Case No.:

AC-CP-3 15-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code. S. 93/318—Attempted unnatural offence distinguished from mere “preparation"

·  Criminal Law—Penal Code, s. 93 -Attempts at sexual offence rnust at least satisfy requirements of Penal Code, S. 319

Accused took a 1 boy to a lonely place tied his hands, pushed him into a house, threatened the boy with death if he refused unnatural intercourse, put dirt in the boy’s mouth to stifle his cries, and struggled to take off the boy’s libas. At this point the boy escaped. Accused was convicted of attempted unnatural offence under Penal Code, s. 93/3 18.
Held: These facts constitute a preparation not an attempt; because there is abduction, there Is an offence committed under Penal Code. s. 308.

Obiter dictum : There can be no attempt at sexual offence which does not at least constitute an offence under Penal Code. S. 319

Judgment

( MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT V. EL MAHDI ABDALLA MOHAMED KODEID)

AC-CP-3 15-1957

.

Facts found by Galal Ali Lutfi, President of the Major Court convened at Berber, October 24,1957:- On April 13, 1957 one Hassan Mukhtar (complainant) who is a boy of about 12 years, met accused, El Mahdi Abdalla at Berber Market. Both of them live at Eneibis, which is a village near Berber. Hassan was trying to find a car to take him home. Accused offered to take him with him on his donkey. Hassan accepted the offer and rode with him.

When they reached the ruins of Old Berber (El Shuram), accused told him that he had to see a blacksmith in the vicinity. So he went off the usual road and went inside the ruined houses. He stopped at a certain lonely place and asked complainant to sit down. Then he tied his hands with a rope and pushed him in. Hassan was greatly embarrassed by accused’s acts. He asked him why he was behaving like that. Accused replied that he wanted to have carnal intercourse with him and in case of refusal he would kill him. The boy cried out and began to struggle

to release himself. Accused attempted to stop his cries by shutting his mouth with his hand and by filling it with some dirt which he picked from the ground. They struggled for some time. Accused tried to take off complainant’s libas and before doing the act the boy was able to escape and he ran away.

He met one of those who lived with him in the same village, called EL Sheikh Suleiman (P.W. 3). He was weeping all the time.

He told the aforesaid person of what had happened. When he reached his home he informed his father and the matter was then raised to the police.

Babikir Awaddalla I. (by authority of the Chief Justice). December 11, 1957 —By authority’ of the Chief Justice, I am altering the finding to one under Penal Code, s. 308, abducting a person with intent to gratifying unnatural lust. I am also altering the sentence to one of imprisonment for one year.Although accused had declared his intention that he wanted to have sexual intercourse with the boy, yet all that he had done does not exceed the stage of preparation. It is true that the words of the Code in defining attempt appear to be very wide for they cover “any act done towards the commission of the offence.” It may be impossible to lay down a clear demarcation line between what is and what is not an act done towards the commission of the offence, but it had always been declared by authorities that an act which does not lead inevitably to the commission of the intended offence cannot amount to an “attempt.” Merely to induce a boy o go to an isolated place and there try to threaten or force him to join in the act are acts which do not inevitably lead to the complete offence, for something which the offender never contemplated may come to pass and prevent consummation. In fact, it can be taken as a general rule in the Sudan that there can be no attempt of a sexual offence which does not fall under Penal Code, s. 319. This section was imported from Egypt for the purpose of punishing abortive acts exceeding the stage of preparation but falling short of complete penetration, which in India are punishable either as attempts or, in the case of females, as indecent assaults. Unless this is constantly borne in mind the Indian authorities tend to mislead.

The facts of this case are in my view covered by Penal Code, s. 308. Complainant was no doubt abducted—i.e., by deceitful means induced to go into the ruins—with intent to subject him to the unnatural lust of aceused.