Case No.:

AC-CP-163-1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s, 249 (1)—Grave and sudden provocation—Test is reasonable man, not particular person

Defendant, who was “extremely excitable” and “irritable” and “afflicted with defective control of his nerves because of his being epileptic,” killed his half-sister because she insisted on being heard in a family discussion of a will. The partial defence of grave and sudden provocation . Penal Code, s. 249 (1), was raised.
Held : The test to be applied under Penal Code. s. 249 (1) is whether the provocation was sufficient to deprive a reasonable man of his self-control, not the particular person charged

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. BARAKIA WAJO

AC-CP-163-1958

.

M. 1. El Nur . J. July 2, 1958:—I am in full agreement with the finding reached by the court of accused being guilty of murder under Penal Code, S. 251.

The interference by deceased in the conversation between accused and their mutual brother (P.W. 1) and her insistence to give her opinion in a family matter in which she was herself concerned is not capable of provoking any reasonable person to the extent of losing his self-control .

Accused and P.W.1 were talking about a Will left by a deceased aunt of theirs whereby she ordained that her unpaid dowry should go to accused’s and P.W. 1’s nephew. Accused criticised that will and said the dowry ought to have been left for him and his brother (P.W.1) rather than to their nephew, Deceased interfered and said her deceased aunt had the right to leave her dower to whoever she preferred. Accused then resented the garrulousness of deceased and warned her not to talk about wills which are not the concern of a woman. Deceased insisted she had the right to speak on the matter, Whereupon accused, getting enraged by deceased’s insistence, suddenly collected a burning log of wood, 20 cms. thick, and holding it with both hands and with all his might, smote the top of the head of who was then sitting in a stool facing him, and thereby smashed her skull and scattered her brain, Deceased died instantaneously.

Accused was certainly an extremely excitable and irritable person and there is evidence that he was epileptic, though at the time he caused the death of deceased he was not subject to an epileptic fit.

The medical officer who examined accused said in his opinion, based on the authority of Savill’s System of Criminal Medicine: “Epileptic fits leave behind on the patient mental deterioration and increased irritability and makes the patient liable to commit criminal acts.”

As laid down by Lord Reading C.J. in the case of R. v. Lesbini [ 1914].3.K.B. 1116: “the test to be applied in order to determine whether homicide which would otherwise be murder is manslaughter by reason of provocation is whether the provocation was sufficient to deprive a reasonable man of his self-control, not whether it was sufficient to deprive the particular person charged with murder (e.g., a person afflicted with defective control and want of mental balance) of his self-control,”

Applying this test to this case I am in full agreement with the learned trying magistrate that the provocation of ac which was due not to the conduct of deceased which was not capable of provoking a reasonable person, but due to his irritability because of his being afflicted with defective control of his nerves because of his being epileptic, is not such grave and sudden provocation as would bring accused within the orbit of Penal Code, S. 249 (1).

In my opinion therefore, the -finding of accused guilty under- Penal Code, s. 251, is correct and should be confirmed.

The court having found accused guilty of murder sentenced him to death and said that the act of accused was brutal and there is need in this part of the country for people to think before they commit murder and they must be taught to respect human life, and suggested the rigid application of the rule of an eye for an eye.

The Governor, however, said “I do not recommend execution in view of the suspicion of mental infirmity of accused.”

In my view there is very little to be said in favour of accused. His act was extremely cruel and atrocious. To hit his sister with a burning log 20 cms, Thick , held with both hands and with all his might, smashing her skull and scattering her brain just because she said she had a right to express her opinion in a mutual family affair, exceeds all bounds of brutality and cruelty.

Accused who admitted to have once cruelly beaten a child under his care as a teacher for which he was imprisoned for three months on the same pretext of being irritable because of his mental defect due to epilepsy, should not be allowed to live and subject the public to his excitable convulsions.

In my opinion therefore the death sentence should be executed.

M. A. Abu Rannat C J July 5 , 1958:—There is no doubt about the correctness of the finding and I therefore confirm the finding of murder and death sentence.

Prerogative of mercy

I beg to refer to the Note of Sentence by Mr. Justice M. I. El Nur.

Cases of this nature need special close scrutiny to see whether there are such extenuating circumstances as would justify a reprieve. The accused was not insane, or weak minded, but he was emotionally unstable to an abnormal degree. En my view this should not be a reason for commutation of the death sentence.

The accused killed his half-sister in circumstances which are of peculiar atrocity, and I recommend that the death sentence be carried out.