Case No.:

(AC-Appeal-333-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Criminal law—Murder—Difference between “probable” and “likely” -Sudan Penal Code, ss. 251, 253

The difference between “probable” and “likely” consequences of an act in homicide cases is a difference of degree. When a reasonable man says that a tain consequence is” probable” he will be surprised if it does not happen. But if he says that a certain consequence is” lively” he is not surprised if it does happen and not surprised if it does not.

Judgment

(COURT OF APPEAL)

SUDAN GOVERNMENT v. KENYI JELO

(AC-Appeal-333-1959)

Reference for confirmatlon

Both deceased and accused attended a dance party at Hapani Village. The deceased was armed with a spear and shield and the accused with a very heavy stick and shield. Deceased held both the spear and shield with his left hand and the spear was pointed downwards. Suddenly, accused hit deceased with hi& stick which the latter warded off by the shield. Accused struck again more violently. Deceased fell bleeding heavily. Accused disappeared. Examination of the body disclosed a severe wound extending from the left thigh upwards which penetrated the intestines. This wound was proved to be the cause of death. The Major Court found accused guilty under section 251, S.P.C.

December 12, 1959. M. A. Abu Rannat C.J.: —The facts set out in the Summary of Salient Facts are supported by evidence. The most im portant point in this case is whether the accused pushed the spear into the deceased’s stomach or whether the spear injured the deceased when the accused delivered the second blow, which fell on the shield and the spear, and thereby the spear pierced the deceased’s stomach. The evidence given by the prosecution witnesses is not conclusive on this point and it is therefore safer to find that the accused while striking the deceased with a heavy stick, the stick fell on the spear, which injured him.

There is no doubt on the evidence that the death was due to accused’s act and therefore he must be taken to have caused deceased’s death.

The next point at issue is whether in such circumstances the accused knew that death would be the probable and not only a likely consequence of his act. The difference between “probable” and “likely” is purely one of degree of chance—in “probable” the odds are more in favour of the death occurring than in “likely.” When a reasonable man says that a certain consequence is “probable” he will be surprised if it does not lappen. But if he says that a certain consequence is “likely” he is not surprised if it does happen and not surprised if it does not. I therefore think in the particular circumstances of this case that the accused can be taken to have known that death was a “like’y” consequence of his act.

I therefore alter the finding to one of guilty of culpable homicide not amounting to murder under section 253, Sudan Penal Code.

(Finding- altered to one of guilty under section 253, Sudan Penal Code)