Case No.:

AC-CP-219-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Evidence—Code of Criminal Procedure, s. 228 (3)—Medical assistant is not a ‘medical officer “—His report is inadmissible if not present under oath

·  Criminal Law—Penal Code, s. 318—Unnatural offence corroborative evidence usually necessary

Held: A medical assistant is not a “medical officer” within the meaning of Penal Code, s. 228 (3); his report is therefore not admissible evidence without his presence under oath.
Obiter dictum : Courts seldom convict defendants of rape or an unnatural offence without evidence corroborating the victim’s complaint.

Accused was convicted of an unnatural offence under Penal Code. S. 318. The only evidence corroborating the victim’s complaint was the report of a medical assistant.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT V. ALL FADLALLA EL GIALI

AC-CP-219-1956

Advocate: Abdin Ismail…….. for accused

M. I. El Nur, Acting C.J. September 30, 1956:—I have refused confirmation of the Finding and Sentence of your Major Court No. Kn. PC-44-1956 against accused ALI Fadlalla El Gaili for the following reasons:

The finding that accused did have carnal intercourse against the order of nature with complainant, Saleh Izzel Deen Hamed was based on the following evidence:

(i) The testimony of complainant, which was corroborated by his complaint to the police.

(2) The medical evidence which showed of complainant’s anal orifice as a result of penetration.

(3) The violence on complainant which reflected itself in the inflammation of his eye.

(4) The fact that accused and complainant slept in one bed.

(5)The fact that accused offered complainant’s father 75 piastres to induce him to drop his case.

It is almost a legal platitude that no charge is easier to concoct and more difficult to refute than a charge of rape or unnatural offence against children, and consequently the courts seldom convict upon uncorroborated

testimonies of the alleged victim. In the present case the fact that Saleh Izzel Deen did not complain to any one from early in the night of Thursday, January 26, 1956, when the act complained of was alleged to have been committed by accused until 9 o’clock in the morning of January 28, 5956, and the fact that even when he complained to his father, who took him to the police, he did not allege that anything was done to him by accused except the hit on his eye, are sufficient grounds to discredit him.

Apart from that the statements given by complainant to the police on January 28, 1956, and recorded on page 1 of the Case Diary varied materially from his statement before the court (see my pencil marginal notes on complainant’s statement).

As regards the medical evidence which the court considered as corroborative of complainant’s testimony; this consisted of the report of a medical assistant, which is not acceptable in evidence un Code of Criminal Procedure, S. 228 (3), since a medical assistant is not a medical officer, and even if the evidence of the said medical assistant was taken by the court on oath, as they ought to have done, the court should in the circumstances be most cautious in accepting and weighing his evidence since his knowledge and training are necessarily limited (see Criminal Court Circular, Part III, issued on February 15 1952).

Moreover, the medical officer (P.W.5) who examined complainant on January 29, 1956, i.e., only one day after the medical assistant, said “I looked into the anal orifice of complainant and no definite signs were then noticeable. There was nothing abnormal in particular about the sphincter.”

Therefore such medical evidence as is available goes to contradict rather than corroborate complainant’s shaky and inconsistent testimony.

The redding in complainant’s eye can in no way be taken as corroborative evidence. Complainant never mentioned it to the police. The medical officer (P.W. 5) says it was the result of an inflammation or a trauma by something.

Complainant said before the court he slept in a separate angareeb. Accused came to him in his angareeb. Whilst to the police he said “I slept with him in one angareeb and after that he said to me... ”

I do not think the fact that accused offered complainants father 75 piastres suggests that he actually committed the offence: he wanted to be spared from the scandalous accusation d which he was threatened. and as accused said to the court (page 29) be would have willingly paid £E30 or more to square up things if he really committed the alleged offence To this may be added that complainant's father said in court (page 13) “Complainant did not tell me that accused had coitus with him

as he got afraid of me but he spoke of it to the police in my presence.” This shows that when accused offered the 75 piastres, there was then no accusation of unnatural offence but simply a complaint of the hit on the eye.

For all above reasons I am of the opinion that the offence under Sudan Penal Code, S. 318, was not sufficiently established against accused, Ali Fadlalla El Gaul, and I therefore refuse the confirmation of the Finding and Sentence against him and order that he should be released forthwith