(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED YOUSIF MOHAMED

AC-CP-850-1969

Principles

Criminal Law—Right of private defence of the body extends to causing death—Penal Code, s. 61 (a)—It is essential that the accused must have believed in the existence of danger to his body which causes a reasonable apprehension of death or grievous hurt in his mind

Accused confessed that he stabbed the deceased several times in different parts of his body because the deceased attacked and stabbed him in three different parts of his body; but being amuletised, the knife did not penetrate his body.
The Major Court rejected the defence of the right of private defence of the body under the Sudan Penal Code, s. 61 (a), and convicted the accused under the Sudan Penal Code, s. 251.
Held: As the accused stated in his confession that, being amuletised, the knife did not penetrate his skin; and since he had such belief, which is immaterial if it was fabulous, accordingly the accused had not believed in the existence of danger to his body which caused a reasonable apprehension of death or grievous hurt in his mind at that time. Thus the defence under the Sudan
Penal Code, s. 61 (a), is not applicable.
Therefore, conviction under the Sudan Penal Code, 5. 25!, is confirmed.

Advocate: Taha Ibrahim for the accused

Judgment

S. M. A. Attig J. January 19, 1970:—A Major Court sitting in Khartoum North under the presidency of Sayed Sadig Salman, a Magistrate of the first class, found accused guilty under the Sudan Penal Code, S. 251, of stabbing deceased, Musa Ali, to death and sentenced him to death.

The facts as set out in the Summary of Salient Facts are supported by sufficient evidence.

It is most unfortunate that there was no eye witness to the incident and so the court was confronted with the difficult task of sifting the confession with a view to ascertaining its truth. The court seems to have accepted part of it and rejected the remainder as being incredible.

The general rule is that the whole confession must be taken as a whole. In other words, the whole confession must be taken together although it may contain statements favorable to the accused. But it is open for the prosecution to rebut any portion of it. If the prosecution gives evidence, and the court is satisfied, then it has to reject that portion of in the light of that evidence and act upon the remainder. But where there is no evidence to show affirmatively that any portion of the exculpatory statement in the confession is false, the court must accept or reject the confession as a whole, and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.

In this case accused stated that he was attacked by the deceased who stabbed him in three different parts of his body but being amuletised, the knife did not penetrate his body. This story, being superstitious and fabulous, was inherently believed by the court below to be incredible and consequently rejected. But the fact that the deceased’s knife was drawn out of its sheath and found thrown on the ground while the sheath was still hung on the deceased’s arm, strengthens accused’s story that he was actually attacked. Naturally it did not support that portion of the confession pertaining to the stabs. It conforms with the general story of the accused.

But the very important question to be determined is whether that attack did cause a reasonable apprehension of death or grievous hurt in the mind of the accused. The person claiming the right of private defence must be under a bona fide apprehension or fear that death or grievous hurt would otherwise be the consequence of the assault on him if he did not defend himself. He must prove that he had grounds for believing that violence was attempted and that belief was under the circumstances such as any reasonable man may have entertained. The question whether, in the circumstances of a given case, the accused could have had reasonable grounds for apprehending death or grievous bodily injury is a question of fact to be decided upon the facts of each case. In this case, accused firmly stated in his confession that being amuletised, the knife did not penetrate his skin. Since the accused had this belief, then it cannot be said that he had reasonable grounds for fear of death or grievous hurt. It is immaterial that that belief was fabulous. It is essential that the accused must have believed in the existence of danger to his body and that he must have had reasonable cause for it. Since accused had a belief in his amulet, a belief that the knife would not penetrate his skin, then there was no reasonable ground for fear of death or grievous hurt. Hence accused’s mind was not affected by the attack with the unsheathed knife, and there is no room for applying the test of the reasonable man who should be from the accused’s society. At any rate the test comes into play whenever the accused had entertained a bona fide apprehension or fear that death or grievous hurt would other wise be the consequence if he fails to defend himself. The test is applied for ascertaining the reasonableness of the accused’s apprehension or fear then and there.

Consequently accused cannot avail himself of the plea of self-defence.

There is evidence to show that deceased, while they were in the house of P.W.5 uttered a word which the accused considered to be an insult. He protested and was about to fight, but he was taken out by the said P.W.5 Deceased remained in the house for about half an hour and thereafter went out.

Even if the insulting word has provoked the accused, yet the offence must have been committed whilst the accused was deprived of the power of self control in consequence of the grave and sudden provocation. If there was sufficient time to moderate accused’s passion, then he cannot claim the benefit of this section. Accordingly I am of the opinion that there was sufficient time for the blood to cool down and reason resume its seat.

It remains to consider whether the accused committed the act complained of without premeditation in a sudden fight in the heat of passion and without having undue advantage or acting in a cruel manner.

There is evidence that the deceased insulted the accused and that latter was taken out of the house on starting a quarrel with him. Former grudges and previous threats furnish evidence of premeditation and consequently accused cannot avail himself of the benefit of this sub section. Moreover, accused inflicted three injuries on a vital part of the deceased’s body which establishes cruelty on his behalf.

Finding and sentence are hereby confirmed.