(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. HAMOUDA KODI

AC-CP-385-1969

Principles

  Evidence—Right of private defence—Penal Code, s. 61—Standard of proof required— Enough to create a reasonable doubt as to the existence of such right.

An accused person raising the plea of right of private defence under Sudan Penal Code, s. 6r, is not required to prove it in the same manner as the prosecution is required to prove its case. It is enough if the accused creates in the mind of the court a reasonable doubt as to the existence of such right.

Judgment

S. M. A. Attig J. September 6, 1969:—A Major Court sitting at Wad Medani under the presidency of Sayed Mohamed Mirghani Nugud, a Magistrate of the first class, found accused guilty under the Sudan Penal Code, S. 253, and sentenced him to 10 years’ imprisonment.

The facts are clearly set out in the summary of salient facts and I need not repeat them here.

Accused confessed hitting the deceased with a stick on the head. This confession is corroborated by the evidence of P.W.6. The court below wholly relied on the evidence of this witness and ruled that

accused was not exercising his right of private self-defence. The court was well aware of the denial of this witness recorded on page 6 of’ the Case Diary and his subsequent contradictory statements all throughout the proceedings.

Though the court, which noticed the demeanour of the witness while in the box, is in a better position to decide what weight is to be attached to his testimony, yet I do not think that the court was right in wholly relying on his evidence. He was, no doubt, a liar.

It is a general principle of the law of evidence that a confession must be taken as a whole:

“like admission the whole confession must be taken together, although it may contain statements favorable to the accused. . . . The prosecution must take the whole of it together, and cannot select one part and leave the other “—Sarkar, Evidence (11th ed., 1965), p. 264.

In the absence of any other evidence to show affirmatively that any portion of the exculpatory statement is false, the confession must either be accepted as a whole or rejected as a whole and the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.

Taking this confession as a whole it appears that accused did strike the deceased as soon the latter raised his club. Even the statement of P.W.6 does not negative this. This witness stated that “deceased raised his club.” He did not stop at that but went on to say that “to use it as a shield.” This is no doubt an opinion evidence of which the Witness is not competent. The evidence or an ordinary witness must be restricted to what he actually saw or heard. The inference to be drawn therefrom is the domain of the court.

The right of private self-defence extends under certain restriction to voluntary causing of death where the act to be repelled causes jilter alia reasonable apprehension of death or grievous hurt. The question whether in the circumstances of a given case the accused could have had reason able grounds for apprehending grievous bodily injury is a question of fact to be decided upon the facts of each case. The test in such a case is not whether there was actual danger but whether there was reasonable apprehension that such danger existed. This apprehension may be mistaken, but if bona fide it gives rise to a right of private defence. Once the right has arisen he is not bound to wait for the first blow before he strikes his adversary, nor to retreat or modulate his defence steps by step according to the attack. He is entitled to secure his victory as long as the contest is continued.

An accused person raising the plea of self-defence is not to prove it in the same manner as the prosecution is required to prove its case. The standard of proof required is very low. It is enough if accused creates in the mind of the court a reasonable doubt as to the existence of such right.

“Where the accused’ sets up a plea of private defence and the court is in doubt whether or not the accused has been able to substantiate completely to its satisfaction the plea set up by him, the accused is entitled to the benefit of doubt.” I Gour, Penal Law of India (7thed.,1961),p.524.

It is proved that the parties were gambling and the trouble originally ensued between them in respect of pt 10 which was due from the accused Deceased insisted on having that amount back and the shakla that ensued was dispersed by the interference of the bystanders. It is evident that the deceased persisted to enforce his rights by force, armed himself with a heavy club and went to the shop. As soon as accused, having purchased sugar and tea, stepped out of the shop, deceased raised his heavy club. This act, having regard to the previous conduct of the deceased, raised a reasonable apprehension in the mind of the accused of an attack. Accused instinctively raised his club and dealt a blow. He is of course not sup posed to wait until his adversary strikes him first.

In doing so accused did not exceed the limits laid down under the Sudan Penal Code, ss. 58 and 59.

It seems that the deceased himself was unaware or the seriousness of the blow. He refused to tell anybody of the blow and pretended to have an attack of fever. Even when his condition became serious deceased preferred to keep silent.

In the circumstances I am of the opinion that accused is entitled to the benefit. of the Sudan Penal Code, s. 61 (a), and consequently I substitute a finding of not guilty under the Sudan Penal code, s. 253, or any other section for the finding of guilty and order his immediate release.

I must add that this case was concluded on March 18, 1969 and the proceedings were forwarded for confirmation on June 17, 1969 after the expiration of about three months from the date of trial. Such unnecessary delay, should be avoided in future.