Case No.:

AC.CP-357-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law Penal Code, S. 249 (1) — Grave and sudden provocation — Illicit misconduct of mistress and wife equally provoking

The deceased had been living with accused as his mistress. She decided to abandon him. When he tried to persuade her to return she hit him in the face with a slipper. He stabbed her to death and was tried and convicted of murder under Penal Code, s. 251.
Held: Since the question of provocation is purely a psychological one, considerations of social morality are irrelevant; since accused can be just as provoked by his mistress as by his wife, the defence of grave and sudden provocation is good here and the finding is altered to culpable homicide not amounting to murder under Penal Code. s. 253.

Judgment

 (MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EL AMIN KARAMA EL HAG

AC.CP-357-1957

M. A. Abu Rannat C. January 14, 1958:—The facts of this case are not in dispute and they are stated in the Summary of Salient Facts. It is admitted by the accused that he stabbed the deceased with a knife in her belly and caused her death.

The only point at issue is whether the accused had lost his seIf-control by grave and sudden provocation at the time of the act.

Let us examine the facts, which are not in dispute. and see if t accused can successfully plead this defence.

The deceased was accused’s mistress. They were both living in Nahud town. Accused abandoned his lawful wife because of his relations with the deceased. The deceased left for Nyala and the accused w to her there. Then they agreed to go to Nahud through Fasher when they arrived at Fasher the deceased was arrested for theft. was put in cu for three days and she was returned to Nyala. Nyala they lived in one house as man a wife. She was acquitted from the charge and ?accused wanted to take her back to Nahud. Then she went and lived in the house of an old woman by name Sharifa. appeared that she was persuaded by Sharifa to change her mind. Accused stated that on the night before the incident he went to Sharifa’s hot and heard the deceased singing with a group of Effendis. Deceased refuse to come out to him. Sharifa stated that when she met the accused t:. night he told her that the deceased would not spend the next day in h house. The next day, in the morning, the accused went to the house Sharifa, met the deceased outside the house, and after a brief conversation he stabbed her vigorously in the stomach. Then almost immediately also stabbed himself with tl same knife until his intestines bulged out.

The court found that the accused was not entitled to any of exceptions of Penal Code, S. 249, on the following grounds

(1) The court believed that there was premeditation because of the threat declared by the accused to Sharifa.

(2) Because of the admission of the accused to the police & he concealed the knife in his pocket without sheath before commission of the crime.

As to the threat, the wording used may not mean the killing of t deceased. It may mean the removal of the deceased from the house of Sharifa. The statement of the accused throws the whole blame I Sharifa and he thinks that she was the cause of the whole trouble between him and his mistress.

The second point is that the accused concealed the knife in his pocket If there is an admission by the accused, the whole admission must taken and not only one part of it. On page to of the Case Diary, accused said: “The knife was in my pocket. It was without sheath and found it lying on the ground near the house of Ibrahim Musa. I the knife, put it in my pocket and afterwards I stabbed her.” repeated in his ,confession to the ‘magistrate (pages 15-16 Case Diary) and at the trial.

There is no evidence before the court in rebuttal of the explanation given by the accused as to the finding of the knife on the ground. This shows that the killing was not designed as it was thought by the court. The accused also explained that before he stabbed the deceased she hit him 00 his face with her slipper. The consensus of opinion in India is that there should be no differentiation between a lawful wife and a mistress when the question of grave and sudden provocation is in issue. The Madras High Court held that the question of provocation is a purely psychological question and one cannot apply considerations of social morality to such a purely psychological question. Consequently where a man sees a woman in the arms of another, and loses control over himself, the circumstances that she was his mistress and not his wife does not make any real difference for the purpose of Penal Code, S. 249 (1).

The fact that the accused also stabbed himself vigorously and that he himself was in great danger shows that he was under grave and sudden provocation.

In my view the accused is entitled to the benefit of Penal Code, s. 249 (1), and I alter the finding of murder to one of culpable homicide not amounting to murder under Penal Code, s. 253.

Sentence

I think this is a case where life imprisonment should be imposed.

I have received an application from the relatives of the deceased agreeing, to payment of “Dia.” This I leave to the Governor to decide whether he recommends to the court the reduction of sentence if it was finally settled by both parties.