Case No.:

AC-CP-221-1960

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law-infanticide-punishment when convicted under Penal Code, s. 253

Accused threw her illegitimate baby into a pit; it died in six hours from exposure and an untied umbilical cord. Accused was convicted under Penal Code. s. 253, since death was considered only a likely consequence of her act. In accordance with practice of convictions for infanticide under Penal Code. s. 251 [19 ] e.g.. Sudan Government V. Zaila Fad! El Moula, (1961) S.L.J.R. 146] because the balance of accused’s mind had not yet recovered from birth and lactation, the sentence vas reduced to two years.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MAKKA ALI SAEED

AC-CP-221-1960

M. A. Abu Rannat C.J. June 11, 1961: —The facts set out by the court in the summary of salient facts are admitted by accused, but the reasons for finding are wrong.

The accused gave birth to an illegitimate baby and took it outside the village and threw it into a pit. The sheikh of the village passed by the place and found the baby alive. He took it to the village, but it soon died as a result of exposure to cold and also because the umbilical cord was not tied. The child died in less than six hours after her birth.

The court framed the point for determination in the following words:

“Did the accused intend to cause the death of her child or know that death would be the probable consequence of her act?

The court answered this question in the affirmative, yet it convicted the accused under section 253 of the Penal Code. According to the finding of the court, the accused should have been convicted of murder and sentenced to life imprisonment with recommendation for reduction of sentence.

I do not propose to send the case back for reconsideration of finding, as the facts warrant a conviction under section 253 of the Penal Code.

The facts show that accused wanted to get rid of the She threw it into a pit outside the village. It cannot be said that she intended to kill

it. If she so intended, she would have killed it first and then concealed it somewhere, nor do I think that she knew the death would be the probable consequence of hey act. It could be argued that if the child died she would not be surprised and if it lived she also would not be surprised. This is likely and not probable. The difference between the two expressions is one of emphasis. I therefore confirm the finding of guilty under section 253 of the Penal Code.

Sentence

It appears from the facts of this case, that the accused committed the offence of infanticide, which is not known or recognised in our Code. If the facts of a case constitute such an• offence, our practice is to pass the sentence provided for it in England.

In this case, the accused did an act which caused the death of the child, but at the time of the commission of the act, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.

I therefore alter the sentence to imprisonment for two years.

This note should be brought to the attention of the President of the court.

Editors’ Note. —Although practice is for the Chief Justice to reduce sentences to two, years for those convicted of murder in cases, which would be infanticide in England (e.g., Sudan Government v. Zaila Fad! El Multi (S.L.J.R. 146), the Major Court, pursuant to Criminal Court Circular No. 26, s. 1, and Appendix (of June x, 1963, has no alternative but to pass a sentence of death or life imprisonment (Sudan Government v. Aisha Bilal PJzgaIla, AC-CP-54- (M. A. Hassib J.) and Sudan Government v. Aisha BiIal Rizgalla, AC-CP- (M. A. Abu Rannat C.J.)). In cases of infanticide the Major Court should make a full recommendation on commutation of sentence to the Chief Justice, pursuant to Criminal Court Circular No. 26, S. 7. Sudan Government v. Saadia bint Abbakar Abdaila, AC-CP.2 (M. A. Abu Rannat C.J.).