Case No.:

AC.CP.2o7-1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, S. 249 (1)—Grave and sudden provocation—Marital infidelity—Wife divorced but in Idda period

Accused found his divorced wife having illicit relations while she was still in her Idda period and accused was trying to revoke the divorce. He killed her lover. This was grave and sudden provocation within the meaning of Penal Code. S. 249 (1), and accused was held guilty under Penal Code, s. 253.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. HUSSEIN IDRIS ABDALLA

AC.CP.2o7-1958

M. I. El Nur. Acting . C ‘July 16. 1958 :—Accused pleaded provocation. This was never considered by the court. En my view accused’s act is covered by Penal Code, 5. 249 (1).

Mastoura was only divorced from him three months before this incident. She was still in her Idda period. The divorce is thus revocable. On the evidence of Mastoura’s mother, accused tried to revoke the divorce but was asked to pay Ridwa which he could not afford.

in my view, to find a man in the course of a sexual act with one’s divorcee, is capable of provocation, particularly when one considers the attempt by accused to revoke that divorce.

I do not agree with the court that accused by coming to his wife at the late hour of the night was stalking her. One cannot exclude the possibility that accused’s intention in visiting his divorcee at the late hour of the night was to have sexual intercourse with her. There is no evidence at all that he expected to find deceased with his divorcee.

in my view, therefore, accused killed deceased while he was deprived of his self-control by grave and sudden provocation.

I therefore alter the finding of accused guilty under Penal Code, s251و. into a finding of not guilty of murder but guilty of culpable homicide not amounting to murder under Penal Code, s. 253.

 I reduce the sentence of death to a sentence of ten years’ imprisonment as from January 25, 1958.