Case No.:

AC.CP.23.1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 249 (1)—Crave and sudden provocation—Accused followed mother-in-law to illicit meeting knowing intention and killed lover— Defence not available

Accused heard his mother-in-law leave his house to meet her lover. He followed her to where he found her with her lover and killed the lover. Accused was charged with murder and convicted of culpable homicide not amounting to murder on grounds of grave and sudden provocation.
Held: Where accused was aware of the purpose for which his mother-in law left the house, the provocation from finding her with a lover after following her could not be so grave or sudden to make available the partial defence under Penal Code, s. 249 (1).

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MUSA SAMARA MUSA

AC.CP.23.1958

Advocate: Bakri Ahmed Abdel Hadi…….. for the accused

R. C. Soni J. March 4, I958 :—The trial court has taken a lenient view of this case. But it appears that in law the view taken can hardly be regarded as correct. The facts are simple. The barking of a dog aroused the accused from his slumber, It was dead of night, and may be it was even later. According to the Province Judge the time may be the small hours of ‘the morning. When the accused got up he saw his mother-in-law (who is also his aunt) go up the neighbouring mountain. The house of the accused is somewhere away fr ‘m his mother-in-law’s.

It was  quite evident that at that time of the night when she was going up the mountain throwing stones at the barking dog. that she was having a rendezvous with a lover.

The accused armed himself with a club or a fairly big stick as the Province judge puts it and also with a knife. Thus armed, he gets to the top of the mountain and according to the story believed, finds the mother-in-law in the arms of her lover preparing for sexual gratification He hit the lover with his club on the head and stabbed him with his knife. There are no signs of struggle found. The body of the accused when examined by the doctor bears no scratches or wounds. The lover died there and then. The doctor has found two wounds inflicted with a blunt weapon, and two wounds with a sharp edged weapon on the body of the deceased. The cause of death is cerebral haemorrhage and haemorrhage in the lungs (where the knife injuries were). Both, according to the doctor, were fatal.

It is clear beyond doubt that the accused went up the mountain to chastise the lovers. This is where the points of law arise. The accused was not the husband of the woman going up having a rendezvous with her lover. The accused was trespassing on her privacy. He was really seeking a provocation. He was taking upon himself the duties of a policeman, a judge and an executioner. The exception which reduces the offence from murder to the lesser form of culpable homicide requires two things.

The provocation should be grave and the provocation should be sudden. it cannot possibly be said that in this case it was sudden. The accused was going up voluntarily to meet the lady and her lover. He does not get confronted suddenly. He goes to see what he expects to find. This is not being faced with a situation suddenly. And secondly, the gravity of the provocation is to be considered. The law regards the husband as having rights over the body of his wife. But the law does not go further A mother-in-law or an aunt does not stand in the same position as a wife. In England I presume that if a man were suddenly to find his wife in the arms of a lover, and he kills the lover on the spot, it would not be murder. But it would be murder if he suspects the two of meeting

and goes where he expects to find them after having, taken steps to inflict his punishment. And it would be murder if the woman is not his Wife.

Regarding gravity where the woman is not the wife, there could be a difference of opinion. See Ratanlal, Law of Crimes 734 (18th ed,1953)

Babikir Awadalla J. March 5. I958 :—By authority of the Chief Justice, I refuse confirmation of these proceedings and refer case back for revision of finding. I entirely agree with the note by R. C. Soni J. that this cannot be a case of culpable homicide by reason of grave and sudden provocation. The law cannot be interpreted in a manner which goes so out of the way to protect the susceptibilities of persons of sub-normal emotion. It is true that the Explanation to Penal Code, S.249 (1), says that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. but that question does not arise except when all the conditions recognised by law for the applicability of the rule are present. If they are not, the court mistakenly applies the rule where it was never intended to apply , then the Confirming Authority is bound to intervene.

In this case there was both premeditation and preparation and they are both acts inconsistent with the assumption of loss of self-control (2 Gour, Penal Law of India 1304 (6th ed., 1955). This case is on all fours with Gohra’s case (reported, op. cit.. page 1305) save in that case the woman was the accused’s wife and not just his mother-in-law. None theless, it was held that the accused could not avail himself of this exception. On reporting this case, this authority states “So it has been he’d that where the accused was aware of the purpose for which his wife was leaving the house, his following her to a place where she was having connection with her paramour would be going in search of a provocation which could not then be said to be so grave and sudden as to deprive Mm of his self-control.” The argument is of course much stronger when the person who is being trailed for a surprise is not a wife but a mother-in-law on whom the law does not recognise any rights in favour of her son-in-law.

M. A. Abu Rannat C.J. (on confirmation after revision by Major Court, Port Sudan, in accordance with opinion of Babikir Awadalla J.) March 26, 1958:—Finding of murder is confirmed, but the death sentence is commuted to imprisonment for life from October 17. I957. If Dia is settled to the satisfaction of the Governor, Kassala Province, the sentence shall be reduced to ten years’ imprisonment from October 17, 1957.