Case No.:

AC.CP-66-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code. s. 249 (i)—Culpable homicide not amounting to murder— Grave and sudden provocation—Homosexual proposition

The deceased asked the accused to have homosexual relations with him. Accused responded by beating and stabbing him to death. Accused was convicted of murder under Penal Code. s. 251, after pleading grave and sudden provocation under Penal Code, s. 249 (1).
Held: Deceased’s request to have homosexual relations is not sufficiently “gave” provocation to reduce murder to culpable homicide not amounting to murder under Penal Code, s. 249. (i). “Retaliation must be

Judgment

( MAJOR COURT CONFIRMATION )

SUDAN GOVERNMENT v. IBRAHIM AHMED EL FAKI ABDULLA

 AC.CP-66-1956

reasonably commensurate with the provocation received.”

M. A. Abu Rannat C.j. April 15, 1956:—The facts are set out in the Summary of Salient Facts which are filed on page 22 of the Record.

These facts are supported by reliable evidence. I also draw the attention to the Reasons for Finding which are shown on pages 24—26 of the Record

I propose to deal with the facts at length because of the grounds of appeal submitted by Advocate Ahmed Kheir.

It is proved beyond reasonable doubt that the accused struck the deceased with a heavy stick and also stabbed him with a clasp knife, on vital parts of the body and thereby caused his death the next day. It is also clear from the nature of the wounds and the parts of the body on which these wounds were inflicted that the accused must have intended to cause the death of the deceased. Prima facie the accused committed murder.

The accused pleads that he was under grave and sudden provocation when he stabbed the deceased. I think it is now fitting to review the evidence to sec if there is sufficient evidence on which it can be said that the accused was really under grave or sudden provocation.

When the accused was first interrogated by the police on October 16, 1955. he said among other things that he knew the deceased four years before the incident, and that about four years ago he left a carton box containing tea cups with the deceased, and that when he asked the deceased about them the latter denied that he had seen them. Accused states that on the day of the incident the deceased asked him to give him 45 piastres and he refused and the deceased swore that he would not allow him to leave on the train for Tendelti. He also added that the deceased wanted to take from him his torch and he refused to give it to him. On being .cross-examined by the police, accused states that about two months before the incident the deceased met him at Turabi and proposed to commit carnal intercourse with him and that he refused. He did not say, as he said at the magisterial inquiry, that the deceased caught him from his lips or kissed him immediately before he struck him or stabbed him.

In his confession to the magistrate on the same day. he mentioned that the deceased wanted to use him as a woman during the last four years prior to the incident. He also mentioned that the deceased asked. him to give him 45 piastres and he refused. Then the deceased slapped him on the face and he then struck him.

At the magisterial inquiry he changed all this version and said that the deceased caught him from his lips and began to suck it.

The evidence given by the prosecution witnesses shows that this accused was lying all the time. The only incident proved by the prosecution witnesses is that the deceased offered to exchange his torch with the accused’s torch and pay the accused in addition 5 piastres. The accused refused the offer and there was no other talk. It was also proved that

the deceased said to the accused, “I will not leave you to catch the train.” This is normal loose talk which usually takes place between this class of people.

But even if it is conceded that while they were sitting the deceased proposed to the accused that he wanted to use him as a woman, all that he need do is either to refuse the offer or lodge a complaint against him. Both the eye-witnesses and medical evidence show that the accused beat and stabbed the deceased savagely.

I do not think that the kind of provocation actually given by the deceased was the kind of provocation which is sufficiently grave to mitigate the actual killing. The provocation given was quite minor and trivial, and it is an established rule of law that the act of retaliation must be reasonably commensurate with the provocation received. In my view the defence of grave and sudden provocation fails.

I have, therefore, confirmed the finding of murder and death sentence.