Case No.:

AC-CP-236-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 249 (1)—Grave and sudden provocation—Marital misconduct—Killing after lying in wait with suspicion distinguished from killing after lying in wait with intent to kill

The accused had suspected his wife of marital misconduct for a year, and on the day in question suspected the deceased. Accused hid in his house to watch. Deceased entered the house followed by accused’s wife. When deceased pulled her toward him, accused jumped Out, wrestled, stabbed and killed the deceased. Accused pleaded grave and sudden provocation under Penal Code, s. 249 (1), to the charge of murder.
Held: Suspicious of his wife’s marital misconduct accused, lying in w. was provoked by sudden confirmation of his suspicions, and is entitled to the partial defence under Penal Code, s. 249 (1).
Obiter dictum If the accused knows of marital misconduct and lies in wait with intent to kill, and then kills, he is not entitled to the defence under Penal Code. S. 249 (1).

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED AHMED GADIR

AC-CP-236-1956

M. I. El Nur, Acting C.J. October 10, 1956 :—The facts of this case (Major Court No. 42-1956) as I can make out from the evidence are briefly as follows:

Accused and deceased were both nomads living in moving fangs in the vicinity of Umm Badr of Sodari Sub-District.

Accused suspected that deceased was intriguing with his wife because he saw him several times meeting and talking to her in her father’s house. Accused not disclosing his suspicions to either his wife or her father or deceased, moved with his wife to another fang to put an end to those suspicious meetings, but unfortunately deceased and accused’s father-in-law moved their houses and camped in the neighbourhood of accused and his wife. Accused moved again and again and still his father-in-law as well as deceased moved to his neighbourhood.

On January 6, 1956, accused and his father-in-law were holding a ceremony on the occasion of the double marriage of accused’s sister and his wife’s younger sister. The Arabs who were camping in the neighbouring fangs were invited to the ceremony. Amongst the invitees was deceased and a certain Ali Mohamed Humeida who by that time were camping in a fang about one or two hours’ walk away.

After the ceremony was over at about sunset, deceased and his companion left the bridegroom’s house and went to the house of Abdel Gadir Gabir (father of accused’s wife) where the girls of the marriage were gathering and sat chatting with them for a long time.

Accused not seeing deceased amongst the other guests in the bride groom’s house went to his father-in-law’s house, and without being noticed, saw deceased chatting with his wife and overheard him saying to her ‘tonight I want dilka” (dilka is a sort of massage with a perfumed dough administered by women to men ).

Labouring under his time-long suspicion accused suspected that his wife and deceased were intending to meet by night in his own house, presumably because there was no other place available for such meeting. Therefore accused went to his own hut and hid behind a curtain. After a short time deceased, unaware of accused’s presence, entered the hut and sat in accused’s bed. Accused seeing deceased sitting in his bed on that hour of the night made no movement and waited to see what was going to happen next. After some time, accused’s wife came and hesitatingly stood on the door of the hut. Deceased clapped his fingers as a sign to her to come in.. She got in and deceased held her by the hand and pulled her towards him on the bed. Whereupon accused got out from his hiding place inside the hut and with his ukkaz upraised, hit at both his wife and deceased several times. Accused’s wife then ran away without crying or doing anything to attract attention, leaving behind accused and deceased standing on their feet and fighting. In the course of that fight accused drew his knife and stabbed deceased on the chest causing his immediate death.

On the above facts the court rightly found that on January 6, 1956, accused did inflict on deceased a grave stab wound on the right chest, between the fifth and sixth ribs, “ deep inclining towards the heart, and thereby caused his instant death and that accused at the time of inf1ictin that stab wound on deceased intended or knew that death would be the probable and not only a’likely consequence of his act. Thereafter accused prima facie committed murder.

Having done that the court had to consider whether accused’s act was covered by any of the subsections of Sudan Penal Code, s. 249. The only relevant exception is No. x and the court therefore put to itself the following question:

“At the time of doing his act was the accused deprived of his power of self-control by grave and sudden provocation given to him by the deceased?

The court answered that question in the affirmative, and therefore found accused not guilty under Sudan Penal Code, 5. 251. but guilty under Sudan Penal Code, S. 253.

I do not think I can agree with the court on this finding. Accused overheard deceased speaking to his wife about his wish to have dilka by night, suspected they would meet in his own hut or tent. He hid

himself behind a curtain inside his hut or tent in wait for them. On accused’s own words (see CD page 13) he kept waiting as such until deceased came and entered the hut and sat in accused’s bed. Accused remained silent in his hiding for about half an hour. He saw when his wife came from her father’s house and stood in front of his hut. He saw deceased clapping his fingers to her three times. He saw his wife enter the hut in response to that clapping. Accused until that time repressed himself and did not move, but when he saw deceased pulling his wife into the bed he got out from his hiding and hit at deceased and his wife indiscriminately and when the wife ran away,. accused delivered his fatal stab wound to deceased and thereby causing his death.

Under Sudan Penal Code, S. 249 (I), the provocation must be grave and sudden and of such a nature as to deprive the accused of the power of self-control In the present case, according to accused’s own words (see CD pages 2—3 and 13) he had been suspecting that deceased was intriguing with his wife for a long time. In the night of the incident, labouring under that suspicion, when accused did not find deceased in the bride groom’s house he got suspicious about him. He went to his father-in-law’s house and he there found deceased talking to his wife and saying to her he wanted dilka by night. This was of course a provocative act and according to decided cases, if accused killed deceased at that moment he could have been covered by Sudan Penal Code. S. 249 (1), but he suppressed his anger. He went and lay in wait until deceased came to his hut and sat in his bed for no other reason than to meet accused’s wife there. Still accused suppressed his temper. He waited for some time as such until he saw his wife enter the hut and saw deceased pulling her towards him. This means he did not want to get provoked until there was sufficient evidence to justify his act. This is certainly the working of a very sober mind. Though deceased’s ultimate act was extremely provocative the facts of the case show that accused’s act was not committed while he was deprived of self-control by sudden provocation. His act was not the offspring of the moment but was the result of cool and mature consideration.

This is nearly on ill fours with a case decided in India and reported in Ratanlal. Low of Crimes735 (18th ed., 1953) where the accused suspected his wife and made preparations to catch her with her paramour. A person whom accused had asked to be in the watch called him (accused) outside his house and pointed out the spot where accused’s wife and her paramour were together. Thereupon accused returned to his house. took a heavy wooden pole, and going to the place caught the couple in the act, and dealt the paramour a blow on the bead which killed him on the spot. It was held by the court that accused committed murder.

For all above reasons I send back the finding by the court of accused Mohamed Ahmed Gadir Not Guilty under Penal Code, S. 251, but Guilty under Penal Code, S. 253, together with the sentence for revision under Code of Criminal Procedure, s. 256 (i) (d), in the light of the above remarks.

In case the court, upon reconsideration, finds accused guilty under Penal Code, s. 251, .the alternative punishment of imprisonment for life shall be passed. It will then be left to the confirming authority in exercise of its powers under Penal Code, s. 256 (i) (d), to remit part of the sentence so obligatorily passed by you to make it tally with the mitigating circumstances attending the case of accused.

R. C. Soni J. March I1, 1957:—This case has been sent by M. I. El Nur J. to me for an expression of my opinion. I find myself in agreement with M. I. El Nur J.

For the applicability of the provisions of clause (I) of Penal Code, s. 249, two things are necessary, and both of them—not only one— should be present. The facts have been fully stated by M. I. El Nur J. arid they are fully borne out by the record. The accused in his statement to the committing magistrate said (see pages 30, 3! and 32 ):

“I went to the Zeriba of the cows and from there being doubtful about the relationship between my wife and accused, I went to my house and hid myself behind a ‘sitara’ and waited there to see what will happen.

“After some time deceased came and entered the house and sat on the bed, I did not talk to him. Shortly afterwards my wife followed him and she waited near the door of the house. Deceased made a gesture and a little noise with his fingers as a sign of his presence. My wife entered the house and went to him and he caught her by the hand and pulled her towards him.

“I came out from my hiding and started hitting both of them with my stick (exhibit 2). My wife ran away and she was not carrying anything in her hand when she came.

“I went on wrestling with deceased and when I felt that he was overpowering me I drew my knife (exhibit 1)  and stabbed him once on his body, though I could not see the exact place because it was dark. Deceased being stabbed went away and fell outside the house. I went out too, with the knife in my l and Ali Humeida came running and tried to take the knife from my hand. So I hit him with my hand twice and quarrelled with him till Gumaa came and separated us. As a matter of fact I h’ad old suspicions that deceased was having illicit relations with my wife because I saw him several times talking to her. Idid not complain

against him but communicated my doubts to m cousin, Ali Abu Sitta, Similarly I did not see deceased having actual sexual intercourse with my wife at any time.”

Before the trial court, the accused said:

“I suspected the illicit relation between my wife and deceased ever since last year. The deceased came round my house several times. I did not warn deceased not to come to my house.”

The stabbing of the deceased having proved fatal, the question is whether the offence is reduced by the application of the provisions of clause (1) of Penal Code, s. 249, to culpable homicide not amounting to murder.

The gravity of the provocation is the effect produced on the mind by external circumstances. Marital misconduct ‘by a wife affords grave provocation. If the instances of misconduct are repeated, a husband may either become dull or he may still remain sensitive. We may assume that he remains sensitive. The accused, since a year, suspected his wife of marital misconduct. He had never actually found her in flagrante delicto. On that evening in question his suspicions were again aroused by the talk he heard between his wife and the deceased, and her behaviour. He came to the conclusion that she was going to misconduct herself with the deceased. What did he do? He hid himself in his house. He waited for the deceased to come. When he came, he did not stir himself. He did not talk to the deceased. He waited for his wife to come. When she came he brandished first his stick, and when it broke he used his knife. He killed the deceased.

Was the accused not acting as policeman when he lay in wait for the culprit? And did he not act as a judge in inflicting the punishment on the culprit? He was certainly not acting on the spur of the moment. The law recognises human weakness in so far as on the suddenness of a thing happening. one is apt to lose self-control when confronted with grave provocation. Not arguing about the gravity of the provocation given by his wife’s conduct about which since a year he had his suspicions, but granting that the provocation was still grave, can it at all be said that with the preparations that the accused made—his hiding himself in the dark in his r his waiting for the victim, his allowing the victim to remain where he was, his keeping absolute silence—with all this Is there any doubt that the man was seeking the provocation? The clause applies when the man is confronted with the provocation; that Is the meaning of “sudden.” If a thing happens or comes on without warning. it is then called “sudden.” A person acts “suddenly” what he acts without forethought or deliberation. An .Ct is done “suddenly” when it is performed without delay. when It is speedy. prompt and immediate .

If a man thinks over what he is going to do, when he plans an action, when he is carrying out what he has planned, he is acting with forethought and deliberation, and his action is not sudden.

We must remember the provisions of the Penal Code, s. 38, which

says:

'' Such grave and sudden provocation as under any section of this Code modified the nature of an offence or mitigates the penalty which may be inflicted shall not be deemed to include:

(1) provocation sought or voluntarily provoked by the offender as an excuse for committing an offence…"

Clause (r) of Penal Code, S. 249, applies only if Penal Code. s. 38. does not apply. In my opinion in this case, Penal Code, s. 38, does come into operation. The provocation was sought by the accused. His action was planned. He carried out his plan deliberately. In my opinion his offence is one of murder.

I may add that the case of Duffy (1949) I All E.R. 932, may be seen. Lord Goddard delivering the judgment of the Court of Appeal approved the observations out of which I quote the following:

“Circumstances which induce a desire for revenge, or a sudden passion of anger are not indeed circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is the essence of provocation.”

M. A. Abu Rannat C.J. March 16, 1957:—If the accused knows of a woman’s guilty appointment with a paramour and lies in wait there intending to kill one or other or both when the appointment is kept, he cannot complain of sudden provocation when the appointment is kept.

The facts of this case do not prove intent of killing beyond reasonable doubt, and therefore, it is distinguishable from the facts which constituted the above principle.

In this case the accused was suspicious and the provocation in this case is a sudden confirmation of the suspicion. The fact that the accused was suspicious does not operate to prevent the provocation from being sudden, and therefore I confirm the finding that the accused is entitled to the benefit of Penal Code, s. 249 (1).

Finding and sentence are confirmed.