SUDAN GOVERNMENT v. KHIDIR ABDALLA EL HUSEEIN

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. KHIDIR ABDALLA EL HUSEEIN

AC-C-P-204-1965

Principles

· Criminal law-Series of acts w-Erroneous belief that death caused by first Act-Death actually caused by second Act-No continuation of intention reasonably be inferred from the chain of the two acts-Accused is only responsible for the first Act.

· Criminal law –attempt to commit capable homicide –Penal Code, s,260-Accued gave deceased two blows on head during sudden fight –Deceased became senseless and accused then believing him dead threw him in the river whereby died because of drowning-No continuation of intention reasonably be inferred from the chain of the two acts-Accused is responsible for attempt to commit capable homicide to amounting to murder.

· Criminal law –Insanity-Penal Code, s, 50-Insanity at the time of commission of the crime may be established from the condition of the accused preceding attending and following the commission of the crime.

· Evidence-Insanity-Burden on accused to prove insanity is not beyond reasonable doubt-Criminal court circular 1952 No.21-But be proved as the standard of the balance of probabilities.

Accused, deceased and other patient were kept in a native lunatic asylum. On the day of the incident , the deceased as he was the boss. Was supervision the work of the accused in the garden near the river. Accused and deceased two mighty blows by a “toria” on his head. Then accused believing deceased to be dead dragged him by his leg and threw him into the river in fact deceased was not then dead and the final cause of death established to be suffocation because of drowning. On his trial by Major court for murder, the court rejected the defense of insanity and convicted accused under Penal Code, s,253 ,causing culpable homicide not amounting to murder because although deceased died as result of the drowning in the river the accused was still presumed to have caused his death but due to the provocation accused was entitled to the benefit of Penal Code, s, 249 (1).
Held: (i)Conviction under penal code’s 253, is altered to one under penal code, s, 260 because:
(a) From the facts of the case although there might have been provocation the facts proved that there was a sudden fight under Penal Code, s, 249 (4).
(i) During the sudden fight, accused gave the deceased two mighty blows on the head and rendered him senseless. Believing him dead, accused threw him in the river, It was established that death was due to suffocation because of drowning. The facts of this case proved no continuation of intention to kill which might be inferred from the chain of the second Act following the first Act. Therefore accused is only responsible for the first Act, i.e., giving two mighty blows during sudden fight. Accordingly accused attempted to commit capable homicide not amounting to murder under Penal Code, s, 260, having benefited from Penal Code, s, 249 (4).
(ii) Accused is not responsible under Penal Code, s, 260,because at the time of the commission of the crime he was insane and entitled to the defense of insanity under 50. the condition of the accused preceding , accompanying and following the commission of the crime proved that accused was insane ate the time of the commission of the crime.
(iii) Insanity is not required to proved by accused beyond reasonable doubt, as required by Criminal court Circular 1952 No.21 ,but be proved as the standard of the balance of probabilities.
Judgment

Abdel Mageed Imam J. November 28.1965:- The accused Khidir

Abdel El Hussein, aged 50, of Kudabas, Berber District, Northern Province, was tried by Major court at Berber on May 30.1964, for the murder of Siddig Hamza Ali , of the same residence and age, and was found not guilty, but guilty of homicide no amounting to murder under Penal Code, s, ,s, 253. and was sentenced on October 18.1964, to 14 years imprisonment.

The summary of salient facts as believed by the court ran as follows:

“Fifteen years ago accused who was suspected of lunacy was went to native lunatic asylum at kadabas village. When after some time his mental condition improved he was assigned some work in garden . deceased was also engaged in the same garden although the type of the work each of the two parties ought to do assert his authority over accused. On the other hand accused often resented this attitude and hardly did he let any occasion pass without a vociferous protest. Thus the two parties were always at variance.

“On the day of the incident accused was busy cutting grass somewhere in the garden when he was called upon by deceased to help in repairing the Alas of the Sagia deceased did so commandingly and the accused did not obey the order without reluctance. They sat face to face doing the repairs when deceased started to play his favorite record of authority. This was followed by a hot talk during which deceased tried to poke accused in the face with a Khulal-an Act which was successfully retaliated by accused. Deceased then staggered and started to look for a weapon. Accused took up a “toriya” weighing 4 ib and 4 ¼ oz. And was heading for

deceased when he was held back by P.W.2 Accused then knocked him on the heads and thus succeeded in freeing himself. He then knocked deceased with the “toriya” at the front part of his head and yet again at the back of it. Accused thinking that deceased was gone dragged him and threw him into the river where he died of suffocation”.

First as to the finding under Penal Code, s, 253: The reasoning of the court in respect of the finding is not clear. It was proved that the death was caused by suffocation because of drowning. The court accepted the fact that when accused threw deceased into the a river, he the accused did not know that his victim was still alive-for received him to be dead. Other considerations apart the obvious result therefore was for the court to acquit the accused of murder; for the was at the crucial moment dispossessed of the knowledge necessary for the constitution the crime .

This is one of the rare homicide cases where an accused person thinking that his antagonist was rendered dead in consequence of some Act committed by the accused, does a further Act with the assumed corpse the foreseeable result of which is certain or probable death to a live body, and which actually results in the death of the antagonist. Examples of the initial Act are blows on the head, administering of cocaine, etc; examples of the latter are burning or chopping off the head, etc. the clear purpose of the second Act is to blur the identity of the victim and the accused is motivated by desire to escape from punishment. The pivoting of the case is knowledge of the accused concerning the state of the body of the victim which in point of fact is alive but for all appearances looks to be dead i.e., whether it is believed to be dead or whether he knows or has reason to know it to be alive. Accordingly this case must be distinguished from the case where the prosecution powers beyond doubt that the accused knew or had reason to know the body to be alive and where the accused fails to satisfy the court, on balance of probabilities, of his alleged mistaken belief; for here it would be a clear case of murder.

The decision of the court seems to have mainly been based on the decision in Sudan Government v. Mohamed Hamid Mohamed Ali (1959) S.L.J.R.66. The court said;

“ …..the rule that our decision should be pivoted on the first Act of the accused is derived from the ratio decided in the case of Sudan Government v. Mohamed Hamid Mohamed Ali In that case accused dealt a blow to his brother whereat he fell down motionless. Accused dealt a blow to his brother whereat he fell down motionless . accused dragged the body and threw it into a well thinking probably erroneously, that he was dealing with a dead body. The brother’s body was discovered sometime later in he well….”

The ratio decedent in the above quoted case, as can be read form the preamble ran as follows;

“(1) The issue turns on the first Act that creates the situation leading to the mistaken belief in death. If the first Act- in this case the blow-would probably cause death, then the subsequent death based on mistake would be murder. If the first Act was likely to cause death then the case would be capable homicide not amounting to murder.

“ (2) In this case the first Act of accused shows Cleary the he knew that death would be the probable and not only a likely consequence of his Act. Hence even if deceased died as a result of the fall in the well, accused will still be presumed to have caused deceased’s death.”

That the accused in Mohamed Hamid ‘s case, did cause the death of his brother whether by the blow or the Act of throwing him into the well was proved and admitted by the accused himself, assuming that the said brother did not die immediately after the blow, but died in consequence of the Act of throwing him into the well and that at the time the throwing have already been dead , it seems that the court still held the view that an intention would be “presumed” on the part of the accused to accuse his brother’s death not only that but the “presumed” intention would be that which is requisite to make it murder case ,i.e., an intent to kill.

The difficulty in accepting such reasoning is clear, for the presumption absence of knowledge in fact, as in Mohamed Hamid’s case or in law as in the case we are dealing with now as will presently be shown. Again how can different intentions be presumed or imputed under such a situation in connection with the second Act, which it is conceded was the cause of death. These intentions may vary from an intention to commit of the benefit of the exceptions or where death was only a likely consequence causing death while the intention was to commit another offence, or to commit hurt or grievous hurt, or causing death by recklessness; again the killing may be completely justifiable ,e.g., where it is committed in self defense or by anon compos mentis. For, because of the very nature of the “second’s or subsequent Act death would be a certainty or at least probability; an intention to kill is the only appreciate intention which can reasonably be inferred form such acts e.g., burning, hanging,cutting of the head, or prostrating the unconscious body on a

Railway line when the approach of a rushing train is imminent, or throwing it into deep waters of a river or into a well in circumstances when reuse is unforeseeable. It can therefore be said that such a proposition can only be applicable to cases when premeditated intention or intent to kill and see the end of the victim dominates. It can therefore be said that such a proposition can only be applicable to cases when premeditated intention or intent to kill and see the end of the victim dominates. This should include as where from the nature of the first Act and other circumstances (e.g., the fact that the body is disposed for that Penal Code, s, 249 . For one cannot infer a grayer intention when laser intention is the basis of his inference and likewise one may not infer, in respect of the above mentioned incidents, the same intention because the intention so inferred would be lesser than the requisite intention which can obviously be deuced from the grave and heinous nature of the acts themselves (I.e., the second acts).

It should now be said that in Mohamed Hamid’s case the court had relied on two cased cited by Glanville Williams, Criminal Law (2nd ed, 1961),pp. 173-175. In the first case: American, Jackson v. Common Wealth (1896) 100 ky.239.

“One Jackson attempted to murder a young woman in Ohio by administering cocaine to her, and then mistakenly thinking she was dead, brought her to Kentucky and cut of her head, perhaps with the object of preventing identification. It was argued that Jackson could not be convicted of murder in Kentucky, because although he killed the girl there, the killing was unintentional being done with the supposition that he was dealing with a dead body. Had this argument succeeded and had Jackson then been put to trial in Ohio it might have been contended that he could not be convicted of murder in Ohio, but only of attempted murder, the actual killing in Kentucky being irrelevant because, (a) because of the territorial limits of Ohio’s jurisdiction. Thus according to the argument for the defense, Jackson might nowhere be convicted of murder although morally guilty of it.

“the Kentucky court rejected the first part of argument , and held further that it had jurisdictions to convict Jackson of murder on the principle that a crime is punishable in the jurisdiction in which it has effect.”

It should be observed that (b) above is a judicial decision concerning the procedural point of jurisdiction and is therefore irrelevant to Mohamed Hamid’s case, while (a) above, which is a mere opinion and not a ratio decidendi and which seems to have been purportedly quoted in support of the court’s decision, is not reported.

As for the second-Contra, Khandu’s Case (1890) I.l.R. 15 Bom.194 it is clearly not an authority in support of the court’s decision in Mohamed Hamid’s case.

“In Khandu’s case the accused has confessed that he has struck his father in law three blows with a stick with force intending to kill him. The deceased fell down at the door of his hut thereupon the accused kept under the deceased head a box of firewood and set the hut on fire. The medical evidence proved that the deceased with the intention of killing him. In intention therefore, he was a murder. But on the evidence such as it is, it must be found that the striking did not amount to murder. It was, however, an attempt to murder.” Parson J, however dissented and held that it was murder because that was his intention. The case being referred to Sargent C.J .the latter agreed with Birdwood J. holding that as the accused undoubtedly believed he had killed victim three would be a difficulty in regarding what occurred from first to last as one continuous Act done with the intention of killing the deceased. In this case it will be noted that neither Gour, Penal Code, s, Law of India (7the ed,1962), pp, 1362-1363.

It clearly be seen therefore that Khandu’s case is no authority in support of Mohamed Hamid’s case. other cases-Indian- in line with Khandu’s case are Dalu Sardar (1914) 18 C.W.N. 1279 , Palani Goundan (1919) I.L.R. 42 Mad. 547, and Chinnathambi (1952)2 M.LJ.550-cited by II Gour, Penal Law of India (7th ed,1962) P. 1363. In Dalu Sardar the accused suspected that his wife was carrying on an intrigue with one Madari. He kicked her below the navel. She feel down and became unconscious. Some people came up and tried to revive her but thought she was dead. The accused then again went inside the house where his wife lay and hung her up by a string tied to the roof of the house to the roof of the house to give it the appearance of suicide. It was held that the one offence of which he could be convicted was that of grievous hurt.

In Palan’s case the accused struck his wife a violent blow on the head with a plough share which rendered her unconscious. Then believing her to be dead he hanged her to conceal his own crime. The case before Napier and Sadasiva Aiyar JJ. Who differed as to the accused’s offence, Napier J. being of opinion that the accused’s intention to kill must be held to have continued up while his colleague was in favour of following the language of Sargent C.j. in Khandu’s case. In view of this difference the case was referred to a Full Bench who agreed with the reasoning in Khandu’s case, adding that therefore a man cannot be said to commit culpable homicide if his intention was directed only to what he believed to be lifeless body.

In Chinnathami (1952) the facts were exactly similar to Palan’s case and the accused was convicted fro grievous hurt under section 525-In Gour’s opinion, the view expressed in Palan’s case may be supported on the ground that no person can be convicted of a mistake of fact. He goes to say:

“if, therefore A assault B and believes is a mistake of fact. If, therefore, A buries B and B dies in consequence of A’S burial of B, A does not aggravate his assault of him which must be judged apart form his subsequent Act. It might be said that in burying B,A was not sufficiently careful, for if he were more careful he would have discovered that B was still alive. But, for this purpose is A to feel B’s pulse? Otherwise, how is he to know that an apparently lifeless body is still alive? The phrase “causes death” must then be understood to imply the continuance of the intention to cause the death by Act which actually cases it. In Palani Goundan and Emperor, the accused struck his wife a blow on her head with ploughshare, which not known to be a blow likely to cause death, did in fact ,render her unconscious and believing her to be dead, in order to lay the foundation of a false defense of suicide by hanging, the accused hanged on abeam by a rope and thereby caused her death by strangulation, and it was held by Full bench that accused was not guilty of either murder or culpable homicide not amounting to murder as the original intention was not cause death but only to cause injury and the second intention was only to dispose of supposedly dead body in a way convenient for the defense which the accused was about to set up”: II Gour Penal Law of India (7th ed.1962) P.1363.

But other cases take a different line of reasoning and should therefore be distinguishable from the above: examples are Gour Gobindo (1920) I.L.R.Mad. 862 Kaliappa Goundan (1933) I.L.R.Mad. 698-Indian-and others and Thabo Meli (1954)a Bsutoland case reported in (1954) 1 AII E.R.373 (P.c.) and cited by Glanvile Williams Criminal Law (ed, 1961)P. 174. In the first case Gour Gobindo struck the deceased Dil Mohamed a blow or a slap on the left ear which knocked him down , and then he and others, without inquiry as to whether he was dead or not, in haste

Hung him to a tree as to make it appear that he had committed suicide. The accused were convicted of hurt, but then High Court quashed the proceedings and directed a retrial and committal of the accused to the sessions on the charges of murder, capable homicide and hurt. The facts of the case were no clear. The deceased was said to have casually met the accused to whom he complained of their encroachment and threatened to complain, whereupon the accused slapped him or gave allow from which the deceased fell down. The case was heard by Norman and Seton-Karr JJ.,who held that , if the blow had killed the deceased , then the assailant would be guilty of offences punishable under section 304 (culpable homicide not amounting to murder) according to his intention and the intensity of his blow; while the other accused would be guilty of fabricating false evidence (s,193) or of causing disappearance of evidence (s.201) if however, the blow did not kill the deceased then all would be guilty of culpable homicide, since the jury might fairly presume against the accused that they must have known that they were likely by that Act to cause death.

Guido’s case above should rather be categorized with the cases mentioned already –Khandu and the rest, though, it is noted that both the facts and the reasoning underlying the decision in Gobindo’s case are not clear.

But in Kaliappa Goundan’s case where the accused strangled a woman with deliberation to murder her, but the woman did not die of strangulation and became unconscious and the accused , believing her to be dead, put her body across a railway lice in order to hide the traces of the crime they thought they had committed, and the woman was run over by a train and died as a result of that; it was held that the two acts of strangling the woman and placing her body across the railway line, one following immediately upon the other, must be treated as one transaction; the transaction being to kill the woman , and the accused were therefore guilty of murder. This was followed in the similar case of Thavamaui (1943) I.L.R. ad.571 where the unconscious woman’s body was thrown into a well. The same principle was adopted in two Patina cases both exactly similar to Kaliappa’s case, when it was held that” where there is from the beginning a clear intention to cause death, the offence is one of murder, even if the killing takes place brassies of acts in may stages, e.g., attack to kill and putting the victim’s body on the railway line to be cut into pieces by a running train.”

The above mentioned cases are in line with Thabo Meli’s case (1954) in which the privy Council arrived at the same conclusion reached in the Kentucky case mentioned earlier. In Thabo Mel’s case D struck P over the head intending to kill him: mistakenly thinking him dead, he rolled him over cliff to make it look like an accident. P died from exposure, it was held affirming the High Court of Basutoland, that this was murder, for, in the quaint language of the law, it “was really one transaction”.

Mohamed Hamid’s case can best be aligned with Gaour Cobido’s case. Though in both, both facts and the reasoning are not clear, yet there are points of similarity. The glaring point of dissimilarity though is the fact that in the former the accused believed his brother to be dead at the time he threw him into the well, but in the latter the accused, in haste, hung their victim to a tree without inquiry as to whether he was dead or alive. In both these cases the actual cause of death was not positively known, i.e. whether it was the first Act or the second. In Gobindo’s case the direction was as follows: “ if the blow had killed the deceased whom he afterwards hung up…. then the assailant would be guilty of culpable homicide not amounting to murder or of voluntary causing hurt by dangerous weapon or means, according to his intention and the intensity of his blow.” In Mohamed Hamid’s case court found in Gobindo’s case, upon retrial that death was caused by the first Act, as did the court in Mohamed Hamid ‘s case the court caused by the blow which dealt his victim on the head. If the court found in Gobindo’s case, upon retrial, that death was caused by the first Act, as did the court in Mohamed hamid’s case, then neither the plea of mistake nor of unintentional killing would have been in issue. Viewed form this angle therefore, Mohamed Hamid’s case should be looked of the proposition under question and contains no ration decided respecting the same. And the opinions expressed should be treated as only obiter dicta. It is observed that the direction in Gobindo’s case above mentioned might as well have included a murder charge had the intensity or severity of the blow together with other circumstances warranted it .if this had been the case, the position would have been congruent to that in Mohamed Hamid’s case as regards this point. Coming to the other portion of the direction: if, however the blow did not kill the deceased (i.e. that homicide, since the jury might fairly presume against the accused that they must have known that they were likely by that Act to cause death.”

The direction might as well have included a murder charge had the facts warranted it. It is observed that it is silent as to any reference to the accused’s state of mind at the time they hung up the deceased-i.e., It does not contain any reference to accused’s recklessness in not ascertaining whether the body was a dead or alive body, nor to consider whether the accused believed it to be dead. Viewed from this angle Gobindo’s case cannot be treated as an authority for the proposition in question as it doe not deal with the mistake of fact, nor of unintentional or reckless killing fro that matter. Again, the reference to the “Act” is ambiguous: for it does not show whether by that word was meant the Act of dealing the blow, i.e, the first Act, or the Act of hanging, i.e, the second Act, for if it is the former that is intended by direction, why should the conviction be confined to voluntarily cause hurt to the decease? If, on the other hand, the word Act was meant for the latter, i.e the hanging-as can appear from the use of the word presume-how can a jury reach such a finding when death, in the ordinary course of things, is a probable and not only likely consequence of Sudan Act, and which in point of fact did cause death in that particular case? The anomaly is here. The accused would receive a hasher punishment for causing death unintentionally or recklessly while on the other hand they might go away with a lighter punishment for the same result brought about by an Act intentionally done.

Here it is appropriate to note that Mohamed Hamid’s case differs from Khandu, Palani and the similar cases, on the one hand, and the Kentucky, Kaliappa and similar cases on the other hand, in that in Mohamed Hamid’s case the cause of death was not known to be attributable to the first or second Act but was found on the evidence as a fact to have been due to the first cause of death was not known to be attributable to the first or second Act but was found on the evidence as a fact to have been due to the first; while in the other two categories of cases the cause was attributable to the second Act. But these resemble Mohamed Hamid’s case in that in all the accused was proved to have been unaware that his victim was still alive at the time the accuse committed the second Act that caused the death. The decision in Mohamed Hamid’s case which deals with this latter part of our statement and which is based on a supposition, which this latter part of our statement and which is base on a supposition. Which links it with these cases, needs further consideration.

Now, Gour deals with preposition, which he has headed: causing death without knowledge in the following manner-II Gour, Penal Law of India (7th ed, 1961), P.1362

“A person may sometimes, intend to cause death, but may fail to cause it in fact. The Act which results in death may not be in prosecution of the object of causing death with the knowledge pre-requisite for the offence of murder of capable homicide…”

He then proceeds to treat the various cases Glanville Williams, Criminal law (2nd ed, 1961) PP.173-175, on the other hand in his chapter dealing with “Mens rea as affected by ignorance of fact”-treats the proposition in the following manner:

“A question raised in some cases is whether intention to mutilat or destroy a corpse is sufficient means rea to convict of murder if the supposed corpse should turn out to have been a living person. On principle, this would seem to be manslaughter and attempted murder but not murder. A corpse is not a human being and there is no intentional or reckless Act to a human being. This conclusion would generally where the accused’s belief that he is dealing with a corpse results from his mistaken belief that he has himself killed the person in question……………”

Then he proceeds to deal with Kentucky case and Thabo Meli’s case. He then states:

“In these cases the accused intends to kill and does kill; his only precise Act that effects death. Ordinary ideas of justified common sense require that such a case shall be treated as murder. If so, it is necessary to make an exception to the general principle, and to hold that although the accused thinks that he is dealing with a corpse result of what he himself has done in pursuance of his murderous intent. If a killing by the first Act would have been manslaughter a later destruction of the supposed corpse should also be manslaughter.”

He proceeds:

“Even though these cases are accepted there is still room for the preposition that an intent to destroy a corps is not an intent to destroy a human being. Thus if a killing by the first Act would have been justifiable, the subsequent destruction of the supposed corpse should not be Criminal homicide. So also if D does the first Act and then E(not previously having acted in concert with him) destroys the supposed corpse for some reason of his own (e.g., to destroy the evidence against D), this should not murder in E.”

It should be observed that Glanville Williams wrong, with respect when he states the assumption that if a killing by the first fact would have been manslaughter a later destruction of the supposed corpse should also be manslaughter, for the reasons already enumerated and because he had erroneously quoted in support on his proposition the decision in Palani Goundan’s case which does not support it. For, in Palani’s case already quoted, it was held that the accused was not guilty of either murder or capable homicide not amounting to murder i.e. manslaughter. It follows that the part of the obiter dicta in Mohamed Hamid’s case dealing with the second part of the proposition is defective From the above survey of the law it is my considered opinion that a conviction of murder should only rest in this sort of case when an intention to kill whether premeditated or not, is directly proved and also where an intent to kill is arrived at by way of inference form the nature of the first Act that caused the death, provided that in both these incidents the continuation of such an intention should be reasonably inferred from the chain of acts that followed the first one leading to the last that actually caused death and from all the circumstances of the case in such a way as to form one transaction, and that in spite of accused’s mistaken belief that he was dealing with a dead body when he committed the last Act that caused death. Looked at from this angle it is a clear exception to general principles of law regarding Criminal responsibility.

The rule as stated above can be gathered from the reasoning under lying some of the decisions in the cases cited above and the opinions of the writers quoted. The ratio decidendi in Kaliappa’s case was that the two acts-of strangulation and placing the body across the railway line-one following immediately upon the other, must be treated as one transaction being to kill the woman, and the accused were therefore guilty of murder. The same reasoning is followed in the other similar Indian cases when it is formulated in the following manner: that when there is from the beginning a clear intention to cause death, the offence is one of murder, even if the killing takes place by a series of acts in may stages, e.g., attack to kill and putting the victim’s body on the railway line to be cut into pieces. In the opinion of Gour the words to cause death, in connection with this sort of case, should imply the continuance of the intention to cause death by the Act which actually caused it, I.e., this should obviously mean that there should be an initial intention to kill-inferred or directly proved. This can also be seen in the decision of the privy Council in Tabo Mli’s case when it stated the rule very vividly-though he had unwarrantably extended it to cover manslaughter cases as ha been observed above-in the following words:

“In these cases the accused intends so kill and does kill; his only mistake is as to precise moment of death and as to the precise Act that such case shall be treated as murder. If so, it is necessary to make an exception to the general principle, and to hold that although the accused thinks that he is dealing with a corpse, still his Act is murder if his mistaken believe that it is corpse is the result of what, he himself has done in pursuance of his murderous intent”: Glanville Williams, Criminal Law (2nd ed, 1961), P, 174.

It seems, therefore, that the contrary opinions reached in apparently similar cases may be explained not upon the ground that the accused in those cases was given the benefit of the plea that no person can be concocted upon a mistake of fact, but because, in any one of these particular cases an intent to kill could not be proved whether by way of inference or otherwise, or even if it were proved its continuation to the finish could not be inferred from the circumstances of the case . so where the initial intent was to cause hurt or grievous hurt, there could be no place for the application of this rule. In this way the decisions plain’s case and Channathabi’s case can be understood because the original intention was not to cause death but only to cause injury; and for this same reason the finding of Napier J. at first instance, was wrong when he said that the accused’s intention to kill must be held to have continued up to the time of the hanging of the victim, as the facts of the case fell short of even attributing to the accused an intention that this Act was likely to cause death, he having hit his wife with a ploughshare on her head, thus rendering her unconscious, and it seems there was no supporting evidence from the subsequent Act or acts in proof of such an intention-and in such a case it is obviously wrong to go further and attribute to the accused a continuation of an intention which is non-existent. The same explanation can be applied to Gour Gobindo’s case where there was an apparent difficulty in arriving at a satisfactory finding, concerning the murderous intention of the accused he having only slapped his victim of the face.

It can now be said that the cardinal principle underlying the rule as above proposed is to prove satisfactory an initial murderous intent and to prove that such an intent continued to the last; in case either of these two requisites fail, then the rule cannot be applied accordingly in Mohamed Hamid’s as, if the above-mentioned first element is conceded to have been fulfilled, the second remains open to some doubt, for in that case the accused stated emphatically that he tried to revive his brother and when this was in vain he carried his body and threw it into the well ; it is clear that an intent towards revival is diametrically opposed to a murderous intent and under such circumstance as this it is difficult to presume the continuation of the accused ‘s intention to kill his brother.

The rule thus expounded is a clear exception to general principles of Criminal liability as correctly stated by Glanville Williams. Looked at from this angle the angle the decision in Khandu’s case should be considered ass incorrect; (unless the facts proved in that case could have brought it under any one of the five exceptions mentioned in Sudan Penal Code, s, 249, as would instantly be executed) for in that case both the initial murderous intent and its continuation on the face of it were present; the accused having confessed that he had struck his father in law three blow with a stick with force intending to kill him and upon the deceased falling unconscious the accused burnt his body to cinder and the medical evidence proved that death was due to burring.

This rule, being true exception to fundamental principles of the law governing criminal liability, it is my considered opinion that it should be very strictly applied. Though an element of chance plays a good role in it. Yet this may be of no value in the case of an accuse person whose only mistake was in respect of the precise moment of his victim’s death and who was proved to have had affixed intent to see the end of his victim for it can be said that by committing the first Act he had entered away of no return and has shut up for ever the door of repentance form his face and accordingly should not be entitled to the benefits and consideration of the jus poenitenti. It is also noted that in such cases the rebuttal of accused’s knowledge in respect of state of hid victim before death is very difficult indeed and the possibility of revival of the victim is too remote and in these assumed rare cases, propriety decrees that the accused would not have let the unconscious victim who is miraculously recalled to life slip from his grip.

It can also be seen that this rule of assumptive responsibility offends against the well-established principle of repentance underlying the law of attempts at common law; it should prudently, therefore, not be applied when the intent inferred from the first Act is only the livelihood and not the profanity of death, and also in case there is no proof of a continuous intent to kill for here the assumption of an intent to repent should weigh against an assumed intent to kill and the accused shall be entitled to this benefit and should only receive his due punishment for an attempted homicide not amounting to murder in respect of the first ace and the second Act should only be distinctly looked upon as an Act of fabricating or doing away with evidence.

I should also think that the rule should not be applied when any of the five exceptions mentioned under Sudan Penal Code, s, and 249 is proved for, speaking in general terms. When an element of bona fides consent or suddenness exists, this should be irreconcilable neither with murderous intent nor with its continuity.

Both the accused and the deceased-and also all the eye witnesses-were supposed convalescent patient s kept under the care of sheik EL Gaalis native lunatic asylum. They were responsible for the cultivation and running of a sagia within the Sheik’s domain. The deceased was the Samad, I.e., and the boss. On the day of the incident after the exchange of provocative words and some show of force between the two concerning the duties of the accused to co-operate in mending the “alas-rope” of the sagia wheel, the accused picked up a toria-4 ib. in weight-and dealt the deceased two mighty blows on the head and at the back of the head and in between death one of the patients who wanted to separate the competitors one blow, whereby both fell unconscious. The accused having assured himself of deceased’s death held him by the leg and dragged him some steps towards the River Nile and without paying any heed to shouts of objection from those who were present hurled him into the deep waters. The deceased’s body was picked out some hours later. Death was due to drowning.

The trial court found some difficulty in arriving at the finding that the accused’s intention was to kill the deceased, and the court could not do so until it called a medical witness to express an opinion that there must have been a fracture of the skull and thus preferring this opinion to that of the medical officer who did the post-mortem and who testified that on examination he could not trace any such fracture. As I see it and irrespective of both these statements I think the remaining evidence is enough for a reasonable inference that death was the natural and probable consequence of accused’s first Act of hitting the deceased with such mighty force twice on such parts of the body as the head and the back of the head using an implement with an iron front weighing 4 ib, to the extent of felling a formidably built man and rendering him unconscious and the accused must therefore be held to have intended to cause the death of he deceased.

I also think that chain of acts that followed ending by hurling the supposed corpse into the river, clearly shows accused ‘s fixed and continuous intention to see his victim’s end. Accordingly the two requisites of the rule are fulfilled and thus we arrive at the same finding reached of the rule are fulfilled and thus we arrive at the same finding reached by the trial court though through different paths.

Yet still-the said court, having found the accused guilty of murder gave him the benefit of the exception under Sudan Penal Code, s, and 249(1), because of sudden and grave provocation. Though the continuous nagging and bossing about by the deceased my not amount to provocation, yet that coupled with his attempt to poke accused’s face with a sharp wooden poker may do, and I think the court was justified in reaching this conclusion, though I would have thought the proper finding should have been under the fourth exception to the above-mentioned section as all the facts point to sudden fight.

But whether the exception was one under both or any of the above subsections, the conviction under Sudan Penal Code, s, 253,was incorrect in this particular case because of the reasons forwarded earlier and ought to have been one of attempting culpable homicide not amounting to murder and the finding should accordingly be altered.

We now pass to the consideration of whether the accused was non compos mentis at the time he committed the Act. In spite of over whelming evidence to the contrary , the trial court found that he was not. In this respect the court said:

“accused was diagnosed as a schizophrenic by a psychiatrist who went on to say that accused’s mental condition has not changed since the time he committed the offence. He added that at present accused he is capable of appreciating the nature of these proceeding s let alone the intelligent defenses he tried to invoke. Well, if this is extended to cover the state of his mind at he time of the incident, then no riddle as to his power of appreciation is presented.”

And also;

“ All thing during the transaction went in such a conventional way as would lead this court to the belief that the accused fully discerned both the nature and effect of his acts. The consistency of his statements, the fact that he was not only conscious of all that tidy narrative, the logicality of his acts, the association he made out between unconsciousness and death, his genuine attempt to remove the body of deceased with a view to concealing one of the shucking marks of his crime-all these factors have worked to feed our belief in the sanity of accused.”

It would preliminarily be observed that some of the above inferences do not accord with the facts. For it is incorrect to infer that the accused must have been sane at the time be committed the offence only from the fact that he was if at the time he stood his trial, and it is certainly unconventional for person to drag the body of another whom h thought to have killed within sight of several persons present and threw it into the River.

Sudan Penal Code, s, 50 govern the issue here, which reads:

“No Act is an offence which is done by a person who at the time of doing it did not possess the power of appreciating the nature of his acts, or of controlling them by reason of,

(a) Permanent or temporary insanity or mental infirmity or………..”

Criminal court Circular No. 21 formulates the issue in the following manner:

(a) At the time of the Act did the accused possess the power of appreciating the nature of his Act?

(b) If so, did he possess the power of controlling it.

(c) If either (a) or (b) is answered in the negative, was such inability to appreciate or control the result of permanent or temporary insanity or mental infirmity?

It is appropriate to state here that the circular lays an emphasis on the duty of the court to take up the defense of insanity on behalf of the accused particularly when he is undefended. This must be stressed for in this country where legal aid is not available and when the accused more often than not is unrepresentative by counsel, the standard of the court’s duty should be raised:

“A man who pleads insanity, and who, according to the prosecution witness, has shown abnormality of mind on previous occasions (and the medical evidence tends in the same direction) cannot be expected to look after his defense as an accused in and ordinary case. It is the duty of court to look after his case with an unusual degree of care and circumspection”-see I Gour, Penal Law of India (7th ed, 1961) P. 377.

The circular puts the onus of proof on the accused and says that in order that the defense may succeed, insanity must be proved beyond reasonable doubt. The same idea is expressed in Criminal court Circular 1952 No.3 when the burden of proving insanity is aligned with that in the case of the pea of self-defense.

In this our courts seem to follow the old rule in English law. Though it is still the law that the burden is made to rest with the accused, yet there is a chain of precedents, which are in favour of the reducing of this burden to the standard of the balance of probabilities.

“The onus of establishing insanity is on the accused. The burden of proof upon him is no higher that that which rests upon a party to Civil proceedings” X Halsbury, Laws of England (3rd ed, 1956).p. 288. The reason why the heavier standard was made to lie with the accused seems to be buried in the niceties and ambiguities peculiar to M, Naught en’s case (1843) 8 E.R. 718, which required that the accused’s state of mind, must be clearly proved. As we do not follow the substantive law established by that case –see Criminal court Circular Nol21 above-mentioned-there seems to be nothing to bind our courts in following their Procedure other systems of law incline towards the lighter burden;

“ In the United States the tendency is to place the burden of proof in the rue sense upon the prosecution and this is the rule adopted in the Model Penal Code.”

“The High Court of Australia has held that the onus is the civil onus and not the Criminal onus, i.e., the accused merely has to establish a balance of probability ; and this view was approved on appeal by the privy Council. It is also followed in South African Canada and Australia; and there is no doubt that it represent the law of England (in respect of the second exception to M, Naurghten’s rule)”:

Glanville Williams, Criminal Law (2nd ed, 1961), P. 520.

Accordingly, therefore, it is the duty of the accused to put forward all the facts upon which he relies and endeavor to satisfy the court of the genuineness and truth of his defense. In order to arrive at a vivid picture as far as human capacity can do, the court should sift all facts and picture as far as human capacity can do, the court should sift all facts and circumstances available, commencing form accuser’s past history, his disaster, and thereafter including his demeanor at trial, and the court has to call to its aid expert evidence whenever it can do so and should give it due weight and not dismiss it with ease having in mind that the utterance whether the accused was sane or not lies at the end at the end with the court, the expert’s duty is merely to assist the court and give his considered opinion whether a certain set of facts is indicative of insanity.

“In all cases where legal insanity is set up, it is most material to consider the circumstances which have preceded, attended and followed the crime; whether there was deliberation and preparation for the Act; whether it was done in a manner which showed a desire for concealment, whether after the crime, the offender showed consciousness of guilt, and made efforts to avoid detection whether after his arrest, he offered false excuses and made flies statements. The behavior of the accused after the Act would be very relevant”-see I Gourd, Penal Law of India (7th ed. 1962) P. 367.

It should be noted that the crucial time is the time when the act constituting the crime was committed. The court may find this difficult especially if the accused pardon form appearances seems to be very sane or in fact lives a lucid interval at the time.

But ho is the state of mind at the time to be determined? Direct evidence may be forthcoming as to his overt acts, but it cannot speak of the state of mind. It will, therefore, have to Judge not only by his contemporaneous Act, words and conduct, but also his predisposition and his prior and subsequent acts and conduct. As the fact to be inquired into is his mental power of cognition at the time all facts, to be inquired into his mental power of cognition at the time all facts tending to throw alight on it are relevant. The usual method adopted in such inquiry is:

(i) To place the accused under medical observation,

(ii) to let in evidence as to the prisoner’s antecedents.

(iii) To observe and note his demeanor in court.

(iv) To see if his crime was supported by amative, or

(v) Circumstances which postulate cognition, such as,

(vi) Preparation, the choice of weapon, and the manner of using it,

(vii) Attempt of concealment, either before or at the time of the Act, or afterwards,

(viii) The circumstances attending the commission of the crime, such as the choice of time, place and opportunity,

(ix) The assistance of an accomplice,

(x) The statements made immediately after the crime.

Having all the necessary data before it, the court now should not fix its mind on the defense of the accused-concerning his mental capacity and satisfy itself that there is evidence to prove his insane beyond any reasonable doubt but it should look into all the facts and circumstances and try to reach a satisfactory conclusion as to the sanity of the accused and if there is reasonable possibility that he was not sane at the time he committed the Act then the accused would be entitled to the protection of the relevant sections.

It seems that the rigor of heavier bidden of proof was meant, at a time when medical science was not far advanced, to set barriers and barricades in the path of feigning deigned such defenses in order that minimum of such feigning defendants could skip punishment but now with the big strides in that direction the chance of their being detected is increased; but in spite of devilment in medical science and due to inherent human shortcomings and frailties, the words of mind and self are far from being been fathomable, and their secrets still remained buried in the deep depths of being and it is therefore better that ten such feigning accused persons should flout the law than one single person who is in need of care and cure be punished , for he is innocent in the eye of reason. They only problem that remains is that firm and correct steps are to be taken to ensure that such persons are not allowed to be amerce to others, but this is another matter.

I have gone through the record of this case with the almost of care and I am satisfied that the accused cannot be convicted because it is possible that he was not sane at the time of the commission of alleged offence.

The accused was certified after close and continuous examination by a psychiatrist of good standing to have been suffering form schizophrenia, a disease of the mind, which was supposed to start at an early stage of life.

“ The former name of schizophrenia was dementia praecox, which was unsuitable because the disorder does not always start early and perhaps does not necessarily involve loss of mental capacity. The term “schizophrenia” is also unfortunate because it misleadingly suggests hysterical dissociation and multiple personality. The only

common feature of the various forms of the disorder is loss of interest’ in the environment. In some forms there is a profound deterioration of the faculties, with delusions and a tendency to uncontrolled and bizarre conduct”: Glanville Williams, Criminal Law (2nd ed., 1961), p. 443, fl. 3.

The accused who is about o years of age was brought to the native asylum about 15 years ago to be looked after. A cousin of his said that he was in a normal state until he had been bitten by a crocodile when his mood changed and that was why he was taken thither. He said he used to visit the patient after intervals and always found him quiet and only lent himself to outbursts when ordered about (N.B. the statement of this witness ought to have been taken in court). Sheikh El Gaals who gave his evidence at trial said that the accused was of a quiet disposition “after he was cured.” adding that he did nothing wrong—apparently to cover himself from any responsibility.

This quietness or moodiness was also observed by the medical expert when the accused was put under continuous examination All this evidence tends to strongly show that the accused has continuously lived in a state of detachment from and indifference to his environment. On the day of the incident he was working alone in the sagia. But when he was bossed about by the deceased he broke into terrible volcanic rage and did not subdue until he had ferociously silenced and dragged his victim, whom he thought to be dead, by his leg, in spite of shouting protests from spectators, and finally hurled the body into a river; and when he was shortly afterwards questioned why he threw the “dead” body into the river, replied, “he better be thrown.” One cannot call for more grotesque an example of an eccentric and bizarre conduct than this. I think, therefore, that the above is strong evidence that the accused was suffering from schizophrenia and that at the time of the act he was dispossessed of the powers of controlling his acts.

For the above, I have quashed the conviction under Sudan Penal Code, s. 253, and I find that the accused did an act under Sudan Penal Code, s. 26o, but at the time of committing it he was of unsound mind. He should therefore be dealt with under Code of Criminal Procedure, s. 285, with a warning to the Muhafiz that he may prove to be of a dangerous disposition.

The papers are returned for action accordingly.

S.L.R.-5

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SUDAN GOVERNMENT v. KHIDIR ABDALLA EL HUSEEIN

Case No.:

AC-C-P-204-1965

Court:

The Supreme Court

Issue No.:

1966

Principles

· Criminal law-Series of acts w-Erroneous belief that death caused by first Act-Death actually caused by second Act-No continuation of intention reasonably be inferred from the chain of the two acts-Accused is only responsible for the first Act.

· Criminal law –attempt to commit capable homicide –Penal Code, s,260-Accued gave deceased two blows on head during sudden fight –Deceased became senseless and accused then believing him dead threw him in the river whereby died because of drowning-No continuation of intention reasonably be inferred from the chain of the two acts-Accused is responsible for attempt to commit capable homicide to amounting to murder.

· Criminal law –Insanity-Penal Code, s, 50-Insanity at the time of commission of the crime may be established from the condition of the accused preceding attending and following the commission of the crime.

· Evidence-Insanity-Burden on accused to prove insanity is not beyond reasonable doubt-Criminal court circular 1952 No.21-But be proved as the standard of the balance of probabilities.

Accused, deceased and other patient were kept in a native lunatic asylum. On the day of the incident , the deceased as he was the boss. Was supervision the work of the accused in the garden near the river. Accused and deceased two mighty blows by a “toria” on his head. Then accused believing deceased to be dead dragged him by his leg and threw him into the river in fact deceased was not then dead and the final cause of death established to be suffocation because of drowning. On his trial by Major court for murder, the court rejected the defense of insanity and convicted accused under Penal Code, s,253 ,causing culpable homicide not amounting to murder because although deceased died as result of the drowning in the river the accused was still presumed to have caused his death but due to the provocation accused was entitled to the benefit of Penal Code, s, 249 (1).
Held: (i)Conviction under penal code’s 253, is altered to one under penal code, s, 260 because:
(a) From the facts of the case although there might have been provocation the facts proved that there was a sudden fight under Penal Code, s, 249 (4).

(i) During the sudden fight, accused gave the deceased two mighty blows on the head and rendered him senseless. Believing him dead, accused threw him in the river, It was established that death was due to suffocation because of drowning. The facts of this case proved no continuation of intention to kill which might be inferred from the chain of the second Act following the first Act. Therefore accused is only responsible for the first Act, i.e., giving two mighty blows during sudden fight. Accordingly accused attempted to commit capable homicide not amounting to murder under Penal Code, s, 260, having benefited from Penal Code, s, 249 (4).

(ii) Accused is not responsible under Penal Code, s, 260,because at the time of the commission of the crime he was insane and entitled to the defense of insanity under 50. the condition of the accused preceding , accompanying and following the commission of the crime proved that accused was insane ate the time of the commission of the crime.

(iii) Insanity is not required to proved by accused beyond reasonable doubt, as required by Criminal court Circular 1952 No.21 ,but be proved as the standard of the balance of probabilities.

Judgment

(MAJOR COURT CONFIRMATION)