(MAJOR COURT CONFIRMATION)

                                              SUDAN GOVERNMENT v. ISHAG AHMED MOHAMED

                                                                          AC-CP-596-1967

Principles

Criminal Law—Murder—Sudan Penal Code, s. 251 of weapon used and place where the injury is inflicted must be considered

When determining intention to cause death or the knowledge that death would be a probable or likely consequence of the act, under Sudan Penal Code, s. 251, the court, in addition to other considerations, must consider the kind of weapon used and the place where the injury is inflicted.

Judgment

Galal Ali Lutfi J. November 16, 1968:—The facts found by the court are clearly set out in the Summary of Salient Facts and I need not repeat them here.

The court found the accused guilty under the Sudan Penal Code, s. 251, and sentenced him to death without recommendation to mercy.

In my view the finding under the Sudan Penal Code, S. 251, is not correct. According to the established facts in this case, the accused has stabbed the deceased only once with a knife in the arm and that the head of the knife has touched the chest causing a slight injury. The doctor testified that the death was due to bleeding from an artery which was severed by the wound on the arm.

The court did not apply the right test in determining the intention of the accused in this case. If the right test was applied the result would have been a different one. When determining the intention to cause death or the knowledge that death would be a probable or a likely consequence of the act, in addition to other considerations, two things must be carefully ascertained: first the kind of weapon used; and secondly the place where the injury is inflicted. If a dangerous weapon is used on a vital part of the body then definitely the person inflicting such injury must have intended to cause death or at least knew that death would be a probable consequence of his act. If he used a dangerous weapon on a non-vital part such as a forearm or a knee then it is clear that death would only be a likely consequence of his act.

In this case the accused stabbed the deceased in the arm and the head of his knife caused a slight injury on the chest. An artery was severed in the arm which caused the deceased to bleed to death.

An ordinary person like the accused is not supposed to know the precise location of the arteries of the human limbs and so we cannot say that he intended to cause the deceased’s death or knew that his death would be a probable consequence of his act. The deceased’s death there fore was only a likely consequence of the accused’s act.

According to the Indian law which is different from our law in this respect the facts in this case constitute only the offence of grievous hurt with a dangerous weapon. In Gour’s Penal Law of India (8th ed. 1967) p. 1928, the law applicable to a similar case is expounded as follows:

“The forearm or a knee is not a vital part of the body. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If, therefore, a stab with a knife or a dagger aimed at an arm or leg severs an artery and the injured man dies as a result, the offence is not murder, or culpable homicide not amounting to murder, and the assailant can be held guilty of causing grievous hurt with a dangerous weapon……."

If death is caused when only hurt or grievous hurt is intended and no dangerous weapon is used then the accused will be held guilty of an offence under the Sudan Penal Code, S. 254, which has no equivalent in the Indian law.

As I see it therefore, the finding of guilty under Sudan Penal Code, s. 251, must be altered to a finding of guilty under Sudan Penal Code, s. 253.

As to the sentence, I think 14 years’ imprisonment will be adequate punishment in this case.

If you agree the final order of this court will be as follows:

“We alter the finding of guilty of murder under Sudan Penal Code, S. 251, to finding of guilty of culpable homicide not amounting to murder under Sudan Penal Code, S. 253, and order that a sentence of fourteen years’ imprisonment be passed as from March 9, 1967.”

Abdel Magid Imam J. November 25, 1968:—I agree.

Hashim Mohamed Abul Gasim J. November 25, 1968:—I agree.