Case No.:

AC-CP.21 1-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 44 of fact—Accused killed deceased thinking he was a beast—Penal Code, S. 255. conviction quashed

Accused heard something moving in the dark and in good faith believed it to be a wild beast. He threw his spear at the moving shadow which turned out to be his brother-in-law who died of the wound. Accused was convicted under Penal Code, s. 255.
Held: Conviction is quashed under Penal Code. s. 44: because accused believed in good faith that he was spearing a wild beast, when he killed deceased, his act was done under a mistake of fact and constitutes no offence.
Salient facts as found by Yahia Omran, Magistrate of the First Class, President of the Major Court Convened at Yambio, September 10, 1956:
Deceased is accused’s brother-in-law. He was blind. He went to accused’s house to chat.
It was midnight when accused left the house to ease nature. Deceased went out a short time later for the same purpose.
As accused was returning back to the house, he heard something moving in the cultivation close to his house. He threw his spear at the moving shadow and he was surprised to hear the voice of the deceased crying out. He with P.W. 3 and 4 removed him to the house where he remained suffering from the wound sustained, for about three weeks and at last died. Deceased’s body was buried three days before the police arrived.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MEJEI MBELE

AC-CP.21 1-1956

M. I. El-Nur, Acting C.J. September 19. 1956:—I refused confirmation of the finding by the court of accused Mejei Mbele guilty of an offence under Penal Code, s. 255. as well as the sentence of imprisonment for five years, and have ordered that the accused shall be set at liberty forthwith.

Accused speared deceased in pitch darkness inside cultivation in the forest, believing in good faith that the object of his assault was not a

human being, but a wild beast. His act is therefore covered by Penal code, s.44 , and constitutes no offence.

( Editor.s note: See opinion of Soni J. in Sudan Government v. Abdullah Mukhtar Nur (1959) S.L.J.R. I, 2-3 )