(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MAGZOUB BASHIR ABU HISSES

AC-CP-564-1969

Principles

  Criminal Law—Grave and sudden provocation—Seeing an operation of unnatural intercourse between accused’s uncle and his friend—Creates a provocative act under Penal Code, s. 249(1).

Accused saw his uncle having an unnatural intercourse with his friend in private. He could not bear it and rushed at them with his knife. The uncle jumped off the bed and the accused found himself stabbing his friend who died instantaneously.
The Major Court convicted the accused under Penal Code, s. 251.
Held: Seeing such operation of unnatural intercourse between the accused’s uncle and his friend, although it is not an offence, it is considered an immoral act which is generally not acceptable by the society of the accused. As such it creates a provocative act under Penal Code, s. 249 (1). Therefore, the finding under Penal Code, s. 251 is altered to one under Penal Code, s. 253.

Advocate: Mamoun M. Eisa for the accused

Judgment

Osman El Tayeb C.J. January 21, 1970:—Accused was charged with causing the death of Mirghani El Mardi at El Mahadia of Omdurman on October 13, 1968, and thereby committing an offence punishable under the Sudan Penal Code, s. 251. He was tried by Major Court in Omdurman between July  3 and 27, 1969, the court found him guilty as charged and sentenced him to death.

Accused confessed consistently during the police investigation, at the Magisterial Inquiry and at the trial that he stabbed deceased to death, and then he carried the corpse from his house on a cart that was there, and threw it on the open space to the west of the town. The corpse was collected from there and accused was arrested while he was coming back on the cart to his house.

The corpse was sent to Omdurman Civil Hospital and the medical evidence showed that there was a wound on the back of the neck covering its whole width, penetrating for 9 cms. deep and reaching the spine. There were twenty other wounds on the back of deceased with various dimensions, one of them was 4 cms. deep and reached the stomach from the left side. The cause of death was shock and extensive haemorrhage. It is not difficult to find without any doubt, that accused by inflicting all these wounds on deceased, had intended to cause his death.

The accused raised the defence of deprivation of self control by grave and sudden provocation within the meaning of the Sudan Penal Code, 5. 249 (1). The fact that created the provocation was that he saw his

uncle Dafalla having an unnatural intercourse with his friend the deceased; he could not bear it and he rushed at them with his knife. Dafalla jumped off the bed, and accused found himself stabbing deceased.

The court, in its attempt to answer the question whether there was provocation, inconsistently and unintelligently misdirected itself. First it entertained doubt as to whether the happening of the unnatural inter course was proved or believed as a fact. I will refer to this matter later. Secondly the court thought that the awakening by accused of his mother, and her seeing the two persons in the operation of the unnatural intercourse was the provocative act, according to allegation of accused. Conceiving this idea, the court decided that this was provocation sought. This is of course nonsense. Thirdly the court discussed the real issue, whether the seeing of the two persons in the operation of unnatural inter course created grave and sudden provocation to accused, and answered it in the negative. This point will also be discussed later.

I come now to the evidence and the facts that can be found or believed from it. The evidence consists of the Police Investigator P.W.1, another policeman P.W.2, the Medical Officer P.W.3, accused’s mother P.W.4, accused’s maternal uncle P.W.5, and statements of accused himself. Those facts as I believe them are as follows:

Accused is a young man born on November 19, 1949, and his trade is a butcher, his mother is a farasha in Omdurman Civil Hospital, and his maternal uncle is a man of 48 years, he was once a policeman, and now he works as a carter. The three of them live together in a small house at El Mahadia of Omdurman. Deceased (who was described as a bicycle repairer and nothing more) was the friend of both accused and his uncle. It was stated that deceased was about three years ago convicted of a sexual offence, the uncle appeared in court, on the request of deceased to give evidence as to his character. Deceased used to live at Um Badda.

On the day of the occurrence accused and deceased were together and they thought of going to the cinema, and as they found the queue in front of the cinema was too long, they changed their minds. They went to El Mahadia, they bought a bottle of araki, and in the open air outside the town drank that bottle and smoked a cigarette of bango. Then they went to accused’s house, a little later accused’s mother came from her work and gave them dinner. When they had finished their meal, accused’s uncle came, he was given his dinner. As it had become a little late, about 9.30 p.m., deceased preferred to spend the night there instead of going to his house at Urn Badda. In a peaceful atmosphere all went into slumber.

The next morning, at about 3 a.m., the uncle agreed with deceased to have an unnatural intercourse with him. They actually started, deceased lying on the bed and the uncle over him. Accused was awakened, per haps, by the movement of the two in the operation, he saw them, he was excited, he shouted for his mother to see what her brother was doing. Accused without sparing any time, took his knife that was about him, and rushed at them. His uncle jumped off the bed and before deceased could move accused assaulted him. It is believed that accused first cut deceased’s neck, it was a very severe wound that disabled deceased, and hindered him from moving. Then accused stabbed him twenty times.

Deceased died instantaneously. Accused sat on one of the beds and cooled down. The uncle came in and requested accused to keep it secret. All the concern of the family at that time was what they should do. The thinking in which, apparently, both the mother and the uncle joined, was to conceal the corpse, nowhere other than throwing it outside the town. Accused prepared the cart, he and the uncle carried the corpse on the cart, and accused drove it away.

The uncle could not help it, or as he might have originally thought, he went straight to Omdurman North Police Station and gave the information at about 5 a.m. The policemen, P.W.1 and P.W.2, hurried to the scene of the offence, they found the corpse in the open space to the west of El Mahadia. P.W.2 came back to fetch the police tracker, when he reached the house, he met accused coming back on the cart, he stopped him and took him to the police station.

These facts have been found from the statement of accused and the evidence of his mother. The Major Court hesitated about the acceptance of these facts; it was hesitation because the court embarked on the argument whether those facts created provocation. In the Summary of Salient Facts as believed by the court it is stated that while deceased was asleep accused stabbed him; if the court had believed this fact, it could not argue the presence of provocation arising out of a fact it had not believed. However, the court hesitated about believing or accepting those facts, on the following points: (1) The evidence of the uncle that he awoke to see accused stabbing deceased, (2) The divergence in the statements of both accused and his mother to the investigator. At first both of them said that they knew nothing of the killing of deceased, later they said that deceased was killed by the uncle, and afterwards gave the facts in question, and (3) What was said by P.W.1, when he was asked, that he found deceased with his shirt and shorts. This last statement was made in a manner that can be described as being casually made or without thought of its effect. At the start the question of the unnatural intercourse on deceased was not thought of and the mind of the investigator was not drawn to it. The witness was not further asked whether the stabbing appeared on the shirt or shorts of deceased. I should say that this bit of evidence is not to be relied on for anything. The mother’s statements to the investigator are not evidence of any kind, and the reference to them in order to discredit her in respect of the evidence that she gave before the court is not justified, in so far as she had been consistent in her evidence at the magisterial inquiry and the trial and with the last statement to the investigator as recorded in the Case Diary. I agree with the argument of the advocate for accused that we should not expect the mother in such a case, in which her only son is facing the serious accusation of murder, to be straightforward in her statement from the start. But when she later gave the truth, it should be expected to be the whole truth. I also agree with the learned advocate that, on the other hand there is every reason to discredit the uncle; it is too difficult for him to admit the unnatural intercourse with deceased.

Now I come to the important point: whether the seeing of the act of unnatural intercourse between the uncle and the friend created grave and sudden provocation so as to deprive accused of self-control.

I have been thinking about the answer for a long time, because the act under consideration as to whether it could possibly create provocation is odd and strange. Through my long reading I could not find anything similar to it. But I have reached the conclusion that that act could pro duce provocation. Of course, the law does not tabulate the acts that are likely to cause, create or produce provocation; the law is concerned about the creation and existence of the provocation, but by what act is a matter depending on the unlimited human conduct and activities, and their effect on the human temperament and passions.

The common acts that are frequently found in the cases as being creative of provocation are of two classes. The first consists of the indignating insults by abusive words or by assaults that do not cause apprehension of bodily injury, e.g. slapping on the face. The second class consists of adulterous conduct by or with the accused’s wife, and this may include illicit intercourse with a mistress or with a close relative, like a daughter or sister, Or an unnatural offence with a son or a brother. It has been frequently held in the Sudan, as well as in India and England, that such acts are capable of producing provocation so grave as to deprive the offender of the power of self-control and when he kills with suddenness his offence will be reduced to culpable homicide not amounting to murder.

The material element in the law of provocation is the state of mind of the offender; that when he committed the offence he was deprived of this power of self-control. The act emanating from the victim may be any act or omission, provided that it is capable of causing that state of mind to any reasonable and ordinary person so considering him in his community and environment, and the habits, customs and traditions of that community. In Sudan Government v. Ahmed Ismail Hamad, the Court of Criminal Appeal stated this part of the law as follows:

“The standard by which the behavior of the accused should be measured is that of a reasonable and sober man: This is an objective standard, and such factors peculiar to the accused as an exceptionally excitable temperament or self-imposed intoxication rendering him unusually susceptible to provocation are wholly irrelevant. The social status and environment of the accused and the habits and customs of the community to which he belongs, may properly be taken into consideration in deciding how a reasonable man in accused’s position could be expected to behave."

The state of mind of the offender, that state of loss of self-control, appearing in rage or anger or resentment, come as an infliction of the mind, by some act or omission of the victim that is capable of causing it, taking into consideration the status of the offender in his community and the prevailing reactions to the notions of right or wrong. The act that is capable of creating or producing provocation should not essentially be a punishable offence or other illegal conduct, e.g. criminal assault or insult or adultery; it may be any misconduct, immoral conduct, improper act or conduct that is generally not acceptable and is apt to be the source of resentment.

The act or conduct that is the subject of consideration in this case, as stated above, is that the deceased and the maternal uncle of accused, the two of them being of age, consented to, and joined in a carnal intercourse, in private. This is not an offence, but it is certainly an immoral act that is generally not acceptable by the society of accused, and it is a source of resentment and contempt. As such it is capable of provocation to any person in the position of accused. The place was a small yard of the house and the beds were close to each other, and accused’s mother was then with them. Accused was awakened by the movement of the two bad men in the operation, when he raised his head and saw them, he was terribly shocked, he was filled with resentment and rage. He shout for his mother to see what her brother was doing. These circumstances indicate that the provocation caused by that act was sufficiently grave to the extent that accused lost self-control. On the spur of the moment and in his sudden passion he rushed at them with his knife, the uncle jumped away, and deceased not yet being able to move, accused stabbed him vigorously in a mad-like manner. This manner shows that accused was extremely provoked to the extent that it is possible to say that he was totally deprived of self-control. Of course the provocative act was done by the two jointly, and so the provocation was caused by them jointly and severally. When accused rushed at them, he might have

intended to stab both of them or any one of them. Deceased remained still and so he stabbed him.

For these reasons, I alter the finding of guilty under the Sudan Penal Code, s. 251 to finding of guilty under the Sudan Penal Code, s. 253. I sentence accused to imprisonment for fourteen (14) years from the date of his arrest.