(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. JAMES OFEIM

AC-CP172---1968

Principles

Criminal Law—Transferred malice—Sudan Penal Code, s. 250—Mistaken identity of victim no defence

Criminal Low—Sudden fight—Sudan Penal Code, s. 249 (4)—When assailant flees, fight does not stop—May come back to renew his attack

(i) Mistaken identity of victim is no defence to murder or culpable homicide under the doctrine of transferred malice; Sudan Penal Code, s. 250.

(ii) “A fight does not stop once an assailant flees, because he may come back and renew his attack. A fight is naturally made up of retreats and attack.”

Judgment

Abdel Magid Imam J. July 14,1968 :—The Summary of Salient Facts in this case was supported by sufficient evidence.

It was proved that the accused James Ofeim stabbed the deceased Lok Foul with a spear in his stomach penetrating it to a depth of 20 cms., and cutting the small intestines and a main vein and causing death almost immediately.

On the date of the event the accused was sleeping inside his room with its door locked. Late at night a certain Okjam Awan, who had since disappeared, with one or two others—who could not be traced—approached accused’s room and Okjam Awan started to knock at the door with a “Madag “. The accused came out with a stick and a fight seemed to have flared up. Accused’s stick broke and he fetched a spear from his room. His assailant fled. Okjam ran and entered into where deceased and others slept. The accused pursued. He stood in front of the door through which Okjam had just entered. Someone instantly came out, and taking him for Okjam, the accused thrust his spear into him. The deceased fell crying with pain.

The court found the accused guilty of murder under Sudan Penal Code, s. 251, sentenced him to death but recommended him to mercy.

The fact that the accused speared the deceased in the stomach to such an extent as to cause his almost immediate death leads to one conclusion; to wit that the accused at least knew or must have known that death would be the probable and not only a likely consequence of his act. It is clear that he thereby prima fade committed murder.

In his broad line of defence the accused said that:

“I am not guilty because I did not intend to kill him. I quarrelled with another and I stabbed the deceased by way of mistake.” By virtue of the doctrine of transferred malice as laid down in the Sudan Penal Code, s. 250, such a mistake is no defence. In such a case the culpable homicide committed by the accused is of the description it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.

The court did not give the accused the benefit under Sudan Penal Code, s. 249 (2) and. (4)I agree that the question of self-defence did not arise as it should have come to an end once the deceased had taken to his heels and stopped assailing the accused. But I think there was a clear case under Sudan Penal Code, s. 249 (4). A fight does not stop once an assailant flees; because he may come back and renew his attack. A fight is naturally made up of retreats and attacks. Though Okjam might not have been armed when he fled, the accused ought to be justified in assuming that the person who emerged from the door—and whom he took for Okjam—must have armed himself and come out prepared for the resumption of the fight, it being dark and late at night. There was no question of cruelty as the accused stabbed the deceased only once. There was no question of undue advantage because, as stated above, it was reasonable to assume on the part of the accused under the circumstances that the person who was coming out, was armed.

For the above, I think the finding of guilty under Sudan Penal Code, s. 251, should be altered to one under Sudan Penal Code, s. 253. and the sentence to 14 years imprisonment as from December 11, 1967.

If my learned colleagues agree then the order will be:

We alter the finding of guilty under Sudan Penal Code, S. 251 to one of guilty under Sudan Penal Code, s. 253, and the sentence to 14 years imprisonment as from December 11, 1967.

M. E. Mobarak J. July 29, 1968 :—I disagree with my learned colleague Imam J., and think that the conviction of the accused under Sudan Penal Code, s. 251, should be confirmed. It has been established that the accused, after his stick had been broken, went to his house and fetched his spear. This production of the spear proves premeditation and negatives the allegation that there was a sudden fight. It also proves that the accused was taking undue advantage. The accused did not only produce the spear. He followed Okjam to the Guttia where he had been hiding. He was chasing him. To quote from Vol. 3 Gour, Penal Law of India, (8th ed. 1967) p. 2003, when dealing with exception 4 :

"…this exception has no application. Where a person chases another for a long distance and then kills him "....

The first fight between accused with Okjam and the others was a relatively peaceful matter in which no lethal weapon was used. After the stick of the accused had been broken he fetched his spear with the object, no doubt, to use it against Okjam and the others. His stabbing of the

deceased, whom he no doubt took to be the hiding Okjam, was taking undue advantage and acting in an unusual (if not also cruel) manner.

Galal Ali Lutfi J. September 9, 1968:—I do agree with my learned colleague Imam J., that there was a fight and that it was a continuous one. The said Okjam was the aggressor and twice he came to attack the accused while lie was lying asleep in his guttia. The accused retaliated and that was natural. He came out with his spear which is just like a stick in the South because it is carried by nearly everybody whether there is a fight or not. His assailant was carrying a “Madgag” which is also a deadly weapon. The accused followed his attacker who found refuge in a guttia nearby. It was dark. When he came near the door of the guttia he saw somebody coming out. He thought that it was Okjam and so he speared him right through the stomach. It turned out to be another person. This is a clear case of transferred malice (Sudan Penal Code, s. 250) where the accused will be responsible for what he has done with the intention at the time he committed the act. And since we are of opinion that what has taken place was in a sudden fight, then the offence committed will not be murder, but culpable homicide not amounting to murder.

The accused did not take undue advantage and did not act in a cruel manner. If he was unable to tell whether he was spearing his opponent or somebody else owing to darkness, we will not expect from him to wait to see what kind of weapon his attacker was carrying. He must have thought that it was Okjam and that he was carrying a deadly weapon. We will not be fair if we expect from a man in his state of mind and in such circumstances to act in a different manner. So in my view no undue advantage was taken.

The stab was in the stomach which is a vital part of the body. But the fact that he stabbed him only once and the circumstances being as they were giving no choice to the accused as to the place where to direct his blow, I think that there was nothing unusual or cruel in his act.

For the above reasons, I agree that the accused is entitled to the benefit under Sudan Penal Code, s. 249 (4) and that the conviction for murder should be altered to culpable homicide not amounting to murder and that a sentence of 14 years imprisonment will be adequate punishment.

ORDER: Abdel Magid Imam 1. September 14,1968 alter the finding of guilty under Sudan Penal Code, s. 251 to one of guilty under Sudan Penal Code, S. 253, and the sentence to 14 years imprisonment as from December 11, 1967.