(MAJOR COURT CONFIRMATIO)

SUDAN GOVERNMENT v. MOHAMED SALIH AHMED

AC-CP-349-1967

Principles

  Evidence—Onus of proving the exceptions under Sudan Penal Cde, s. 249, lies on the accused—Not to be proved beyond reasonable dout -Criminal Court Circular 1950, No. 3

 
       According to Criminal Court Circular, 1950, No. 3, the onus of proving the exceptions under Sudan Penal Code, s. 249, lies on the acused. It is not essential that the accused must prove beyond reasonable loubt that he is entitled to one or more of such exceptions.

Judgment

             Advocate: Mahmoud Ezz Eddin…………………….for accused

           Abdel Magid Hassan J. August, 5,1967: —On August 19,1966 accused and his brother P.W.2. were in their “Bilad” (Plantationsiwhich were far from each other. Deceased had a bilad adjacent to that of accused and he appeared there. P.W.2. was aware of deceased’s pre on hearing accused and deceased’s angry voices. P.W.2. Could apprehend that a fight might start and so he ran off to call for help. So the &y person who could give direct evidence as to how the fight went on cisappeared from the scene of the offence. The fight was over when the winess reappeared. Deceased was on the ground with two injuries on the had and accused was standing up with his stick in hand. Later deceased died.

         The medical assistant’s evidence was clear as to the cause of death being the fracture of the skull. It is clear on the evide that accused had caused the death of deceased either intentionally er knowing that the death would be the probable consequence of his act. Both blows were given by a heavy stick and on the head. One of the blows was so severe to the extent that it broke the skull.

        Accused had given statements to the effect that he oused the death of deceased but added that he did so in self-defence.

       Accused’s statements were treated as a confession all through the proceedings. Confession is a term applied to an admissiaon by a party against his own interest on a criminal charge. Confession is defined by Stephen as an admission made at any time by a persoi charged with a crime stating or suggesting an informance that he committed the crime

The statements of accused in this case are not a confession at all as they do not stop at the admission of committing the offence but they showed the excuse for such causing of death.

         In the reasons for finding the court referred to Criminal Court Circular No. 3 but unfortunately the court made the very mistake the circular was issued to safeguard against. The circular clearly stated that it is a “common mistake to suppose that the accused must prove beyond any reasonable doubt that he is entitled to one or more of the siih.sections” of the Sudan Penal Code, s. 249. It is the duty of the court to find whether the prosecution had proved that accused caused the death either intending to do so or with the knowledge that death was the probable consequence of his act. Once that is established it is the duty of the court to find whether there are any mitigating circumstances which constitute any of the exceptions.

        Accused’s statements should not therefore be taken as discharging an onus on him to establish one of the exceptions of the Sudan Penal Code, s. 249, but as statements explaining accused’s version of the story. The inconsistence or contradiction in accused’s statements should not be taken as proof of his guilt because of the cardinal rule of Criminal Law that it is on the prosecution to prove accused’s guilt.

       In this case however, the fight took place in accused’s “Bilad “, and deceased’s Hashasha was found broken beside him. Accused had stated that he was attacked by deceased with the Hashasha and that he waived the attack with his stick three times until the Hashasha broke. Accused had added that he gave deceased the blows with his stick because he was afraid that deceased might use the knife he had on his arm. This last statement was proved to be incorrect as deceased’s knife was found with his other effects far from the scene of the offence.

     In the circumstances as above and where there is no evidence whatsoever as to how the fight started it is only safe to act on the established facts. It is a fact that it was deceased who came to accused’s Bilad where he met his death. It is also established that deceased’s Hashasha was broken. This shows that it was used by deceased either for attacking or for defence. It is also established that deceased had no knife during the fight. There is evidence also to the effect that deceased was hot tempered. It is clear therefore that both accused and deceased were engaged in a fight, accused carrying a stick and deceased armed with a Hashasha. Deceased’s Hashasha broke in the fight and accused was able to inflict two blows on deceased, one of which was fatal. The fight was started all of a sudden. P.W.2. the only person around stated that he heard the loud voices of accused and deceased and ran off to call for help. When he came back with the other witnesses the fight was over.

      There is clear evidence to the effect that there was no enmity between both parties. There is also clear evidence that deceased was a man of hot temper. It is clear to me therefore, that there was a sudden fight in which without previous planning or meditation accused caused the death of deceased in the heat of passion. Both were armed with sticks and there was no undue advantage taken by either party nor did accused act in a cruel and unusual manner. This constitutes the benefit under section 249 (4) in favour of the accused, especially when the explanation to the subsection is taken into consideration. The explanation says that it is immaterial in such case which party first provokes the other or commits the first assault.

    For the above reason, I am of opinion that the finding of accused should be altered to be guilty under the Sudan Penal Code, s. 253.

   As to the sentence, accused is shown to be a young man of 23 years, married but no children and supporting his parents. He had no previous convictions. I am of opinion therefore, that an imprisonment for 14 years as from August 21, 1966, is an adequate sentence.

     Abdel Magid Imam J. September 27, 1967: —I agree with my learned colleague in his note above mentioned. Though there is much, which could be said regarding the defence under the Sudan Penal Code, s. 249 (2), I think the more appropriate one was under the Sudan Penal Code, s. 249(1).

   The facts of the case clearly show that there was a sudden quarrel which was attested by P.W.2. Which had developed into a sudden fight. and which, before P.W.2. Could return back with P.W.3 for help, a short time afterwards, was all over. There was no question of premeditation. According to the evidence, it could not be said that the accused had taken an undue advantage over the deceased or that he was cruel. The deceased was an older person than the accused, stronger, hot tempered and known to be a man of violence. He was armed with a Hashasha, a fairly heavy stick, and it was used in an attempt to strike the accused with, a fact which was ascertained from its being fractured. It is understandable that in order to meet and stop such a menacing attack, the accused had to use his big stick. He used it twice. That the accused struck the deceased in the heat of passion can clearly be gathered from the facts of the case and the suddenness of the fight.

       Galal Ali Lutfi J. September 30, 1967: —I agree.

      ORDER: Abdel Magid Hassan 1. September 30, 1967:—We have altered the finding to be guilty under Sudan Penal Code, s. 253, and the sentence to be 14 (fourteen years) imprisonment as from August 21, 1966.