Case No.:

AC-CP-97-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

· Criminal Law—Penal Code, s. 249 (2)—Exceeding right of private defence—Defence of person from rape under Penal Code, s. 55

Deceased attempted to rape the accused, who freed herself from the deceased, entered her house, and, when deceased tried to follow her, killed him with an axe. Accused pleaded self-defense to the charge of murder.
Held: Since accused inflicted more harm on the deceased than was reasonably necessary for the purpose of defence of her person, she exceeded the right of private defence and is guilty under Penal Code, s. 249 (2)

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ASURO LOTORIT

AC-CP-97-1957

.

Opinion of M. E. S. Gassonuma, Magistrate of the First Class, President of the Major Court convened at Torit, March 8, I957:—On January 6. 1957, there was a big gathering and dancing in the Latuka area at Torit.

At about to a.m. deceased came to the dancing place and asked accused to accompany him to his house. The latter agreed and they both went to the house, where they found white beer (marisa). Both accused and deceased started to drink together in the house of the latter till the afternoon, when accused got drunk and so she wanted to go to her house. Deceased allowed her to go and so she went home, taking with her the pipe of deceased after she had asked him to come and collect it later on. In the middle of the night, while accused was sleeping in her house, there came deceased and was shouting for her. Accused got up and when she went out of the house she found deceased, who started to persuade her to go to his house to drink the remainder of the beer. When accused refused to go, deceased started trying to have sexual intercourse with her by force. Accused then managed to free- herself from deceased and went back into the house. She picked up the axe and when deceased tried to follow her into the house she hit him with the sharp end of the axe on his forehead and then hit him twice with the handle of the axe on his back. Deceased then went back towards his house and accused resumed sleeping in her house. Next morning deceased was found lying dead in front of his house.

Surely the accused was exercising her right of private defence when the deceased was forcing her to have sexual intercourse with him.

Although it is admitted that deceased had committed adultery with accused before, she was not consenting to the act at the time of the offence, probably because deceased did not give her money as she said. On the other hand, accused had exceeded the power given to her by law by inflicting more harm than was necessary to inflict for the purpose of defence. As a proof for her refusal accused could only hit deceased with a stick or the handle of the a’ or even by just throwing him out of her room and closing the door.

The court, therefore, finds the accused guilty of culpable homicide not amounting to murder and punishable under Penal Code, s. 253.

M. A. Abu Rannat C.J May 26. 1957:— Finding and sentence arc confirmed.