Principles

·  EVIDENCE — Testimony at former judicial hearing — unavailibility  of medical witness — Discretion of Court — Code of Criminal Procedure 1925, s. 220 (I)

·  EVIDENCE — Medical assistant’s report — Code of Criminal Procedure 1925. s. 228(3) — Medical assistant is not a “medical officer” — His report is inadmissible If not present under oath.

·  CRIMINAL LAW — Causality — Tetanus — Wound fatal because of tetanus lnfection legally causes death.

·  CRIMINAL LAW — “Likely” and “Probable” — Penal Code. s.248(b) — Nature of of knife wounds “likely” to cause death.

Accused stabbed deceased on the cheek, the loin and the shoulder blade. Deceased remained in Li Rangu hospital for seventeen days after which he was discharged as cured. Three days after discharge his condition deteriorated and he returned to the same hospital where he died of tetanus due to the knife wounds caused by accused. Accused was convicted of murder under Penal Code, s. 251 by the Major Court which failed to admit the evidence of the medical officer given at the magisterial inquiry because he “had been transferred to the North and all attempts to summon him to appear have failed”, and admitted the report of the medical assistant although he was not present to testify.
Held: (i) The court had discretion to admit under Code of Criminal Procedure, s. 220(1), and should have admitted, the evidence given at the magisterial inquiry by the medical officer who could not be summoned to trial.

(ii) A medical assisant is not a “medical officer” within the meaning of Code of Criminal Procednre, 1925, s. 228(3): his report is therefore not admissable evidence without his presence under oath.

(iii) The knife wounds inflicted by the accused caused the tetanus which caused the death of the deceased. Therefore the wounds caused the death.

(iv) The wounds were such that accused knew that death would be a “likely” but not “probable” consequence of his stabbing the deceased; conviction is therefore reduced to culpable homicide not amounting to murder under Penal Code, s. 253

Judgment

 M. A. Abu Rannat, C.J. March 15, 1963 :— Accused, Leben Bamando, was at a dance in Khor Chanza on April 13, 1962. Deceased, Esbon Raba, and his wife were watching the dancers. Accused wanted to enter the dance ring to dance. He forced his way between deceased and his wife by pushing both sideways. When deceased asked accused why he had pushed him, accused attacked deceased, knocked him down and stabbed him three times with a knife on the cheek, the loin and the shoulder blade. Deceased then walked to the Yambio police station and lodged an information against accused. Deceased was sent to Li Rangu hospital until May 1, 1962 when he was discharged as cured. Three days later his condition deteriorated and he was returned to Li Rangu hospital. He died there on May 5, 1962 of tetanus. Accused wa convicted of murder and sentenced to death under Penal  Code, s. 251 by a Major Court convened at Yambio on January 31, 1963.

At the magisterial inquiry, the medical officer who cared for the accused in his final sickness stated, “I do not believe that the wounds were ‘fatal’ or would have caused the direct death.” The evidence of the medical officer given at the magisterial inquiry should have been admitted in to the  trial record under code of Criminal procedure s. 220(1) since the medical officer had been transferred to the North and all attempts to summon him to appear have failed  (Record p. 25). Sudan Government v. Kudi Ismail Kudi, AC-CP-159-1956, (1961) S.L.J.R. 25, 26. The substance of the evidence of the medical officer was that the wounds ordinarily would not have been fatal had it not been for the tetanus. “Therefore I believe,” he stated, “that death is due to the tetanus caused by the wounds from which apparently he had been cured.” The report of the medical assistant made when accused was first admitted to the hospital, and stating deceased’s condition was not grave,, was admitted into the record of the Major Court incorrectly. The medical assistant did not testify. A medical assistant is not a “medical officer” within the meaning of Code of Criminal Procedure, s. 228(3). His report is therefore inadmissible if he is not present testifying under oath. Sudan Government v. Ali Fadlalla El Gaili, AC-CP-219-1956, (1961) S.L.J.R. 30, 31.

The first question to be considered is: “Did the ‘wounds inflicted by accused cause the deceased’s death?

Although the question of cause is a legal, not a medical question, an understanding of the medicine involved is important to the determination of legal cause.

Tetanus, the disease from which the deceased died, is caused by the introduction’ of living tetanus spores into the body tissue usually by trauma. The tetanus spores are wide-spread wherever remnants of animal feces are. They are found in the earth practically anywhere and particularly in the soil on dirty clothes. When a knife passes through soiled clothing and into a man’s flesh it can carry with it the tetanus spores, from the penetrated soiled clothes or from the knife itself. In the body the spores often take considerable time to generate into disease producing germs. In all likeli hood in this case the tetanus spores were introduced by the knife into the deceased’s body and only became active after the wound had healed sufficiently well for the deceased to be, discharged from the hospital. And so, in short, although the trauma resultIng from the stab wound would not have caused death had it not been for the presence of tetanus spores, the fact is that like a poisoned arrow the knife stab did introduce the lethal agent into the body. Medically, therefore, it can be-said that in all probability the knife wound caused deceased’s death by introducing the lethal agent, tetanus spores. In this case the wounds would not have been fatal but for the tetanus they introduced. The tetanus in all probability was a direct result of the wounds. Since the wound caused the fatal disease by intro ducing tetanus spores, the accused shall’ be sai in law to have caused the death of deceased.

The second question is whether the accused knew that the death of deceased would be the probable or only a likely consequence of the stabbing.

The difference between probable and likely is stated in Sudan Government v. Kenvi Jelo, (:1960) S.L.J.R. 60 as follows

“The difference between ‘probable’ an ‘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 ‘probabte’ 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.” -

I think that in the circumstances of this particular case the accused knew that death would be a likely consequence of his act, and I therefore alter the finding to one of guilty under Penal Code s. 253

As to sentence, I consider that fourteen years is adequate and consequently I alter the sentence to imprisonment for fourteen years from April 13,1962

Editors’ Note: The following is the record of the medical evidence given by Dr. Ahmed El Rashid Said, Medical Officer, 28 years old, on November 13, 1962 at the Magisterial Inquiry at Yambio:

After the oath he said

            In the evening of May 4, 1962 in the external clinic I examined the patient called Esbon and I found certain symptoms of tetanus. They were: contraction of the jaw muscles, a state of unconsciousness, certain nervous fits and an increase in the sensitivity of the nerves.

“He was admitted in the hospital on the same day being suspected of tetanus, and as a precaution he was given malaria treatment in addition to the treatment against the tetanus. But the patient died before he was given the sufficient dose of medicine.

After dissection of the body on the second day we did not find any cause of death due to other parts of the body. This makes the diagnosis of the tetanus more probable.

            The patient was in the hospital for 13 days for the treatment of his wounds. He had left the hospital for three days before his last sickness. Therefore I believe that death is due to the tetanus caused by the wounds from which apparently he had been etired.”

Cross Examination:

“I saw the signs of the wounds which were on the patient

“I do not believe that the wounds were ‘fatal’ or would have caused the direct death.”

The Court showed the doctor the report of the medical assistant. The doctor made the following remarks

            I believe that the wound which was on the left side of the back and which is 3 1/2 inches deep approximately may cause death if the wound penetrated in the left kidney; accordingly the cause- of death may be internal haemorrhage.”

“There was no penetration of the kidney.”

            Normally the signs of tetanus do not appear at the preliminary stages and this depends on the immunity of the patient and the nearness of the wounds from the nervous system

            I don’t believe that the deceased had a weak immunity but I believe that the amount of bacteria was too much in comparison with the number of the wounds.”

            The deceased was given protective treatment against the tetanus when he had the wounds; that is according to what was registered in the treatment report.”

The Cout asked “whether the deceased took this protective treatment

“I can’t answer because I was absent.”

“The probability of death by tetanus is 80% and therefore we disregarded any other reasons after dissection.”