Case No.:

AC 202- 1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code. S. 249 (4)-Sudan fight—Defence unavailable to defendant who stabbed adversary unaware or at a disadvantage

·  Criminal Law—Penal Code, s. 249 (1)—Crave and sudden provocation_Retalition must be proportionate to the provocation

After a quarrel a fight broke out in which deceased and accusea were involved. All but the accused used sticks. In the fight, accused stbbed the deceased in the back. Accused pleaded sudden fight and grave and sudden provocation to the charge of murder.
Held: (i) Since the defence of sudden fight is available only to those who observe the rules of chivalry, ‘ which scorned the hitting of an adversary
unawares when placed at a disadvantage.” it is not available to the accused, who stabbed deceased in the back in a stick fight.

(ii) Since the retaliatory stabbing was far Out of proportion to the provocation, the accused cannot plead grave and sudden provocation under Penal Code,s.249 (1)

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. AWAD ADAM OMER

AC 202- 1957

Babikir Awadalla 1. September 4, 1957 : —This is a murder case arising out of a shakla between six Sudanese—natives of Darwish village near Wad Medani—and three Fellata living in the Fellata quarter of the same village.

The facts of the case are clearly, and in my view, correctly stated by the court at rages 36—38 of the proceedings. To make the picture more visible in the mind of the reader, I would only like to add two things:

(a) The night f the incident was a moonlit night. It was the 17th of the lunar month (Thul Ga’ida) and at the time of the shakla (about 9 p.m.) the moon would certainly have risen reasonably high and visibility would be very good, even if it were a cloudy night;

(b) the court gave no weight or consideration whatsoever to the fact that there was a previous shakla between the parties or at least between accused and deceased. The infuriation of accused consequent on an apparently simple remark like “Ya KhaIli, al gamaa joe” can only be truly appreciated in the light of this incident, and is only indicative of the fact that accused did not join the gambling party with a clear head or without premeditation.

As regards the law: I entirely agree with the majority of the court that this is a case of murder. I entirely disagree with the President for the following reasons:

Grave and sudden provocation: It does not appear that it was the deceased who started the provocation. As I said before; the d,issentient President did not appreciate that the parties concerned had a dispute recently before the incident and that a reaction to the remark of the deceased cannot be so violent as to make accused stand up and retort in words like “inta gassid aih” which in this country are always an invitation for a scuffle. The demeanour of accused is such that it c fairly be said that it w part of his plan to incite deceased to give him provocation. It was in my opinion “provocation sought or voluntarily provoked” by accused within the meaning of Penal Code. s. 38.

Again the time taken by accused after separation to go away for a distance of ten metres, take off his gallabia, draw his knife and then walk back, can hardly be said to make the offence an act in the spur of the moment which is an. essential criterion in determining whether the provocation was or was not sudden.

The learned President assumed that the separation effected by Khalifa El Zein and BabiKir El Siddik was not done “without discrimination” and from this assumption proceeded to draw the conclusion that accused was enveloped in a paroxysm of passion from the time of separation until he delivered the fatal stab. I am unable to trace any evidence that Khalifa or Babikir was guilty of any act of violence against accused. It is true that Babikir was later involved in exchange of blows against Younis and Yakoub (the other two Fellata). But even if the President’s assumption is right, how can X set up a provocation given by Y in a fatal assault against Z!

For the above reasons, I do not agree with the dissentient President that there was provocation in this case.

Sudden light: Here again I agree with the majority of the court. The use of a knife in a fight in which all others are carrying sticks no doubt prevents accused from the benefits of this exception. It is pertinent to mention that the medical evidence shows that the blow was delivered from the back. It is strange that the President himself admits at page 48 of his note that the stab was delivered to deceased while he was turning to run away. This is the very fact which deprives the accused of the benefits of this section over and above the one already stated. This section is not just intended to be a universal licence to commit murder whenever there is a sudden fight. It is only available to the person who— in the words of 2 Gour, Penal Law of India 1321 (6th ed. 1955)—observes the rules of chivalry “which required adversaries to deliver a challenge, to measure their swords before deigning to strike, which scorned the hitting of an adversary unawares when placed at a disadvantage.”

Sentence: Having found that the offence is murder, I think the court was justified in awarding the capital punishment. It is true that the accused committed the offence when ‘his passions were to some extent aroused by the fight and that might be a ground for mitigation, ‘but, I think there is a very important element of public order in this case which must not be lost sight of and which the Sudanese members must have taken into consideration. This is the very common case which, if not, punished in a way which would satisfy the indignation of the relatives of the deceased, then serious trouble may ensue in future. Here we have two factions—Fellata and Arabs—living together in one locality; maybe they are both primitive, at least to some extent. It is in my view very essential that both of them must be made to feel the strong hand of the law. I am ‘certain that if a lighter punishment than the death penalty be imposed then retaliation in the form of individual murders or tribal fights will be the consequence.

Police investigation: Poorest I have ever seen and so sketchy that it only covers eleven pages: this is because the police officer had no line to follow and just dotted down what the witnesses and accused had to say and very briefly. Committed the very serious mistake of not searching for the knife on the same night of the incident. In taking the statement of Atiyeh, he stopped in the middle in order—as he said—to take the statement of Babikir El Siddik. Babikir at that time was unconscious and the remainder of the statement—though purporting to be that of Babikir is definitely Atiyeh’s statement (see page 4 of typewritten Case Diary). Serious inaccuracies, e.g., at top of page 2, Osmari Hamid said I did not see the knife and the accused named Awal has as I could notice a knife round his waist.” I do not know what this can mean but sheer careless ness! This police officer committed sheer perjury when he told the court that he searched the houses of accused and the other men “that night” meaning the night of the 26th, while he did so only on the evening of the 27th. Lastly, I wonder whether anyone with any sense of responsibility would come to a court unprepared on a case which he was investigating and fail to remember a most material point like the number of stab wounds inflicted on the deceased. The medical evidence shows that there was just one stab wound, but this officer kept telling the court that there were two wounds.

I think the case must be reported to the Ministry of Interior for action.

Magisterial inquiry: Kept for more than two months before conducting the magisterial inquiry. Failed to take the statement of Abdulla Yakoub— a most important witness—who was a Fellati and in spite of that fact gave evidence against accused and described his knife. He was called by the court.

Court: Great delay of more than six months for which some explanation is due. Trial well conducted, save that the statement of accused at the magisterial inquiry ought to have been attached to and formed part of the proceedings.

M. .4. Abu Rannat C.J. September 7. 1957:—The President of the court should be commended for the patience and care taken by him in trying this case.

As to police investigation and delay in trial, I entirely agree with the remarks of Babikir Awadalla J., and a copy of these notes should be sent to the Permanent Under-Secretary, Minister of Interior, for bringing these remarks to the notice of the investigator in this particular case and also for guidance to other police officers

On the merits: The facts set out in the Summary of Salient Facts are supported by sufficient evidence.

On these facts, it has been proved beyond reasonable doubt that the accused stabbed the deceased with a sharp instrument and that he thereby caused his death, It is also clear from the nature of the wound and the weapon used in inflicting the stab wound that the accused intended to cause deceased’s death.

Prima facie the accused committed murder.

Two defences were set up on behalf of the accused under the Penal Code, ss. 249 (1) and 249 (4). The relevant part of Penal Code, S. 249 (i), reads: ‘ culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation.”

This subsection is identical with the Ceylon Penal Code, s. 294.

In addition to the argument put forward by Babikir Awadalla j. with which I entirely agree, there. is a strong authority which shows that in such cases as this, the defence of grave and sudden provocation cannot be sustained.

In Att.-Gen. for Ceylon v. Kumarsinghege [1953] A.C. 200, the Privy Council considered the Ceylon Penal Code, s. 294, and declared that “the words ‘grave’ and ‘sudden’ are both relative terms, and must, at least to a great extent, be decided by comparing the nature of the provocation with that of the retaliatory act. It is impossible to determine whether the provocation was grave without at the same time considering the act which resulted from the provocation, and it is wrong to say that, because the’ Penal Code does not expressly say that the retaliation must bear some relation to the provocation, the contrary is the case.”

In this case, the words used by the deceased that the “group have come,” and the subsequent blow by deceased on accused, do not warrant stabbing with a knife on a vital part of the deceased’s body. The defence of provocation could not succeed, and the charge of murder be reduced to culpable homicide not amounting to murder, unless the action of the accused taken by him in consequence of the provocation was reasonably commensurate with the degree of provocation offered to him.

The second line of defence is that there was fair fight within the meaning of subsection 4 of Penal Code, s. 249. 1 agree with Babikir Awadalla J. that the accused at least took undue advantage.

Murder is proved and I confirm the finding of murder and death

sentence