Case No.:

AC.CP.124-1959

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law — Penal Code . s. 42—Presumption of knowledge not rebuttable

·  Criminal Law — Penal Code . s. 25I— commuted because of drunkenness

In a drunken brawl, accused stabbed deceased to death. Accused was at the time of the killing so drunk that ‘there was no intent to kill” Accused pleaded that the presumption of knowledge in Penal Code. 5. 42. is rebuttable, and that therefore he cannot be said to have known death to be probable or likely result of his act within the meaning of Penal Code. ss. 246 and 248 (b)
Held : (i) The prcsumption of knowledge in Penal Code. s. 42, is not rebuttable, accused shall there be held to have known that death was a probable rt of hi act, and is guilty of murder.

(ii) Because the murder took place while accused ss as in a ‘ State of drunkenness:; falling short of legal defence,” sentenc4 of death is commuted to life.
[Editor's note: But see Sudan Government s’. Abujuku Musu, AC.CP- 329-1958,1961 ,S.L.J.R.127   and Sudan Government v. Mursal Saeed FADL  El Mula. AC-CP.517 (  1992 )

Judgment

(MAIOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. HASAN MOHAMED EL SAYYAD

AC.CP.124-1959

Advocate: Mubarek Zarroug……………. for accused

M. A. Abu Rannat C.]. June 10, 1959 :—The undisputed facts are these: The accused and five men met on February . 5 at a house to drink. As is expected, they started at first to drink marisa, and after they finished it, they moved to another house where they started to drink araki. At about 4 p.m. it appear that they all became drunk. The accused and deceased and one of the party by name Osman were also smoking hashish. When the party was about to disperse. the deceased was stabbed to death, and Osman was injured in his hand.

When the police came all the witnesses did not give a coherent statement and all of them stated they did not know the person who stabbed the deceased, except The accused and his fellow fisherman. Khogali, each of whom claimed that he killed the deceased. Next day. in the morning. when they all became sober, all the witnesses, including Khogali, stated that the person who stabbed the deceased was the accused and they described the circumstances in which the deceased was stabbed.

In an able submission, Advocate Mubarek Zarroug pointed out the discrepancies in the evidence given by these witnesses. He suspects that Osman Yusif who sustained an injury on his hand might have been the doer of the physical act, the stabbing of the deceased.

1 do not think that Osman did the act, because El Safa who was not drunk, and who stuck to her statement from the start of the investigation until the end of the trial, said that Osman was trying to stop the red man (meaning accused) from doing another injury. In her statement in the Case Diary (pages 9—10) she said she saw Osman wounded, and was pushing the accused. The other suspect was not seen by her at first which shows that he was not near the deceased. Then she added that Abdalla Shammat was accusing Khogali of doing a wrong act: later she explained that Osman was merely a peacemaker who was pushing the accused while the accused and Khogali were standing.

On examination of the suspects. the police officer stated that he found the accused wearing a damooriya garment which was covered with blood from the front and a fresh cut in the neck-opening of the garment. The

exhibits also show dots of blood on the tront of khhogali’s gellabia, and on the sleeves of Osman’s gellabia.

This piece of evidence shows that the person who was in contact with the deceased was the accused. The investigator also gave evidence that in his first interrogation of the suspects, only Osman stated clearly that he was stabbed by accused. If Osman stabbed the deceased, the blood would have bespattered a large part of his garment, while the facts show that only dots of blood were found on the sleeve of his garment. The reason for this is that he was wounded in his wrist and the blood on the sleeves was from the bleeding wound. The other persons on whose clothes were dots of blood are satisfactorily explained, as they removed the deceased from the ground to the angareeb.

There is no reason for the witnesses to say that accused and not Khogali stabbed the deceased, as Khogali is a stranger in the village and was not seen by them before the day of the incident.

On these facts, I believe it is proved that accused stabbed the deceased and thereby caused his death.

The next point of great importance is whether he intended or knew that death would be the probable consequence of his act.

The learned advocate for the accused referred to Penal Code, s.  42 section 42 reads:

“A person who does an act in a state of intoxication. is presumed. to have the same knowledge as he would have had if he had not been intoxicated.”

The question to be asked is this. Is the presumption a rebuttable one? The answer in my view is “No “—for in its terms it is not, especially when you compare it with section41

I therefore come to the conclusion that accused must have known that death would be the probable consequence of his act.

On reading the record I do not think that any of the exceptions contained in Penal Code, s. 249, is applicable to t facts of this case. There was no grave and sudden provocation, since the abusive words were uttered by the accused and not by the deceased and the refusal of the deceased to give a hashish cigarette to the accused does not constitute grave provocation (see Summary of Salient Facts). There was no question of defence since the deceased had no weapon at all. There was no sudden fight, but even if there was one, the accused must have taken undue advantage and. acted in a cruel manner. For these reasons I confirm the finding of murder.

As to sentence, the court passed the normal sentence of death and declined to recommend accused to mercy.

The facts show that accused was in a state of intoxication from 4 p.m. until 5 a.m. next day. He was sleeping and unable to make a statement during this time while he was in custody. In Eng1 murders committed in a state of drunkenness falling short of legal defence especially if the murderer is hitherto of good character, are normally commuted. This applies to this case, and it may be added that there was no intent to kill and it was all a drunken brawl.

I think this is not a hanging case, and I therefore commute the death sentence to imprisonment for life under Code of Criminal Procedure, S. 256 (d(..