SUDAN GOVERNMENT vs. EL TOM SIDDIK ABBAKAR

(AC.CP-41-56)

Principles

·  Criminal Law Murder-Section 251 S.P.C. — grave and sudden provocation-Section 249 S.P.C. — culpable homicide not amounting to murder

Criminal Law Murder-Section 251 S.P.C. — grave and sudden provocation-Section 249 S.P.C. — culpable homicide not amounting to murder

Judgment

The Court must consider the question of absence of provocation before reaching a finding in cases of murder.

Reference for confirmation under Section 251 C.CP. The Accused had two wives. One wife, Fatooma, lives at Hashaba and the second wife at Koro. These are nearby villages, and the Accused keeps alternating between them. On or about  18.12.55 the Accused went to Um Bari  village to visit a sick relative. On  20.12.55 he came back to Hashaba to stay with his wife Fatooma. She was not at home. He waited till sunset, then lit a fire in the house and proceeded to look for her in their cultivation near Korovillage. Fatooma was in fact at the cultivation. Shortly before, the deceased had passed on horse back. She did not know him before. He stopped his horse and came down. She offered him Marissa and gave a little grain to his horse. While both were sitting drinking Marissa, the accused arrived. He went directly to the deceased and speared him in the neck once. The deceased died instantaneously. The Accused drank two cups of that Marissa and gave himself up to the sheikh of the village the same night. The Major Court at Geneina found the Accused guilty of Murder.

Abu Rannat, C.J.. The Court did not consider the issue whether there was grave and sudden provocation. This issue is applicable in such circumstances. A man in the position of Accused who found a stranger in his cultivation drinking Marissa with his wife after dark may have come to the conclusion that there was some illicit relations between them. In these circumstances he was provoked and as he had no time to inquire as to the reasons for the nocturnal visit he stabbed the deceased once and caused his instant death.

I think Sub-section 1 of Section 249 is applicable.

I have therefore, altered the finding to one guilty under Section 253 of the Penal Code (culpable homicide not amounting to murder)

(Editor . in these cases where the accused is rarely represented by an advocate, it would appear that the duty lies on the court to consider the application of any possible defence though such defence may not have been raised by th accused himself).