Case No.:

AC.CP-422-1961

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Homicide of one resisting arrest of Criminal Procedure, s. 30— Killing one resiStifl9 arrest for crime not punishable with death or 10 years when intention is to cause hurt

Accused endeavoured to arrest the deceased for a crime not punishable with death or imprisonment for 10 years. When deceased resisted, accused in attempting to arrest deceased killed him while intending to cause hurt or grievous hurt. He was convicted under penal Code, s. 254, of causing death when the intention is to cause hurt or grievous hurt only, and raised a defence under Code of Criminal Procedure, 5. 30. /
field, If accused uses force intended to cause hurt or grievous hurt in attempting to arrest one accused of an offence not punishable with death or with imprisonment for 10 years, and so cause death to the person liable to arrest, his/act falls\ within the proviso, Code off Criminal Procedure. 5. 30 (2), and he ha no defer under Code of Criminal procedure S. 30 (1).

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. BUSHRA HAMADEIN

AC.CP-422-1961

Advocate: Mubarak Zarroug ... for the  accused

A. Hassib \ October 1. 1961: -4The facts set out in the summary of salient facts a supported by sati4ctory evidence and they are not disputed by the ad of accused.

The advocate contends that the act \of the accused is justified because accused was acting in exercise of his power under Code of Criminal

Procedure, s. 30, which reads:

“ If a person liable to arrest resists the endeavour to arrest him or attempts to\ evade the arrest, the person authorized to arrest him may use all means necessary to effect\the arrest.

z. Provided that this section hall not give the right to cause the death of a person who is not acc of an offence punishable With death or with imprisonment for a term which may extend to 10 years.

By Code of Cru Procedure, s. 34 the policemen acting in exercise of their power of arrest are justified in causing death of the deceased if the offence of which the deceased is accused is an offence punishable with death or with imprisonment for a term - may extend to 10 years.

The offence of which the deceased in this case was accused when the accused caused his act was a small offence under Penal Code, ss. 277, 44 and 161, for which an information was registered under Information No. 5001/61 and Information No. 5001/61, and neither of these offences is punishable with death or imprisonment for a term of to years.

The court found that accused caused the death of deceased and convicted him under Penal Code, s. 254, but the advocate of accused now submits that the act of the accused was not the causing of death but an act of mere causing of hurt or grievous hurt which is authorised by the first paragraph of Code of Criminal Procedure, s. 30.

This interpretation of the law I am afraid has no support. The act punishable under Penal Code, s. 254, is not the guilty mind. It is the con sequence of that guilty mind. Penal Code, s. 254, is our own and has no equivalent in the Indian Penal Law yet is a section similar in formula to Penal Code, S. 255 which penalises the consequence of intending to commit an offence. In both sections the act punishable is the causing of death in the course of doing a smaller offence, i.e., hurt or grievous hurt under Penal Code, S. 254, and an offence punishable with imprisonment for one year. If the act of the accused in this case was not so culpable that only hurt or grievous hurt (the act intended) was committed then the provision in Code of Criminal Procedure, s. 30, protects the policeman. The allegation that the accused is protected by Code of Criminal Procedure, s. 30, therefore is not accepted, for the section charged against accused does not punish the intended act but the consequence thereof.

The Sentence

The court inflicted on accused seven years’ imprisonment. It is an ordinary sentence for such an offence but in the circumstances of the offence there are grounds for mitigation. He was acting in good faith though exceeded his limits, and I therefore alter sentence to four years’ imprisonment.