(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. AWADALLA MEDANI AHMED

AC-CP-433-1966

Principles

·  Criminal Law—Sudden fight—Penal Code. 5. 245 (4)—Sudden quarrel is essential prerequisite for sudden fight

Sudden quarrel is an essential prerequisite for sudden fight according to Penal Code, S. 249 (4).

Judgment

Salah E. Hassan I. (By authority of the Chief Justice). August 10, 1966: —This is one of those difficult cases in which the only evidence available is the statement of the accused or in other words his confession. According to the established rules of evidence adopted by the courts of this country a confession has to be accepted in whole or rejected in whole. The facts as they appear are as follows:

Both accused and deceased were watering their cattle at the wells yard known as the id. When they finished each made his way home. They were seen leaving the wells together on good terms. Later on they were found both lying some yards apart from each other each with a stab wound in his chest. The knife of each was foundbesjde him out of its sheath. This is proved by independent evidence. How they came to fight and stab each other is a fact unknown to any human being except accused and deceased. For our present purpose we entirely rely on the facts as disclosed in accused’s confession. He said: “On our way home back from the wells 1 found a rope usually used for tying camels on the ground. I picked it up. Deceased asked me to give it to him and I refused. He tried to pull it away forcibly from me but I held it tightly and he failed to take it. Then he drew his knife and hit rue with it on the left side, whereupon I pulled my knife also and hit him once with it on his chest I believe. Then I became unconscious. I hit him in order to defend myself and I was afraid he might hit again.”

The court convicted accused under Sudan Penal Code, s. 2 because accused caused the death of deceased without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendant having taken undue advantage or acted in a cruel or unusual manner (section 249, exception 4, corresponding to the Indian section 300. exception 4). This in my opinion is wrong. The wording of both exceptions is identical except that in our law the words ‘ upon a sudden quarrel” has been added. This addition was probably based on the Indian experience as reflected in the decision of its Courts, which found that a sudden quarrel is an essential prerequisite for the sudden fight contemplated by the legislature.

The most important element of this exception is that there should be a sudden fight upon a sudden quarrel. However, it is not perhaps possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. “It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first; provided the occasion be sudden and not urged as a cloak for pre-existing malice.” Ratanlal, Low of Crimes (20th ed., 1961), p. 761. Was there a sudden quarrel in our present case? With hesitation 1 s1 answer in the affirmative, it looks to be a one-sided aggression rather than a sudden quarrel. The quarrel started over the camel rope picked up by accused. Deceased insisted on having it and accused refused to give it because he was the finder and had already reduced it into his possession and exercised dominion over it.

Having decided that a sudden quarrel started our next question will be “Did it result in a sudden fight? ‘ Gour’s explanation of a sudden fight in his comments in the Penal Law of India said, “It is at least an offer of violence on both sides. It implies mutual provocation and blows on each side upon which the conduct of both parties puts them in respect of guilt upon an equal footing.” I Gour, Penal Law of India (7th ed., 1962). In this case the deceased who initiated the quarrel without any justifica tion took the initiative also in violence by drawing his knife and stabbing accused in the chest, whereupon accused answered the aggression with a similar one and all was over. Deceased is the person who is mainly to blame in the incident and accused made no offer of violence but only after he was stabbed.

The test of the applicability of this exception is whether or not it is shown that the accused acted solely out of the provocation engendered by the heat of a sudden quarrel followed by a sudden fight? In his comments I Gour, Penal Law of India (7th ed., 1962), said “Where one person picks up a knife and stabs in th stomach merely following an exchange of heated words, the ordinary interference is that the attqcker has acted out of some other motive as well as the provocation tha4 may have been engendered by the verbal altercation.” The exception cannot be applied in such a case. In our present case we have the conyerse as the underlined words describe the deceased more than the accu rendering the case entirely outside this exception.

Having discussed the whole situation and described the details of the incident it is a straightforward case of self-defence where accused acted wisely and did no more than to avert the danger. He was stabbed by a person who took the aggressive side without justification and he had every reason to apprehend another stab if he did not act quickly.

I quash the finding of guilty under Sudan Penal Code, s. 253, and sentence thereon and substitute a finding of not guilty. And order that accused be released forthwith.