Case No.:

AC-CP-244-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal law,—Penal Code, s. 250 Transferred intent in homicide

Accused stabbed and killed his daughter at night thinking he was killing his wife.
Held: Finding of guilty under Penal Code, SS. 250 and 251 confirmed.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EL AMIN ADAMA MOHAMED

AC-CP-244-1957

M. I. El Nur J. October 21, 1957:—This is a straightforward case of murder by mistake where accused entered by night into a dark hut where his wife Fatma Abdalla and her deceased daughter Hawa slept; intending to kill his wife and mistakenly inflicted four stab wounds on his innocent child, causing her death.

Accused, who worked as Ghaffir of the Omda of El Ghabsha and lived in a hut near the Omda’s house, was married to Fatma Abdalla about six years before the date of this incident and they were apparently living in’ peace all that time.

On September 7, 1956, accused left his house at noon and returned to it just before sunset, carrying a pair of tins of water coming from the welis. He found his wife waiting for him, having prepared their afternoon coffee. He found their neighbour, Zeinab Ibrahim sitting with his wife. Accused’s wife Innocently asked him why he was so late. Accused, apparently labouring under the delusion that his wife suspected he was spending his time with another woman, rudely said to her “ I was in the red heavens"  and threateningly pointing his finger to her eye said to her ‘ on arc an impertinent malingering woman’ Consequently accused’s

wife sail to him “ if you no longer want me just please divorce me.”

Accused replied “if you pay me £S.10 I would divorce you.” Accused’s wife said she could not pay such a sum.

Accused’s wife then went to the Omda to complain to him. The Omda -apparently told her to wait till tomorow.

Accused’s wife slept with her daughter in a hut inside the Omda’s house. Zeinab Ibrahim slept with them in the same hut.

Shortly after that, the accused came to the Omda and requested him to hear his case with his wife. The Omda told accused he would hear their case next morning. Accused was apparently not satisfied and so he went back to his house, collected his knife and proceeded towards the hut where his wife and daughter slept. It was then round about 9.30 p.m. Zeinab Ibrahim, who was sleeping in the hut with accused’s wife, saw him approaching, carrying his unsheathed knife and ukkaz. She stood in the entrance of the hut and entreated accused not to enter. Accused pushed her away and entered the dark hut. Accused’s wife apprehending the imminent danger to her life, turned the angareeb where she and her daughter Hawa (deceased) slept over her. Her daughter fell in front of the angareeb and they both started to scream. Accused went towards the voice and directed his stabbing. He inflicted four very severe stab wounds on Hawa thinking he was then stabbing his wife Fatma. People then gathered and took the knife away from accused and arrested him.

The wounds inflicted on Hawa show great severity. The first of them penetrated the right chest, broke three ribs and cut the lung. It was 3" wide and 5" deep. The second stab went 41/2" deep into the right buttock. The third and fourth stabs fell on the child’s thighs and were about 4" deep.

Hawa died about two hours later affected by these injuries and particularly the first one which was fatal.

Upon trial accused made a clear confession that he intended to stab his wife Fatma but in the darkness his stabs fell on his daughter whom he never intended to injure.

The court rightly found accused guilty of murder under Penal Code, S. 251, as read with Penal Code, s. 250. I am in full agreement with that finding.

The court passed a sentence of death and not only refrained from recommending accused to mercy, but they both (the court and the Governor) recommended that the death sentence should be executed.

The reason given by the court for its recommendation was that accused was acting in a very cruel and savage manner: and the reason given by the Governor was that the execution of the capital punishment, in the circumstances, is in the interest of justice.

According to Circular No. 26, paragraph 9, the prerogative of mercy

is seldom exercised where murder is accompanied by premeditation or in circumstances of peculiar atrocity, which includes wife killing.

In the present case there was certainly premeditation by accused to kill his wife Fatma, but by mistake killed his own daughter instead.

I have been meditating in this case for the last three nights, considering whether or not I should augment the recommendations of the court and Governor about the execution of the death sentence in this case, and after the deepest thought I feel that I could not agree that this is a hanging case for the following reasons:

(1)The circumstances of this case show, though there is no direct evidence to prove it, that accused was not quite mentally balanced. This is clear from his attitude when he took this line for no reasonable cause at all.

(2) Accused killed his daughter by mistake. He was convicted of murder on the principle of transferred malice only.

(3) On directing his stabs in the darkness he did not aim at any particular part of his victim’s body. It was most unfortunate’ he unaimingly hit at a vulnerable part.

(4)If these stabs fell on his wife as he intended them to, she might not have been so greatly affected to the extent of death, being c and stronger.

(5) Last but not least, because the rule in Sharia law is that a father who kills son or daughter in whatever circumstances should in no way be hanged for it. I mention this rule of Sharia law as persuasive, since we have no fixed rule of law indicating exactly where the sentence of death should necessarily be executed.

For all above reasons I think there is a good case for prerogative of mercy in this case.

M. A. Abu Rannat C October 24, 1957 :—I agree that the offence of murder has been proved against accused El Amin Adam Mohamed. The only difficulty in this case is whether the death sentence should be commuted or not. I find that there is evidence to support the contention that this man at some time lost his self-control by some provocation. It was not a grave provocation which normally reduces the offence of murder to one of culpable homicide not amounting to murder.

The facts show that the accused intended to kill his wife but mistakenly he stabbed his five-year-old daughter several times. The child was crying and both the child and her mother were under the bedstead. If the accused was in a normal state of mind he should have distinguished between the screaming of his daughter and that of his wife. Until he

was taken out from the hut he beliesed that he killed his wife and on discovery of the facts, he expressed great sorrow.

On these grounds I feel that there was no premeditation. The accused was brooding for some time and while he was infested by an idea that the quarrel between himself and his wife should have been settled at that moment, he suddenly moved to the hut where his wife and daughter were sleeping and attacked them. At any rate he committed the murder in hot blood and for these reasons I have commuted the death sentence to imprisonment for life under Code of Criminal Procedure, s. 256 (1) (b).