in town.
Held: 1. when accused fired a shot-gun from five paces into the thigh of deceased three or four inches above the knee, he knew that death would be a “likely” result within the meaning of Penal Code, ss. 248 and 20A, and is therefore guilty under Penal Code, s. 253.

2. If a person armed with a gun demands an explanation of previous insulting language from another, and the latter attacks the former, the former forfeits the right of private defence, since he was the aggressor; therefore in this case, even if deceased’s action could be construed as an attack, accused has no right of private defence under Penal Code, s. 55.

3. The fact that deceased’s life might have been saved had his companions allowed his removal to the hospital does not mean that the wound did not cause the death: Penal Code, S. 246, Explanation 2; Sudan Government v. Akec Magol (1961) S.L.J.R. 20.
4. Because deceased belonged to a tribe which recognises and accepts dia, and because accused and the father of deceased have agreed to dia, the sentence is reduced although the offence took place in town, regardless of Criminal Court Circular No. 18, s. 2 (a), of June 15 1952.

Judgment

  Advocates: Mohamed Ahmed Mahgoub and Dafalla El Hag Yousif for the accused,

            M. Y. Mudawi P.J., President of the Major Court ** convened at Khartoum, February , 1963: —In the afternoon of January 11,  1963, accused, Kamal El Jack Ahmed, a civil servant of high position in the Ministry of Education, went to the space lying in the north of the industrial area of Khartoum North with the intention of shooting some wild birds. He used a car for the journey and he also had a shot-gun (Remington Mark —)‘ a type of gun which holds three cartridges at a time. He had with him about twenty-three cartridges kept in a khaki cartridge vest. Accused used two shots in his hunting expedition, and at sunset he proceeded to go home with his gun loaded with one cartridge which he was intending to remove at home as it would, with that type of gun, take some complicated handling before the cartridge could be removed.

  

On his way home and as he was driving towards the south along the macadamised road near the American-Sudanese textile factory in the industrial area of Khartoum North, accused approached from behind a party of six Dinka boys who were walking in the same direction. As accused drove past them they dispersed on both sides of the road and uttered some words of protest at the way accused was driving his car. Accused drove for about 150 yards ahead and then turned and drove his car in the opposite direction and stopped a few yards to the western side of the macadamised road and waited for the six Dinka boys to come. On the arrival of these men, who were completely unarmed, accused called them to come near to him and to explain to him the words they uttered. P.W. 10, Andrea Dwang, followed by P.W. 11, Mariano Akoy, and P.W. 12, Angelo Akod, walked towards accused, who was at the time standing at the left door of his car with one foot in the car and the other foot on the ground. At this time P.W. 13, Angelo Akod, P.W. 9, Martino Deng, and Simon Paul Ajack, the deceased, stopped at some distance away from the car on the macadamised road. On the arrival of Andrea, Mariano and Angelo Akod near to the car accused stepped out of the car with the loaded shot-gun in his hand. An exchange of words took place between Andrea and accused as to who was mistaken when accused first drove past the Dinka party. Accused then suspected the expression on the faces of the Dinka and their movement and he thereupon started to threaten them by pointing the muzzle of the gun at Andrea. But the Dinka boys did not back out and Andrea, with his hands up, moved to wards the pointed gun, followed by Mariano and Akod. Accused retreated, apparently to keep a distance between himself and the Dinka. The situation worsened as the Dinka boys felt they were challenged and threatened by accused and as accused felt that the Dinka were undeterred and did not respond to his threats. The atmosphere was charged with fear and mistrust. Angelo Akod and Martino Deng, seeing the gun aimed at their three colleagues, stepped down the road and joined them. Accused was then pointing his gun towards five men who were standing a few yards in front of him at a point between him and the car. At that moment Simon, the deceased, who was at a distance, started to move and came on the right side of accused. When Simon was about five paces from accused, accused, who felt he was being surrounded, could stand the Situation no more and moved his gun quickly towards Simon and shot him in the left thigh three or four inches above the knee. Simon fell to the ground, bleeding. Accused emptied his shot-gun and ran about 100 yards to the camp of some Baggara workers. Andrea followed him, only to return after he was assured by the Baggara that accused would be taken to the police station. Andrea was seen wearing the vest of ammunition when he followed accused to the Baggara camp. Two of the Dinka boys stayed with Simon (deceased) while the others went to lodge an information with the police. Simon, whose colleagues refused to allow him to be taken by P.W. 3 for medical treatment, was left to bleed to death a short time after he was shot. The cause of death according to medical evidence was haemorrhage out of the main blood vessel in the left thigh damaged by the pellets.

 The charge framed against Kamal El Jack Ahmed is one under the Sudan Penal Code, s. 251, to wit, that on or about January 11 1963, the said accused fired a shot-gun at deceased, Simon Paul Ajack, and hit him on the left thigh, intending thereby to cause his death or knowing that death would be the probable and not only a likely consequence of such act.

             The learned counsel for defence, advocate Mohamed Ahmed Mahgoub, adopted two lines of defence: first, that the injury to deceased was caused by accident or misfortune and without any criminal intention or knowledge; and, secondly, that even if the injury was intended it was done in the lawful exercise of the right of private defence.

 In connection with the first defence the facts put forward by the prosecution, which were in our opinion proved beyond reasonable doubt, are that accused knew that the gun was loaded, that he was aiming it at some of the prosecution witnesses in front of him, that deceased walked to about five paces to the right side of accused, that accused quickly turned the barrel towards deceased and fired, and that deceased was hit on the left thigh. The defence attempted to cast some doubt in our minds by the supposition that accused was at the material time aiming at the ground; but this allegation is conclusively negatived by the position of the wound, which tells a different and indeed a more accurate tale. A wound three or four inches above the knee cannot be caused by a gun pointed to the ground. Accused was, according to the position of the wound, pointing the gun towards the body of deceased, albeit a little above the knees. On the face of these self-explaining facts it will be very difficult for any court of justice to believe that the whole affair was an out come of an accident or a misfortune unintended and unknown by accused. An example of an act done by accident is given by the learned Sir Hari Singh Gour at I Gour, Penal Law of India 321 (7th ed., Verma and Subrahmanyan, 1961):

 “The accused with some companions went into a jungle to shoot pigs. He took up his position and waited while his companions proceeded to beat the pigs towards him. In due course a boar was driven in his direction and the accused fired at it. The shot, however, missed the boar and hit one of the accused’s companions, causing him injuries which resulted in his death.”

 

  It was held that the act of the accused was a pure accident and the defence was available to him. This example exposes with clarity the futility of the defence of accident in the case before us. Hence we reject the defence of accident and find that the prosecution has, beyond reasonable doubt, proved that accused knew that he was hitting deceased on the thigh.

 

  The next point to be dealt with is whether the injury caused the death of deceased. The medical evidence states that death resulted from external haemorrhage gushing out of the blood vessel in the thigh which was ruptured by the discharged cartridge. Death ensued between a quarter of an hour and one-and-a-half hours after the incident. The learned counsel for the defence seems to stress the fact that colleagues of the injured man refused to allow him to be taken to hospital for medical treatment and that had deceased received any treatment his chances of survival would have been 8o per cent. In the opinion of this court, and indeed it is the established law, lack of medical care cannot break the chain of causation if death can be connected with the injury.

 Explanation 2 of Sudan Penal Code, s 246, is clear on the point. In his commentary on this explanation the learned Ratanlal states:

 

   “Although proof be given that the wound or other bodily injury if skilfully treated might not have resulted in death, yet if in fact death results, the wound causes death.... If death results from an injury voluntarily caused, the person who causes that injury is deemed- have caused death, although the life of the victim might have been saved if proper medical attention had been given”: Ratanlal, Law of Crimes703-704 (19th ed. 1956)

 

  In 10 Halsbury, Laws of England 706 (3rd ed. 1955), the author states:

   “If a dangerous wound is inflicted and death results, the person who inflicted the wound is criminally responsible for the death, although the person wounded neglected to use proper remedies or refused to submit to a necessary operation…”

 

  If this rule of law is desirable in England it is even more so in a country like ours where ignorance and superstition are the general rule and where communications and medical services are subjected to severe limitations. The man who causes an injury is presumed to have known all these factors and to have taken them into consideration. In view of this, we find that death of deceased was caused by the injury inflicted by accused.

   Having resolved these two important points, we now address ourselves to the vital question of whether accused acted with the intention to cause death of deceased or with the knowledge that death would be the probable and not only a likely consequence of such act. We must hasten to say at the outset that we have no evidence-to prove intention of accused to cause death of deceased. Indeed the fact that accused aimed low when he fired goes to negative the intention to kill. But surely, even though the accused may not have the intention, yet he may have the knowledge that death would be the probable and not only a likely consequence of his act. There is no hard-and rule to assess knowledge of probability or likelihood. Each case is considered on its own merits. The acid test is given by the learned Chief Justice Abu Rannat in the case of Sudan Government v. Kenyi Jelo (1960) S.L.J.R. 60:

 “The difference between ‘probable’ and ‘likely’ is purely one of degree of chance—in ‘probable’ the odds are more in favour of the death occurring than in ‘likely.’ When a reasonable man says that a certain consequence is ‘probable’ he will be surprised if it does not happen. But if he says that a certain consequence is ‘likely’ he is not surprised if it does happen and not surprised if it does not.”

In order to apply this test one should consider all the circumstances attending the act: the weapon used the part of the body injured, the seriousness of the injury inflicted and a host of other things. When a deadly weapon, such as a knife, dagger or a gun, is applied to a vital part of the body the perpetrator is bound to know that death would be the probable consequence of his act. The vital parts of the body are the head, the chest and the abdomen. However, when the same weapon is applied to a non-vital part of the body such as the forearm or the knee, the chances of death are lessened and the accused may not be taken to know that death would be the probable and not only a likely consequence of his act. In India many cases have held that a stab by dagger or knife in the forearm or knee resulting in death is an act that neither probably nor likely causes death. The offender is convicted of causing grievous hurt and no more. 2 Gour, Penal Law of India 1393 (7th ed. Velma and Subrahmanyan, 1961), states:

 

 “The forearm or a knee is not a vital part of the body. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If, therefore, a stab with a knife or dagger aimed at an arm or a leg severs an artery and the injured man dies as a result, the offence is not murder, or culpable homicide not amounting to murder, and the assailant can be held guilty of causing grievous hurt with a dangerous weapon…”

 

  However, even in India severe and numerous wounds caused by a sword on the legs and forearms have been held to be indicative of know ledge that death would be probable and the assailant was convicted of murder. See generally, 2 Gow, Penal Law of India, 1358-1361 (7th ed., Verma and Subrahmanyan, 1961). In a particular Indian case, the accused inflicted nine wounds with a sword: (I) an incised ,wound across the back of the right elbow exposing the bones of the joint; (2) an incised wound on the palm of the right hand; (3) an incised wound on the middle of the right forearm; (4) an incised wound on the back of the left foot (the lower portion was left hanging down); (5) an incised wound over the left heel; (6) an incised wound four inches long, two inches wide and two inches deep across the back of the left knee, cutting all the blood vessels, arteries, veins as well as nerves; (7) the left thumb was cut and was hanging down; (8) the left index finger was split into two; (9) a contusion on the tip of the left middle finger. That ends the list.  A pretty impressive list I must say!

 In spite of this sheer butchery, the session judge (the court below) found accused guilty of causing grievous hurt by a dangerous weapon, and acquitted him of the charge of culpable homicide.  But this manifestly unhappy decision was set aside by the Court of Appeal and accused was convicted of murder. Undoubtedly the knowledge of accused was reflected in the numerous wounds inflicted. A man causing nine wounds of the type described must be taken to know that death would be the probable consequence of his act, no matter whether he aimed at the vital parts or not. This point was discussed in this country by Babiker Awadalla J. in Sudan Government v. Mohamed Adam Onour, AC-CP-232-1957 (1963) S.L.J.R. 157, 158. In that case deceased was stabbed three times on the arm with a khanger. The learned judge of the High Court found accused guilty of culpable homicide not amounting to murder and noted the different attitudes adopted towards the problem by our judges and the judges of India, who treat cases of the nature of Mohamed Adam’s case as an offence lesser than culpable homicide.

  

Equipped with the surprise test expounded by the honourable Chief Justice, and having in mind the cases discussed above, we proceed to decide the point in issue. The circumstances attending the act of accused as proved by the prosecution are that accused used a shot-gun (one No. 4 cartridge), that he pointed the gun at five or less paces at deceased, that the gun was pointed with a slant downwards, indicating that accused was avoiding the vital parts of the body and attempting to hit the region of the knee, and that he did hit the deceased three or four inches above the knee, damaging the main blood vessel at the back of the thigh. Undoubtedly the weapon used is a deadly weapon discharged at close quarters. On the other hand we are convinced that accused deliberately lowered the gun to avoid the vital organs. The fact that the range was close enabled accused to choose accurately the part of the body he wanted to hit, and also prevented the pellets from dispersing on a wider part of the body. The pellets  qaareey went in a lump, all in one bunch, like one large bullet, and pierced the body causing a hole above the knee 1” x 1”. In our opinion accused in regard to the knowledge of the location of the arteries in the human body must be considered an ordinary man. We define “an ordinary man” for the purposes of the criminal law as a person who is not a doctor or a biologist, and is not proved to have a special knowledge of the physiology of the human body: Sudan Government v. Mohamed Adam Onour, supra.

   Faced with these facts we must admit that we found some difficulty in deciding whether they indicate knowledge of probability or of likelihood. Will a reasonable man be surprised if a man hit by a bullet above the knee dies? Will he be surprised if the man survives? To borrow the phrase of Oliver Wendell Holmes, the great American jurist, even this “legal litmus paper” was of no avail. So we had to decide that the particular facts of the case put it on the fence, on the border-line between the realm of “the probable” and “the likely,” on the thin line that divides the two offences, murder and culpable homicide not amounting to murder. We are therefore bound to give accused the benefit of the doubt and decide that. accused did not know that death would be the probable consequence of his act, but that he did know with certainty that death would be a “likely” consequence of his act.

   As mentioned above, the learned counsel, advocate Mahgoub, put forward the alternative defence of the exercise of the right of private defence. This branch of the law is contained in Penal Code, ss. 55-63:

   Section 55: No act is an offence which is done in the lawful exercise of the right of private defence.

   Section 58: The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

   Section 61: The right of private defence of the body extends, under the restrictions mentioned in sections 58 and 59, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely:

??) an attack which causes reasonable apprehension of death or grievous hurt, or

??) rape or an assault with the intention of gratifying unnatural lust, or

??) abduction or kidnapping.

   However, the right of private defence is further curbed and curtailed by the condition that accused in order to avail himself of it should not have been an aggressor or a person who courted the trouble.

   An accused person raising this defence is not expected to prove, beyond reasonable doubt, the facts alleged to constitute the defence, nor is he obliged to adduce any evidence at all. It is up to the prosecution to

  

 

prove all the ingredients of the offence and if the evidence taken all in all raises some reasonable doubt in the mind of ‘the court as to whether there is a right of self-defence then the court should accept the plea and atc accordingly. In the cases of Woolmington v. Director of Public Prosecutions [1935] A.C. 462 and Mancini v. Director of Public Prosecutions [1942] A.C. 1 the House of Lords discussed the point at length and seemed to have established that

   “…although the fact of killing does not raise a persuasive presumption that the killing was intentional and unprovoked it does, (at least in many cases) raise an evidential presumption to this effect so that the onus of introducing some reasonable evidence in rebuttal (the evidential onus) is on the accused”: Williams, Criminal Law, Genera Part, s. 290, at p. 892 (2nd. ed., 1961)

   Now, we turn to consider the facts out of which we are expected to spell the defence of the right of private defence. What happened that evening between the time accused saw the party of the Dinka boys up to the time the shot was fired was seen by prosecution witnesses 8-13 and of course by the accused himself. P.W. 8, El Nour Hamid, is a fairly independent and truthful witness. Though he is a Dinka he was not a member of the party that had the quarrel with accused. He watched what was going on from a distance and told a fairly true story to the court. P.Ws 9—13 are involved in the quarrel. Their story is on the whole coherent despite the fact that they tried to improve their statements at different stages of the proceedings. They all denied the established fact that they had had marissa the day Simon died. There were also some discrepancies in their statement with regard to the time at which the ammunition vest was taken by P.W. 10. They told the court that Andrea, P.W. 10, took the vest after his return from the Baggara camp. But P.W. 5 one of the members of the Baggara camp, was positive that he saw the vest on the body of P.W. 10 on the arrival of the latter after accused. But are we to discard all the evidence of P.W.s 9-13 because they told untruths in some particulars of their evidence? Surely not. We must of course be a bit careful in our endeavours to sift their evidence in order to separate the true statements from the false. We have to winnow them, so to speak, in order to separate the grain from the chaff: Emperor v. Muzaffar Hussain (1944) A.I.R. (Lahore) 97. On the other hand, we must say, there is no rule of evidence to prevent this court from rejecting the exculpatory statements of accused from taking account of his inculpatory statements, provided that there is reliable evidence on the record which gives credible account of the events and disproves statements of accused beyond reasonable doubt: Emperor v. Muzaffar Hussain (1944) A.I.R. (Lahore) 97, 105.

   Guided by these rules of evidence we proceed to construct the facts. It is in our opinion proved beyond reasonable doubt that at sunset on that

  

 

day accused, on his way home and with his gun loaded with one No. ‘4 cartridge, approached with his car a group of Dinka boys from behind. The Dinka boys dispersed on both sides of the road when accused drove past them. They made some annoying remarks in protest against the way accused was driving his car. Accused drove for about, 150 yards and then turned his car to the opposite direction, and stopped until the’ Dinka boys reached him. Accused called for the Dinka boys to come to him and some of them (three) went straight to the car. P.W.s. 9—13 state that accused left his car when the three boys came near to him and with his loaded gun in his hand demanded an explanation of the words they uttered when he drove past. They also stated that he aimed the gun at them at once. P.W. 8, the independent witness, on the other hand states that being at a distance he was unable to hear what went on between the two parties, but he did see accused step out of his car with his gun in his hand. Accused on his part tells us that he stepped out of the car without a gun but took it later when he did not like the look on the faces of the Dinka boys. This court is convinced beyond reasonable doubt that accused did not leave his gun behind. It was in his hand when he stepped out. This is established by evidence of P.W.s 9—13 and of P.W. 8. Then what followed is roughly agreed upon by all concerned. P.W.s 9-13 walked towards accused, who was aiming the gun at them and at the same time retreating slowly to keep a distance between him and the men. The Dinka men, who were completely unarmed, were moving towards accused in a line that separated accused from his car. At this stage the ammunition vest was removed by the party from the car. Deceased then approached the, two parties from the right side of accused. When deceased was about five paces away, accused got suspicious of his movements and fired at deceased, hitting him in the region above the knee. The firing took place about eight paces away from the car.

   These are the established facts out of which we are urged to spell that accused was at the time acting in good faith in the exercise of his right of private defence.

   The right of private defence is limited and circumscribed by the law. It is in fact a surrender of the power of the state, in exceptional Circumstances, to the individual, and for this reason the law has been very careful not to allow such power to be abused. The law demands that he who claims this defence should come to the court with clean hands. He should not be proved to be an aggressor who courted the attack or sought the trouble. This right extends to causing the death of the assailant, and there f ore, unless it is attended with limitations and restrictions in keeping with the concept of the sanctity of human life, the law will be turned into an instrument of oppression handy to the rashling and the bully.

   However, in the opinion of this court the facts of this case reflect

  

 

clearly that accused, by coming to the unarmed Dinka men, by stepping out of the car with the loaded gun in his hand and by demanding an explanation for the remarks he had heard, charged the atmosphere with fear, suspicion and danger. The degree of danger reached a point of no return when accused aimed his gun at’ the Dinka who, responding to his call, came close to him. He aimed before they showed any sign indicating that they intended to make an attack that would cause death or grievous bodily harm to him. What did accused expect the Dinka to do in the circumstances? We believe the’ behaviour of the Dinka was normal, and the fact that on seeing the gun they moved towards accused (who had called them) with an expression of excitement on their faces was not some thing to be wondered at by any reasonable man. Surely, accused was mistaken if he expected them to knuckle under and surrender in abject fear to his threats.

   Anand and Aiyar, Private Defence 137 (1954) states: “If a person armed, for instance, with a pistol demands a retraction or an explanation of a previous insulting language from another, and the latter attacked the former, the former will forfeit the right of private defence…”

   In the same page the authors cited the American case of Coleman v. State, 25 S.W. 772 (1894)

   “Where defendant began the quarrel by drawing his pistol or attempting to do so, with an apparently hostile intent before any hostile movement by the assaulted party, he was not justified in shooting at the latter, though he reasonably believed at the time he shot that his own life was in danger”.1

  

  

In Dhanno Khan v. The State (1957) A.LR. (Allahabad) 317, the facts of which were that, during an altercation between the deceased and the accused, deceased beat accused with a danda (stick). Accused took out a knife but was caught by the onlooker and was prevented from attacking deceased. Deceased walked away about a hundred paces. Accused released himself and ran after him. Deceased, fearing the knife attack, hit accused with the danda. Accused stabbed deceased with the knife, with the result that deceased died. It was held that the accused could not claim the right of private defence. Mukerji J. of the Allahabad Court of Appeal formulated the principle in this case as follows:

   “The law does not confer a right of self-defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other.” Dhanno Khan v. The State, (1957) A.I.R. (Allahabad) 317, 318.

   In the case of Sudan Government v. Ahmed Mohamed Zein, AC-CP-139-1957, (1963) S.LJ.R. 117. Babiker Awadalla J. approved the principle that an aggressor cannot avail himself of the right of self-defence.  He reiterated the words of 2 Gour, Penal Law of India, 1430 (7th ed., Verma and Subrahmanyan, 1961): “It is 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 hint without legal excuse, the necessity of killing.”

   In view of the above we are comfortably clear in our minds that accused by appearing on the scene, gun in hand, to negotiate with the Dinka, assumed the mantle of the aggressor and the trouble-seeker. He crested the dangerous situation which culminated in the death of deceased, Simon Paul Ajack. Accused therefore cannot be heard to claim the protection of the law against a situation of his own creation. He acted at his peril.

   Although it is not necessary for the purposes of our finding (the accused being the aggressor) we feel we should touch on the question whether accused was at the time he fired under a reasonable apprehension of death or grievous hurt. The party of Dinka was unarmed and there is evidence that they showed no sign of violence apart from the

 

suspicious look on their faces when they saw the gun. They did not attempt to snatch the gun from accused even after he fired at Simon at a time when they were less than five paces away from accused. The fact that the Dinka took the ammunition vest should have no meaning more than that they wanted to deprive accused, who was pointing the gun at them, of ammunition which if left would be used against them. We are therefore convinced that accused was at the time he fired under no reasonable apprehension of death or grievous hurt, though perhaps he might have been under apprehension of being insulted or annoyed.

   In the result we are of the opinion that accused is guilty under Penal Code, s. 253, that is, guilty of the crime of culpable homicide not amounting to murder.

   M. A. Abu Rannat C.J. June 5, 1963:- On January 11 1963 in the afternoon, the accused went in his car to the area lying north of the Khartoum North industrial area for the purpose of shooting birds with his shot-gun. After he had shot four doves, he drove his car southwards on his way towards Khartoum North town. He reached the tarmac road east of the Sudanese-American textile mill at about sunset. While he was driving southwards on the tarmac road, he saw six Dinka labourers ahead of him. He blew his horn and the six men made place for him, as some of them moved to the right and others moved to the left. He was able to drive his car in the middle of the road. When he was passing them, it seems that they either protested at the way he was driving his car or that they uttered some abusive words to him. After he had passed them for some distance, he turned his car to the left and drove back to the north intending to meet these six men.

   The accused admits that he turned back to meet the six men in order to explain to them that he had done no wrong.

   The court found that he drove his car for a distance of i yards after he had passed the men and then turned back with his car to meet them, but the defence says that this finding is not supported by sufficient evidence.

   Advocate Mahgoub for the defence states that the finding of the court in respect to the distance of 150 yards after which the accused turned back to the six men was based on the sole evidence of the tracker. I do not think that this statement is accurate. I do not think that the court gave undue weight to the evidence of the tracker (P.W.5) since the court stated at the end of his evidence that he was not clear in his mind and was rather hesitant. I think the court was entitled to reach this finding of fact from the evidence of the police investigator, who stated that he visited the scene of the offence and started to take the measurements of the distances at about 9 p.m. with the help of the accused, witnesses and the tracker. He also stated that he used a petromax lamp in taking the measurements, after which he drew the map which he produced before the court. It is

  

 

observed that the accused never mentioned in all his statements throughout the various stages of this trial the distance he covered after which he turned back to the six men. He could have challenged the measurements on the spot when the investigator was measuring with his feet. If the distance was much shorter, the six men, who were walking in the same direction, would have reached him, and he need not have turned back to meet them. I therefore think that the finding of the court on this point is right. This point is of course relevant when the question of the right of self-defence is decided.

   The second point of fact which is challenged by the defence that the accused alighted from his car, which has a right-hand steering wheel, and contends that the accused must have come out of his car on the tight without his gun in his hand. The defence contends that he only moved to the left side of the car after the six men headed towards him and that then, but not till then, did he take his gun which was on the left side of the front seat.

   At the police investigation, when the witnesses were interrogated shortly after the event, three of the Dinka said that accused came out of the car on the left side with his gun in his hand, In ordinary circumstances, a person who is sitting on the right front seat behind the steering wheel would come out of the car on the right side, but if he is in a situation which might lead to trouble, he would, if he saw fit, get out of the car on the left side. I do not think that this point is of paramount importance as the situation was rapidly getting cut of hand. Even if it is conceded that accused left his car on the right side, and then moved to the left side of the car and took his gun in his hand, this would not change the view that he alone created the difficult situation in which he found himself. Of course all these movements took place within a few minutes.

   I agree that after accused came out of his car, the Dinka were, as is expected in such circumstances, in a truculent mood. It is also established that Andrea took the ammunition vest from the car before the accused shot the deceased. It is further established that at the time when the accused was retreating while facing some of the Dinka, he was aiming low, and then suddenly he turned right and shot deceased in the thigh.

   On these facts it is clear that accused shot the deceased in the thigh and thereby caused his death. The argument that the Dinka prevented the manager of the textile factory from saving deceased’s life is of no importance, in the face of penal Code, s. 246, Explanation 2. The next point is whether the accused knew that death would be a likely con sequence of his act. In the first place the accused used a shot-gun, which is a deadly and dangerous weapon. If his intention had been to frighten them, he would have shot in the air above their heads; and if his intention was to cause injury, he would have aimed at the foot or leg.  The defence

  

 

contends that the act was an accident within the meaning of Penal Code, s. 47. I do not think that the learned advocates for the defence really believe that the facts prove an accident in doing a lawful act. The accused admits that he shot at deceased because he believed the hitter was outflanking him. Can such an act be called an accident or misfortune? Even if the accused believed that he was doing a lawful act in a lawful manner by lawful means, can it be said that he did it with proper care and caution? In my view this defence ought not even to have been raised.

   The defence also pleads that this is a case of rash or negligent act under Penal Code, s. 256. There is no room for the applicability of the doctrine of rashness or negligence when the facts show knowledge of the act, as in such cases direct violence is excluded. In this particular case the accused voluntarily caused death to the deceased. His case is distinguishable from that of a doctor operating on a patient or a driver who ran over a person with his car.

   The next point is whether he knew that death would be a likely consequence of his act.

   I find no difficulty in agreeing with the court that the facts show that he knew death would be a likely consequence. I do not think that the facts warrant a finding that his intention was to cause hurt or grievous hurt. Cases falling under Penal Code, s. 254, are those cases where the deceased was beaten by the hand or a light stick, and that in nearly all such cases the instrument used is not a lethal or dangerous one; and the death of the per son beaten or injured in these cases would cause surprise to ordinary people.

   The next important point is the defence of self-defence.

   The learned advocate for the defence referred to many authoritative statements on the right of self-defence; the real point in issue is whether these statements apply to the facts of this case.

   The accused admitted when he was first interrogated by the police investigator that he returned to the Dinka party after he had driven far from them. V was his purpose in returning to them after he had gone far from them? The accused states that he went back to explain to them that he was no mistaken, and that they were wrong as they ought to have kept to their left when they were walking on a street.

   The Dinka say that as soon as he met them on their return he used threatening words, as he was undoubtedly angry from their insulting words which he heard when he first passed through them, When the court has such evidence before it, it is entitled to believe the Dinka story since it is Consistent with the conduct of the accused when he returned after driving such a distance.

   The right to kill in self-defence only exists in sudden and violent cases, when delay would put the party in immediate danger of the loss of life or

  

 

great bodily harm. The necessity must be urgent and the threatened violence and danger immediate. A killing when the accused was in neither real or imminent danger cannot be in self-defence. The question to be answered is this: “Was the accused in real imminent danger when he shot the deceased? “ The defence contends that the deceased came behind the accused when the latter was facing the other five Dinka, led by P.W. 10, and that he was intending to take the gun from him, but the evidence shows that deceased was walking with his hands in his pockets. Again it could be argued that deceased might have wanted to disarm the accused in order to save the lives of the others who were then threatened with a gun. The accused himself admits that the Dinka were not armed and did not attempt to assault him, but their looks made him believe that they were about to do so.

   If a person armed with a pistol demands an explanation of the previous insulting language from another, and the latter attacks the former, the former will forfeit the right of self-defence since he was an aggressor. Where defendant began the quarrel by drawing his pistol, or attempting to do so, with an apparently hostile intent before any hostile movement by the assaulted party, he was not justified in shooting the latter, though he reasonably believed at the time he shot that his own life was in danger: Anand and Aiyer, Private Defence, 139 (1957).

   The same authority states that an accused cannot justify his action on the ground of self-defence if he provoked or brought on the difficulty or voluntarily entered into it unless he had withdrawn in good faith prior to the assault upon him. In this case he brought on the difficulty by going back to the Dinka party, and he admits that none of them assaulted him, although their faces indicated that they were ready for trouble.

   I believe that at the material time, i.e., when he was retreating with Andrea challenging him and the deceased coming from behind, the accused believed that his life was in danger. But in the circumstances which I have described, this defence will not succeed since accused alone created the situation in which he found himself. This point is relevant in mitigation of punishment, but not to a plea of self-defence. We would be departing from the established rules of self-defence if we should hold otherwise.

   I therefore confirm the finding under Penal Code, s. 253.

   Sentence

   I think the sentence of eight years’ imprisonment in the circumstances of this particular case is on the heavy side. There was no motive or intent ion for the commission of the offence. The accused must have misjudged the consequences when he went back to the Dinka party. At the time of the shooting he was really afraid and thought his life was in danger. The

  

 

yardstick in such cases is between six and five years, and Consequently I alter the sentence to imprisonment for five years.

   While I was considering the appeal, I received a letter from the father of the deceased and the chiefs of the area, which is attested by the Local Government Inspector of Tonj District, that the father accepts the “Puk” i.e., the “Dia” (blood money), which was agreed to be thirty head of cattle. As the deceased belonged to a tribe which recognises and accepts the dia, though the offence took place in a town, I shall allow a reduction of sentence when the dia is finally settled. The deceased’s father stated that he is not interested in the imprisonment of the accused if the dia is paid. In certain cases the payment of dia operates as a remission of the sentence, but in this case I feel that the sentence should at least be reduced to imprisonment for eighteen months, and I therefore make an order accordingly.

   Editors’ Note.—The following two documents in handwriting relating to dia were received by the Chief Justice.

DOCUMENT I

   Chief Justice,

   Khartoum

   I knew of the death of my son Simon Ajang Bol. I now know that he was killed and not murdered. I am convinced that his killer was not really wanting to kill him but it was God’s will.

   In accordance with our Dinka traditions and customs, the people of the man killed in such a case seek compensation or what we call locally “Puk,” i.e., Dia.

   In pursuance of this Dinka custom and in response to the elders’ will I accepted to take 30 (thirty) head of cattle from the people of the killer, who agreed to it.

   Imprisoning the killer naturally avails me nothing.

   Please give consideration to the above and consider matter as settled on our part.

   Thanks in anticipation.

   Yours obediently,

   (seal)

   Bol Ajang Noi,

   Father of deceased

  

   Witnesses:

1. Chief Gfr Thik

2. Chief Aguer Adel

   11.5.1963

   Signed before me M. B. Khogali

   (L. G. I., Tong)

  

  

DOCUMENT 2

Receipt

   I the undersigned, Ajang Noy [sic], father of late Bol Agung, who had been killed in Khartoum, hereby certify that I have received 30 (thirty) cattle, “all cows,” up to my satisfaction and that of my tribe according to Dinka tradition, being the maximum of Dia in Bahr El Ghazal Province.

   Having satisfied myself, I and all members, of my family declare that we had received our traditional right and do further declare the immediate release of the person involved as being followed by our tradition.

   Ajang Noy

   8.6.1963

   Witnesses:

1. Chief Gir Thik

2. Chief Aquer Adel

   I certify that the above is the seal of Chief Gir Thiik and the signature of Chief Aguer Adel. Both at them Prominent Chiefs of Jur River District They signed in the presence of Sayed Hamad Ali Nasir Commandant of Police and Sayed Ahmed Ibrahim

   (signed)

   (L.G.I.)

   8.6.1963

Certified correct                                                     (signed)

   Salih Mohamed Tahir,

   Chairman of Province Authority,

   Bahr El Ghazal Province

  

   Criminal Court Circular No. 18, s. 2 (a), of June 15 1952, states:

   “Dia is essentially a tribal custom. It should not therefore be considered in detribalised communities or towns.

   “In detribalised communities or towns compensation, if any is necessary, may properly be awarded in accordance with the provisions of the Code of Criminal Procedure.”