Case No.:

AC-CP-571-1961

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Grave and sudden provocation—Penal Code, s. 249 (1)—Repeated provocation after brooding over initial provocation

The accused was told that his wife was pregnant by another man. He did nothing at this time, but on a later occasion when she taunted him with this he stabbed and killed her. He was convicted of murder under Penal Code, s. 251.
Held: When a man does not act on, but broods over, provocation which at the time given was grave, further provocation though less grave in degree may throw him off his balance” and thus is grave and sudden within the meaning of Penal Code. s. 249 (i); accused should have been convicted under Penal Code,
S. 253.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. GADEEM RAGAB ALI

AC-CP-571-1961

M. A. Abu Rannat C.J. January 4. 1962: —The facts set out in the summary of salient facts are supported by sufficient evidence and are not denied by the accused.

The accused was the husband of the deceased and they have an issue of two children, a boy and a girl of about eight and six years of age respectively. For a year before the incident, their relation as husband and wife became very bad. It has later been discovered that the deceased became attached to a certain man in the village called Mohamed Hussein and it was almost common knowledge that she was cohabiting with him when her husband was absent from the village. It has also been proved that Mohamed Hussein instigated her to bring an action in the Sharia Court against the accused for alimony. The accused complained to the Omda of Mohamed Hussein, and the Omda investigated the complaint and ordered Mohamed Hussein and the deceased not to meet each other. Despite the bond executed by the deceased and Mohamed Hussein in accordance with the Omda’s order, the deceased insisted on going to Mohamed Hussein and staying with him in his house. On top of all this, the accused discovered that the deceased became pregnant despite the fact that she had not co habited with him for a long time. He complained to her sister, who called her and when she was asked whether she was pregnant she denied it, but later, she admitted to accused that she was pregnant. The accused no doubt became angry but he did not do anything.

On the day of the incident, which was the first day of Bairam, he came from Managil to his house at Nuba village. He went to his house and found his wife, the deceased, and two other men who went to her for Bairam greetings. He brought with him clothes for his two children and when he called for the children to come to him in order to give them the clothes, his wife started to insult him by saying that her children were not naked or waiting for him to clothe them. He kept silent for some time, left the house, and paid visits to some villagers on occasion of Bairam. In the after- noon he was drunk as is usual in the villages on such occasions as those of Bairam celebrations, went to his house and there met his wife. Instead of welcoming him or keeping silent, she told him that she was pregnant, and that Mohamed Hussein was the person who caused her pregnancy and that she would never leave Mohamed Hussein, her lover, and live with the accused again as a man and wife. At that very moment, the accused stabbed the deceased twice on the belly, and caused her death after a few hours.

The point at issue is whether in the circumstances the accused lost his self-control by reason of grave and sudden provocation. The court found that there was grave provocation, but that it was not sudden, as the accused knew about the pregnancy of his wife long ago and did nothing.

The answer to the court’s finding may be the comment in 2 Gour, Penal Law of India 1417 (7th ed. 196!), where the author has said:

“It has been sometimes said that, if a person had time to reflect, he could not avail himself of this exception [Code, s. 249 (1)]. But the question is one of degree. A person may suffer from a provocation so grave that he may brood over it, but may refrain from acting. He may, again, suffer a provocation which may completely throw him off his balance.”

Again in 2 Gour, Penal Law of India i. (7th ed. 1961), it is said:

“In a Rangoon case the accused was much devoted to his wife but she was repeatedly finding fault with him and did not allow him to live in the same house. On finding that she was pregnant for eight months he inquired from her if she cohabited with a certain person to which she replied in the affirmative in a taunting manner. Immediately the accused stabbed her. It was held that it was hardly possible to imagine graver provocation being received and the accused was guilty of only manslaughter.”

The facts of the Rangoon case are on all fours with this case except that the accused did not stab when he first knew of the pregnancy of his wife, but it is clear from the evidence that he was brooding over it, and that when the deceased at the time of the incident declared in an insulting manner that she was pregnant from Mohamed Hussein, the provocation became grave and sudden.

The evidence shows that the deceased was a bad character and that even her full sister was boycotting her.

In my view the accused is entitled to the benefit of Penal Code, s. 249 (i), and the finding is altered to one of guilty under Penal Code, s. 253.

The Sentence:

I think 14 years is about right.