(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED OSMAN MOHAMED

AC.CP-484-1967

Principles

  Criminal Law—Attempt to commit an unnatural offence, is specifically an offence under Sudan Penal Code, s. 319-Act exceeding the stage of preparation but falling short of complete penetration

Accused, intending to have sexual intercourse with a boy of seven years; took off his libas (underwear) and was about to start penetration when he was discovered. Accused was convicted under Sudan Penal Code, s. 93/318; “attempt to commit an unnatural offence.”
Held: (i) An attempt to commit an unnatural offence is specifically provided for by Sudan Penal Code, s. 319, i.e., acts exceeding the stage of preparation but falling short of complete penetration.
          (ii) Therefore, accused is not guilty under Sudan Penal Code, S. 93/318 but guilty under Sudan Penal Code, s. 319.

Judgment

Galal Ali Lutfi 1. October 10,1968 :—In this case the accused intending to have carnal intercourse with a boy of seven years, took off his libas and was about to start penetration when he was discovered.

He was convicted under Sudan Penal Code, s. 93/318 (attempt to commit an unnatural offence) and sentenced to two years’ imprisonment. This type of offence which may be described as an attempt of the commission of an unnatural offence is specifically provided for in our Code under Sudan Penal Code, s. 319, and is known as an act of gross indecency. This section is not found in the Indian Law and it is introduced from the Egyptian Law to fill the gap in our Laws.

Babiker Awadalla J. (as he then was) in the case of Sudan Government v. El Mahdi Abdalla Moharnded Kobied (1961) S.L.J.R., 86 said:

“In fact it can be taken as a general rule in the Sudan that there can be no attempt of a sexual offence which does not fall under the Penal Code section 319. This section was imported from Egypt for the purpose of punishing abortive acts exceeding the stage of preparation but falling short of complete penetration, which in India are punishable either as attempts or, in the case of females, as indecent assaults. Unless this is constantly borne in mind the Indian authorities tend to mislead.”

The correct finding therefore ought to have been under Sudan Penal Code, s. 319 and not under Sudan Penal Code, s. 93/318.

As to the sentence, I think it is rather on the light side, but I am not of opinion to disturb a sentence after a greater part of it has been served.

Abdel Maaid Imam J. October 28, 1968 :—I agree.

Hashim Mohamed Abul Gasim 1. October 30, 1968 : —I agree.

ORDER: Galal Ali Lutfi J. October 31, 1968 :—We alter the finding from guilty under Sudan Penal Code, s. 93/318 to guilty under Sudan Penal Code, s. 319 and confirm the sentence of two years’ imprisonment.