Case No.:

AC-CP-4o4-I 958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 263 causing miscarriage without woman’s consent— Intent to cause ,miscarriage is an essential element to be proved

Accused beat and caused grievous hurt to his wife and her father. As a result of the beating, the wife had a miscarriage. Accused did not intend to cause a miscarriage. In addition to being convicted under Penal Code, s. 278. of grievous hurt for both assaults, accused was convicted under Penal Code, s. 263. of causing miscarriage without the woman’s consent.
[ Editor's note: For the assault on the woman, accused was sentenced by the Major Court to two years under Penal Code, s. 278, and three years under Penal Code, S. 263. ]
Held: Since there is insufficient evidence of intent to cause miscarriage, an essential element of the crime defined in Penal Code. s. 263. the finding is altered to Penal Code. s. 265 causing miscarriage unintentionally by force.

Judgment

)MAJOR COURT CONFIRMATION(

SUDAN GOVERNMENT v. AMIR MOHAMED AMIR

AC-CP-4o4-I 958

Facts found by M. E. Mubarek, Province Judge, President of the Major Court convened at Kassala, October 26, i accused married Soloom Saleem when she was only eight years of age. He had sexual intercourse for the first time with her when she was only about twelve years of age. About five months before this incident she got pregnant.

About seven days before this incident the accused beat the young wife and broke one of her teeth. She went to her father’s house. On the day before this incident the accused went with two agaweed to the father’s house to have his wife back. He paid 20 piastres as ridwa for her.

On the day of the incident about midday Soloom Saleem left her father’s house to go back to her husband. She was then five months ad in pregnancy. The accused met her in the khala when she was half way between the rakuba of her father and the house of her nusband. The accused had two sticks. He hit her four times with the bigger one on her left leg. thereby breaking it. She fell on the ground. Accused continued beating her, using both sticks, on her back, sides and loins The bones of the fingers in both her hands were broken. The reams by the girl for help were heard by her father who ran up to her. lie carried a light tick. The accused beat the father with his stick. causing him grievous hurt. It max’ he that the father ht the accused once with his light stick on the left arm while defending his daughter. rhe father, when the heating on his body continued. left his daughter there on the ground and went to get some other men to stop the accused.

The wife could not move and was carried by some men on an

angareeb to her husband s (accused s) house Her brother rode a camel to Aroma police where he reported the incident.

Police went to the scene (about 3 miles west of Aroma) and the accused, his wife, and father-in-law were taken in a car. The wife and father we admitted to hospital at Aroma. About two or three days after that the wife miscarried her five months’ child as a result of the beating by the accused After spending a week at Aroma hospital she was sent to Kassala hospital for X-ray. Her left foot and two hand were in plaster She spent period from August 26 1958 to September 16 1958 in Kassala hospital in plaster and then was discharged still in plaster She continued out-patient treatment until about the end of October when she was cured.

The father-in-law left Aroma hospital, still not cured, on or about September 9, 1958. His injuries (including a fracture of the middle finger of the right hand) were cured about September i 1958.

The only injury which the accused had was a contusion of the left arm which required two days out-patient treatment.

M I El Nur / January 7 1959 —By the authority of the Chief Justice, I have confirmed the finding under Penal Code, s. 278, in respect of the grievous hurt caused by accused to his wife Saloom Saleem, but altered the finding under Penal Code, 5. 263 , to one under Penal Code. 265, “Causing miscarriage unintentionally” I do not think there is sufficient evidence accused intended to cause the miscarriage of hi wife; and the intention inferred from accused’s knowledge that his wife was pregnant is merely presumptive. According to 3 Gour, Penal Law of India 145 (6th ed.. 1955) , “Presumption . no doubt, enters largely the determination of collateral intention, but it is the means by which such intention is judged. It is never taken for granted, and it is here that  the Indian law [ we follow in the Sudan] presents striking divergence from the English law, in that it only takes note of actual and not presumed intention in determining criminality.”

It should be observed that liability under Penal Code, s. 265, is absolute.

As regards the sentences passed against accused in respect of both these two charges I should like to draw the attention of the honourable court to Penal Code, s. 74. which provides that “when the same act falls within the definition of more than one offence . . the offender shall not, unless it be otherwise expressly provided, be punished with a more severe punishment than the court which tries him could award for any of such offences.”

In India it was held. 2 Gour. Penal law of India 1948 (6th ed.,1955)  that “Where the accused has been sentenced  under s. 302  [equivalent [

Sudan Penal Code, s. 251 [ for causing the death of a pregnant woman, 1 even if a separate conviction under section 316  [equivalent to Sudan penal Code, s. 263] be not objectionable, a separate sentence therefore would offend against the provisions of section 71 [ to Sudan Penal Code , s.74 [ ."

For this reason I have reduced the sentence on both charges to one f three years to take effect from December 2, 1958, and to a fine of £S 30  and in default of payment to imprisonment for six months.

 I also confirm the order that £S2o of the fine if collected shall be paid to Saloom Saleem by way of compensation.

I also confirm the finding against accused under section 278 for causing grievous hurt to Saleem  Dakhil, as well as the sentence of one year to run after t expiration of the first sentence passed on accused for that offence.