(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. BESHIR AHMED MOHAMED AND ANOTHER

AC.CP-554-1966

 Principles

·  Criminal Law—Abetment—Penal Code, s. 82—Mere agreement to commit an act is sufficient—Not essential to prove an overt act

According to Penal Code, s. 82, mere agreement of two or more persons to commit an act is sufficient to establish the offence of abetment of the act. It is not essential ingredient to prove an overt act under the above section as required by the Indian Code.

Judgment

Salah F. Hassan J. (By authority of the Chief Justice), October 4. 1966: —The facts recorded as believed by the court below are the following:

“The victim left her house on September 9, I965 on her way to the cultivatable area in order to collect firewood. After she collected the wood, she found both accused in their plantation. They both caught her and one of them tied her with a rope while the other committed sexual intercourse with her.

The victim’s mother was out and when she returned in the evening she found her daughter crying and when she made inquiries she related to her what happened. Two days later the matter was reported to the police.

These being the facts believed by the court, I was puzzled to see that the court delivered a finding of not guilty of any offence in respect of both accused. Accordingly, as I see it, the findings of the court are very much inconsistent with the facts as believed by the court, If the court is positive as it did say that the two accused caught victim, tied her with a rope and one of them had sexual intercourse with her, then the mere fact that there is no evidence to prove who did the tying and who did the raping does not exonerate both accused from criminal liability of any sort. At least they could have been convicted of abetment of rape. See second part of Penal Code, s. 82: “a person abets the doing of a thing who engages with one and more other person or persons in any conspiracy for the doing of that thing.” There is a difference from the corresponding provision of the Indian Code; which required an overt act as an essential ingredient of the offence of abetment by conspiracy. In the Sudan and Northern Nigeria the mere agreement of two or more persons to commit an offence is sufficient. In this case at least both accused agreed to commit rape just whereby one tied and the other pleased himself.

In cases of homicide where in a tribal fight one of the combatants is killed and it is not known who hit the deceased all the accused are charged with abetment of murder and culpable homicide according to the circumstances of the case.

With his manifest inconsistency between the facts believed by the court and the finding, I decided to refuse confirmation of the finding and I send the case back for reconsideration and reassessment of the whole facts and findings.