(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDEL WAHAB MUSA MURGAN

AC-CP-608-1969

Principles

  Criminal Law—Consent given under fear of death—Penal Code, s. 3 a free consent

Accused met the victim, a girl about i6 years of age and told her that he was a policeman and promised to take her to the place of her work. When they arrived near a garden he told her to go inside and threatened her that if she did not go inside he would kill her. When she went inside, he asked her to lie on her back and when she refused he warned her that he would slay her like a cow. Under fear of death she laid down and he had sexual intercourse with her.
Accused was convicted by Major Court under Penal Code, s. 317, of committing rape with the girl without her consent.
Held: Conviction under Penal Code, 317, is confirmed because there was no free consent given by the girl who was under fear of death at the time of the operation. (See Penal Code, s.39)

Judgment

Salah Eddin Hassan J. October 27, 1969 : —These are the proceedings of a Major Court held at Kassala on August 7, 1969, and presided over by Sayed Hussein Abdalla Mohamed Suliman, a Magistrate of the first class, for the trial of accused Abdel Wahab Musa Murgan, under the Sudan Penal Code, S. 317.

It was established by adequate evidence that on the evening of February 23, 1969 accused met the victim who is a girl of 15 to 16 years of age near the Bus Station of Khatmiya Suk in Kassala. He noticed that she was a little worried. He asked her where she intended to go and she told him that she wanted to go to her place of work. He promised to take her to it and they proceeded together. After they went some distance she became suspicious and decided to go back but accused told her that he was a policeman and she was to follow him. She proceeded on until they arrived near a garden in the vicinity of El Gash Khor. He told her to go inside the garden. She refused. Then he threatened that if she did not go in he would kill her. Being so terrified she entered the garden. Then he asked her to lie on her back but she refused. Then he again warned her that he would slay her like a cow with his knife. Under the fear of death she lay on her back whereupon he had sexual intercourse with her penetrating her vagina with his penis which ruptured her hymen and injured her vulva until she bled. When he finished they again proceeded on their way. When they approached the main road the victim saw some people passing by. She shouted to them for help and when they came to her accused tried to escape but they prevented him. She

told them the story and the matter was reported to the police. The medical evidence confirmed recent penetration and damage to the hymen. The presence of blood in victim’s libas and accused’s libas was clinically confirmed. Accused confessed but later on denied using force and the threat of force.

I am of opinion that the evidence is overwhelming. I confirm the finding but reduce the sentence of imprisonment to four years only. Order of payment of fine and alternative imprisonment is confirmed.