Case No.:

AC-CP-216-1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law — Penal Code. s. 79—Joint acts—Four in joint attack resulting in death attributable solely to none—All guilty of murder

Four accused attacked deceased who died from blows thus received. No one man was solely responsible for the death. Under Penal Code, ss. 79 and 251 all are guilty of.murder.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABU RAS TEIRAB AND OTHERS

AC-CP-216-1958

M. 1. E! Nur, Acting C.J. July 30, 1958 :—Accused No. 3 and Accused No.4 stated that Accused No.1 suggested to them and to Accused No. 2 to go with him to the house of his ex-mistress, Yondi Kassa, to beat deceased who replaced him in the love of Yondi Kassa and whom he expected to find sleeping with her.

Accused No. 3 and Accused No. 4 said they did not agree to the suggestion of Accused No.1, but Accused No. 2 did. Accused No. 1 and Accused No. 2 accordingly went to the house of Yondi Kassa armed with ukkazes. They found deceased inside the house. Accused  No. I challenged deceased to come out which the latter reluctantly did. Deceased

had a knife on his arm. A used No. i and deceased started to insult each other. Accused No. 2, seeing deceased was armed with a knife and was touching it as he talked to. Accused  No. 1 . realised deceased was not going to be an easy prey. So Accused No. 2 left Accused No. 1 and deceased insulting each other and went to P.W. 6, Baki Bringi, and aroused him from his sleep and brought him to the scene without telling him why he was wanted. P.W. 6 came to the scene unarmed. They found Accused No. 1 and deceased still exchanging hot insulting words. Deceased seeing he was then standing against three persons got excited and again started to put his hand on his knife. Accused No. 2 attempted to take away the knife from deceased’s arm, whereupon deceased drew his knife and stabbed Accused No. 2 on the back of his right leg . inflicting an injury 3” long reaching the muscle. P.W. 6 who was only playing the role of a Haggaz wanted to take the knife from deceased and in that attempt the knife injured his fingers. Deceased, thinking P.W. 6 was helping Accused No. i and Accused No. 2, stabbed him on the back. P.W. 6 fell to the ground. Then accused No. i and Accused No. 2 started to hit the deceased with their tall and heavy ukkazes. Deceased was then at a disadvantage as his knife could not reach his assailants. At that stage Accused No. 3 and Accused No. 4 came running armed with ukkazes and joined Accused No.1 and Accused No. 2 in striking deceased. Deceased collapsed to the ground as a result of that joint beating. Then Accused No. 3 and Accused No. 4 tied deceased’s hands behind his  back, and left him in that state. Deceased managed to drag himself to the nearby hut of P.W. 4 where he shortly died, affected by that hard heating.

The post-mortem revealed that the cause of deceased’s death was haemorrhage inside the brain resulting from the beating which left two cut.’wounds on the hack of the head, reaching the hone, without breaking the skull.

It is not clear from that evidence which of the four accused delivered to deceased the fatal blow which caused his death, but it is quite clear, rather admitted that all four accused participated in the beating of deceased which ultimately caused his death.

Under Penal Code, s. 79, whenever an act which is a criminal offence only by reason of its being done with a criminal knowledge or intention is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.

Accused said they only wanted to give deceased a beating, but from the nature of the heavy ukkazes with which they jointly hammered deceased and from the severity with which such hammering was effected,

all must be deemed to have knowledge that death would be the probable consequence of their joint act.

In my view, therefore, the court was quite right in finding the four above-mentioned .Accused guilty of the offence of murder under Penal (ode, s. 251, for causing the death of Abdu Abdel Kareem by jointly heating him with heavy ukkazcs, knowing at that time of their act that death would be the probable consequence and I therefore hereby confirm that finding.

On the sentences

The court having convicted the four accused of the offence of murder had no alternative hut to sentence all of them to death, The court, however, recommended Accused No.3 , Ahmed Musa, and Accused No. 4, Talees Baki, to mercy on account of their youth (they are 25 and 22 years respectively), and because the part they played in the fight was less sit than that of Accused No. 1 and Accused No. 2. The court made no recommendation for’ mercy in respect of the latter two accused.

The Governor endorsed the recommendation of the court in respect of Accused No. 3 and Accused No. . and also recommended Accused No. 2, Adam Abu Shoke, on the grounds that one of the witnesses said his blows to deceased were not on the head.

In my view the liability of each of all four accused for this murder is only constructive. It cannot be said for certain who was the accused whose blow fell on deceased’s head and was the ultimate cause of his death. They were all deemed liable because they participated in the beating of deceased. Accused No. 1, Abu Ras Teirab, was certainly the cause and instigator of all this fighting. Apart from his joint liability for this murder there is nothing to show he intended to cause the death of deceased. This is clear from his conduct and conduct of Accused No. 2, Adam Abu Shoke. when they first came to the hut f Yondi Kassa and found deceased there. When they realised deceased was armed and determined to defend himself they brought P.W. 6 to mediate and separate them, hut deceased, thinking the three of them stood against him, got ‘ and the fight started.

In my opinion therefore, though the part played by Accused No. 1 in the affair was the gravest, yet in view of the above facts there are also some extenuating factors in his favour.

For all the above reasons, and in exercise of my powers under Code of Criminal Procedure, s. 2 (r) (b), I thereby commute the death sentence passed on the four accused into the following sentences: Accused No. 1, Abu Ras Teirab—imprisonment for life as from January r6, 1%8: Accused No. 2. Adam Abu Shoke—imprisonment for fifteen years as from January

16, 1958; Accused No.3 . Ahmed Musa—imprisonment for thirteen years as from January 16,1958; Accused No. 4, Talees Baki—imprisonment for thirteen years as from January x6, 1958 .