Case No.:

AC-CP-43-1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code . s. 78 Joint acts—In common attack intended to cause and causing grievous hurt, companion of accused attempted murder—Accused guilty of grievous hurt

·  Criminal Law—Penal Code, s. 78 Joint acts—In common attack intended to cause and causing grievous hurt, accused caused only simple hurt—Guilty of grievous hurt

The three accused attacked complainant with common intent to cause him grievous hurt. Accused No. i inflicted light injury. Accused No. 2 inflicted grievous hurt. Accused No. 3 “exceeded the common intention” and attempted to murder the complainant.
Held: (i) Accused No. 2 was properly convicted under Penal Code. SS. 78 and 278, of jointly causing grievous hurt.
(ii) Accused No. 3 who joined with others in inflicting grievous hurt but exceeded the common intention was properly convicted of attempted murder.

Obiter dictum: Accused No.1 should have been convicted under Penal Code. SS. 78 and 278, for joining with others with common intent in inflicting grievous hurt, even though he himself only inflicted hurt.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT V. AL! FAGEERY HAMAD

AND OTHERS

AC-CP-43-1958

R. C. Soni J. March 16, 1958:—I think the evidence is reliable. All the three accused are involved in this incident. But I do not agree with the learned President of the trial court as to the nature of the offence. In my opinion all the three armed with weapons (swords, knives and sticks) which can be used effectively to cause grievous injury or death, had a common intention of giving a sound grievous thrashing to the complainant. The common intention was to cause grievous injury. Accused No. 3 exceeded that common intention. In my opinion the fact that Accused No.1 gave an injury which is light is not sufficient to exculpate him from his joining together with the others with the common intention of causing grievous hurt. Even If he had not given any injury he would have been guilty, if he had that common intention. In my opinion he had that common intention. “They also serve who only stand and wait’s was said by Milton and was used by the Privy Council in the case of Barendra Kumar Ghosh(1924) 52 l.A. 40; (1924] A.I.R. 9. (P.C),

in explaining the section of the Penal Code in India corresponding with the Sudan Penal Code, 5. 78. In my opinion the conviction of Ali Fageery Hamad, Accused No. I , should have been under Penal Code, s. 278 , read with Penal Code, s. 78, and an appropriate sentence given to him. He is the husband of Fatma (D.W. 1) who deposes that the complainant came to her at night in the absence of her husband to commit adultery with her. The intention of this accused could not have been less than those of his companions. He had the strongest motive. The conviction of the accused No. 2, Olool Eisa, should have been also under ss. 78/278.

The conviction of the third accused, Sheiba Abdel Gader is proper. He exceeded the common intention. But there is a disproportion between the sentences of Accused No. 2 and Accused No. 3.  If seven years be the proper sentence for the third accused for causing injuries No. 3 and 4. which caused compound fracture of wrist bones and which caused fracture of the skul;, resulting in 8o per cent. disability, then compared to this cutting off of the left thumb is very small. If seven years is proper for Accused No.3 then six years is too much for Accused No. 2, while one year is too little for Accused No. 1 in the circumstances.

M. A. Abu Rannat C .J. March 18, 1958 :—I agree in principle with R. C. Soni J., but I do not think it is desirable to send the case back for revision of finding in respect of Accused No. 1. I have therefore confirmed the finding and sentence in his case. As to Accused No . . 2, 1 have altered the finding to one under Penal Code, s. 278, and the sentence to five years. Finding and sentence against Accused No. 3 are confirmed.