Case No.:

AC-CR-REV-128 -I959

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Procedure—Code of Criminal Procedure. s. 24 accused is punished, no probation possible.

·  Evidence without oath—Corroboration required

Accused, under 16, was convicted of an unnatural offence.. on the statement of the four-year-old complainant. Accused was sentenced to whipping and released on probation under Code of Criminal Procedure. S. 24.
Held: A probation order is illegal when any punishment under Penal Code, s. 64. has been executed; a probation order under Code of Criminal Procedure, S. 24. may only be an alternative to punishment.

Obiter dictum: Accused may not be convicted on the unsworn statement of a four-year-old without corroboration.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. SULEIMAN EL SHARIF SULEIMAN

AC-CR-REV-128 -I959

Abdel Mageed Imam 1. July 16, 1959:—This is a case under Penal Code, s. 328, in which accused, Suleiman El Sharif Suleiman, was tried non-summarily under Code of Criminal Procedure, s. 15, for. having carnal intercourse against the order of nature with Mahdi Mohamed Ahmed, a child of four

The accused was found guilty of the offence charged and sentenced to 20 lashes and ordered to be released under Code of Criminal Procedure,

S. 24.

On considering an application for mercy both finding and sentence were confirmed, but the order of release under Code of Criminal Procedure, S. 24, was quashed. The le4rned Province Judge, Northern Circuit, stated, “an order under Code of Criminal Procedure, s. 24, cannot be passed with any sort of sentence. Whipping is a sentence. . . . It (order of

probation) is virtually an order deferring the sentence that the accused may be called upon to receive if he does not behave rightly.”

Though the complainant is of tender years, and incapable of under 5 the nature of an oath, he gave a short but vivid statement of what took place Such a statement must’ in law be corroborated. His statement was sufficiently corroborated by the medical evidence carried out on the bodies and clothes of both accused and complaint and by the evidence of Ombashi Ali Mirghani Babiker (P.W. 1). I therefore think that the finding should be confirmed.

I also think that the learned Province Judge has rightly quashed the order for release on probation.

Under the Indian Penal code, s. 562 [ equivalent to our Code of Criminal procedure, S. 24], an offender can be released on probation only before he is sentenced to any punishment. Once the magistrate does not exercise his power under section 562 . but sentences him to imprisonment, his power to make an alternative order is exhausted. Section 562 cannot be applied where the court has not only convicted the accused, but sentenced him as well. So much of the court’s order as purports to have been passed under section 562 must be set aside. By Penal Code, s. 64 (g), whipping is a punishment in respect of which a sentence may be passed, and therefore if such sentence is passed no order under Code of Criminal Procedure, s. 24. can be made to run alongside with it.

A sentence of fine is permitted by Code of Criminal Procedure, s. 318; such a sentence cannot be passed for the same above-mentioned reasons. For the above. I also think that the order quashing the order under Code of Criminal Procedure, s. 24, should be confirmed.

The punishment passed against the accused in this case may not be adequate but it is the only punishment which could be made according to law because the accused was under 16 years of age at the time of passing sentence and by Penal Code, s. 6.4, he cannot be sent to prison nor could he be fined, because a sentence of fine is illegal, as explained above. In such grave cases as this one, the appropriate sentence is normally one of sending the young culprit to a reformatory under Penal Code, s. 67. This is supported by the majority of precedents kept in the Appeal Court. But the best judge of sentence in this case is the trial court whose duty it is to consider the accused’s age, status and environment in passing such sentence; since no other sentence could be passed besides the one that had already been passed and executed there i no way but to confirm it.

For the above reasons I think the appropriate orders should be:

(a) The. appeal is dismissed.

(b) Both finding and sentences are confirmed.

)c) The order quashing the order under Code of Criminal Procedure. S. 24, is confirmed.

M. A. Abu Rannat C July 16.1959 and I made the necessary order