(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EL TAHIR ADAM AHMED

AC-CP-1071-1969

Principles

  Criminal Law—Grave and sudden provocation—Penal Code, s. 249 (1)—” Sudden” does not imply that provocation should have immediately preceded the homicide in point of time

According to Sudan Penal Code, s. 249 (1), provocation must be “sudden “; “it is not implied that it should have immediately preceded the homicide in point of time. For a person may, by repeated or continuous provocation, inflame another to a state of mind when the provocation immediately pre ceding the act is only the last straw, the gravity of which should be measured, not by what it amounted to, but rather by what it implied."

Judgment

S. M. A. Attig J. March 23, 1970:—I agree with the court below that accused did stab the deceased whilst deprived of the power of self control by grave and sudden provocation.

It is proved that the deceased had, some days before the incident assaulted accused’s wife with a view of gratifying his lust, and in spite of the accused’s willingness to settle the matter, refused to give oaths not to approach her any more and was imprisoned for six months. The Resident Magistrate quashed the case on the ground that the offence committed may amount to a graver offence, i.e. attempted rape, and ordered a retrial by himself. Accused being released from prison went to the village and the female members of his family expressed their rejoicing by shouting. In the morning, deceased went to accused’s house and told him of his insistence to approach the wife. On the same day while they were in the shop of P.W.3, deceased twinkled to accused and trod on his foot, thereupon accused stabbed him.

Provocation in order to be a mitigating factor under the Sudan Penal Code, s. 249 (1), must be grave and sudden. Its gravity is measured by the deprivation of self-control in which it results. It must be a provocation which though not intolerable is sufficiently serious to explain the act.

"The question whether, the provocation given was sudden as well as ‘grave’ enough to be an extenuation for the offence, depends upon the nature of the provocation it effects upon the person provoked and in short, upon the probability of producing a similar effect upon other persons. But when it is said that provocation must be ‘sudden’ it is not implied that it should have immediately preceded the homicide in point of time. For a person may, by repeated or continuous provocation inflame another to a state of mind when the provocation immediately preceding the act is only the last straw, the gravity of which should be measured, not by what it amounted to, but rather by what it implied.” II Gour, Penal Law of India (7th ed., 1961), p. 1412.

Deceased, no doubt, had constantly behaved in the most insolent and provocative manner. Though the last act of the deceased may be in sufficient to mitigate the crime, yet it was the climax which, when taken with his previous conduct, rendered the provocation sufficiently grave to be the mitigating factor required under the section.

Accused was therefore, rightly given the benefit of the Sudan Penal Code, s. 249 (1).

I think that the sentence passed against the accused is rather harsh in the circumstances of this case.

Consequently, I confirm the finding of guilty under the Sudan Penal Code, s. 253 and reduce the term of imprisonment to ten years as from August 1, 1969.