SUDAN GOVERNMENT v EIDALLA SAEED ABU BAKR

(AC.CP150-1956)

Principles

·  Criminal Law murder-Section 248 (b) S.P.C. — sudden fight Section 249 (4) S.P.C. — intoxication 42 S.P. C.

Criminal Law murder-Section 248 (b) S.P.C. — sudden fight Section 249 (4) S.P.C. — intoxication 42 S.P. C.

Judgment

The accused, who had taken drink, had a quarrel with the deceased. Thereafter the accused lay down on an angareib in front of the room of the deceased. Later someone knocked at the hosh door asking to see the deceased — who was a prostitute — and the deceased was about to admit him. The accused objected and was ordered by the deceased to leave. The accused threatened to stab the deceased and did so once in the top right side of the chest. The deceased died approximately 16 days later.

Held: (1) no evidence of a sudden fight under Section 249 (4)S.P.C11.

(2) the act of accused such as would make it clear to a reasonable man that death would be the probable and not only a likely consequence  of his act. Section 248 (b) S.P.C.2

(3) intoxication is no defence under Section 42 S.P.C.3 since self induced (cf. section 50 (b) S.P.C.4)

(4) accused guilty of murder, finding and sentence confirmed.

Dicta of Lord Birkenhead in D.P.P. v. Beard [1920] AC at p. 498 applied.

(1) Section 249 (4) S .P.C. “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a “cruel or unusual manner.”

(2) Section 248 (b) S.P.C.: Except in the circumstances mentioned in Section 249 culpable homicide is murder

(b) if the doer of the act knew that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause”.

(3) Section 42 S.P.C.: — A person who does an act in a state of intoxication is presumed to have the same knowledge as he would have had if he had not been ‘‘intoxicated”.

(4) Section 50 (b) S.P.C. :— No act is an offence which is done by a person who at the time of doing it did not possess the power of appreciating the nature of his act as of controlling them by reason of

“(b) intoxication caused by any substance administered to him against his will “or without his knowledge.”

Reference for confirmation under Section 251 Sudan Code of Criminal Procedure:-The accused, who had been drinking had a quarrel with the deceased, a prostitute, who was his paramour and whom he was supporting Later, whilst the accused was lying on an angereib someone knocked on the hosh door asking to see the deceased. The deceased refused  to go out of the house, but one Amna el Tom who was staying with the deceased shouted to the caller to enter. The accused thereupon drew his knife and attacked Amna el Tom, who evaded him. The deceased ordered the accused to leave the house whereupon the accused threatened to stab the deceased and did stab her once in the top right side of the chest. The accused did not think the wound dangerous for he went out to get some medicine for it. Approximately 16 days later the deceased died of her injury.

Abu Rannat C.J. after referring to the facts continued : According to the evidence on the record it cannot be said with certainty that the accused had the intention of causing the deceased’s death, but it is clear that he as reasonable man, ought to have known that death would be the probable and not only a likely consequence of his act.

The accused pleads drunkenness and a sudden fight. There was no evidence of a sudden fight within the meaning of Sub-section 4 of Section 249 of the Penal Code. As to drunkenness it was clear from the evidence that he had taken drink. He was examined by the doctor after the 1apse  of-a fairly long time  and the-medical evidence shows that he was smelling of drink. Such drunkenness is not a defence to the charge of murder. Bell C.J. in a ruling on drunkenness wrote : - The Penal Code requites it to be assumed that a man voluntarily drunk had the same knowledge as he would have had if he had been sobe “and intention in many cases is an inference from knowledge.”

The issue of drunkenness was settled in 1920 in Director of Public Prosecution v. Beard [1920] L.R.A.C. p. 498), where Lord Birkenhead quoting Stephens J. said : - Although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime; and went on, the learned Judge then pointed out that if a drunken man formed an intention to kill another or to do grievous bodily harm to him and killed him, his drunken intention made him as guilty of murder as if he had been sober. What then is the intention necessary to constitute‘murder ? Several intentions would have this effect, but I need

mention only two — namely an intention to kill and an intention to “do grievous bodily harm”.

In the light of this precedent I find that this defence of drunkenness should not succeed.

I, therefore, confirm the finding of murder and death sentence.