(MAJOR COURT) *

SUDAN GOVERNMENT vs. MOHAMED HAMID MOHAMED ALl

KNC/PC/Maj. Ct./55/59

Principles

  Criminal law—Murder—Sudan Penal Code, s. 251—Mistake

    The accused and deceased were brothers. They owned a cow jointly, and whilst the deceased wanted to sell the cow, the accused did not. They quarreled and accused hit the deceased with a heavy okkaz. The deceased fell unconscious. The accused tried to revive his brother but could not. He decided he was dead. He then dragged him to a nearby well and dropped him in. The medical evidence did not establish whether the deceased died from the blow or from the fall into the well.
      Held: (1) The issue turns on the first act that creates the Situation leading to the mistaken belief in death. If the first act—in this case the blow—would probably cause death, then the subsequent death based on mistake would be murder. If the first act was likely to cause death, then the case would be culpable homicide not amounting to murder.
* Sitting at Bara.
                                                                    
(2) In this case the first act of accused shows clearly that he knew that death would be the probable and not only a likely consequence of his act. Hence even if deceased died as a result of the fall in the well, accused will still be presumed to have caused deceased’s death.
 

Judgment

2nd December 1959 Mudawi P.J. (President of the Major Court) in course of judgment said:—” It must be stated from the start that the medical evidence owing to the circumstances of the incident and the long interval between the date of the offence and that of the post-mortem (twenty-one days roughly) is conspicuously unhelpful. However, we have relied almost wholly on the confession of accused as regards this point.

Accused told us that he used “Exh. A “, a fourteen-and-a-half-wagias okkaz, that the blow was a strong one, and that it fell on the region of the neck and shoulder. Deceased immediately fell to the ground and “I stopped some time near him trying to revive him but I could not. Then I felt sure that he was dead”.

   These bits of evidence, i.e., the heavy okkaz, the region of the blow, the strength with which it was dealt and the fact that deceased died immediately after the blow, are overwhelming evidence that death of deceased was a consequence of the blow. The medical report as mentioned above is most equivocal and is not positive about any point. The doctor, owing to the lapse of time, is not sure whether the bones of the skull and the jaw were broken before or after the death of deceased. He is also quite uncertain whether deceased died immediately after the blow or as a result of strangulation or of the fall inside the well. This uncertainty of the report fatally diminished its value and hence we have to rely on confession of accused himself, who being a reasonable person informed the Court in no ambiguous terms that he waited for some time to revive his brother, but later he became sure that his brother was already dead. This is in our opinion enough to convince this Court that deceased died as a result of the blow.

   However, even if accused was mistaken in thinking that deceased was dead and even if death was caused either by strangulation on the way to the well or by the actual fall inside it, we have high judicial authority that this does not affect the situation either way. On page 137 of the Criminal Law—the General Part Professor Glanville-Williams quotes two cases on this point:—the first is an American case—Jackson vs. The Commonwealth,1 decided by the Court of Kentucky in 1896—and the second case, Reg vs. Khandu,2 was decided by the Court of Bombay in 1890. In the American

1 (1896) 100 Ky. 239; 38 S.W. 422.

2 (1890) I.L.R.  Bom.194.

Case Jackson attempted to murder a young woman in Ohio by administering cocaine to her and then, mistakenly thinking she was dead, brought her to Kentucky and cut off her head with the object of preventing identification. It was argued that Jackson could not be convicted of murder in Kentucky because although he killed the girl there the killing was not intentional, being done upon the supposition that he was dealing with a dead body. The object of the defence was to convince the Court that the cutting of the head, though it caused the death of the deceased, was unintentional and that the proper procedure was to send accused back to Ohio to be tried for attempted murder only. This argument was rejected by the Kentucky Court, which held that it had jurisdiction to convictJackson of murder, as “a crime is punishable in the jurisdiction in which it has effect”.

    The facts of the second case, Khandu’s case, are not reported by Professor Williams, and we were unable to trace them in the Indian reports. But Professor Williams states on p. 138 of the Criminal Law that a view contrary to that of the Kentucky Court was held by Bombay Court in Khandu’s case. However, Professor Williams, whose views were wholly adopted by this Court, prefers the American decision and thinks that such an act must be accounted murder because “the accused intends to kill and does kill; his only mistake is as to the precise moment of death and as to the precise act that effects death” and because “ordinary ideas of justice and common- sense require that such a case shall be treated as murder “.

    It seems to us that it all depends on the first act that creates the situation leading to the mistaken belief in death. If the first act—in this case the blow—would probably cause death, then the subsequent death based on mistake would be murder. If the first act was likely to cause death, then the case would be culpable homicide not amounting to murder.

   In this case the first act of accused shows clearly that he knew that death would be the probable and not only a likely consequence of his act. And hence even if deceased died as a result of the fall in the well—a suggestion which we wholly disbelieve—accused will still be presumed to have caused death of deceased.

                                                                                                    (Conviction)3

3 Conviction and sentence of death confirmed by the Chief Justice on 28th January

     1960 (AC-CP-433-1959).