(MAJOR COURT CONFIRMATION)

                                  SUDAN GOVERNMENT v. ADAM MOHAMED IBRAHIM

                                                               AC-CP-187-1967.

Principles

  Evidence—Confession—Must admit whole or exclude whole confession

  Criminal Law—Right of private defence—Period of continuance—It continues as long as apprehension of danger to the body continues

(i) Confession must be received in toto or excluded in toto.

(ii) As regards the period of continuance of the right of private defence of the body; it continues as long as apprehension of danger to the body continues

Judgment

Ramadan Ali Mohamed J. (By authority of the Chief Justice) July 5, 1969 :—This is one of those cases where a decision is difficult to arrive at by reason of the fact that there were no witnesses and the only evidence available is the confession of the accused.

The Summary of salient facts is as follows:

Previous to the day of the incident accused agreed to buy from deceased a certain quantity of wood for 65p.t. Accused paid 35 p.t. in advance and agreed to pay the balance on delivery of the quantity agreed upon.

On the day of the incident, deceased and accused met by sheer chance and the former asked the latter to follow him to his house to take delivery of the wood. When they entered the deceased’s house the deceased drew out his knife in an attempt to stab the accused. The accused forced out the deceased’s knife from the latter’s hand and stabbed him once in the lower part of the left shoulder which penetrated the left lung causing instant death of the deceased.

These facts are found mainly in reliance on the statement of the accused. Had the accused denied stabbing the deceased, there would have been no evidence to connect him with it. I feel there is something behind the whole affair which the police investigation could not uncover. However, the court was right in admitting into evidence the whole confession of the accused consisting of both favourable and unfavourable parts. It is an established rule of evidence adopted by the courts of this country that a confession must either be received in toto or excluded in toto: per M. I. El Nur, Acting C.J., in Sudan Government v. Omer Saad Hamid (AC-CP-. 261-1958), (1961) S.L.J.R. 120; Sudan Government v. Awadalla Medani Ahmed (AC-CP-433-1966 (1967) S.L.J.R.56.

Was the accused acting in self-defence or was he deprived of self- control by grave and sudden provocation? The court found both these issues in favour of the accused by answering both questions in the affirmative. It further found that the accused had exceeded the dower given to him by law with regard to the right of private defence—that the accused after depriving the deceased of his only weapon had no reason to stab the deceased in the manner he did.

There is no specific provision in our law regarding the period of continuance of the right of private defence of the body. But the cumulative effect of the sections of law dealing with private defence is the same as provided for in the Indian Penal Code, s. 102. This section reads as follows:

“The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues, as long as such apprehension of danger to the body continues.”

In this case, as the deceased was left without any weapon or other instrument with which he could have caused a reasonable apprehension of danger to the accused, it cannot be said that the accused still had the right of self-defence. There is no doubt that the accused’s act may still be covered by subsections (1) and/or (4) of the Sudan Penal Code, s. 249. The power of private defence given to the accused by law had elapsed and it is wrong to say that the accused had exceeded a power which was no longer in existence.

From the facts stated above, I would say that there was grave and sudden provocation depriving the accused of the power of self-control. I  would, therefore, confirm the finding of guilty under the Sudan Penal Code,S. 253.

The term of imprisonment for eight years is, I think, adequate and should be confirmed.