(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED ALl EL AKASH

AC-CP-9-1967

Principles

  Criminal Law—Killing by a rash or negligent act—Penal Code, s. 256-if a person is skilled, his act must be exercised with reasonable care and skill—If he is unskilled, his act must be done with knowledge of risk

    In the case of an operation on a human being, the question is whether the operator is skilled or not. If he is skilled, then he must exercise reasonable care and skill; if not, his act must be done with knowledge of risk.

Judgment

  Salah Eddin Hassan I. (By authority of the Chief Justice), January 35, 1967: —It is clear from the evidence that accused used to practise a sort of unlicensed crude surgery specialising himself in the removal of the Epiglottis.

          The dying declaration of deceased and all other circumstances do support the fact that accused removed the Epiglottis of deceased on his own request. As a result of this deceased bled to death.

          The learned President found accused guilty of murder but subject to the Sudan Penal Code, s. 249 (5), whereupon murder was reduced to culpable homicide not amounting to murder as deceased consented to the removal of his Epiglottis by accused.

    The learned President is no doubt wrong in this finding and his error is apparently due to the fact that he answered the following question in the affirmative: “Was death the probable and not only a likely consequence of the removal of the Epiglottis?”

    The answer with due respect ought to have been in the negative. Though in ordinary use “likely” and “probably” are normally synonymous, they have a technical meaning where used in the Code, the latter covering a higher degree of probability than the former.

      An act is likely to cause death if a reasonable man would not be surprised if death results: it is probable if a reasonable man would regard death as the natural and normal result, Sudan Penal Code, s. 20 (A). The reasonable man has only good general knowledge; he does not know the more subtle ways of causing death which are known to a qualified medical practitioner but he does know that stopping breathing, serious injury to a rital part, and cutting off a substantial part of a limb will naturally and normally result in death. In our present case it would be absurd if one says that the reasonable man would regard death as the natural and normal result of the removal of the Epiglottis which is only a thin plate of yellow elastic cartilage in front of the glottis, which folds back over and protects the glottis when swallowing. It is apparently not a vital part of the human body.

      Then we have to answer the other question: “Did accused know that death would be a likely        consequence of his removing the Epiglottis of deceased?

   This question involves two independent cumulative points.

(a) Is death a likely consequence of the removal of the Epiglottis of a human being?

(b) If yes, did accused know this fact?

As regards (a) it was very hard for me to give an answer, as it is a borderline case, but in the end I am inclined to answer in the negative taking into consideration that the Epiglottis is only a thin plate of cartilage which is very minor in the human body. What is removed in circumcision whether male or female is more substantial compared with the Epiglottis and yet I will not hesitate to say that the reasonable man will be very much surprised if death results from circumcision. He should be more surprised in the case of the Epiglottis.

                  Again for the sake of argument if I answer question (a) in the   Affirmative there must be cogent evidence to establish that accused knew this fact. In the circumstances of the present case with the undisputed fact that accused has done similar operations several times; we ought to negative any knowledge of the likelihood of death on the part of accused.

        This argument rules that accused did not commit culpable homicide. What offence has he committed in the circumstances and facts of this case?

         Professor Gledhill says at page 490 of The Penal Codes of Northern Nigeria and the Sudan (1963):

“When death is caused by an operation on the human body, it would seem that the question is whether the operator exercized reasonable care and skill.” (Penal Code, s. 48).

         In our present case accused is admittedly not a qualified surgeon and accordingly this court finds that he is automatically to be considered unskilled. In the circumstances we can say he took a calculated risk, he being unskilled, and his act is therefore rash and negligent.

            A similar Indian case is Sukaroo V. Emp., (1888) I.L.R. 14 Cal. 566.

“     Accused operated on a feeble man who suffered from internal piles by pulling them down with a hook and cutting them out with a clasp knife; the patient bled to death. Accused had previously performed two similar operations successfully but the operation was so dangerous that a trained surgeon would be unlikely to attempt it. Accused was guilty of causing death by a rash and negligent act.”

         A similar Sudanese case is Sudan Government V. Fatma Hussein El Bakheit, AC-CP-163  1956; (1966) S.L.J.R. 75.

         In this case a woman cut open the stomach of another with a razor blade in order to cure her and she died in consequence thereof. The courtsaid:

“         Accused’s conduct was criminally reckless and as a consequence of her recklessness the deceased lost her    life. Her conviction was altered to Sudan Penal Code, s. 256.”

         From the facts of this case I conclude that death would never have occurred unless there had been negligence and rashness on the part of accused.

         I therefore refuse confirmation of the finding of guilty under section 253, and I substitute a finding of guilty under section 256. Sentence is therefore reduced to imprisonment for two years which is the maximum prescribed by law.