Principles

·  CRIMINAL LAW— Grave and sudden provocation — Penal Code. s. 275— Homosexual advance sufficient.

·  CRIMINAL LAW— Grievous hurt — Penal Code, s. 272(g) — Must prove inability to perform duties, not Just 20 days under treatment.

Held: (i) A homosexual advance by complainant constitutes grave and sudden provocation within the meaning of Penal Code, s.275.

(ii) To prove that hurt is grievous under Penal Code, s. 272(g) prosecution must prove not only that complainant remained under treatment 20 days. but also that he was physically incapable of performing his duties.

Judgment

Advocate.- Ismail Musa El Beshir . . ………….. for defendant

El Fatih  Awouda, P.J After having carefully gone through the trial proceedings and case diary I came to the conclusion that the learned Resident Magistrate was correct in describing complainant’s statement as being in consistent with the evidence of the prosecution witnesses. The salient facts are correctly inferred from the evidence and from the circumstances in which this incident occurred. Advocate for complainant contended that the magistrate misdirected himself as to the correct charge, which should have been either under Sudan Penal Code, s. 278 or S. 259.

Complainant stood behind accused, placed his arm tenderly round his neck and put his chin on his shoulder. When asked what he was trying to do, complainant laughed, and thereupon the fight ensued. Did what had been done by complainant amount to provocation, and if so was it grave and sudden enough to be an extenuation for the offence ? In other words would such an act arouse the passion of a normal reasonable man? Indeed it would. A normal reasonable man values his manliness to a great extent. A sexually tainted tickle, a touch on the lip, a caress on the cheek or a tender romantic embracing and such similar preludes to an act of sodomy or acts pertaining to sexuality would certainly excite the passion of such a man . I do not agree with the learned advocate that accused was not provoked as a matter of fact because he demanded an explanation of complainant’s behaviour prior to hitting him. Complainant’ confirmed accused’s suspicion and thereupon he acted in the way he did That was no interval of tune for accused reason out. In the circumstances I think the provocation was both grave and sudden.

In trying to prove lack of provocation the advocate cited the following paragraph from-Ratanlal, Law of Crimes 727 (19th ed. 1956)

“Anger is a passion to which good and bad man are both subject, and mere human frailty and infirmity ought not be punished equally with ferocity or other evil feelings.”

I wonder whether this is relevant to his client’s case. The statement simply means that an offender who acts while under the passion of anger ought to receive punishment lesser than the one who acts ferociously or with evil feelings to receive. It means that the law recognises such passion as an inevitable human frailty that cannot be beaten out of the human race, and thus it should be treated as a mitigating factor whenever relevant

The trial magistrate opined that so long as complainant was receiving treatment for over 20 days he was therefore unable to follow his daily pursuit during that period irrespective of the fact that he was receiving out-patient treatment after having been discharged from hospital five days after the date of the incident, and heid that the hurt committed was grievous. 2 Gour, Penal Law of India. 1470 (6th ed. 1955) speaking on this point says:

            But there again to prevent its misapplication (statutory period) in cases of feigned inability, regard must be had to the nature and severity of the injury, as well as to the probablity of the disability it was there by likely to occasion. The mere fact that the sufferer did not attend to his duty for the statutory period, or that he remained in hospital for that period is no indication of his inability to do so.

Complainant is a merchant who lives and runs his business at Kapoeta where there is a hospital. To elect to remain in Juba to follow the treat ment out of convenience for the statutory period does not convert the hurt to grievous hurt. To satisfy the requirements of the law the prosecution should have that complainant was physically unable to perform his duties for twenty days because of the injury. This was not done. I have accordingly altered the finding to one of guilty under Penal Code, s.275 and reduced the sentence to £S. 10.000m/ms.

The question of attempted murder is far-fetched. It is enough to say without detail that the means adopted was, in the circumstances, inadequate to cause death.

Editors’ Note: On holding (I) note Sudan Government ‘ Ibrahim Ahmed El Faki Abdulla, (1961) S.L.J.R. 11 (MA. Abu Rannat, C.J)