(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. OMER IBRAHIM ABBAKAR

AC-CP-110-1968

Principles

Criminal Law—Murder and culpable homicide—Sudan Penal Code, ss. 251 and 253— “Likely” or “probable “, criteria for—Amount of violence used is a real measure

When determining whether the accused is guilty under Sudan Penal Code,
SS. 251 and 253, the amount of violence used is the real measure for the degree of culpability of the accused.

Judgment

Advocate: Abbas El Amin Abbas …………………..for accused

M. E. Mobarak J. May14,1968:-A Major Court sitting at Nyala between February 13, 1968, and March 6, 1968, under the presidency of the Resident Magistrate, Ahmed Idris Ahmed, convicted the accused, Omer Ibrahim Abbaker (72 years of age) under the Sudan Penal Code, s. 251, of murdering his wife Fattouma Abul Gasim (45 years of age) on July 21, 1966, at Nyala and sentenced him to death. Advocate Abbas Mohamed El Amin Abbas, who defended the accused before the Major Court, is now appealing to us on his behalf.

The facts as found by the court are, in my view, supported by sufficient evidence. It has been established that the accused, on or about January 21, 1966, hit his wife the deceased at least three times with a big and heavy okaz in the abdomen. One of these heavy blows resulted in the fracture of the ninth left rib and another blow resulted in the fracture of the twelfth right rib. The blows resulted in the rupture of the spleen and this caused haemorrhage in the peritonium cavity. The evidence of P.W.3. Haleema Abdel Karim and her daughter P.W.4. Hawa Mohamed Sharaf El Din (both of whom are direct neighbours of the accused and deceased) is sufficient to prove the act of the accused. They both heard the three blows with the stick and the cries and sounds uttered by the deceased. When P.W.3 Haleema went to the house of accused and deceased, she found them lying on the ground and holding each other in a fight; they were both holding a stick. P.W.4. Hawa followed soon after that, and found deceased lying on the ground and accused standing by her. Deceased never left her bed after that. Her condition got worse and she was removed by her neighbours to the hospital on July 26, 1966, where she died soon after her arrival. The cause of her death was the rupture of the spleen and the haemorrhage due to it. Death, considering all the circumstances, was probable. None of the exceptions in the Sudan Penal Code, s. 249, is applicable in this case.

Murder is proved and I think that we should confirm both finding and sentence.

                                                                                Abdel Magid Imam J. June 9, 1968 :—That the accused hit his deceased wife three times with a heavy okaz on the area of her abdomen, was, I think, sufficiently proved That the said deceased suffered two broken ribs, one on each side, and a rupture of the spleen was also sufficiently proved. It was also satisfactorily proved that death was attributable to the last injury; rupture of the spleen and internal haemorrhage. To this extent, I am prepared to agree with my learned colleague Mubarak, J. in his attached note.

The accused was convicted under the Sudan Penal Code, s. 251, sentenced to death and the court did not recommend him to mercy.

I have carefully read the record of this case and, I think, there was no direct evidence of an intent to kill the deceased on the part of the accused. What was open for consideration was a constructive intent to kill. The court found against the accused, from the weapon used and the nature of the injury, that the accused knew or must have known that death was the probable and not only a likely consequence of his act. The criteria in this respect are firmly established; in a case where death is the probable consequence a reasonable man will be surprised if it does not happen; but where it is only a likely consequence a reasonable man will not be surprised if it happens and will not be surprised if it does not happen.

It must be stated from the outset that the broken ribs had nothing to do with the cause of death; if relevant at all they may tend to show the amount of force used. It is only the one blow on the stomach which caused the rupture of the spleen that need be considered. I think a conclusion cannot be arrived at with safety and certainty that the accused at the time he served that blow knew or must have known that death was probable. This doubt must go to the benefit of the accused. It should be pointed out also that no medical opinion as to whether death was the probable or the only likely consequence was available in this case. The evidence of the medical witness who prepared this report was not taken.

Accordingly it is my considered opinion that this was, at the most, a borderline case. I therefore think that the finding should be altered to one of guilty under Sudan Penal Code, s. 253. If my learned colleague Abdel Magid Hassan J. agrees then the proposed sentence will be 14 years imprisonment as from July 26, 1966.

Abdel Magid Hassan J. June 20, 1968 :— I have read the records of this case and the notes of my learned colleagues. The question in issue in this case is whether accused intended to cause the death of deceased or knew that death was the probable consequence of his acts.

No one can be held liable for a consequence not directly and naturally flowing out of his acts. An example of this is furnished by the cases

of enlarged spleen or liver the rupture of which though it may be due to violence is the immediate cause of death In such cases accused could not be said to possess knowledge of the probability of death if he did not know of the diseased Condition of those organs. It is no doubt true that the accused by his violence caused the death of another but it is equally true that he has no knowledge that the amount of violence used would probably cause death. The offence in such cases would not be murder because there was not in the knowledge of accused the probability of the death as a consequence of his acts.

In such cases the question is what was the violence used and what would have been its effect if the victim had not been suffering from disease?

There is the natural presumption of health and an assailant has therefore reason to presume his victim to be healthy. If the assailed received only such injury as would be designated hurt the assailant could be only liable for that irrespective of the actual consequence. If the injuries caused would make it only likely to cause death, then accused could be found guilty not of murder under the Sudan Penal Code, s. 251, but only under Sudan Penal Code, s. 253. The amount of violence used is the real measure for the degree of culpability of an accused person.

In this case now in hand accused had used a stick weighing 161/2 okiyas against deceased. He had given two blows on the sides of deceased that resulted in the fracture of a rib on each side. The third blow ruptured the spleen. The medical report attributed the death to such rupture of the spleen. It is clear to me that accused had used great force against deceased, but the consequence thereof was the breaking of ribs which usually do not cause death and in fact did not cause the death of the victim. In such a case it could not be said that accused had either intended to cause the death or knew that death was the probable consequence of his acts. It is clear that death was only likely and I therefore agree with my learned colleague Imam J., that the finding should be guilty under the Sudan Penal Code, s. 253.

I am also of opinion that the 14 years imprisonment suggested is adequate.

ORDER: Abdel Magid Imam J. June 23, 1968:—We alter the finding to one of guilty under Sudan Penal Code, s. 253, and sentence to 14 years imprisonment as from July 26, 1966.