Case No.:

AC-CP- 112-1960

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s.50 (a)—Extent of insanity required

·  Criminal Law—Code of Criminal Proçedure, s. 277 - partial insanity is cause for commutation

Accused, who was “emotionally unstable to an abnormal degree,” murdered her husband while “under the influence of strong emotion and distress of mind,” and was found to be “partially insane “. of the “melancholic type” who discover their defect in excessive fears and griefs and yet are not wholly destitute of the use of reason.” Although not sufficient to excuse her under Penal Code, s. 50. her partial insanity was sufficient to reduce the death penalty to life imprisonment.

Accused, who was “emotionally unstable to an abnormal degree,” murdered her husband while “under the influence of strong emotion and distress of mind,” and was found to be “partially insane “. of the “melancholic type” who discover their defect in excessive fears and griefs and yet are not wholly destitute of the use of reason.” Although not sufficient to excuse her under Penal Code, s. 50. her partial insanity was sufficient to reduce the death penalty to life imprisonment.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. NAFISA DAFALLA MOHAMED

AC-CP- 112-1960

Advocate: Mubarek Zarroug for the accused

B. Awadalla J. July 30, 1960:—The publicity acquired by this case arises not solely from the gravity of the offence and the untoward mode of the killing, but to a great extent from the fact that the victim was a well-known doctor in a society where doctors are few, and the offender none but his own wife and the mother of his five children.

The trial was admirably conducted by Bitar at the initial stage and Abu Agla who took over when the former retired.

The advocate for the defence, Abdel Moneim Mustafa, has made an admirable effort to establish a defence of insanity and the court made ‘a very lucid and comprehensive pronouncement on the merits of this defence, and ultimately rejected it.

In his present appeal to the Confirming Authority, Advocate Mubarek Zarroug reiterated almost the same arguments raised at the trial on behalf of the accused.

Both advocates also tried to make capital out of accused’s allegation that she was made to have a glass of beer under compulsion by deceased and, paradoxically enough, essayed to establish a defence of involuntary drunkenness simultaneously with that of insanity. It goes without saying that such a defence can never be joined with a defence of insanity, save as an alternative. But to try to allege that the mental condition of an insane person was further -etarded by involuntary drunkenness would be inconsistent with the defence of insanity as known to the law. The prerequisites of Penal Code, s. o, both for unsoundness of mind and involuntary drunkenness are the same, and if an accused’s reasoning was enveigled to such an extent that he had lost the power of appreciating the nature of his acts or of controlling them then he is excused from criminal responsibility, and drunkenness, voluntary or involuntary, is immaterial. If on the other hand he is simply partially insane and has lost no such powers then a defence of insanity is impossible.

I shall therefore confine myself to the merits of the defence of insanity, being the one seriously argued before the court.

The evidence by which such a defence was sought to be established can be classified as follows:

(i) Accused’s general disposition before the murder; and

(ii) Accused’s conduct subsequent to the murder.

As regards (i) this consists of:

(a) Evidence of accused’s relatives as to accused’s conduct generally.

(b) A letter addressed by deceased to D.W. 6 (accused’s brother).

(c) Letters written by accused to D.W 6, and

(d) Evidence of doctors who had seen accused as a patient in her normal life.

And I will deal with these in their above order.

(a) Evidence of accused’s relatives. This consists of isolated incidents enumerated at p. 3 et seq. of the learned advocates’s submissions. The learned President of the Court summed up his views on all these incidents at the bottom of p. 90 of the Record; he said that all these incidents pertain to the category of reasoned behaviour and do not amount to evidence of insanity. I entirely approve his quoting from Ratanlal, Crimes 159 (19th ed., 1956) the full text of which is as follows:

“A person cannot be said to be insane where all that is established is that he was moody. irritable and conceited and may be said to have been peculiar but at no time did he suffer from insanity of such nature or degree as to preclude him from knowing

the nature of his acts, or to obscure the distinction between right and wrong.” (Italics added  )

As will be seen below, the two psychiatrists who were heard by the court were of opinion that such incidents cannot per se amount to any evidence of insanity.

(b) Letter by deceased to D.W. 6. This letter was written, or so it is alleged, by deceased in 1956. It was not produced in evidence by D.W. 6 the person to whom it is alleged to have been addressed, but was simply presented to the court by accused’s advocate at an initial stage of the prosecution case when cross-examining P.W. . (Record, p. 27.) D.W. 6 in his evidence made no specific reference to the letter in question but simply stated (p. 73) that consequent on certain afflictions caused him by accused (his sister) he had written to deceased at Juba and that he had received a reply which he interpreted as insinuating insanity in accused.

This letter, being hearsay, is certainly inadmissible in proof of insanity, although if properly produced as a piece of original evidence, it is admissible to show deceased’s opinion as to accused’s mental condition.

(c) Letters by accused herself. These letters were duly produced by D.W. 6 and properly admitted as evidence. They were sent to him by accused at an unknown date and purport to have been written from Khartoum. As a true test of accused’s mental condition, they are, in my opinion, of no value. Though they were not specifically dealt with by the court in the judgment, one can surmise that, like other dispositions of accused, the court treated these letters as no more consistent with insanity than they are with sanity. In fact they display a clearly intelligent though aggressive and peevish disposition.

(d) Evidence of doctors who had seen accused as a patient in her normal life. Important evidence under this head was given by Dr. Tigani El Mahi, ex-Government psychiatrist, who had knowledge of accused’s condition for some time before the incident. He was called by the defence and stated that he had seen accused seven times during seven weeks between February and April 1956. This important witness stated that he had observed no signs of mental derangement in accused, though he said that he had observed she was labouring under tormenting feelings of jealousy and suspicion towards her husband, the deceased. Further, when asked about whether the incidents of which evidence was given by the relatives of accused afforded any proof of insanity, he stated that all such incidents could not per se enable him to say that the author thereof was a person. of unsound mind.

A certificate was also obtained purporting to have been issued by an Egyptian physician. It was not properly produced as evidence, and even if it were, it would certainly have been in admissible. It simply says that accused was seen by the said doctor on October it, 1952, suffering from lack of appetite, indigestion, insomnia and nervous strain. As it is. this certificate contains nothing which, quite apart from the question of inadmissibility, would have furthered the case for the defence. I am simply referring to it because it is relied on at p. i6 of the defence.

I now come to the second class of evidence sought to be relied upon by the defenc evidence of accused’s conduct subsequent to the murder.

Among all the persons who saw accused subsequent to the murder, the defence relied on the evidence of D.W. 7, 8 and 9. D.W. 7 is a medical attendant and the rest are warders. They all gave evidence of accused’s behaviour while u prison; the court made a short pronouncement on this evidence at the bottom of p. 93 and dismissed the suggestion that such conduct was indicative of unsoundness of mind at the time of the incident. It considered that since such behaviour succeeded the incident in point of time, it was more consonant with feigned than real insanity. This is also the view of an important witness for the prosecution, P.W. 4, Dr. El Nur Abdel Mageed.

Against this evidence by the defence, the prosecution relied on the important testimony by the Government pyschiatrist, Dr. B’ashar, and the Government physician under whose cape the accused was put immediately after the incident.

Dr. El Nur examined accused for the first time on the morning of the incident (January 28, 1959) at about 8 a.m.; his findings were that she smelt of alcohol though her blood test indicated absence of alcohol. ., regards her mental condition on that day, his finding was that she was normal.

He saw her again two weeks later when Dr. B’ashar came to examine her and his finding on that date was that she was also normal.

He examined her for a third time for an hour on the date of the trial, May 20, 1959. He stated that on that date she appeared hysterical, but added that the morbid excitement which she displayed at the time was, in his view, feigned rather than real.

Dr. B’ashar saw accused for the first time about five days after the incident on February 2, 1959. On that date he says he noticed nothing abnormal with her, save that she was suffering from an emotional rather than mental disorder, and was trying to shift the blame for the incident

onto the deceased. He saw her again at Khartoum on March 1, 1959and March 19, 1959, when he noticed no change in her mental condition. He examined her for a third time on the date of the trial and his finding on that occasion was that she was “hysterical “; he imputed this condition to the arrest and its concomitant discomfort. By reason of this conclusion the trial was adjourned under of Criminal Procedure. s. 284, because the accused’s mental condition precluded her being able to defend herself.

Dr. B’ashar examined accused for the last time about six months later (January 1, 1960) when he certified that she was normal and could defend herself.

Save for occasion on which accused appeared hysterical, none of the doctors who had seen her, whether before or after the incident, was of opinion that she was of unsound mind.

In my view that condition of morbid excitement or hysteria cannot have the slightest effect upon her legal responsibility towards the incident . For whether we say with Dr. Nur that it pertains to the category of feigned insanity, or whether we say with Dr. B that it was the outcome of the arrest and its concomitant discomfort, the result is the same: it does not amount to any evidence of mental aberration or derangement at the time of the incident. The conclusions the court that a person of sound cognition, will and emotion when she killed her husband are therefore no doubt correct.

Having come to that conclusion, I do not think there is any necessity for me or the court to delve into any metaphysical analysis of the differences between our law and other laws. Such a discussion is only relevant when unsoundness of mind is established, and the question arises whether or not an accused was prompted to do the act complained of by reason of an irresistible impulse

As’ no other defence besides insanity is alleged, and no ground put forward as reducing culpability from murder to culpable homicide, the Conviction of accused under Penal Code, s. 25!, is no doubt correct.

I have now to consider whether or not this is a hanging case. After careful consideration of all the circumstances I am of opinion that the death sentence should not be carried out. My reasons follow.

First, I consider. that although accused was sufficiently sane to be responsible for her acts, yet she was certified by Dr. Tigani El Mahi to be Iabouring under grave feelings of jealousy and suspicion toward her husband. Her possessive attitude toward her husband resulted in continuous ill-grounded fears which are the cause of her irritable and hot- tempered disposition. She is, in my view, the melancholic type that is described by Hale as the partially insane “who ... discover their defect

in excessive fears and griefs’ and yet are not wholly destitute of the use of reason. I  Russell, Crime 113 (11th  ed 1958).

I Russell. Crime 113  ( 11th ed. 1958) says that such persons are not to be excused in the commission of any capital offence. This is still the law in England. though under the Homicide Act of i their culpability know reduced from murder to manslaughter.

 "(1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or, any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing

(3) "A person who but for this section would be liable ... to be convicted of murder shall be liable instead to be convicted of manslaughter.”

Our law, of course, makes no such discrimination in favour of the partially insane, if I am to use that expression; but I hope that for that reason alone we should not lose sight of the consideration which prompted the English legislature to effect a change in this important compartment of criminal responsibility.

Secondly . I consider that deceased had considerably contributed to his own fate when, knowing of accused’s jealousy and irritability, he behaved towards her in a very provocative way on the night of the incident. To the police accused said that deceased spoke of his new Wife to her in a manner which was insulting both to feminine and marital pride. Both to the police and the court she contended that deceased had slapped her on the face and ordered her to quit the house in the dead of night. Her frame of mind at the time was one of grave despair and feeling of loss of raison d’être.” It would therefore be unfair to deal with her on the same footing as a person who kills in cold blood.

Thirdly, I consider that accused had punished herself and her children by the murder. She had lost the very person who posse all her thinking to an acquisitive degree and her repentance was evident from the start.

Lastly. I think we should try to avoid aggravating the psychological morbidity of the children of this unfortunate marriage by associating the name of their family with the “gallows.” They had been in the full glare of disreputabl publicity by the murder itself and I am sure that the psycho’ logical effects of ‘ hanging” their remaining parent. even though she was

the person at fault, as well as its effects on their social standing when they grow up, would be infinitely graver than when the mother is awarded a term of imprisontnent however long it may be.

I therefore recommend that accused be sentenced to imprisonment for life.

M. A. Abu Rannat Cf. July 30. 1960 : —I agree. I confirm the finding of murder and death sentence.

Prerogative of Mercy . This is the case of the wife of the late Dr. Dafalla Mustafa who killed her husband on the night of January 28, I959 at Wad Medani.

Both Mr. Justice Babikir Awadalla and I have examined the case, and we are of the opinion that the accused committed murder. The point of great importance is whether in the circumstances she should be hanged or not.

In addition to the reasons given by Mr. Justice Babikir Awa there are the following mitigating circumstances.

It has been proved that this woman was emotionally unstable to an abnormal degree and that she committed the offence under the influence of strong emotion arid distress of mind.

For all these reasons I beg to recommend that the death sentence be commuted to imprisonment for life under Code of Criminal Procedure,s.277.