(CRIMINAL REVISION)

SUDAN GOVERNMENT V. MARGRET PAPA BANAYOTI

AC-CR-REV. 203.1964

Principles

·  Criminal law-Attempt to commit adultery with married woman- Penal Code, s,  93/432- Kissing married woman in public road is merely preparation not amounting to attempt

Kissing a married women in  a car in a public  road, when the traffic is not much may prove intention  to commit adultrey, but still the act does not amount to an attempt under Penal Code, s,  93/432, because the frontier between preparation and attempt had not been crossed.

Judgment

:           M. A. Abu Rannat C.J June 9, 1964 :- this case is interesting as there is a  nice point of law which requires careful examination .

The facts are short and simple and are not in dispute

The complainant Banayoti Papa Banayoti was the husband of Margaret the second accused at the time of the incident. On December 5, 1962. at 4 p.m, the husband saw his wife (accused No. 2) driving a car on the circular macadam road leading from Khartoum city to the light industrial area and lying east of the sunt tree; and that first accused George Riad was sitting beside her on the front seat and kissed her. The husband brought an information against accused No. 1 and accused No.2 under Penal Code, ss, 93/432 and 93/433 ( attempted adultery by or with a married woman).

The police magistrate convicted both accused No. 1 amd No. 2 under the above sections and on appeal by acused No. 2, the Honourabe the Judge of the High Court dismissed it.

The real and important point for determination is whether the act of the accused amounted to an attempt or mere preparation.

As professor Gledhill said in his useful Commentary. The Penal Codes, of northern Nigeria and Sudan (1963) pp.70,72 and 74 “In both preparation and attempt there must be the attention to commit the offence and the difficult is to draw the line in progress towards carrying out the intention at which the preparation ceases and attempt begins” of the many examples given by him he mentioned the following case “in an other Indian case a municipal commissioner wanted to commit adultery and a messenger brought the women to the municipal office the husband found the commissioner and the women together in a room in the office and took her away. What had occurred clearly pointed to the accused’s intention but it was held that the state of attempt had not been reached “ professor Gledhill added in most cases there is a series of acts between

Forming the intention to commit the offence and its consummation, the earilier acts are preparation but at one point in the chain of events  the stage of attempt its reached and it is at this point that liability is incurred; what happens after that, whether foreseen or not, whether under the control of the accuse’s volition or not , are immaterial.”

In this case the two accused were in a car at 4 p.m on a macadam road, which is frequnted by cars and pedestrians though the traffic was not much and they kissed each other. The intention to commit adultery is there, but having read many cases on attempt to commit an offece, I do not think in this case that the frontier between preparation and attempt had been crossed, and consequently I quash the conviction against both accused.